Ali v. Gonzales

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
January 11, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
____________________ Clerk

No. 05-60022

Summary Calendar
____________________

NIZAR ALI

Petitioner

v.

ALBERTO R GONZALES, U S ATTORNEY GENERAL

Respondent

_________________________________________________________________

Petition for Review of an Order of the
Board of Immigration Appeals
No. A78 999 734
_________________________________________________________________

Before KING, Chief Judge, and WIENER and DEMOSS, Circuit Judges.

PER CURIAM:*

Petitioner Nizar Ali (“Ali”) petitions the court for review

of a final order of removal by the Board of Immigration Appeals

(“BIA”). The BIA summarily affirmed, without opinion, the

decision of the Immigration Judge (“IJ”) to deny Ali’s motion for

a continuance pending the outcome of his labor certification with

*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.

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the United States Department of Labor (“DOL”). Ali now asserts

that this denial impaired his ability to apply for adjustment of

status under section 245(i) of the Immigration and Nationality

Act (“INA”). See 8 U.S.C. § 1255(i) (2000). For the following

reasons, we DENY the petition for review.

I. FACTUAL AND PROCEDURAL BACKGROUND

Ali, a 51-year-old native and citizen of Pakistan, was

admitted on a temporary non-immigrant visa to the United States

on June 14, 2001, with authorization to remain in the United

States no later than June 13, 2002.1 In direct violation of the

terms of his temporary visa, Ali remained in the United States

beyond this deadline without authorization from the Immigration

and Naturalization Service (“INS”).2 On February 3, 2003, the

INS issued a Notice to Appear (“NTA”), charging Ali as a

removable alien under § 237(a)(1)(B) of the INA. 8 U.S.C. §

1227(a)(1)(B) (“Any alien . . . whose nonimmigrant visa (or other

1
Ali’s initial visa permitted him to remain in the
United States for a six-month period ending December 13, 2001.
On February 7, 2002, Ali applied for and received an extension
for an additional six months until June 13, 2002.
2
As of March 1, 2003, the INS’s administrative, service,
and enforcement functions were transferred from the Department of
Justice to the new Department of Homeland Security. See Homeland
Security Act of 2002, Pub. L. No. 107-296, §§ 441, 451, 471, 116
Stat. 2135 (2002). The Bureau of Immigration and Customs
Enforcement in the Department of Homeland Security assumed the
INS’s detention, removal, enforcement, and investigative
functions. See Peters v. Ashcroft, 383 F.3d 302, 304 n.1 (5th
Cir. 2004). Because the events in this case began before the
reorganization, we will continue to refer to the INS in this
opinion to avoid confusion.

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documentation authorizing admission into the United States as a

nonimmigrant) has been revoked under section 1201(i) of this

title, is deportable.”).

On August 25, 2003, at his initial hearing before the IJ,

Ali admitted to service of the NTA and conceded removability

based on the factual allegations contained in the NTA. At this

time, Ali requested asylum relief or, in the alternative, a

withholding of removal. Ali also informed the IJ that if the

court denied his claims for relief, he would request voluntary

departure. In order to afford Ali the opportunity to file his

application for asylum, including all necessary supporting

documents and a witness list, the IJ instructed that the case

would resume on October 10, 2003. Before adjourning, the IJ

specifically warned Ali that the court would deem his grounds for

relief abandoned if he failed to timely file his application for

asylum or withholding of removal before the hearing on October

10, 2003.

When the hearing resumed on October 10, 2003, Ali’s counsel

informed the IJ that he had decided not to file an application

for asylum or withholding of removal on behalf of his client.3

In accordance with his previous warning, the IJ deemed Ali to

3
When questioned directly by the IJ, Ali indicated that
he still wished to apply for asylum and withholding of removal
and that he believed his counsel was to have prepared these
applications. Because Ali did not raise a claim of ineffective
assistance of counsel to the BIA or this court, we decline to
speculate as to the underlying reasons for this discrepancy.

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have abandoned his application for asylum and withholding of

removal. In place of the abandoned asylum argument, Ali

presented two motions to the court. First, he submitted a motion

to dismiss the original NTA because the government official who

signed the document was allegedly no longer authorized to issue a

charging document after the functions of the INS were replaced by

the Department of Homeland Security in March 2003. The IJ

rejected this argument as wholly devoid of merit, and Ali does

not challenge this determination in his petition for review.

Second, Ali moved for a continuance pending the outcome of

his application for labor certification. He argues that because

his labor certification request was filed on January 30, 2002 and

was currently under review with the DOL, the IJ should have

granted a continuance to allow Ali the opportunity to apply for

adjustment of status under § 1255(i). The IJ also rejected this

argument, finding that (1) Ali had not established eligibility

under the provisions of § 1255(i); and (2) Ali had failed to

demonstrate good cause to prolong the case indefinitely pending

the DOL’s determination with respect to his labor certification

application. Despite denying both motions, the IJ granted Ali’s

request for voluntary departure and issued an alternative order

of removal to Pakistan in the event Ali failed to abide by the

prescribed terms of his voluntary departure.

Ali timely appealed the decision of the IJ to the BIA on

November 10, 2003. On December 17, 2004, the BIA granted summary

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affirmance of the IJ’s opinion pursuant to 8 C.F.R.

§ 1003.1(e)(4). Ali filed a timely petition for review of the

BIA’s determination with this court on January 11, 2005,

challenging the IJ’s denial of his motion for a continuance with

respect to his pending labor certification. He also raises equal

protection and due process claims under the Fifth Amendment with

respect to the IJ’s denial of his motion for a continuance.

II. DISCUSSION

A. Standard of Review

This court’s review is typically limited to the final order

of the BIA. Chun v. INS, 40 F.3d 76, 78 (5th Cir. 1994). Where

the BIA expressly adopts the opinion of the IJ without further

opinion, however, this court reviews the IJ’s decision. Mikhael

v. INS, 115 F.3d 299, 302 (5th Cir. 1997). Because the summary

affirmance procedures outlined in 8 C.F.R. § 1003.1(e)(4)

expressly forbid further explanation or reasoning, the underlying

decision is the proper subject of judicial review. Garcia-

Melendez v. Ashcroft, 351 F.3d 657, 660 (5th Cir. 2003); see also

Soadjede v. Ashcroft, 324 F.3d 830, 831-32 (5th Cir. 2003).

The grant or denial of a continuance is a matter reserved to

the sound discretion of the IJ and reviewed only for abuse of

discretion.4 Witter v. INS, 113 F.3d 549, 555-56 (5th Cir.

4
Although neither party contests our jurisdiction to
review the denial of a continuance, we note that any argument to
the contrary is foreclosed by our recent decisions in Zhao v.

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1997); see also 8 C.F.R. § 1003.29 (“The Immigration Judge may

grant a motion for continuance for good cause shown.”). Claims

of constitutional violations, including equal protection and due

process under the Fifth Amendment, are reviewed de novo. See

DeZavala v. Ashcroft, 385 F.3d 879, 883 (5th Cir. 2004);

Ogbemudia v. INS, 988 F.2d 595, 598 (5th Cir. 1993).

B. Analysis

Ali contends that the BIA’s summary affirmance of the IJ’s

denial of his motion for a continuance was an abuse of discretion

because Ali had a pending application for labor certification

filed with the DOL. Relying exclusively on language from the

Seventh Circuit’s opinion in Subhan v. Ashcroft, 383 F.3d 591

(7th Cir. 2004), Ali argues that the denial of a continuance on

his pending labor certification prematurely cut short his

application for adjustment of status under § 1255(i).

Even if it were binding precedent on this court, we find

Ali’s reliance on Subhan to be misplaced. The Legal Immigration

Family Equity Act (“LIFE Act”) extended the sunset date provided

under § 1255(i), during which an alien must submit his labor

Gonzales, 404 F.3d 295 (5th Cir. 2005) and Manzano-Garcia v.
Gonzales, 413 F.3d 462 (5th Cir. 2005). See Jaradat v. Gonzales,
143 F. App’x 566, 567 (5th Cir. July 18, 2005) (unpublished).
Because the discretionary authority to grant or deny a
continuance derives from a regulation, rather than the INA
statute itself, the jurisdiction-stripping provision under 8
U.S.C. § 1252(a)(2)(B)(ii) does not apply to bar this court’s
power to review the IJ’s determination. See Zhao, 404 F.3d at
303; Manzano-Garcia, 413 F.3d at 466.

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certification to the DOL pursuant to an application for

adjustment of status, from September 31, 1997 to April 30, 2001.

See LIFE Act Amendments of 2000, Pub. L. No. 106-554, §

1502(a)(1)(B), 114 Stat. 2763 (2000) Although the new sunset

date has now lapsed, the implementing regulation provides for a

“grandfathered alien,” which protects an alien who filed an

application for labor certification “pursuant to the regulations

of the Secretary of Labor on or before April 30, 2001, and which

was approvable when filed.” 8 C.F.R. § 1245.10(a)(1)(i)(B). In

Subhan, the Seventh Circuit noted that Subhan himself was

“grandfathered” in under the LIFE Act. Subhan, 383 F.3d at 593.

In this case, however, the record demonstrates that the DOL did

not receive his labor certification application until January 30,

2002, clearly beyond the date prescribed in the sunset provision

of the LIFE Act.

Ali does not address the untimeliness of his labor

certification application under the sunset provision of the LIFE

Act. The government, however, notes this fact and argues that

the IJ could not have abused his discretion in denying the motion

for a continuance if Ali was not eligible under LIFE Act. We

agree that Ali’s failure to file the labor certification

application before April 30, 2001 controls our resolution of this

case. Although the IJ does not specifically mention the

tardiness of Ali’s filing with the DOL, he did state that Ali had

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failed to establish eligibility under the LIFE Act. Because

Subhan is clearly distinguishable from the instant matter in this

crucial respect, we find no error with the IJ’s denial of Ali’s

motion for a continuance and decline to further address the

persuasiveness of the reasoning in Subhan at this time.

In light of his clear statutory ineligibility, Ali’s equal

protection and due process claims are without merit. Ali asserts

that the requirement that he register under the National Security

Entry-Exit Registration System (“NSEERS”)5 triggered the

initiation of his removal proceedings. Because NSEERS applies

only to aliens from certain designated countries, Ali contends

that the fact that his compliance with the registration program

alerted the INS to his expired visa violated his equal protection

rights under the Fifth Amendment. Upon de novo review of the

record, we find no such constitutional violation.

It is well-established that the Attorney General has broad

prosecutorial discretion to initiate removal proceedings against

aliens who have violated the immigration laws of the United

States. See Reno v. American-Arab Anti-Discrimination Comm., 525

U.S. 471, 490 (1999) (noting that “the additional obstacle of

selective-enforcement suits could leave the INS hard pressed to

5
NSEERS directs the Attorney General to establish
proceedings for tracking foreign nationals from various
countries, including Pakistan, who reside in the United States.
8 U.S.C. §§ 1303, 1305; see also Registration of Certain
Nonimmigrant Aliens from Designated Countries, 67 Fed. Reg.
77,642 (Dec. 18, 2002).

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enforce routine status requirements”); Cardoso v. Reno, 216 F.3d

512, 517 (5th Cir. 2000) (stating that Congress has intended “to

protect from judicial intervention the Attorney General’s long-

established discretion to decide whether and when to prosecute or

adjudicate removal proceedings or to execute removal orders”)

(quoting Alvidres-Reyes v. Reno, 180 F.3d 199, 201 (5th Cir.

1999)). Ali does not challenge the fact that he remained in the

United States beyond the expiration period of his temporary visa

in violation of § 1227(a)(1)(B). Because the IJ found him

removable on those grounds and not pursuant to his registration

under NSEERS, we find no violation of Ali’s equal protection

rights under the Fifth Amendment.6

Ali’s due process arguments are similarly unpersuasive. He

argues that the denial of his motion for a continuance to pursue

his application for adjustment of status violated his substantive

6
Moreover, this court recently upheld the nationality-
sensitive provisions of the Nicaraguan Adjustment and Central
American Relief Act (“NACARA”) against a similar equal protection
challenge.
We hold that the equal protection principles that are
implicit in the Due Process Clause of the Fifth
Amendment do not in any way restrict Congress’s power
to use nationality or place of origin as criteria for
the naturalization of aliens or for their admission to
or exclusion or removal from the United States.
Rodriguez-Silva v. INS, 242 F.3d 243, 248 (5th Cir. 2001); see
also Zafar v. U.S. Attorney Gen., 426 F.3d 1330, 1336 (11th Cir.
2005) (“Petitioners’ equal protection rights were not violated by
being required to be registered in the National Security Entry-
Exit Registration System, which they argue precipitated them
being placed in these discretionary removal proceedings by the
Attorney General, where other non-Pakistani citizens were not so
required to register.”).

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due process rights. As this circuit has previously found,

discretionary relief from removal, including adjustment of

status, is not a liberty or property interest requiring due

process protections. See Assaad v. Ashcroft, 378 F.3d 471, 475

(5th Cir. 2004); Mireles-Valdez v. Ashcroft, 349 F.3d 213, 219

(5th Cir. 2003). Moreover, to sustain a due process challenge to

the IJ’s denial of his motion for a continuance, Ali must

demonstrate “substantial prejudice.” Patel v. INS, 803 F.2d 804,

807 (5th Cir. 1986) (affirming an IJ’s decision to deny a

continuance where an alien had not challenged the finding of

deportability nor established eligibility for discretionary

relief from removal). Because his labor certification

application was not submitted to the DOL until after the sunset

provision of the LIFE Act had lapsed, Ali has failed to

demonstrate how the IJ’s denial of his motion for a continuance

substantially prejudiced his removal proceedings.

III. CONCLUSION

For the foregoing reasons, we DENY the petition for review.

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