Zafar Iqbal Pirzada v. U.S. Atty. General

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
January 24, 2006
No. 05-13197
THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________

Agency No. A96-114-074

ZAFAR IQBAL PIRZADA,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________

(January 24, 2006)

Before MARCUS, WILSON and PRYOR, Circuit Judges.

PER CURIAM:

Zafar Iqbal Pirzada petitions us to review the final order of the Board of
Immigration Appeals that affirmed and adopted the decision of the Immigration

Judge that denied Pirzada’s motion to continue his removal proceeding pending his

request for labor certification. We deny Pirzada’s petition.

Pirzada legally entered the United States on September 29, 2000, as a non-

immigrant visitor but overstayed his visa, which expired on March 28, 2001.

Pirzada filed an application for a labor certification on April 27, 2001. Sometime

before March 21, 2003, Pirzada registered, as required, with the National Security

Entry-Exit Registration System (NSEERS). See 67 Fed. Reg. 77136 (Dec. 16,

2002). The INS initiated removal proceedings against Pirzada by serving him with

a Notice to Appear on March 12, 2003.

Pirzada moved to continue his removal proceedings on the ground that he

would be able to adjust his temporary alien status to permanent resident status

upon the grant of his pending labor certification and issuance of his immigrant

visa, see 8 U.S.C. § 1255(i)(1), (2), but in a collective order that applied to several

cases involving this same issue, the IJ denied Pirzada’s motion for a continuation

of removal proceedings on September 25, 2003. The BIA affirmed the decision of

the IJ on May 10, 2005, and Pirzada filed this petition.

Pirzada argues that his removal proceedings should have been continued

until the Department of Labor processed his application for labor certification, a

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prerequisite to obtaining the immigrant visa that Pirzada needed to be eligible for

adjustment in status. See 8 U.S.C. § 1182(a)(5); Zafar v. United States Atty Gen.,

426 F.3d 1330, 1135-36 (11th Cir. 2005). Pirzada argues that, by denying the

continuance, the IJ and BIA (1) abused their discretion because Pirzada’s

application for labor certification was timely under the statute, (2) committed legal

error because various precedents suggested a different result, (3) violated section

245 of the INA because Pirzada was within a class of persons protected by the

statute, (4) violated Pirzada’s right to due process because removal would prevent

adjustment to Pirzada’s status, (5) violated Pirzada’s expectation interest and

various agency and public policies that suggested the result in Pirzada’s case was

abnormal, (6) and violated Pirzada’s right to equal protection because non-

Pakistanis were not subject to NSEERS and Pirzada was targeted for removal only

because he complied with the NSEERS special registration requirements, and

because IJs in jurisdictions other than Atlanta routinely closed similar proceedings.

These arguments are foreclosed by our decision in Zafar, 426 F.3d 1330, a

case of identical legal issues and virtually identical facts. Although Pirzada,

through the same counsel of record in Zafar, argues that we wrongly decided Zafar,

“only the Supreme Court or this Court sitting en banc can judicially overrule a

prior panel decision.” United States v. Marte, 356 F.3d 1336, 1344 (11th Cir.

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2004). Based on Zafar, the IJ and BIA did not abuse their discretion in denying

Pirzada’s motion for a continuance. PETITION DENIED.

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