[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
January 4, 2007
No. 04-16613
THOMAS K. KAHN
_______________________ CLERK
BIA No. A96-114-075
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 a Decision
of the Board of Immigration Appeals
_______________________
(January 4, 2007)
Before EDMONDSON, Chief Judge, TJOFLAT, ANDERSON, BIRCH,
DUBINA, BLACK, CARNES, BARKETT, HULL, MARCUS, WILSON and
PRYOR, Circuit Judges.
BY THE COURT:
The Court having been polled at the request of one of the members of the
Court and a majority of the Circuit Judges who are in regular active service not
having voted in favor of it (Rule 35, Federal Rules of Appellate Procedure;
Eleventh Circuit Rule 35-5), rehearing en banc is DENIED.
/s/ J. L. Edmondson
__________________________
CHIEF JUDGE
2
HULL, Circuit Judge, concurring in the denial of rehearing en banc, in which
ANDERSON, Circuit Judge, joins:
We concur in this Court’s denial of rehearing en banc because at the time of
their removal proceedings, petitioners were not statutorily eligible for adjustment
of status and the panel opinion correctly upholds the Immigration Judges’ (“IJs’”)
discretionary decisions to deny petitioners’ continuance motions. The plain
language of 8 U.S.C. § 1255(i) provides that aliens are not statutorily eligible for
status adjustment by the Department of Homeland Security (“DHS”) until they are
“eligible to receive” immigrant visas. At the time of their removal proceedings,
petitioners were ineligible to receive immigrant visas and in fact had not even filed
applications for immigrant visas or for adjustment of status. Petitioners merely
had applications for labor certificates pending with—not approved by—the
Department of Labor (“DOL”) at the time they sought continuances. We further
concur in the denial of rehearing because the case has limited reach due to the
April 30, 2001 deadline for the labor applications, and thus does not present “a
question of exceptional importance” under Fed. R. App. P. 35(a)(2).
The essence of the dissent is this: because petitioners had applications for
labor certificates pending with DOL, the IJs were required to continue petitioners’
removal proceedings until DOL acted on those applications and until petitioners, if
and when they were granted labor certificates by DOL, then had a chance to file I-
3
140 petitions for immigrant visas and I-485 adjustment-of-status applications. The
dissent’s rule would be that DHS cannot remove undisputedly removable aliens
once they file labor certificate applications with DOL. However, the dissent’s
position finds no support in, and is indeed completely contrary to, § 1255.
It is undisputed that petitioners are removable because they overstayed their
visas. Section 1255(c) bars aliens who were lawfully admitted into the United
States, such as petitioners, from applying for adjustment of status to lawful
permanent resident if the aliens overstay their visas. 8 U.S.C. § 1255(c).
Section 1255(i) creates an exception to § 1255(c)’s bar. Specifically, §
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).
However, meeting these criteria only removes the § 1255(c) bar to filing an
adjustment-of-status application. The mere filing of a labor certificate application
with DOL does not make an alien eligible for adjustment of status under § 1255(i).
Rather, there are two additional statutory eligibility requirements in § 1255(i) that
4
must also be met, as detailed in the panel opinion. First, the alien must be
“eligible to receive an immigrant visa.” 8 U.S.C. § 1255(i)(2)(A); see also Zafar
v. U.S. Att’y Gen., 461 F.3d 1357, 1363 (11th Cir. 2006). Second, there must be
“an immigrant visa . . . immediately available to the alien” at the time the
adjustment-of-status application is filed. 8 U.S.C. § 1255(i)(2)(B); see also Zafar,
461 F.3d at 1363.
The panel opinion correctly concludes that at the time petitioners sought
continuances, they were not “eligible to receive” employment-based immigrant
visas, as required by § 1255(i)(2)(A). See Zafar, 461 F.3d at 1363. An I-140
application 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). In other words, an alien cannot apply for an employment-based
immigrant visa until the alien has an approved labor certificate from DOL. See 8
U.S.C. §§ 1153(b)(3)(C), 1182(a)(5)(A); see also Zafar, 461 F.3d at 1363.
Accordingly, at the time of their removal hearings, petitioners were not “eligible to
receive” immigrant visas, as required by § 1255(i)(2)(A), because they did not
have approved labor certificates. Their labor certificate applications were merely
5
pending with DOL.
Additionally, there was no evidence in the immigration court that there were
“visa[s] . . . immediately available,” as required by § 1255(i)(2)(B).1 Zafar, 461
F.3d at 1363. Contrary to the dissent’s claim that petitioners had “compli[ed]
with” and “met the basic requirements” of § 1255(i) at the time they sought
continuances, petitioners were in fact multiple steps removed from having met the
requirements of § 1255(i). At the time of the continuance motions, there was
merely a speculative possibility that at some point in the future petitioners might
receive discretionary labor certificates from DOL, which would have only then
entitled petitioners to apply to DHS for immigrant visas and adjustment of status
under § 1255(i).
It is this critical point that distinguishes Zafar from Merchant v. U.S. Att’y
Gen., 461 F.3d 1375 (11th Cir. 2006). In Merchant, the petitioner was “eligible to
receive an immigrant visa,” as required by § 1255(i). Indeed, Merchant had filed
1
Notably, this second requirement—an immediately available visa—refers to a visa being
immediately available at the time of the I-485 application for adjustment of status. See 8 U.S.C.
§ 1255(i)(2)(B). Again, petitioners had not filed applications for adjustment of status at the time
they sought continuances before the IJs, and they certainly made no showing that visas would
have been “immediately available” at some point in the future at which they would have filed
their adjustment-of-status applications.
6
an I-140 petition for his immigrant visa and an I-485 status adjustment application
with DHS at the time he sought a continuance. In contrast to the Zafar petitioners,
Merchant had completed all actions with DHS required by § 1255(i) at the time of
his motion before the IJ. The Zafar petitioners had not even begun the process
before DHS, much less completed it. The distinction between Merchant and Zafar
is a material difference that stems from the statutory language of § 1255(i).
The dissent’s contention that the panel decision defeats the purpose and
intent of § 1255(i) is also wrong. First, again, the plain language of § 1255(i)
provides that aliens who have overstayed their visas are not statutorily eligible for
adjustment of status until they are “eligible to receive an immigrant visa.” 8
U.S.C. § 1255(i)(2)(A). Congress could have said in § 1255(i) that aliens become
eligible for adjustment of status merely by applying for labor certificates with
DOL, but that is not what Congress chose to do. The dissent’s approach ignores
the express language of the statute and attempts to read a vested right into §
1255(i) that is not found in the statute. There is nothing in § 1255(i) that even
stays removal, much less grants any right to stop removal upon the mere filing of
an application for a labor certificate with DOL.
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Second, § 1255(i) contains no continuance provision of any kind, let alone a
provision that grants a right to stop DHS removal when a petitioner has merely
filed a labor certificate application with DOL. Third, § 1255(i) retains substantial
purpose for those whom DHS asserts are the vast majority of § 1255(i) applicants:
aliens who seek adjustment of status under § 1255(i) but are not in removal
proceedings.2
An IJ has broad discretion to grant or deny a continuance. See Zafar, 461
F.3d at 1362. As explained in the panel opinion, the IJs here were all well aware
that they had the discretion to grant petitioners’ motions for continuances upon a
2
The dissent incorrectly suggests that the panel decision runs contrary to the immigration
authorities’ internal implementation memorandum for § 1255(i). As a threshold matter, internal
Immigration and Naturalization Service (“INS”) memoranda do not have the force of law. See
Zafar, 461 F.3d at 1365 (citing Pasquini v. Morris, 700 F.2d 658, 659 (11th Cir. 1983). In any
event, the panel decision is wholly consistent with the INS memorandum. The memorandum
states that “field offices shall not initiate removal proceedings against an alien who is eligible for
adjustment of status under [§ 1255(i)], if such action is based solely on the filing of a[] . . . labor
certification application . . . .” INS Memorandum of Apr. 27, 2001 (emphasis added). The
dissent fails to acknowledge that: (1) the memorandum, by its own clear terms, applies only to
those aliens “eligible” for adjustment under § 1255(i); and (2) the memorandum also states that
“unauthorized aliens encountered in the course of routine enforcement actions, or who otherwise
come to the attention of the [immigration authorities] other than by reason of the fact they are
seeking to legalize their status under [§ 1255(i)], should continue to be processed according to
established procedures, whether or not they are seeking to adjust their status under” § 1255(i).
Id. (emphasis added); see also Zafar, 461 F.3d at 1365. Here, again, petitioners were not
“eligible” for adjustment of status under § 1255(i). Additionally, there is no support in the record
for the contention that petitioners were encountered in anything other than “routine enforcement
actions.”
8
showing of good cause. Zafar, 461 F.3d at 1366. Although the dissent argues
otherwise, the IJs’ stated reasons for denying petitioners’ continuance motions are
wholly consistent with the panel opinion. For instance, IJ Johnston denied
Ghulamani’s motion for continuance because “aliens who are awaiting the [DOL]
to approve a labor certification are in a much weaker position than those [such as
Merchant] who have an approved labor certification and are awaiting adjudication
of an I-140.” Id. Similarly, IJ Rast emphasized that a “labor certification ha[d]
not yet been approved by the labor authorities.” Id. Without approved labor
certificates from DOL, petitioners were not yet even eligible for entirely
discretionary § 1255(i) status adjustment by DHS, and accordingly, the IJs did not
abuse their discretion in denying petitioners’ continuance motions.
Finally, we reiterate that the § 1255(i) relief sought by petitioners is
undisputedly available only to those aliens who filed labor certificate applications
on or before April 30, 2001—nearly six years ago. Because of its limited reach,
this case is not en banc-worthy.3
3
The dissent relies heavily on Subhan v. Ashcroft, 383 F.3d 591 (7th Cir. 2004). We
believe that the panel opinion correctly follows Khan v. Att’y Gen. of U.S., 448 F.3d 226 (3d Cir.
2006), and Ahmed v. Gonzales, 447 F.3d 433 (5th Cir. 2006), and persuasively distinguishes
Subhan, for the reasons detailed in the panel opinion. See Zafar, 461 F.3d at 1366-67.
9
BARKETT, Circuit Judge, dissenting from the denial of rehearing en banc:
The panel in this case holds that an individual who has timely filed for labor
certification may be deported simply because the government has delayed in
adjudicating that application. En banc review is warranted because the panel’s
ruling is contrary to, and defeats the very purpose of, 8 U.S.C. § 1255(i).
In enacting § 1255(i), Congress created a specific path to lawful permanent
residency for individuals who, like petitioners, are present in the United States but
have overstayed their visas. As the President of the United States noted when he
signed the legislation into law, § 1255(i) would “allow aliens (and their spouses
and children) who apply for an adjustment of status or a labor certification to
remain in the United States until such petition is approved.” Statement by
President of the United States, Pub. L. No. 106-554, 2000 U.S.C.C.A.N. 2705
(Dec. 21, 2000) (emphasis added).1 However, the panel’s ruling now allows the
Department of Homeland Security (DHS) to thwart this law by removing from the
country the very class of individuals for whom Congress enacted relief under
1
The immigration authorities charged with enforcing the new law also recognized that it
would not be appropriate to remove those individuals who are attempting to legalize their status
through § 1255(i), and therefore specifically instructed regional directors not to initiate removal
proceedings against those seeking to legalize their status through § 1255(i) “during the period of
time the petition or application is pending . . . .” Memorandum from Michael A. Pearson,
Executive Associate Commissioner, Office of Field Operations to Regional Directors (Apr. 27,
2001), 78 No. 19 Interpreter Releases 809, app. I at 2 (emphasis added).
10
§ 1255(i). This result is not based on any failure of petitioners to comply with the
law, but solely because of delay for which another agency of the Executive, the
Department of Labor (DOL), alone, is responsible.
To obtain relief under § 1255(i), an applicant has to (1) be present in the
United States; (2) have applied for labor certification with the DOL by April 30,
2001; and, once approved, (3) file an application for permanent residency and an
employer-sponsored visa petition with the DHS (which may be filed
simultaneously). Petitioners met the basic requirements of § 1255(i) by virtue of
being physically present in the United States and having timely sought labor
certification. Indeed, they filed their applications for labor certification two years
before any removal proceedings were initiated against them. There was nothing
more they could do to advance their attempts to legalize their status until the DOL
acted on those applications.
The IJs’ refusal to continue the removal proceedings for no other reason
than DOL’s delay—which was entirely out of petitioners’ control—was an abuse
of discretion because it was not based on any reason consistent with the statute,
and was instead contrary to the statute’s very purpose. Notwithstanding
petitioners’ compliance with § 1255(i), the panel holds that it was not an abuse of
discretion for the IJs to deny the continuances—resulting in an order of
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removal—because petitioners were not “eligible” for relief under § 1255(i).
It is first worth noting that the panel’s “eligibility” rationale for affirming
the IJs is not the basis on which any of the IJs themselves denied the continuances.
Rather, the stated bases for denying the continuances included one IJ’s erroneous
belief that he did not have the authority to grant such relief,2 and another’s
unsupported conclusion that the approval of a labor certificate was too
“speculative” to warrant a continuance.3 On this basis alone, the cases should
have been remanded to the IJs for a legally-sound and reasoned ruling on the
motions for continuance.
In any event, “eligibility” for relief under § 1255(i)—as the panel has
defined it—is predicated on the assumption that the DOL has acted. If, however,
2
We have previously held that where the denial of a request for a continuance of
deportation proceedings is premised on an erroneous conclusion, the denial of the motion for a
continuance constitutes an abuse of discretion. Bull v. INS, 790 F.2d 869, 872 (11th Cir. 1986).
The panel’s characterization of the IJ’s statements as not believing that any authority “required”
him to grant the continuance is not supported by his choice of words.
3
This rationale for denying a continuance—which the panel adopts as an “adequate
reason”—has no basis in the record. Neither the IJ nor the panel cites anything in the record to
suggest that petitioners’ prospects for relief were in fact “speculative,” in the sense of “based on
conjecture”; rather, petitioners were simply in the middle of an ongoing process when ordered
removed. That the procedure under § 1255(i) requires a labor certification before an applicant
may file for legalization does not render the prospect for legalization “speculative”; it merely
adds another step.
12
in the first stage of seeking legalization, the DOL unreasonably delays the
adjudication of an otherwise meritorious application for labor certification
(indeed, in the intervening time period, petitioner Lakhani’s labor certification has
been approved and petitioner Zafar’s father’s labor certification also has been
approved), then how can a petitioner be faulted for not demonstrating his
“eligibility” based on what is required of him at the second stage of the
legalization process: a showing that he is eligible to receive an immigrant visa and
that an immigrant visa is immediately available. 8 U.S.C. § 1255(i)(2)(A) and (B).
The panel imposes the impossible burden on petitioners to show that they have
established “eligibility” on the basis of applications they are not yet able to
file—even though, again, the inability to file is due solely to the government’s
failure to timely adjudicate the labor certifications.
The panel fails to discern the distinction between being ineligible for
statutory relief and simply awaiting adjudication by a federal agency on an
application in the first stage of the legalization process. Indeed, the panel does not
cite anything in the record that suggests that petitioners are in fact ineligible for
adjustment of status under the statute. Cf. Onyeme v. INS, 146 F.3d 227 (4th Cir.
13
1998) (affirming denial of a continuance where petitioner had not yet filed
application for adjustment of status under § 1255(a), because he was statutorily
ineligible for relief based on prior fraudulent conduct in testifying falsely to an
INS official); see also Oluyemi v. INS, 902 F.2d 1032, 1033-34 (1st Cir. 1990)
(affirming denial of petitioner’s motion for a continuance based on his application
for an adjustment of status under § 1255(a) because petitioner was statutorily
ineligible for adjustment of status based on repeatedly entering the country using
false passports).
By denying their requests for a continuance for no other reason than DOL’s
delay in adjudicating their applications for labor certification, petitioners were
ordered removed. Ironically, once they are removed from the country, petitioners
do become ineligible for relief under § 1255(i), because they are no longer
“present in the United States,” as required by the statute. With this absurd result,
the very purpose of the statute is defeated.
The panel attempts, unsuccessfully in my view, to distinguish the Seventh
Circuit’s opinion in Subhan v. Ashcroft, 383 F.3d 591 (7th Cir. 2004). In that
case, as in this one, the IJ denied a continuance of removal proceedings solely on
14
the basis that the petitioner had not yet obtained approval of his application for
labor certification. In reversing this denial, Judge Posner noted that denying the
motion for a continuance on this ground (the pendency of an application for labor
certification) “was not a reason for denying the motion for a . . . continuance, but
merely a statement of the obvious: that the labor departments hadn’t yet acted.”
Id. (emphasis added). Judge Posner further noted that if the IJ had found that
Subhan “had dragged his feet or that it was obvious from the nature of his
employment skills that he would not be granted the necessary certificates,” or a
number of other statutory reasons, “the denial of the . . . continuance would have
been reasoned, and we may assume would have been consistent with [§ 1255(i)].”
Id. at 593-94. But the IJ’s reliance on the mere pendency of the labor certification
application was not a “reason,” and the Seventh Circuit therefore held that the IJ
(and the BIA, which summarily affirmed the IJ’s decision) “violated section
1255(i) when he denied Subhan a continuance without giving a reason consistent
with the statute (indeed without giving any reason).” Id. at 595. The panel here
misses the point: that the pendency of a labor certification application is not a
reason for denying a continuance (but rather is a statement of fact) and a denial on
15
that basis is not consistent with the statute. The distinction that the Seventh
Circuit made, and which this panel fails to discern, was between a petitioner who
is statutorily ineligible for adjustment of status under § 1255(i), and one who is
deemed ineligible by the IJ through no fault of his own, but rather because “the
wheels of bureaucracy grind slow.” Id. at 593.
When Congress has specifically enacted a path to legalization for those who
are in the United States but are otherwise removable, it must be an abuse of
discretion to refuse to continue removal proceedings solely on the basis that their
properly filed applications have not yet been adjudicated.4 Indeed, we have since
held that it is an abuse of discretion to deny a continuance of removal proceedings
to an alien with an approved labor certification who has filed for an employment
4
The concurrence’s statement that nothing in the statute “grants any right to stop removal
upon the mere filing of an application for a labor certificate” turns the chronology of the cases
before us on its head. Petitioners’ labor applications were filed, and had been pending, for two
years before removal proceedings were initiated against them. Petitioners complied with the
requirement that they file their applications for labor certification on or before April 30, 2001. It
was not until March and April of 2003—two years after their labor applications had been
filed—that DHS initiated removal proceedings, as petitioners continued to await government
action on their timely-filed applications. It is clear then, that Petitioners did not apply for labor
certification to “stop removal”—rather, they attempted to access a path to legalization
specifically crafted by Congress for individuals who, like them, were otherwise removable by
virtue of having overstayed their visas. Once placed in removal, Petitioners asked for nothing
more than simply to allow that process to take its course.
16
visa and adjustment of status, solely because those applications have not yet been
adjudicated. Merchant v. U.S. Att’y. Gen., 461 F.3d 1375 (11th Cir. 2006). When
the then-INS initiated removal proceedings against Merchant, he, like petitioners,
“only” had an application for labor certification pending. Id. at 1376. Fortunately
for Merchant, during a nearly fifteen-month lag between the initiation of his
removal proceedings and the IJ’s final order, Merchant’s application was
approved. He, unlike petitioners, was therefore able to file a visa petition and a
concurrent application for adjustment of status before the proceedings were
concluded. Id. Petitioners here were only one step removed from the petitioner in
Merchant. There is no reasoned basis to deny them the ability to complete the
same process—whether in the end that results in their removal or adjustment of
status—simply because of bureaucratic delay.5
The panel’s ruling interferes with the ability of individuals to access a path
to legalization specifically crafted by Congress, for no reason that is consistent
with the statute or can fairly be attributed to the petitioners. As a result of the
ruling, individuals who are pursuing the legalization process laid out in § 1255(i)
5
This is not to say, as the Court observed in Merchant, that there may not be some other,
reasonable basis on which to deny the continuance. 461 F.3d at 1380.
17
may now be removed from the country—and thereby become actually ineligible
for the relief provided therein—simply because another agency in the Executive
has not yet adjudicated the application that is the first step of that process. This
directly contravenes the purpose of § 1255(i).
For these reasons, I believe the panel’s ruling is in error on a question of
exceptional importance, and therefore dissent from the denial of rehearing en
banc.
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