Kwak v. Holder, 09-3681, concerned a petition for review a decision of the BIA affirming an IJ's denial of a Korean citizen's application for a continuance of proceedings and entering an order of removal. In denying the petition, the court held that the BIA's conclusion that the IJ did not abuse its discretion in denying the continuance was consistent with prior jurisprudence. The court also held that the BIA did not abuse its discretion in denying the request for continuance despite the pendency of petitioner's I-601. Lastly, the court held that the BIA did not abuse its discretion by considering the number and length of the continuances granted throughout petitioner's exclusion proceedings, nor in relying, in part, on the DHS's opposition to a continuance.
Wysocki v. Int'l Bus. Mach. Corp., No.09-5161, concerned a plaintiff's action against his former employer, IBM, for violation of the Uniform Services Employment and Reemployment Rights Act (USERRA), alleging IBM refused to properly reintegrate him as a data administrator after returning from military service in Afghanistan. In affirming the district court's decision to convert IBM's motion to dismiss into a motion for summary judgment and granting it, the court held that it was not an abuse of discretion for the district court to determine that plaintiff had notice that the motion to dismiss might be converted into a motion for summary judgment and that he had a reasonable opportunity to present materials outside the pleadings. Moreover, a release is valid because, although 38 U.S.C. section 4302 applies to a waiver of all procedural rights, section 4302 does not prevent plaintiff from releasing his USERRA rights.