[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
OCT 30, 2006
-------------------------------------------
THOMAS K. KAHN
No. 05-13388
CLERK
Non-Argument Calendar
--------------------------------------------
Agency No. A96-437-610
AHMED HESHAM YOUSSEF RAGHEB,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
----------------------------------------
Petition for Review of a Decision of the
Board of Immigration Appeals
----------------------------------------
(October 30, 2006)
Before EDMONDSON, Chief Judge, DUBINA and HULL, Circuit Judges.
PER CURIAM:
Ahmed Hesham Youssef Ragheb, a native and citizen of Egypt, petitions for
review of the order of the Board of Immigration Appeals (“BIA”) affirming the
order of the immigration judge (“IJ”) denying his motion to continue his removal
proceedings. No reversible error has been shown; we deny Ragheb’s petition.
Ragheb argues that the IJ erred in denying his motion for a continuance
because he had a labor certification pending when the IJ reviewed his motion.1 He
urges us to reconsider our decision in Zafar v. U.S. Attorney Gen., 426 F.3d 1330,
1334-36 (11th Cir. 2005), in the light of an earlier Seventh Circuit decision,
Subhan v. Ashcroft, 383 F.3d 591 (7th Cir. 2004), which reversed a removal order
because the IJ did not provide sound reasons for denying a motion for a
continuance.
After the parties filed their briefs in this case, we vacated our original
decision and opinion in Zafar and substituted in its place a new opinion and
decision, which reaches the same result as the original Zafar decision but
addresses certain claims more fully.2 See Zafar v. U.S. Attorney Gen., 461 F.3d
1357, 1358 (11th Cir. 2006). In addition, we decided Merchant v. U.S. Attorney
1
In his motion, Ragheb also explained that his wife was the beneficiary of an I-130 petition that
had been filed by her brother, who is a United States citizen. On appeal, Ragheb notes that this I-130
petition acts to grandfather him under section 245(i) of the Immigration and Naturalization Act
(“INA”), which provides for adjustment of an alien’s status; but he does not argue that his removal
proceedings should have been continued based on the I-130 petition. Therefore, Ragheb has
abandoned argument about not continuing his removal proceedings based on the pending I-130
petition. See Sepulveda v. U.S. Attorney Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005) (explaining
that petitioner abandons issue by failing to offer argument on that issue).
2
All subsequent references to our opinion in Zafar relate to the substituted opinion in that case.
2
Gen., 461 F.3d 1375 (11th Cir. 2006), which also discusses the issue raised in this
case.
Here, we review the IJ’s decision, not the BIA’s, because the BIA affirmed
the IJ’s decision without an opinion. See Mendoza v. U.S. Attorney Gen., 327
F.3d 1283, 1284 n.1 (11th Cir. 2003). We review the IJ’s decision to deny
Ragheb’s motion for a continuance for abuse of discretion. Zafar, 461 F.3d at
1358.
In Zafar, petitioners moved to continue their removal proceedings while
awaiting pending labor certifications from the Department of Labor (“DOL”). Id.
We explained how a labor certification could affect petitioners’ status:
[A]liens who were in the United States as of December 21, 2000, and
applied for labor certificates on or before April 30, 2001 . . . may
apply to the Attorney General for adjustment of status under [8
U.S.C.] § 1255(i). . . . [But the] mere filing of a labor certificate
application with the DOL does not make an alien eligible for
adjustment of status under § 1255(i). Rather, there are two additional
and more difficult statutory eligibility requirements in [section]
1255(i) that must also be met. . . . Accordingly, to be eligible for
adjustment of status under [section] 1255(i), (1) the alien must be
eligible to receive an immigrant visa and (2) an immigrant visa must
be immediately available.
Id. at 1363.
We concluded in Zafar that it was not an abuse of discretion for the IJ to
deny petitioners’ motion to continue their removal proceedings because, at the
3
time of their removal hearings, petitioners did not meet either requirement of
section 1255(i) to be eligible for adjustment of status. Id. at 1363-64. But in
Merchant v. U.S. Attorney General, we determined that, where a petitioner had an
approved labor certification and then had filed a Form I-140 (petition for visa) and
a Form I-485 (application for adjustment of status), the petitioner was eligible for
an adjustment of status under section 1255(i). Merchant, 461 F.3d at 1377-79.
In this case, Ragheb acknowledges that he filed his application for a labor
certification on or about 24 March 2003. For an alien to receive an adjustment of
status because the alien is the beneficiary of a labor certificate application, the
application must be filed on or before 30 April 2001. See 8 U.S.C. §
1255(i)(1)(B)(ii); Zafar, 461 F.3d at 1363 (explaining that the “original sunset date
for applications for labor certifications under [section] 1255(i) was 1997, but it
was extended several times, with April 30, 2001, being the final cutoff date”).
Therefore, Ragheb filed his labor certificate application too late to be eligible for
an adjustment of status under 8 U.S.C. § 1255.
Even if Ragheb had filed his application for a labor certificate on or before
30 April 2001, he, like the petitioners in Zafar and unlike the petitioners in
Merchant, had applied for -- but had not received -- a labor certification when he
filed his motion for a continuance; so he only could offer the IJ speculation that he
4
would receive a labor certification at some point in the future. Therefore, the IJ
did not abuse his discretion in denying Ragheb’s motion for a continuance.3
Ragheb also argues that we should reinstate or extend his voluntary
departure period. In its order affirming the IJ’s decision, the BIA granted Ragheb
a 30-day voluntary departure period, which expired in June 2005. We do not have
jurisdiction to reinstate or extend this period. See Nkacoang v. I.N.S., 83 F.3d
353, 357 (11th Cir. 1996) (explaining that, “absent a Congressional empowerment
to act,” we lack jurisdictional authority to grant an extension or reinstatement of
the voluntary departure period). Although we decided Nkacoang before the
effective date of the Illegal Immigration Reform and Immigrant Responsibility Act
of 1996 (“IIRIRA”), the IIRIRA did not provide us with authority to grant or
extend voluntary departure; so we continue to follow Nkacoang’s conclusion on
this issue. See id.; see generally INA § 240B(f), 8 U.S.C. § 1229c(f) (provision of
IIRIRA providing that “[n]o court shall have jurisdiction over an appeal from
denial of a request for an order of voluntary departure . . . , nor shall any court
order a stay of an alien’s removal pending consideration of any claim with respect
to voluntary departure.”).
PETITION DENIED.
3
We decline Ragheb’s request to reconsider Zafar. See Walker v. Southern Co. Servs., Inc., 279
F.3d 1289, 1293-94 (11th Cir. 2002) (explaining that only the Supreme Court or this Court sitting
en banc can overrule a prior panel decision).
5