[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
FILED
No. 04-16613 U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
________________________ August 24, 2006
THOMAS K. KAHN
BIA No. A96-114-075 CLERK
MOHAMMED ZEESHAN ZAFAR,
Petitioner,
versus
U. S. ATTORNEY GENERAL,
Respondent.
________________________
No. 04-16689
________________________
BIA No. A96-114-077
AMIRMOHAMMED HABIB LAKHANI,
Petitioner,
versus
U. S. ATTORNEY GENERAL,
Respondent.
________________________
No. 04-16750
________________________
BIA No. A96-114-175
NIZAR GHULAMANI,
Petitioner,
versus
U. S. ATTORNEY GENERAL,
Respondent.
________________________
Petitions for Review of Decisions of the
Board of Immigration Appeals
_________________________
(August 24, 2006)
ON PETITION FOR REHEARING
Before ANDERSON, HULL and RONEY, Circuit Judges.
RONEY, Circuit Judge:
The panel grants the petition for panel rehearing, vacates its prior panel
opinion, published at 426 F.3d 1330 (11th Cir. 2005), and substitutes this opinion
in its place. While the Court reaches the same result, we address certain claims
more fully.
Petitioners are living in the United States on expired visas. Separate
2
removal proceedings were initiated against all three in March and April, 2003.
Each moved for continuances while awaiting labor certifications from the
Department of Labor (“DOL”). They filed petitions seeking review of the Board
of Immigration Appeals’ (“BIAs’”) summary affirmances of the immigration
judges’ (“IJs’”) denials of their motions to continue their removal proceedings.
The government contends that this Court is without 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 IJs’ decisions to 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 for no longer than six
months, or 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”), which in March 2003 replaced the Immigration and
Naturalization Service (“INS”), initiated removal proceedings against Lakhani,
charging him as a nonimmigrant who remained in the United States longer than
3
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 . . . provides that it is appropriate for 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 on November 30, 2004. Lakhani’s petition seeks review of
the BIA’s November 30, 2004 order.
After the BIA affirmed Judge Rast’s decision, Lakhani filed a motion for
reconsideration with the BIA, attaching a copy of a one-page DHS form stating
that the DHS was in receipt of an “I-140” filed on Lakhani’s behalf. There is no
reference to an approved labor certification in the form, and Lakhani did not
submit to the BIA the actual “I-140.” The BIA denied Lakhani’s motion for
reconsideration. Lakhani did not petition this Court for review of that denial.
Accordingly, the possibility that Lakhani may have received approval of his labor
certification at some point during the pendency of the matter before the BIA is a
4
fact which is not before this Court. Thus, Lakhani is in no different position before
us than Zafar and Ghulamani.
Mohammed Zeeshan Zafar
Zafar entered the United States on or about September 29, 2000, as a
nonimmigrant visitor authorized to remain in the country for no longer than six
months, or 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 IJ (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
no case authority or statutory [or] regulatory authority
which authorizes or suggests the appropriateness of a
continuance where labor certification has not yet been
5
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, or until approximately December 7, 1997. 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. Johnston and also conceded
removability. His counsel advised Judge Johnston 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 IJ 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
Johnston found that the approval of a pending labor certification was “speculative”
and did not constitute good cause for continuance, stating as follows:
In the court’s opinion aliens who are awaiting the [DOL] to
6
approve a labor certification are in a much weaker position than those
who have an approved labor certification and are awaiting
adjudication of an I-140. That is[,] their relief is even more
speculative.
. . . [A] respondent who is awaiting a labor certification from the
[DOL] . . . [is] not entitled to a continuance. . . . [G]ood cause for a
continuance has not been demonstrated and in the exercise of
discretion a continuance is not warranted.
The BIA affirmed the IJ’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 IJs’ 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 the authority 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 IJ’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,
7
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 IJ’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 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 express authority of an IJ 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 IJ 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
8
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
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 IJs 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 identified, any expressed
authority stating the IJ’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 IJs via 8 C.F.R. §
1003.29, a federal regulation implemented by the Attorney General. Since only the
9
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 sections 1151 through 1378, we have
jurisdiction to review those discretionary decisions. See Zhao v. Gonzales, 404
F.3d 295, 303 (5th Cir. 2005) (finding 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 IJ’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”).
10
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 subchapter” to the Attorney General, as enumerated in
§ 1252(a)(2)(B)(ii), we have jurisdiction to review them.
The IJs Did Not Abuse Their Discretion
Although we have jurisdiction under § 1252(a)(2)(B)(ii), the IJs nonetheless
did not abuse their discretion by denying petitioners’ motions for continuances to
await decisions on their pending requests for labor certifications from the DOL.
The grant of a continuance is within the IJs’ 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.”).
As noted above, all three petitioners are illegal aliens removable for
overstaying their six-month visas. Lakhani’s visa expired in August 1995;
Ghulamani’s visa expired in December 1997; Zafar’s visa expired in March 2001.
Two petitioners were ordered removed in 2003, and one in 2004. Petitioners do not
contest their removability. Rather, petitioners contend that the IJs abused their
discretion in denying continuances of the removal hearings. Petitioners represented
11
to the IJs that they had filed applications for labor certifications with the DOL and
that if those applications were granted, petitioners would later be able to pursue I-
140 petitions for employment-based immigrant visas and to file I-485 applications
for adjustment of status by the Attorney General with the DHS. We say “pursue” I-
140 petitions because it is the alien’s prospective employer who must actually sign
and file an I-140 petition for an employment-based visa. See 8 C.F.R. § 204.5(c).
In any event, petitioners do not dispute that at the time of their removal
hearings, no I-140 petitions for employment-based visas had been filed on their
behalf, and they had not filed any I-485 applications for adjustment of status under
§ 1255(i). Petitioners merely had pending labor certificate applications with the
DOL.
We first review 8 U.S.C. § 1255, which codifies INA § 245, and then address
the IJs’ continuance denials.
8 U.S.C. § 1255
To be eligible for adjustment of status under 8 U.S.C. § 1255, there are three
statutory eligibility requirements. Specifically, § 1255(a) provides that the status of
an alien lawfully admitted into the United States may be adjusted to that of an alien
lawfully admitted for permanent residence if: “(1) the alien makes an application
for such adjustment, (2) the alien is eligible to receive an immigrant visa and is
admissible to the United States for permanent residence, and (3) an immigrant visa
12
is immediately available to him at the time his application is filed.” 8 U.S.C. §
1255(a) (emphasis supplied).
However, § 1255(c) bars aliens lawfully admitted into the United States from
applying for § 1255(a) adjustment of status if they overstayed their visas. In other
words, if an alien was lawfully admitted but overstayed his visa and became illegal,
then the alien may not even apply for adjustment of status under § 1255(a), and
cannot meet the first statutory eligibility requirement.
In turn, § 1255(i) creates an exception to § 1255(c)’s bar. Section 1255(i)
states that “[n]otwithstanding the provisions of [§ 1255](a) and (c),” an alien “may
apply to the Attorney General for . . . adjustment of . . . status” if: (1) the alien pays
the applicable fees and the alien is physically present in the United States at the
time the alien applies for adjustment of status; (2) the alien was physically present
in the United States on December 21, 2000; and (3) the alien is the beneficiary of an
application for a labor certificate that was filed on or before April 30, 2001. See 8
U.S.C. § 1255(i)(1)(A)-(C) (emphasis supplied). The original sunset date for
applications for labor certificates under § 1255(i) was 1997, but it was extended
several times, with April 30, 2001, being the final cutoff date.
Thus, aliens who were in the United States as of December 21, 2000, and
applied for labor certificates on or before April 30, 2001, are excepted from the §
1255(c) bar and may apply to the Attorney General for adjustment of status under §
13
1255(i). As noted earlier, Zafar’s father and petitioners Ghulamani and Lakhani
each had a labor certificate application filed on or before April 30, 2001. Meeting
these criteria, however, removes only the § 1255(c) bar to filing an adjustment-of-
status application. 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
§ 1255(i) that must also be met.
Specifically, § 1255(i)(2) provides, just as § 1255(a) does, that the Attorney
General may approve an adjustment-of-status application only 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 [adjustment-of-status] application is filed.
8 U.S.C. § 1255(i)(2)(A) and (B) (emphasis supplied). Thus, the two statutory
eligibility requirements for adjustment of status first set forth in § 1255(a) are not
waived in § 1255(i), but are repeated verbatim in § 1255(i). Accordingly, to be
eligible for adjustment of status under § 1255(i), (1) the alien must be eligible to
receive an immigrant visa and (2) an immigrant visa must be immediately available.
Id.
At the time of their removal hearings in 2003, petitioners were not statutorily
eligible for adjustment of status and had not even filed applications for adjustment-
14
of-status relief under § 1255(i). First, petitioners were not “eligible to receive an
immigrant visa” as required under § 1255(i)(2)(A). The only visa at issue is an
employment-based immigrant visa. See 8 U.S.C. § 1182(a)(5)(A); 20 C.F.R.
§ 656.2; 8 C.F.R. § 204.5. The I-140 petition for an employment-based immigrant
visa must be accompanied by an approved labor certificate and other required
supporting documents. See 8 C.F.R. §§ 204.5(a)(2)-(3). An employment-based
immigrant visa cannot be applied for until the alien has an approved labor
certification from the DOL. 8 U.S.C. §§ 1153(b)(3)(C), 1182(a)(5)(A).
Accordingly, at the time of their removal hearings, petitioners were not
“eligible to receive an immigrant visa,” as required by § 1255(i)(2)(A), because
they did not have approved labor certificates from the DOL. There was also no
evidence in the immigration court that there was a visa “immediately available,” as
required by § 1255(i)(2)(B). See 8 C.F.R. § 245.1(g). Therefore, at the time of
their removal hearings, petitioners were nowhere close to meeting these two
statutory eligibility requirements of § 1255(i) for adjustment of status to permanent
residence. At the time of their hearings, petitioners could not even ask for, much
less receive, adjustment-of-status relief under § 1255(i).
All petitioners offered the IJs was the speculative possibility that at some
point in the future they might have received (or in Zafar’s case, that his father might
have received) approved labor certifications from the DOL, and only then could the
15
required I-140 visa petitions be filed, and only then would petitioners be able to file
the I-485 applications for adjustment of status with the DHS and ask for
adjustment-of-status relief. Given that petitioners had filed only labor certificate
applications with the DOL, were not yet statutorily eligible for adjustment of status
under § 1255(i), and had not filed I-485 applications for adjustment-of-status relief
under § 1255(i), it clearly was not an abuse of discretion for the IJs to deny the
motions for continuances of the removal proceedings.
The Fifth and Third Circuits
Both the Fifth and Third Circuits followed the result reached in our prior
Zafar panel opinion—the result we reach again today. See Ahmed v. Gonzales, 447
F.3d 433 (5th Cir. 2006); Khan v. U.S. Att’y Gen., 448 F.3d 226 (3d Cir. 2006).
These circuits, as we do today, emphasized (1) the discretionary nature of the
process and (2) how aliens who have filed only labor certificate applications are not
even statutorily eligible for adjustment of status under § 1255(i).
For example, in Ahmed, the alien had filed only a labor certificate application
with the DOL and was denied a continuance of his removal proceedings. Ahmed,
447 F.3d at 435. The Ahmed court reasoned that the petitioner there was only at
“the first step of a long and discretionary process,” and that Ahmed was not
statutorily eligible for adjustment relief. Under those circumstances, the court
declined to hold that the denial of a continuance was an abuse of discretion.
16
In the Third Circuit’s Khan, the petitioner also had filed only a labor
certificate application with the DOL, and its analysis likewise supports our
conclusion today. Khan, 448 F.3d at 229. The Third Circuit pointed out that the
requisite I-140 visa petition had not been filed in Khan’s name because the labor
certificate application was still pending with the DOL. Id. at 234. Thus, the Third
Circuit noted that “Khan [was] presently ineligible for an immigrant visa, which is
a prerequisite to adjustment of status under § 1255(i),” and as such, he had not
presented a prima facie case of eligibility for an adjustment of status. Id. at 235
(emphasis supplied). The court also noted that Khan could not satisfy the
“immediately available” visa requirement of § 1255(i)(2)(B). As with the
petitioners in Ahmed and our case, Khan offered only a speculative possibility that
at some point in the future, his wife may receive a labor certification. Id. at 235.
As noted in our original Zafar opinion, all petitioners here offered the IJs was
the speculative possibility that at some undeterminable point in the future they
might receive approved labor certificates, but at the time of their removal hearings,
they were not even statutorily eligible for either I-140 immigrant visas or an
adjustment of status under § 1255(i). Thus, under the particular factual
circumstances of petitioners’ cases, we conclude that the IJs did not abuse their
discretion in denying the continuance motions.
17
Petitioners’ Arguments
Petitioners acknowledge that the DOL process and the DHS adjustment-of-
status process to permanent resident are long and discretionary at every step.
Nonetheless, petitioners argue that (1) once an alien files his labor certificate
application with the DOL, the alien, although otherwise removable, is entitled to
stay in the United States, and cannot be removed by the DHS, and (2) it is thus an
abuse of discretion to deny continuances of removal proceedings until the entire
process is completed.
We disagree for several reasons. First, there is no provision in § 1255(i) or
elsewhere in § 1255 that states a removable alien is permitted to stay in the United
States upon the mere filing of a labor certificate application with the DOL or during
this process. Indeed, petitioners here had not yet begun the DHS process as no I-
140 visa petitions or I-485 adjustment applications were filed with the DHS.
Indeed, § 1255(i) does not expressly address separate removal proceedings, and it
certainly does not say a removable alien may remain in the United States during the
DOL process.
Petitioners reference an April 27, 2001 memorandum by the INS Executive
Associate Commissioner discussing prosecutorial discretion in removal proceedings
and stating that field offices should not initiate removal proceedings “if such action
is based solely on the filing of . . . a[] . . . labor certification application . . . .” INS
18
Memorandum of Apr. 27, 2001 at 2 (emphasis supplied). The INS Memorandum
further provides that “unauthorized aliens encountered in the course of routine
enforcement actions, or who otherwise come to the attention of the INS other than
by reason of the fact they are seeking to legalize their status under section 245(i),
should continue to be processed according to established procedures, whether or not
they are seeking to adjust their status under section 245(i).” Id.1
The INS Memorandum provides no support for petitioners, however,
because, as we have demonstrated above, these petitioners were not yet eligible for
an immigrant visa or for adjustment of status under § 1255(i). The INS
Memorandum indicates its intention to apply only to aliens who are “eligible for
adjustment under § 245(i).” For example, in the second sentence of the first
paragraph of the actual “Guidance,” the INS Memorandum instructs field offices
not to initiate removal proceedings against “an alien who is eligible for adjustment
under § 245(i) . . .” if such action is based solely on the filing of a labor certification
application. This contemplation of eligibility is repeated throughout the Guidance.
Thus, whatever protection the INS Memorandum might otherwise provide, it
provides none to these petitioners who are not yet eligible under § 1255(i). In any
event, we do not rely on the INS Memorandum for our holding, because INS
1
We need not examine whether petitioners were encountered in the course of routine
enforcement or otherwise because, as explained above, they were not statutorily eligible for
adjustment of status under § 1255(i).
19
internal memoranda, such as this one, are “for the convenience of the INS and do
[does] not have the force and effect of law.” Pasquini v. Morris, 700 F.2d 658, 659
(11th Cir. 1983).
Petitioners also rely on Bull v. INS, 790 F.2d 869 (11th Cir. 1986), but it does
not help them. In Bull, this Court concluded that it was an abuse of discretion for
an IJ to deny a petitioner’s request to continue his removal proceedings, where the
petitioner was already married to a United States citizen and had already filed a
family-based visa petition with the INS. Bull, 790 F.2d at 869. Here, at the time of
the removal hearings before the IJs, petitioners had filed only labor certificate
applications with the DOL, and no employment-based visa petitions were filed with
the DHS. Petitioners here were thus not in the favorable posture of the Bull
petitioner who already had filed a visa petition with the INS and was awaiting INS
adjudication.
The Bull Court also found that because the INS had an express policy of
allowing a prima facie qualified beneficiary of a family-based visa petition to
remain in the United States pending final adjudication of the visa petition and
adjustment of status, the IJ abused his discretion by refusing to grant a continuance
for that purpose. Id. at 871-72. Here, by contrast, petitioners were not prima facie
eligible for I-140 employment-based visa petitions because they did not have
approved labor certificates. Bull is therefore distinguishable. If anything, Bull
20
suggests the IJs did not abuse their discretion here in denying continuances to
petitioners who had not received approval of their applications for labor
certifications and had not filed I-140 visa petitions.
As an alternative argument, petitioners suggest that the IJs erroneously
believed that they had no authority to grant continuances and that this mistake of
law was an abuse of discretion. We disagree with petitioners’ reading of the record.
For example, in Ghulamani’s case, Judge Johnston exercised his discretion, stating:
In the court’s opinion aliens who are awaiting the [DOL] to
approve a labor certification are in a much weaker position than those
who have an approved labor certification and are awaiting adjudication
of an I-140. That is[,] their relief is even more speculative.
. . . [A] respondent who is awaiting a labor certification from the
[DOL] . . . [is] not entitled to a continuance. . . . [G]ood cause for a
continuance has not been demonstrated and in the exercise of
discretion a continuance is not warranted.
Judge Johnston’s observation that the approval of a labor certification was
“speculative” was correct.
Similarly, in Zafar’s case, Judge Rast also exercised his discretion, stating:
The Court is aware of no case authority or statutory [or]
regulatory law which authorizes or suggests the appropriateness of a
continuance where a 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.
(emphasis supplied). Contrary to petitioners’ arguments, we do not believe this
21
statement leads to the conclusion that Judge Rast thought he had no authority to
continue removal proceedings and, in essence, no authority to manage his own trial
docket. Instead, we conclude that Judge Rast was reasoning that he did not believe
that any authority existed requiring him to grant a continuance based upon the mere
pendency of a labor certificate application that had not yet been approved.
Accordingly, he was free to, and did in fact, exercise his discretion and found it not
appropriate to grant a continuance “under the circumstances.” It is difficult to
believe that any trial judge would believe that he does not have the authority to
manage his docket and grant a continuance in a case before him. At a minimum,
this record does not compel that conclusion. Simply put, the continuance denials
were not an abuse of discretion.
Finally, petitioners suggest that we follow the Seventh Circuit’s decision in
Subhan, which reversed an IJ’s denial of a continuance where a labor certificate
application was pending at the time of the removal hearing. The Seventh Circuit
found the IJ gave no reason for the denial, and instead merely stated the obvious:
that the labor department had not acted yet. Subhan, 383 F.3d at 593. Because the
IJ gave no reason for the denial, it was erroneous. Id. at 595. Had the IJ given
almost any reason for the denial of Subhan’s request, the denial would have
satisfied the law. Id. at 593-94.
The Seventh Circuit gave examples of many reasons that would have
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sufficed, such as: “he should have filed his application for adjustment of status
before his tourist visa expired” or “even that an illegal alien should not be allowed
to delay his removal beyond a year.” Id. We conclude that, given the speculative
nature of the process, the IJs gave an acceptable reason here: it was not appropriate
for removal proceedings to be indefinitely delayed to await the outcome of pending
labor certificate applications with the DOL. Certainly the plain language of §
1255(i) does not bar or stay removal by the DHS upon the mere filing of a labor
certificate application with the DOL.
For all of the foregoing reasons and based on this record, the IJs did not
abuse their discretion in denying petitioners’ continuance motions. Furthermore,
we need not, and thus do not, reach the issue of what should happen on any other
facts, such as, for example, if aliens have approved labor certificates and are
statutorily eligible for adjustment of status under § 1255(i).
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-
24 (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 IJs did
not continue their removal proceedings long enough for them to meet all the
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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
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” IJs “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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