Hernandez Duarte v. Holder

MEMORANDUM

In 1999, petitioner Felisberto Hernandez Duarte entered the United States without inspection. In 2000, petitioner applied for asylum and withholding of removal. In September 2003, petitioner appeared at a removal hearing and admitted he was subject to removal. He stated he instead would apply for cancellation of removal and, alternatively, voluntary departure. In March 2004, he filed his application for cancellation of removal.

In April 2001, petitioner’s employer had submitted an application for a labor certification. In July 2001, the California Employment Development Department sent a letter stating the processing of the labor certification application would be delayed due to a large volume of pending cases. On December 27, 2004, petitioner’s new employer submitted a new application for labor certification. On January 3, 2005, petitioner moved to continue the hearing on his cancellation application that was set for February 7, 2005. One reason for the continuance was to allow time for the labor certification application. On January 7, 2005, the Immigration Judge (“IJ”) denied the motion for a continuance because she would not allow the case to be pending on her…