Ali Awar v. U.S. Attorney General , 197 F. App'x 845 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-13466 SEPTEMBER 14, 2006
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
BIA No. A96-114-116
ALI AWAR,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(September 14, 2006)
Before MARCUS, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Ali Awar, a native of India and citizen of Pakistan, petitions for review of
the denial of his motion to continue his removal proceeding. The Board of
Immigration Appeals affirmed the denial of Awar’s motion by the Immigration
Judge because it concluded that Awar was not “eligible to receive an immigrant
visa.” 8 U.S.C. § 1255(i)(2)(A). Because Awar failed to file an I-485 application
for adjustment of status, we deny Awar’s petition.
Awar entered the United States on December 14, 1995, as a non-immigrant
with authorization to remain until December 19, 1995. In March 2003, the
Immigration and Naturalization Service issued Awar a notice to appear that
charged him with removability. See 8 U.S.C. § 1227(a)(1)(B). Awar conceded
removability, but moved for a continuance of the proceeding based on his pending
employment-based visa application. In support of his motion, Awar submitted an
I-140 “Immigrant Petition For Alien Worker” form filed on his behalf by Maharaja
Investments; an application filed on April 31, 2001, with the Department of Labor
for employment certification; and a letter from the DOL that accepted and certified
his application. Awar did not file a form I-485 for adjustment of status.
The IJ denied Awar’s motion for a continuance because the IJ concluded that
the pending visa petition did not entitle Awar to a continuance. The IJ
distinguished decisions that granted continuances to family-based petitions because
“a familial bond is permanent one” and “[a] valid labor certification[, which]
evidences only a job offer.” Awar appealed the decision of the IJ to the BIA, but
2
the BIA affirmed the decision without opinion.
Awar argues that he was entitled to a continuance because he established a
prima facie approvable petition for an employment-based visa. We review the
decision of the BIA, except to the extent that the BIA expressly adopts the decision
of the IJ. Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001). We review
the IJ’s discretionary decision to deny a motion for a continuance for abuse of
discretion. See Bull v. INS, 790 F.2d 869, 872 (11th Cir. 1986).
The IJ has broad discretion to grant continuances “for good cause shown.” 8
C.F.R. § 1003.29; see Zafar v. U.S. Att’y Gen., ___ F.3d ___, slip op. at 12–13
(11th Cir. Aug. 24, 2006). An alien establishes “good cause” if the immigrant
presents prima facie eligibility for adjustment of status. See Zafar, ___ F.3d ___,
slip op. at 13. An alien lawfully in the United States is eligible for adjustment of
status 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 is immediately available to him at
the time his application is filed.” 8 U.S.C. § 1255(a). An alien who unlawfully
remains in the United States may file for an 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,
3
2001.
Zafar, ___ F.3d ___, slip op. at 15–16.
So far as we can tell, Awar was not “eligible for adjustment of status”
because the record does not contain a copy of Awar’s I-485 Form for an
adjustment of status. An alien has the burden to show “good cause” to continue the
proceedings, but Awar failed to submit a copy of his I-485 Form, which is the first
requirement to establish eligibility for adjustment of status. 8 C.F.R. § 1003.29.
According to the record, Awar has not “successfully completed all actions required
by [section] 1255(i) to be performed by him.” Merchant v. U.S. Att’y Gen., ___
F.3d ___, slip op. at 8–9 (11th Cir. 2006); see 8 C.F.R. § 245.10(b) (requiring the
alien to file a Form I-485 application and Supplement A with a fee). Because
Awar has not provided credible evidence that he filed an I-485 Form, we cannot
say it was an abuse of discretion for the IJ to deny Awar’s motion for a
continuance.
Awar’s petition is
DENIED.
4