[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
FILED
No. 04-16613 U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
________________________ September 27, 2005
THOMAS K. KAHN
Agency No. A96-114-075 CLERK
MOHAMMED ZEESHAN ZAFAR,
Petitioner,
versus
U. S. ATTORNEY GENERAL,
Respondent.
________________________
No. 04-16689
________________________
Agency No. A96-114-077
AMIRMOHAMMED HABIB LAKHANI,
Petitioner,
versus
U. S. ATTORNEY GENERAL,
Respondent.
________________________
No. 04-16750
________________________
Agency No. A96-114-175
NIZAR GHULAMANI,
Petitioner,
versus
U. S. ATTORNEY GENERAL,
Respondent.
________________________
Petitions for Review of Decisions of the
Board of Immigration Appeals
_________________________
(September 27, 2005)
Before ANDERSON, HULL and RONEY, Circuit Judges.
RONEY, Circuit Judge:
Petitioners are living in the United States on expired visas. Separate
removal proceedings were initiated against all three in March and April, 2003.
Each moved for continuances while awaiting labor certifications. They filed
petitions seeking review of the Board of Immigration Affairs’ (BIA) summary
affirmances of the immigration judges’ denials of their motions to continue their
removal proceedings. The government contends that this Court is without
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jurisdiction to hear this case pursuant to 8 U.S.C. § 1252(a)(2)(B)(ii). We hold that
we have jurisdiction under this statute to review the denials of motions to continue
removal proceedings, but there was nonetheless no abuse of discretion in the
immigration judges’ decisions do so. We thus deny the petitions.
Petitioners Amirmohammed Habib Lakhani, Mohammed Zeeshan Zafar, and
Nizar Ghulamani are natives and citizens of Pakistan. The facts and procedural
histories of their individualized cases are set forth below.
Amirmohammed Habib Lakhani
Lakhani entered the United States on or about July 9, 1995 as a
nonimmigrant visitor authorized to remain in the country until August 10, 1995.
On March 27, 2001, Lakhani filed an application for labor certification. On April
14, 2003, the Department of Homeland Security (“DHS”) initiated removal
proceedings against Lakhani, charging him as a nonimmigrant who remained in the
United States longer than permitted pursuant to 8 U.S.C. § 1227(a)(1)(B). On July
16, 2003, Lakhani appeared in immigration court, where he admitted the factual
allegations and conceded removability. Immigration Judge G. Mackenzie Rast,
however, adjourned the matter until August 6, 2003 to ascertain what relief, if any,
Lakhani would be seeking. At the August 6 hearing, Lakhani’s counsel advised
Judge Rast that Lakhani had a pending labor certification and requested that his
removal be continued on that basis. Judge Rast denied that continuance ruling, “no
statute [or] regulation [or] case authority which provides that it is appropriate for
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the Court to continue cases under such circumstances. Consequently the request
for [a] continuance under such circumstances will be denied.” Judge Rast then
ordered Lakhani removed from the United States. The BIA summarily affirmed
Judge Rast’s decision.
Mohammed Zeeshan Zafar
Zafar entered the United States on or about September 29, 2000, as a
nonimmigrant visitor authorized to remain in the country until March 29, 2001.
On April 27, 2001, Zafar’s father filed an application for labor certification. On
March 12, 2003, the DHS initiated removal proceedings against Zafar, charging
him, like Lakhani, as a nonimmigrant who remained in the United States longer
than permitted pursuant to 8 U.S.C. § 1227(a)(1)(B). On July 16, 2003, Zafar
appeared before the same immigration judge (Judge Rast) as Lakhani. Zafar also
admitted the factual allegations and conceded removability. Similarly, Judge Rast
adjourned the matter until August 6, 2003. At that August 6 hearing, Zafar’s
counsel advised Judge Rast that Zafar’s father was in removal proceedings and had
a pending labor certification. Counsel requested that Zafar’s case be consolidated
with his father’s case. Zafar argued that because he was then under the age of
twenty-one, he might qualify as a derivative beneficiary of his father’s
employment-based visa petition if it was ultimately approved. As such, Zafar
moved the immigration court for a continuance until the disposition of his father’s
labor certification. Judge Rast found that there was:
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no case authority or statutory [or] regulatory authority
which authorizes or suggests the appropriateness of a
continuance where labor certification has not yet been
approved by the labor authorities. In this particular case,
the situation is twice removed from that process. Under
the circumstances, the Court does not view it as
appropriate that the matter be continued for such
purposes.
Judge Rast then ordered Zafar removed from the United States to Pakistan. Zafar
appealed that decision to the BIA, which summarily affirmed the IJ’s decision.
Nizar Ghulamani
Ghulamani entered the United States as a nonimmigrant visitor on June 7,
1997, with a visa authorizing him to stay in the country for no longer than six
months. On April 30, 2001, Ghulamani filed an application for labor certification.
On March 21, 2003, the DHS initiated removal proceedings pursuant to
§ 1227(a)(1)(B). On January 8, 2004, Ghulamani appeared before Immigration
Judge Paul L. Johnson and also conceded removability. His counsel advised Judge
Johnson that he had a pending labor certification and requested that his removal
proceeding be continued on that basis as well. In a written decision, which was
drafted and dated months prior to that hearing on September 25, 2003, the
immigration judge denied Ghulamani’s request for a continuance, finding, after
oral arguments on the motion, that there was not the requisite good cause for
continuance as provided in 8 C.F.R. § 1003.29. Judge Johnson found that the
approval of a pending labor certification was “speculative” and did not entitle
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Ghulamani to a continuance. The BIA affirmed the immigration judge’s decision
without opinion.
Jurisdiction to Review Denial of Motions to Continue Removal Proceedings
The government contends that this Court lacks jurisdiction to review these
petitions, which challenge the immigration judges’ decisions to not continue the
petitioners’ removal proceedings. It directs us to the plain language of INA §
242(a)(2)(B)(ii), 8 U.S.C. § 1252(a)(2)(B)(ii) (2000), which states in relevant part,
“Notwithstanding any other provision of law, no court shall have jurisdiction to
review . . . any . . . decision or action of the Attorney General for which is specified
under this subchapter to be in the discretion of the Attorney General.” That is, it
contends that because the granting of continuances are discretionary, this “door
closing” statute strips this Court of jurisdiction to review them.
Petitioners contend, however, that an immigration judge’s authority to grant
a continuance is not directly found “under this subchapter,” which is “S UBCHAPTER
II” of chapter 12, Title 8, entitled “Aliens and Nationality,” but instead is found in
8 C.F.R. § 1003.29, a federal regulation implemented by the Attorney General.
Therefore, they argue, § 1252(a)(2)(B)(ii) does not prevent this Court from having
jurisdiction to review their petitions.
We have jurisdiction to review an immigration judge’s decision to deny a
motion to continue a removal hearing. Section 1252(a)(2)(B)(ii) precludes our
review of discretionary decisions of the Attorney General in only the specific
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circumstances where the “decision or action of the Attorney General the authority
for which is specified under this subchapter to be in the discretion of the Attorney
General . . ..” 8 U.S.C. § 1252(a)(2)(B)(ii) (emphasis supplied). The expressed
authority of an immigration judge to grant or deny a motion to continue a hearing
is not found under the particular “subchapter” where § 1252(a)(2)(B)(ii) is
contained, which is “S UBCHAPTER II” of chapter 12, Title 8, entitled “Aliens and
Nationality.” See generally, 8 U.S.C., ch. 12 (entitled, “Immigration and
Nationality”). Instead, the authority of an immigration judge to grant a motion for
continuance is derived solely from regulations promulgated by the INS. See
8 C.F.R. § 1003.29 (stating that “[t]he immigration judge may grant a motion for
continuance for good cause shown”).
The phrase “specified under this subchapter” refers to subchapter II of
Chapter 12, 8 U.S.C. §§ 1151–1378. See Yerkovich v. Ashcroft, 381 F.3d 990, 992
(10th Cir. 2004). Congress has precisely carved-out the statutorily-provided
discretionary powers of the Attorney General within 8 U.S.C. sections 1151
through 1378 and, in turn, has expressly prohibited “any court” from reviewing
them. There are myriad Congressionally-defined, discretionary statutory powers
of the Attorney General articulated within sections 1151 through 1378. For
example, the “Attorney General in his discretion” may waive particular visa or
passport requirements. See, e.g., 8 U.S.C. § 1184(d) (2000) (noting that the
“Attorney General in his discretion may waive the requirement that the parties
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have previously met in person”) (emphasis supplied); 8 U.S.C. § 1181(b) (2000)
(noting that the “Attorney General in his discretion” may readmit individual
“without being required to obtain a passport . . .”) (emphasis supplied). The
Attorney General also “may authorize immigration officers” to record, among
other things, the names, age and sex of “every resident person leaving the United
States by way of the Canadian or Mexican borders for permanent residence in a
foreign country.” 8 U.S.C. § 1221(c). Although not before us, these discretionary
decisions – statutory authority for which Congress “specified under” subchapter II
– of the Attorney General would presumably not be reviewable by “any court”
under the jurisdictional-stripping provisions of § 1252(a)(2)(b)(ii).
The discretionary decisions exercised here by the immigration judges to not
continue the removal hearings were not “specified” under subchapter II of chapter
12, title 8, by Congress. The government does not cite, nor have we so identified,
any expressed authority stating the immigration judge’s authority to continue a
removal proceeding is “specified under” subchapter II. Instead, the parties seem to
be in agreement that this “discretion” is administratively-determined and proscribed
to the immigration judges via 8 C.F.R. § 1003.29, a federal regulation implemented
by the Attorney General. Since only the particular discretionary authorities of the
Attorney General expressly “specified” in sections 1151 through 1378 are barred
from our review under § 1252(a)(2)(b)(ii), and the discretionary authority to grant
or deny a continuance in removal proceedings is not expressly contained within
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sections 1151 through 1378, we have jurisdiction to review those discretionary
decisions. See Zhao v. Gonzales, 404 F.3d 295, 303 (5th Cir. 2005) (jurisdiction
under § 1252(a)(2)(B)(ii) to review denial of BIA’s discretionary motion to reopen
because the BIA had not exercised any statutorily provided discretion under the
subchapter of title 8 governing immigration proceedings, but instead had exercised
discretion as “delineated” by a regulation of the Attorney General); Medina-
Morales v. Ashcroft, 371 F.3d 520, 528–29 (9th Cir. 2004) (same); see also Subhan
v. Ashcroft, 383 F.3d 591, 595 (7th Cir. 2004) (finding jurisdiction to review denial
of motion to continue removal proceedings under § 1252(a)(2)(B), but also finding
an abuse of discretion in denying continuance); but see Yerkovich v. Ashcroft, 381
F.3d 990, 995 (10th Cir. 2004) (dismissing petition, and holding that “8 U.S.C. §
1252(a)(2)(B)(ii) bars review of the [immigration judge’s] discretionary decision
denying petitioner’s motion for a continuance”); Onyinkwa v. Ashcroft, 376 F.3d
797, 799 (8th Cir. 2004) (same); Koenig v. INS, 64 Fed. Appx. 996, 998 (6th Cir.
2003) (unpublished) (holding that “this court lacks jurisdiction to review what was
a purely discretionary decision of the immigration judge”).
Our decision is further supported by the “strong presumption in favor of
judicial review of administrative action.” INS v. St. Cyr, 533 U.S. 289, 298 (2001).
Because denials of motions to continue are not statutorily-proscribed discretionary
acts “specified under this subsection” to the Attorney General, as enumerated in
§ 1252(a)(2)(B)(ii), we have jurisdiction to review them.
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The Immigration Judges Did Not Abuse Their Discretion
Although we have jurisdiction under § 1252(a)(2)(B)(ii), the immigration
judges nonetheless did not abuse their discretion by denying petitioners’ motions
for continuances to await decisions on their pending requests for labor
certifications. The grant of a continuance is within the immigration judges’ broad
discretion. See Olvera v. INS, 504 F.2d 1372, 1374 (5th Cir. 1974); see also Witter
v. INS, 113 F.3d 549, 555 (5th Cir. 1997) (“The grant of a continuance of a
deportation hearing lies within the sound discretion of the immigration judge, who
may grant a continuance upon a showing of good cause.”). Section 245(i) of the
INA, 8 U.S.C. § 1255(i)(1), permits a certain class of aliens who were otherwise
ineligible to adjust their temporary resident status in the United States to pay a
penalty fee for adjusting their status to that of a “permanent resident” and be
considered “grandfathered” into the United States, if he is the “beneficiary” of an
application for labor certification that was properly filed by April 30, 2001, and was
“approvable when filed.” INA § 245(i)(1), 8 C.F.R. § 245.10(a)(1)(i)(B).
“Approvable when filed means that, as of the date of the filing,” the application for
labor certification was “properly filed, meritorious in fact, and non-frivolous . . ..”
8 C.F.R. § 245.10(a)(3). Once the Attorney General receives the application for
adjustment of status and the appropriate fee, he “may” adjust the status if the alien
“is eligible to receive an immigrant visa and is admissible,” and “an immigrant visa
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is immediately available to the alien at the time the application is filed.”
INA 245(i)(2), 8 U.S.C. § 1255(i)(2). An immigrant visa cannot, however, be
issued to the alien until the labor certification is approved. INA § 203(b)(3)(C), 8
U.S.C. § 1182(a)(5); see generally In re H-A, 22 I & N Dec. 728, 741 (BIA 1999)
(explaining that “applications for adjustment of status that could not be
simultaneously filed because to file for third-preference status required prior
approval by the United States Department of Labor of labor certification”).
Here, since all that the petitioners offered the immigration judges was the
“speculative” possibility that at some point in the future they may receive, or in
Zafar’s case, his father may receive, labor certification, petitioners have failed to
demonstrate that they had a visa petition “immediately available” to them because
they could not have filed an “approvable” visa petition without the labor
certification in the first place, which is a prerequisite for relief under 8 U.S.C.
§ 1255(i) and 8 C.F.R. § 245.10(a)(3). See, e.g., Oluyemi v. INS, 902 F.2d 1032,
1034 (1st Cir. 1990). At the time of the immigration judges’ denials of the
petitioners’ motions to continue their removal proceedings, it is clear that the
petitioners were ineligible for adjustments to permanent resident status under
§ 1255(i) and there thus were no visas “immediately available” to them. See
Onyeme v. INS, 146 F.3d 227, 234 (4th Cir. 1998) (finding no abuse of discretion in
BIA’s affirmance of immigration judge’s denial of motion to continue deportation
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proceedings where petitioner had not met all statutory requirements for adjustment
of status); Oluyemi, 902 F.2d at 1034 (same); see generally United States v.
McCutcheon, 86 F.3d 187, 190 (11th Cir. 1996) (noting that trial judge’s
discretionary decision to deny motion to sever trial was to be reviewed by this
Court on appeal by viewing the case as it appeared to the trial judge “at that time”)
(emphasis supplied). Based on this record, there was no abuse of discretion in
denying their motions to continue their removal proceedings.
No Due Process or Equal Protection Violations
Even if we did not have jurisdiction, we would still have jurisdiction to
review substantial constitutional claims. See Moore v. Ashcroft, 251 F.3d 919,
923–94 (11th Cir. 2001). Petitioners assert violations of both their due process and
equal protection rights.
Petitioners argue that their due process rights were violated when the
immigration judges did not continue their removal proceedings long enough for
them to meet all the necessary requirements for adjustment of status. There is no
constitutionally protected right to discretionary relief, which is the relief requested
here. See Tefel v. Reno, 180 F.3d 1286, 1300 (11th Cir. 1999).
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
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the Attorney General, where other non-Pakistani citizens were not so required to
register. See Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471,
489–92 (1999) (finding that the INS retains inherent prosecutorial discretion as to
whether to bring removal proceedings). There is no support in the record for this
argument. Petitioners neither cite, nor have we identified, any case supporting their
second equal protection argument that “in other jurisdictions” immigration judges
“routinely administratively close proceedings where the beneficiary has a pending
section 245(i) labor certifications, however in Atlanta they did not.” We reject this
equal protection argument as well.
The petitions are therefore
DENIED.
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