UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued August 8, 2006
Decided September 13, 2006
Before
Hon. DANIEL A. MANION, Circuit Judge
Hon. ILANA DIAMOND ROVNER, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
Nos. 05-3006 & 05-4350
SAEED ALI, Petitions for Review of an Order of the
Petitioner, Board of Immigration Appeals
v. A76 773 855
ALBERTO GONZALES, Attorney
General of the United States,
Respondent.
ORDER
Saeed Ali’s two petitions for review are premised on his contention that he is
“grandfathered” under section 245(i) of the Immigration and Nationality Act, and
that the Immigration Judge and Board of Immigration Appeals abused their
discretion by denying him a continuance to pursue a pending labor certification and
adjustment of status (and for refusing to reopen his case when the certification was
approved). The IJ ruled that Ali was not grandfathered—a ruling that Ali simply
ignores. Since Ali premises all of his arguments on an assumption that he is
grandfathered, we deny his petitions.
Ali came to the United States in late 1998 and overstayed his visa, so the
Immigration and Naturalization Service (now Department of Homeland Security)
Nos. 05-3006 & 05-4350 Page 2
sought to remove him. The protracted proceedings began with a hearing in April
2003 that was continued twice so that Ali could obtain a lawyer.
At the next hearing in October 2003, Ali asked for a continuance because he
was awaiting approval of an application for a labor certification filed on his behalf
by Dunkin Donuts in August 2003. Ali claimed that he was entitled to wait for the
approval of that labor certification application because he was a grandfathered
alien under section 245(i) of the INA. A grandfathered alien is permitted to apply
for adjustment of status whenever a visa becomes available to him. See 8 U.S.C.
§ 1255(a)(3), (i)(2)(B). To be grandfathered, an alien must be the “beneficiary” of a
visa petition or labor certification application filed before April 30, 2001. See 8
U.S.C. § 1255(i). Ali claimed that he was grandfathered because a company called
Broadway Grocery & Video had failed a labor certification application for him on
April 27, 2001. And since he was grandfathered, Ali continued, he would be eligible
to adjust his status once the visa on the second employment application came
through.
The IJ declined to consider granting the continuance until Ali presented
evidence that an application for a labor certification had been filed on his behalf
before April 30, 2001—the last date for filing of an application to secure
grandfathered status under section 245(i), see 8 U.S.C. § 1255(i)(1)(B)—and
therefore the IJ scheduled a new hearing. In the meantime, Ali filed evidence
including Broadway Grocery’s tax returns, city license, articles of incorporation, and
the application for labor certification itself.
The IJ held a hearing and decided that the prior application was not
“approvable when filed,” a prerequisite to grandfather status under section 245(i),
see 8 U.S.C. § 1255(i)(1); 8 C.F.R. §§ 245.10(a)(1)(i)(B), 1245.10(a)(1)(i)(B). The IJ
explained that while the application was for the position of store manager, it was
clear from the application itself that Ali was unqualified for that job. Although the
application required Ali to “list any . . . jobs related to the occupation for which the
alien is seeking certification,” the IJ explained that Ali’s only listed experience was
as a cab driver for less than a year and a half and cashier for a few months, and the
application showed that Ali did not have even the minimum required number of
years’ experience for the job. Consequently, the IJ decided that Ali was not
grandfathered under section 245(i) and refused a continuance to pursue the pending
application for labor certification filed by Dunkin Donuts, noting that he did not
believe that there was ever a real job offer from Broadway Grocery.
Although the IJ refused Ali a continuance to allow him to pursue adjustment
of status, the IJ did grant him a continuance to apply for asylum and withholding of
removal. Ali prepared an asylum application and returned for yet another hearing
but, at that hearing, obtained still another continuance so a newly hired substitute
Nos. 05-3006 & 05-4350 Page 3
lawyer could prepare for an asylum hearing. In granting this last of Ali’s
continuances, the IJ warned against frivolous filings and “stalling” tactics. When
Ali returned for his final hearing, he declined to pursue asylum or withholding of
removal.
Noting that Ali had conceded removability, the IJ entered an order granting
voluntary departure and reaffirming his refusal of a continuance to await action on
the Dunkin Donuts application. “After review of the record,” the IJ decided, “I find
that an indefinite continuance of the respondent’s case to await the adjustment of a
pending labor certification that may or may not make him eligible to adjust status
is not reasonable.” The IJ added that “the respondent’s second labor certification
has been pending for a period of years and is not approved.”
Ali appealed to the BIA, arguing that the IJ should have granted a
continuance because the Dunkin Donuts application for a labor certification was
meritorious, and in fact had since been approved, but he failed to challenge or even
acknowledge the IJ’s ruling that he is not grandfathered under section 245(i). The
BIA affirmed and adopted the IJ’s opinion, adding that the IJ had a duty to expedite
proceedings, that Ali already had obtained several continuances, and that another
continuance was inappropriate under BIA precedent because he was not eligible for
relief and the DHS opposed a stay.
Then in September 2005 Ali filed a motion to reopen, resubmitting the very
same evidence of his approved Dunkin Donuts application that he had already
submitted with his appellate brief to the BIA. Focusing only on that application, he
once again failed to challenge or mention the IJ’s conclusion that he was not
grandfathered. Declining to reopen, the BIA explained that he was not prima facie
eligible for adjustment of status without the visa.
Ali timely petitioned for review of both of these orders, and the petitions are
now consolidated.
In his petition for review, Ali argues that the IJ and BIA abused their
discretion by refusing to continue his case so he could pursue a visa on the basis of
the application for a labor certification filed by Dunkin Donuts, and that the BIA
abused its discretion by refusing to reopen the case. Although his petition is
difficult to parse, he appears to contend that Subhan v. Ashcroft, 383 F.3d 591 (7th
Cir. 2004), requires the agency to grant a continuance and a motion to reopen to any
grandfathered alien who is pursuing a pending labor certification.
Ali, however, misunderstands Subhan. That case does not require an IJ to
grant a continuance whenever an alien grandfathered under section 245(i) is
pursuing a visa that may ultimately allow adjustment of status. Instead, Subhan
Nos. 05-3006 & 05-4350 Page 4
holds that the agency may deny a continuance so long as it provides a reason
consistent with the statute—like the alien’s foot-dragging, criminal activity, or lack
of merit to his application. Id. at 593-94; see Pede v. Gonzales, 442 F.3d 570, 571
(7th Cir. 2006). Here, the IJ noted Ali’s footdragging by discussing several
continuances he had already received, including the continuance for the unpursued
asylum application. In short, the BIA appeared to believe that this was an alien
who was dragging out removal proceedings. See Subhan, 383 F.3d at 593-94.
Foot-dragging aside, the IJ’s explanation that Ali was not grandfathered in
the first place is another distinction between this case and Subhan. To be
grandfathered under section 245(i) of the INA, an immigrant must be the
beneficiary of an application for labor certification or a visa petition properly filed
by April 30, 2001, and approvable when filed. See 8 U.S.C. § 1255(i)(1); 8 C.F.R.
§ 245.10(a)(1)(i)(B); 8 C.F.R. § 1245.10(a)(1)(i)(B). The term “approvable when filed”
means that the application was “properly filed, meritorious in fact, and
non-frivolous.” See 8 C.F.R. § 245.10(a)(1)(i)(B), (a)(3); 8 C.F.R. § 1245.10(a)(1)(i)(B),
(a)(3); Lasprilla v. Ashcroft, 365 F.3d 98, 100-01 (1st Cir. 2004). Since the IJ
decided that Ali’s application on its face showed that he was not minimally qualified
for the job, he ruled that the application was not meritorious in fact and
non-frivolous.
Ali did not argue to the BIA that the IJ erred in ruling that he was not
grandfathered, and his failure to raise this argument strips this court of jurisdiction
to review it. See 8 U.S.C. § 1252(d)(1); Margos v. Gonzales, 443 F.3d 593, 598-99
(7th Cir. 2006) (holding that where asylum applicant argued that she had a well-
founded fear of persecution as an Assyrian Christian Iraq but asserted the claim to
the BIA in only general terms, she was jurisdictionally barred from raising that
claim in petition for review). Indeed, Ali did not even acknowledge the IJ’s ruling
that he was not grandfathered, and so it may have seemed to the BIA that he had
abandoned any challenge. The oblique statement at the end of his brief to the BIA
that the INS does not “give priority to deportation proceedings when an alien is the
beneficiary of a grandfathered labor certification” is difficult to understand without
elaboration, and such vagaries are not enough to exhaust an argument anyway. See
Margos, 443 F.3d at 598-99.
In any event, Ali’s failure in his petition to this court to mention the IJ’s
ruling that he was not grandfathered effectively waived any argument that that
ruling was wrong. See Jun Ying Wang v. Gonzales, 445 F.3d 993, 999 (7th Cir.
2006). We therefore DENY Ali’s petition for review of his appeal from the BIA.
Finally, Ali’s motion to reopen warrants almost no discussion at all. As with
his other petition, he ignores the government’s ruling that he was not
grandfathered in the first place. He simply submitted to the BIA the same evidence
Nos. 05-3006 & 05-4350 Page 5
he submitted to the IJ: the (now-approved) labor certification application by Dunkin
Donuts. But without a challenge to the IJ’s ruling that he was never
grandfathered, we see no basis to allow him to reopen the proceedings. Accordingly,
we DENY the petition for review of the denial of his motion to reopen.