United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 21, 2005
Charles R. Fulbruge III
Clerk
No. 04-61139
Summary Calendar
ANIL KUMAR RAMCHANDANI,
Petitioner,
versus
ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,
Respondent.
____________________
On Petition for Review from an Order of
the Board of Immigration Appeals
_____________________
Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
BENAVIDES, Circuit Judge:
Anil Kumar Ramchandani petitions for review from the Board of
Immigration Appeals’s dismissal of his appeal and denial of his
motion to reopen. For the reasons below, we deny the petition.
I. Background
Ramchandani is a citizen of India. On May 11, 1997, he was
admitted to the United States as a nonimmigrant “alien in transit,”
with authorization to remain only until June 10, 1997. Ramchandani
overstayed. On October 24, 2002, he was served with a Notice to
Appear, and the Immigration and Naturalization Service commenced
removal proceedings against him.
After obtaining three continuances, Ramchandani appeared
before an Immigration Judge (“IJ”) on June 30, 2003. He sought
another continuance, hoping to adjust his status to that of lawful
permanent resident. Ramchandani argued that a continuance was
necessary (1) to allow him to obtain a labor certificate and (2) so
that Lisa O’Hanlon, a United States citizen whom he claimed to have
married three days earlier, could complete an I-130, marriage-based
visa petition on his behalf. The IJ denied the request and entered
an order of removal. Ramchandani timely appealed to the Board of
Immigration Appeals (“BIA”).
While the case was pending on appeal, Ramchandani filed a
motion to reopen the removal proceedings. He attached an
application to adjust status to his motion to reopen, which was
based on an unapproved visa petition that his wife had filed
subsequent to the IJ’s order of removal. Ramchandani’s motion
admitted, and a marriage certificate he attached as evidence
showed, that he had actually married O’Hanlon after the IJ’s order
of removal, on July 8, 2003. The BIA affirmed the IJ’s denial of
a continuance and denied Ramchandani’s motion to reopen.
Ramchandani appeals these two rulings.
II. Discussion
A. DENIAL OF CONTINUANCE
The BIA affirmed the IJ’s denial of a continuance, citing 8
C.F.R. § 1003.29. Under section 1003.29, an IJ “may grant a motion
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for continuance for good cause shown.” The alien seeking
continuance bears the burden of showing good cause. See Bright v.
I.N.S., 837 F.2d 1330, 1332 (5th Cir. 1988). The grant of a
continuance “lies within the sound discretion of the immigration
judge.” See Witter v. I.N.S., 113 F.3d 549, 555—56 (5th Cir.
1997). We find no abuse of that discretion here.
1. CONTINUANCE FOR LABOR CERTIFICATION
Aliens who are the beneficiary of an application for labor
certification filed on or before April 30, 2001 may apply to the
Attorney General for the adjustment of their status. 8 U.S.C. §
1255(i). Upon approval of the labor certification, the Attorney
General may adjust the alien’s status to that of lawful permanent
resident.
Ramchandani argues, citing Subhan v. Ashcroft, 383 F.3d 591,
594 (7th Cir. 2004), that his removal proceedings should have been
continued to permit the processing of a labor certification he
claims was pending with the Texas Workforce Commission. In Subhan,
the Seventh Circuit granted a petition for review where the IJ,
without explanation, denied an alien’s request for a continuance
for processing of a pending labor certification. 383 F.3d at
594–96.
Ramchandani’s reliance on Subhan ignores a critical
distinction between that case and the case at bar. In Subhan, the
record reflected that applications for labor certificates had been
3
filed within the April 30, 2001 sunset deadline and, moreover, that
the petitioner had “endeavored . . . with all due diligence” to
obtain approved certificates. Id. at 593. By contrast,
Ramchandani produced no evidence below that an application for
labor certification had been filed on his behalf prior to April 30,
2001.1
In Ali v. Gonzales, a panel of this Court held that an alien’s
responsibility to show “good cause” for a continuance required at
least “a showing that the labor certification application was filed
on or before April 30, 2001.” 2005 WL 3150723, *1 (5th Cir. Nov.
28, 2005) (unpublished). Although Ali is not binding precedent, it
is persuasive authority. See United States v. Rueda-Rivera, 396
F.3d 678, 681 (5th Cir. 2005). Without making some showing before
the IJ that a labor certification was filed prior to April 30,
2001, the alien cannot show that he would meet the statutory
requirements of Section 1255(i) even if the case were continued.
Cf. Manzano-Garcia v. Gonzales, 413 F.3d 462, 464 (5th Cir. 2005)
(noting that the petitioner obtained a continuance after he
“presented the immigration judge . . . with a receipt for the labor
1
Ramchandani attached a copy of a document to his reply
brief on appeal, purporting to show that an application was
timely filed. This document, however, was not produced to the IJ
or the BIA and is not in the record. We “may not consider new
evidence furnished for the first time on appeal and may not
consider facts which were not before the [court below] at the
time of the challenged ruling.” Theriot v. Parish of Jefferson,
185 F.3d 447, 491 n.26 (5th Cir. 1999).
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certification application, which had been filed on November 17,
1997”). Absent such a showing, the alien “has shown no cause, much
less good cause, for continuance . . . .” Ali, 2005 WL 3150723, at
*1.2
Ramchandani argues that the showing required in Ali should not
apply to him because the IJ appeared to credit the representation
of his counsel, Richard L. Printz, that Ramchandani’s labor
certification was filed prior to the sunset date.3 But the record
reflects that the IJ credited just the opposite representation.
After Printz was informed of the April 30, 2001 sunset date, he
responded, “That’ll make him a little late, judge.”4 The IJ
2
Even if Ramchandani had produced evidence that an
application for labor certification was timely filed, it is far
from clear that the denial of a continuance would have been an
abuse of discretion. In Zafar v. U.S. Attorney General, the
Eleventh Circuit held that the denial of a continuance to await
decisions on aliens’ pending labor certificate applications was
not an abuse of discretion. 426 F.3d 1330, 1335 (11th Cir.
2005). The “speculative possibility that at some point in the
future they may receive . . . labor certification” was not
sufficient for a showing of good cause. Id. (internal quotation
marks omitted, emphasis in original).
3
The BIA affirmed the IJ’s denial of a continuance on abuse
of discretion, rather than de novo, review. We assume without
deciding that this gives us authority to consider the IJ’s
decision in conjunction with the BIA’s ruling. See
Carbajal-Gonzalez v. I.N.S., 78 F.3d 194, 197 (stating that the
actions of the IJ may be reviewed “when they have some impact on
the Board’s decision”).
4
Printz’s representations before the IJ were contradictory.
He initially argued:
This man would be eligible to adjust under 245(i) because a
—well I’ll take that back. Maybe, maybe, he has an
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accepted this concession. Printz then proceeded to argue for a
continuance “in the face of authority that’s clearly against
[Ramchandani].” Under the circumstances, we hold that it was not
an abuse of discretion for the IJ to deny Ramchandani’s fourth
request for a continuance so that he could pursue labor
certification.
2. CONTINUANCE TO PURSUE MARRIAGE-BASED VISA
Ramchandani briefly argues that removal proceedings should
have been continued so that he could obtain a marriage-based visa.
Although Ramchandani was not in fact married when he appeared
before the IJ on June 30, 2003, he testified that he had been
married “a couple of days” earlier. Assuming, arguendo, that
Ramchandani had married O’Hanlon prior to the hearing,5 the denial
of a continuance would not have been an abuse of discretion.
First, O’Hanlon had not filed a visa petition on Ramchandani’s
behalf, and Ramchandani had not filed an application to adjust
status with the Attorney General. See Eyoum v. I.N.S., 125 F.3d
889, 892 (5th Cir. 1997) (finding no error in BIA’s failure to
postpone deportation proceedings to permit decision on adjustment
application for a labor certification filed on 4-24-01.
Printz presented no evidence that such an application was filed
and, as explained above, immediately thereafter represented that
the application would be “late.”
5
The Department of Homeland Security did not dispute the
fact of his marriage before the IJ.
6
where petitioner “never submitted an application for adjustment of
status”). Furthermore, Ramchandani married O’Hanlon during the
pendency of his exclusion proceedings. “Congress rather clearly
created a presumption that marriages contracted after the
institution of exclusion or deportation proceedings are
fraudulent.” In re Arthur, 20 I. & N. Dec. 475, 479 (BIA 1992).
This presumption may only be rebutted by “clear and convincing
evidence . . . that the marriage was entered into in good faith and
. . . was not entered into for the purpose of procuring the alien’s
admission as an immigrant . . . .” 8 U.S.C. § 1255(e). We cannot
conclude that Ramchandani’s bare testimony that he married a U.S.
citizen a few days before his hearing—unsupported by a visa
petition, an adjustment application, or by any evidence indicating
he had married in good faith—amounted to a showing of good cause so
as to warrant a continuance.
B. DENIAL OF MOTION TO REOPEN
Lastly, Ramchandani argues that the BIA erred in denying his
motion to reopen. We review the denial of a motion to reopen
“under a highly deferential abuse-of-discretion standard.” Zhao v.
Gonzales, 404 F.3d 295, 304 (5th Cir. 2005).6
6
The BIA’s opinion below used the terms “motion to reopen”
and “motion to remand” interchangeably. Whether Ramchandani’s
motion was formally one for remand or for reopening did not
change the substance of the BIA’s inquiry below, and it does not
change our standard of review. Ramchandani’s motion sought to
submit a new application for adjustment of status and to present
additional evidence not available at his initial hearing, for
7
Ramchandani sought reopening to apply for adjustment of status
through a concurrently filed visa petition from his wife. “A
motion to reopen proceedings for the purpose of submitting an
application for relief must be accompanied by the appropriate
application for relief and all supporting documentation.” 8 C.F.R.
§ 1003.2(c)(1). Under 8 C.F.R. § 213a.2, Ramchandani was required
to file both an “Affidavit of Support” (Form I-864) and three years
of income tax returns from O’Hanlon. He did not do so. Thus,
Ramchandani’s motion to reopen failed to comply with applicable
regulations.
Furthermore, the Department of Homeland Security (“DHS”)
opposed Ramchandani’s motion to reopen. Subject to an exception
not applicable here, the BIA may not grant motions to reopen based
on marriages entered into after the commencement of deportation or
exclusion proceedings when they are opposed by DHS. In re Velarde-
Pacheco, 23 I. & N. Dec. 253, 256 (BIA 2002).7 Thus, the BIA did
not abuse its discretion.
example, his July 8, 2003 marriage certificate. Under such
circumstances, a motion to remand is subject to the same
standards and regulations governing motions to reopen. See In re
Coehlo, 20 I. & N. Dec. 464, 471 (BIA 1992).
7
The BIA may grant an otherwise meritorious motion to
reopen despite DHS opposition if the sole basis for its
opposition is that the alien married after the commencement of a
deportation or exclusion proceeding. See Velarde-Pacheco, 23 I.
& N. Dec. at 256. Since DHS opposed Ramchandani’s motion because
it failed to include an Affidavit of Support and income
documentation, its opposition was determinative.
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III. Conclusion
The BIA did not abuse its discretion in finding no good cause
for a continuance. It did not abuse its discretion in denying
Ramchandani’s motion to reopen. Accordingly, the petition for
review is DENIED.
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