Ahmed v. Gonzales

United States Court of Appeals
Fifth Circuit
F I L E D
REVISED JUNE 2, 2006
April 24, 2006
IN THE UNITED STATES COURT OF APPEALS
Charles R. Fulbruge III
FOR THE FIFTH CIRCUIT Clerk

____________________

No. 05-60032
____________________

MUSHTAQ AHMED,

Petitioner

v.

ALBERTO R. GONZALES, United States Attorney General,

Respondent

_________________________________________________________________

Petition for Review of an Order of the
Board of Immigration Appeals
No. 79-008-192
_________________________________________________________________

Before JONES, Chief Judge, and KING and DENNIS, Circuit Judges.

KING, Circuit Judge:

Petitioner Mushtaq Ahmed petitions this court for review of

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

its order, the Board of Immigration Appeals also affirmed an

immigration judge’s refusal to continue Ahmed’s removal

proceedings. Ahmed now argues that the Board erred in affirming

both the immigration judge’s refusal to continue his removal

proceedings and the order of removal. For the following reasons,

we DENY the petition for review.
 I. BACKGROUND

Petitioner Mushtaq Ahmed (“Ahmed”), is a fifty-two-year-old

citizen and native of Pakistan, who was admitted to the United

States on August 21, 2000, as a nonimmigrant crewman. Ahmed’s

visa allowed him to remain in the United States for a period not

to exceed twenty-nine days. Ahmed did not seek an extension of

this period. Instead, he remained in the United States without

authorization after his visa expired.

On April 26, 2001, American Rags, Inc. (“American Rags”),

filed an application for labor certification with the Department

of Labor on Ahmed’s behalf. Subsequently, Ahmed registered in

the special registration program of the National Security

Entry/Exit Registration System (“NSEERS”), as required by law for

male nonimmigrants from certain countries, including Pakistan.1

On April 24, 2003, the Department of Homeland Security (“DHS”)

initiated removal proceedings against Ahmed. Ahmed asserts that

these removal charges were the direct result of his registration

in NSEERS.

The amended removal charges filed against Ahmed alleged that

he was removable, pursuant to 8 U.S.C. § 1227(a)(1)(B), as a

nonimmigrant who remained in the United States for a time longer

1
NSEERS is a program that tracks foreign nationals from
various countries, including Pakistan, who reside in the United
States, pursuant to the direction of 8 U.S.C. §§ 1303, 1305.

2
than permitted.2 On December 12, 2003, Ahmed appeared with

counsel before the immigration judge, admitted to DHS’s factual

allegations, and conceded removability. He also requested a

continuance in order to permit adjudication of his pending labor

certification. In the course of this hearing, the immigration

judge denied Ahmed’s request for a continuance for lack of good

cause, after noting that Ahmed lacked an approved labor

certification, a valid visa, or even a pending visa application

with DHS. The same day, the immigration judge ordered Ahmed’s

removal.

Ahmed appealed the immigration judge’s decision to the Board

of Immigration Appeals (“BIA”), arguing, inter alia, that the

immigration judge’s decision to deny Ahmed’s request for a

continuance, in combination with the required NSEERS registration

process, violated Ahmed’s constitutional rights in various ways

and also violated Ahmed’s rights protected by 8 U.S.C. § 1255(i).

On December 22, 2004, the BIA affirmed the immigration judge’s

decision. Citing its own precedent, the BIA noted that “there is

no certainty that [Ahmed] would receive certification” and

observed that the decision to grant or deny continuances rests

within the “sound discretion” of an immigration judge.

Therefore, the BIA concluded that the immigration judge was

2
DHS originally charged Ahmed with removability under 8
U.S.C. § 1182(a)(6)(A)(i), as an alien present in the United
States without being admitted, but subsequently amended the
charge of removability and some of the factual allegations.

3
justified in refusing to grant a continuance “because an

Immigration Judge may neither terminate nor indefinitely adjourn

the proceedings in order to delay an alien’s deportation.” Ahmed

filed his petition for review with this court on January 14,

2005.

II. DISCUSSION

The issues raised by Ahmed before this court all relate to

the immigration judge’s refusal to grant a continuance pending

the adjudication of his labor certification. First, citing the

recent decision of the Seventh Circuit in Subhan v. Ashcroft, 383

F.3d 591 (7th Cir. 2004), Ahmed argues that the immigration

judge’s refusal to grant a continuance violated relief rights

established by 8 U.S.C. § 1255(i). Second, Ahmed argues that the

immigration judge’s refusal to grant a continuance, in

combination with the government’s registration requirements in

the NSEERS program and the immigration judge’s order of removal,

violated his equal protection and due process rights protected by

the Fifth Amendment. Ahmed concludes that this court should

grant his petition for review and return his case to the relevant

immigration officials for further proceedings after the

adjudication of his pending labor certification.

In response, the government briefly questions our

jurisdiction to review Ahmed’s statutory arguments and argues

that both the statutory and the constitutional arguments are

4
groundless. On the merits, the government argues that the

immigration judge’s decision was correct: the slim prospect of

relief from removal based on the mere possibility that Ahmed

might, at some later date, be granted a labor certification that

would, in turn, only enable an employment-based visa petition is

too speculative to establish the requisite “good cause” for the

granting of a continuance. More specifically, the government

argues that Subhan’s reasoning and conclusion should be rejected

and asserts that Ahmed has wholly failed to state a cognizable

constitutional violation.

We will address the government’s jurisdictional point first,

the issues raised by Ahmed’s statutory arguments second, and the

issues raised by Ahmed’s constitutional arguments last.

A. Jurisdiction

In its brief before this court, the government suggests that

an appellate court’s jurisdiction to review an immigration

judge’s discretionary decision to deny an alien’s motion for a

continuance is an “open question” for this court. Other

circuits, notably the Eighth Circuit in Onyinkwa v. Ashcroft, 376

F.3d 797 (8th Cir. 2004), and the Tenth Circuit in Yerkovich v.

Ashcroft, 381 F.3d 990 (10th Cir. 2004), have analyzed this issue

and reached a holding contrary to the conclusion we reach today.

As the government correctly acknowledged in its briefs, however,

this court recently noted its disagreement with these decisions

5
from the Eighth and Tenth Circuits in Zhao v. Gonzales, 404 F.3d

295 (5th Cir. 2005). And as the government correctly conceded at

oral argument, Zhao’s jurisdictional reasoning has been

reaffirmed by this court. See Manzano-Garcia v. Gonzales, 413

F.3d 462, 467 (5th Cir. 2005) (per curiam) (quoting Zhao).

This jurisdictional point revolves around the language of

§ 1252(a)(2)(B)(ii). As we noted in Zhao, “[o]ne might

mistakenly read § 1252(a)(2)(B)(ii) as stripping us of the

authority to review any discretionary immigration decision.” 404

F.3d at 303. Such a reading is mistaken, however, “because

§ 1252(a)(2)(B)(ii) strips us only of jurisdiction to review” the

discretionary authority that is “specified in the statute.” Id.

As we have repeatedly noted, we observe again that the language

of § 1252(a)(2)(B)(ii) is thoroughly “pellucid on this score; it

does not allude generally to ‘discretionary authority’ or to

‘discretionary authority exercised under this statute,’ but

specifically to ‘authority for which is specified under this

subchapter to be in the discretion of the Attorney General.’”

Id. (quoting § 1252(a)(2)(B)(ii)) (emphasis in Zhao); see also

Manzano-Garcia, 413 F.3d at 467 (quoting same).

This court concluded in Zhao that it had authority to review

the BIA’s discretionary denial of an alien’s motion for

reconsideration, despite an awareness of “caselaw from other

circuits to the contrary,” specifically Onyinkwa and Yerkovich.

404 F.3d at 303. In Onyinkwa, the Eighth Circuit held that it

6
lacked jurisdiction to review an immigration judge’s denial of a

continuance, stating that because the “power to grant

continuances is within the discretion of immigration judges . . .

courts generally have no jurisdiction to review the exercise of

that discretion.” 376 F.3d at 799. We rejected Onyinkwa’s

reasoning in Zhao because we refused to endorse Onyinkwa’s

interpretation of § 1252(a)(2)(B)(ii) “whereby any statutorily

authorized regulation conferring discretion necessarily

forecloses judicial review.” 404 F.3d at 303 n.6. We held that

such a reading was both “contrary to Congress’s language and has

clear policy consequences.” Id. In Yerkovich, the Tenth Circuit

held that it lacked jurisdiction to review an immigration judge’s

denial of a continuance, citing, inter alia, the Eighth Circuit’s

decision in Onyinkwa. 381 F.3d at 994. Again, we rejected this

reasoning in Zhao, pointing out that Yerkovich’s holding depended

on a misstatement of the statutory text of § 1252(a)(2)(B)(ii)

itself. 404 F.3d at 303 n.6. More specifically, we pointed out

that Yerkovich omitted the phrase “the authority for which is

specified” in its discussion of § 1252(a)(2)(B)(ii). Id. We

concluded in Zhao that this misstatement caused the Tenth Circuit

to “analyze statutory language that Congress did not adopt,” a

mistake we declined and continue to decline to follow. Id.

Even if a panel of this court had the authority to revisit

our holdings in Manzano-Garcia and Zhao and our interpretation of

§ 1252(a)(2)(B)(ii), Onyinkwa, and Yerkovich, which it does not,

7
the government has provided us with no new reasons to do so.

Therefore, we apply our previous reasoning to the matter at hand

and conclude that we have jurisdiction to review the immigration

judge’s decision to deny Ahmed’s motion for a continuance. Cf.

Zafar v. United States Attorney General, 426 F.3d 1330, 1334

(11th Cir. 2005) (holding that § 1252(a)(2)(B)(ii) “precludes

. . . review of discretionary decisions . . . in only the

specific circumstances” specified in the statute itself); Medina-

Morales v. Ashcroft, 371 F.3d 520, 528 (9th Cir. 2004) (stating

that § 1252(a)(2)(B)(ii) “‘refers not to discretionary

decisions,’ . . . but to acts the authority for which is

specified under the INA to be discretionary”) (quoting Spencer

Enters., Inc. v. United States, 345 F.3d 683, 689 (9th Cir.

2003)).

When, as here, the BIA affirms the immigration judge and

relies on the reasons set forth in the immigration judge’s

decision, this court reviews the decision of the immigration

judge as well as the decision of the BIA. Moin v. Ashcroft, 335

F.3d 415, 418 (5th Cir. 2003).

B. Ahmed’s Statutory Claims

We now turn to Ahmed’s statutory claims. Under the

provisions of 8 U.S.C. § 1255(i), certain aliens such as Ahmed

who were physically but unlawfully present in the United States

were given the opportunity to apply for an “adjustment of status

8
. . . to that of an alien lawfully admitted for permanent

residence.” Ahmed argues, citing the Seventh Circuit’s recent

decision in Subhan, that the immigration judge’s refusal to

continue his removal proceedings violated § 1255(i) because the

immigration judge failed to give a reason consistent with

§ 1255(i) for his refusal.

In Subhan, the Seventh Circuit granted an alien’s petition

for review taken from decisions very similar to the decisions we

review in this matter. The immigration judge in Subhan granted

two requests by an alien petitioner for a continuance pending the

adjudication of a timely filed labor certification but denied a

third request, stating that although the petitioner might “‘be

able to eventually acquire lawful permanent resident status by

virtue of employment,’ not having done so as yet he was ‘not

eligible for this form of relief at this time.’” Subhan, 383

F.3d at 593. The Seventh Circuit held that the immigration

judge’s reason for denying the continuance was no reason at all,

“but merely a statement of the obvious: that the labor

departments hadn’t yet acted.” Id. Therefore, the Seventh

Circuit granted the alien’s petition for review, concluding “that

the immigration judge, seconded by the Board of Immigration

Appeals . . . violated [8 U.S.C. §] 1255(i) when he denied Subhan

a continuance without giving a reason consistent with the statute

(indeed without giving any reason).” Id. at 595.

9
 The Eleventh Circuit has also considered this issue and

reached the opposite conclusion. In Zafar, decided over a year

after Subhan, the Eleventh Circuit considered a petition for

review from aliens who claimed that their immigration judges had

abused their discretion by refusing to continue the alien

petitioners’ removal proceedings pending the resolution of labor

certifications. 426 F.3d at 1332-33. Like Ahmed, the Zafar

petitioners argued that the immigration judges’ orders of removal

and refusals to continue the proceedings violated their

constitutional equal protection and due process rights as well as

rights created by § 1255(i). Id. Because the alien petitioners

in Zafar offered only “the ‘speculative’ possibility that at some

point in the future they may receive . . . [a] labor

certification,” the Eleventh Circuit held that they had “failed

to demonstrate that they had a visa petition ‘immediately

available’ to them . . . .” Id. at 1336. Therefore, at the time

the Zafar immigration judges denied the alien petitioners’

“motions to continue their removal proceedings, it [was] clear

that the petitioners were ineligible for adjustments to permanent

resident status under [8 U.S.C.] § 1255(i) . . . .” Id. The

Eleventh Circuit concluded that the immigration judges could not

have abused their discretion by refusing to continue the

petitioners’ proceedings for relief from removal because the

10
petitioners were ineligible for the adjustment relief requested.

Id.

But for § 1255(i), Ahmed, like the Zafar petitioners, would

have no grounds for an adjustment of status, because 8 U.S.C.

§ 1255(c) specifically bars “an alien crewman” who overstays his

visa from receiving an adjustment of status. Section 1255(i)

creates a specific exception from § 1255(c) by stating that

[n]otwithstanding the provisions of [§ 1255(c)], an
alien [such as Ahmed] . . . . [with] a labor
certification . . . that was filed pursuant to the
regulations of the Secretary of Labor . . . . may apply
to the Attorney General for the adjustment of his or
her status to that of an alien lawfully admitted for
permanent residence.

8 U.S.C. § 1255(i)(1). Section 1255(i) does not, however, create

an automatic or a mandatory exception to § 1255(c). To receive

such an adjustment of status, a removable alien’s § 1255(i)

application must be accompanied by an available immigrant visa,

and the entire application for adjustment of status must meet

with the discretionary approval of the Attorney General or his

designee. See 8 U.S.C. § 1255(i)(2) (stating that “[u]pon

receipt of such an application and the sum hereby required, the

Attorney General may adjust the status of the alien to that of an

alien lawfully admitted for permanent residence if (A) the alien

is eligible to receive an immigrant visa and is admissible to the

United States for permanent residence; and (B) an immigrant visa

is immediately available to the alien at the time the application

is filed”) (emphasis added). Ahmed concedes that an immigrant

11
visa was not otherwise available to him. Therefore, at the time

of his removal hearing, Ahmed had begun only the first

preliminary step toward completing a § 1255(i) application for

removal relief, and nothing in § 1255(i) vested any right to

relief from removal when he filed his labor certification.3

We agree with our sister circuit that in some situations,

“the wheels of bureaucracy grind slow,” Subhan, 383 F.3d at 593,

but the most important wheels in this matter have already turned.

The relevant immigration authorities have decided both that Ahmed

is removable and that he should be removed. Ahmed’s pending

labor certification would not have made him any less removable

even if it had been processed at the time of his hearing before

the immigration judge. In order to receive relief from removal

on the undisputed facts, Ahmed needed to receive an adjustment of

status, and the receipt of his pending labor certification was

only the first step in this long and discretionary process. See

8 U.S.C. § 1255(i)(2), discussed supra. Various immigration

officials could have properly exercised their discretion, denied

Ahmed’s application for an adjustment of status, and ensured his

removal at any of these subsequent discretionary points. In this

3
In other words, had Ahmed received his labor
certification and completed the very first step in this process,
he would still have needed an employer, presumably American Rags,
to file an employment-based visa petition on his behalf with DHS,
and he would have needed that visa petition to have been
approved. See 8 U.S.C. § 1255(i)(2)(A), discussed supra. Only
then would he have been eligible for the discretionary removal
relief contemplated by § 1255(i).

12
matter, the immigration judge simply exercised his discretion at

the first stage of this lengthy and discretionary process when he

refused to grant Ahmed a continuance for lack of good cause. The

immigration judge’s reasons for this refusal were correct; Ahmed

lacked good cause for a continuance because he was ineligible for

removal relief under the relevant statutes. Therefore, we

decline to hold that the decision to end this lengthy and

discretionary adjustment of status process was itself an abuse of

discretion. Cf. Zafar, 426 F.3d at 1336 (citing, inter alia,

Onyeme v. INS, 146 F.3d 227, 234 (4th Cir. 1998) (finding no

abuse of discretion in BIA’s affirmance of immigration judge’s

refusal to continue proceedings when an alien petitioner failed

to meet all statutory requirements for adjustment of status), and

Oluyemi v. INS, 902 F.2d 1032, 1034 (1st Cir. 1990) (same)).

C. Ahmed’s Constitutional Claims

We now address Ahmed’s claims that his equal protection and

due process rights have been violated.

Ahmed argues that by registering for NSEERS, he alerted the

government to the fact that he had overstayed his original

crewman’s visa. Therefore, he suggests that his registration for

NSEERS was the ultimate cause of both DHS’s decision to initiate

removal proceedings against him and the immigration judge’s

decision to order his removal. Because other aliens of other

nationalities were not necessarily required to register for

13
NSEERS, Ahmed argues that his equal protection rights were

violated.

This court has long held that “[a]liens enjoy some

constitutional protections, regardless of their status,” but it

has also long held that “this protection is limited by Congress’s

broad powers to control immigration.” Rodriguez-Silva v. INS,

242 F.3d 243, 247, 246 (5th Cir. 2001). More specifically, this

court has held “that the equal protection principles that are

implicit in 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.” Id. at 248.

In their efforts to carry out Congress’s criteria for

naturalization, admission, and removal, the Attorney General and

his designees have broad discretion to initiate removal

proceedings against aliens like Ahmed who violate immigration

laws. See, e.g., Reno v. American-Arab Anti-Discrimination

Comm., 525 U.S. 471, 489-91 (1999) (stating that the

“particularly demanding” standard applied to accusations of

breached prosecutorial discretion is “greatly magnified in the

deporation context”); Cardoso v. Reno, 216 F.3d 512, 517 (5th

Cir. 2000) (discussing the clear congressional intent to protect

the Attorney General’s long-established discretion to decide

whether and when to prosecute, adjudicate, and execute removal

proceedings and removal orders).

14
 At most, Ahmed’s allegations describe only one influence

upon DHS’s exercise of its discretion. The immigration judge

refused to grant Ahmed a continuance because Ahmed failed to

provide good cause for a continuance, and the immigration judge

ruled that Ahmed was removable because Ahmed violated 8 U.S.C.

§ 1227(a)(1)(B). Ahmed’s registration in NSEERS had nothing to

do with either decision of the immigration judge. In keeping

with Congress’s clear intent and the well-established precedent

of this court, we hold that the alleged impact of NSEERS on DHS’s

decision to initiate removal proceedings against Ahmed does not

constitute a violation of Ahmed’s equal protection rights. Cf.

Zafar, 426 F.3d at 1336 (finding that a removal proceeding

initiated after an alien’s registration in NSEERS was a valid

exercise of discretion and not an infringement of equal

protection rights).

Ahmed’s due process arguments are similarly unpersuasive.

Ahmed argues that the district court’s refusal to continue the

removal proceedings, a refusal that prevented him from pursuing

his application for an adjustment of status, violated his

substantive due process rights. In so doing, Ahmed has

incorrectly “presuppose[d] . . . [that he has] a constitutionally

protected right to actual discretionary relief from removal or to

be eligible for such discretionary relief . . . .” Manzano-

Garcia, 413 F.3d at 471. This circuit has repeatedly held that

discretionary relief from removal, including an application for

15
an adjustment of status, is not a liberty or property right that

requires due process protection. See, e.g., Assaad v. Ashcroft,

378 F.3d 471, 475 (5th Cir. 2004) (stating, in a removal context,

that due process claims revolving around an alleged failure to

receive discretionary relief are not based upon a

constitutionally protected liberty interest); Mireles-Valdez v.

Ashcroft, 349 F.3d 213, 219 (5th Cir. 2003) (holding that

eligibility for discretionary relief from a removal order is not

a liberty or property interest warranting due process

protection). In keeping with the well-established precedent of

this court, we hold that Ahmed has failed to raise a violation of

his due process rights.

III. CONCLUSION

For the reasons given above, we DENY Ahmed’s petition for

review.

16