Rana v. Holder , 363 F. App'x 779 ( 2010 )

08-4134-ag(L); 09-1128-ag(CON)
Rana v. Holder
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO
A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS
GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S
LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED
WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER"). A PARTY
CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 2 nd day of February, two thousand ten.
5
6
7 PRESENT: PIERRE N. LEVAL,
8 RICHARD C. WESLEY,
9 Circuit Judges,
10 JOHN GLEESON, *
11 District Judge.
12
13
14
15 Khalid Rana, also known as Khalid Pervez Rana,
16
17 Petitioner,
18
19 v. 08-4134-ag(L); 09-1128-ag(CON)
20
21 Eric H. Holder, Jr., United States Attorney General, **
22 Immigration & Customs Enforcement, United States Secretary
23 of the Department of Homeland,
24
25 Respondents.
26
*
The Honorable John Gleeson, of the United States
District Court for the Eastern District of New York, sitting
by designation.
**
Pursuant to Federal Rule of Appellate Procedure
43(c)(2), Attorney General Eric H. Holder, Jr. is
automatically substituted for former Attorney General
Michael B. Mukasey as respondent in this case.
1 APPEARING FOR PETITIONER: P ANKAJ M ALIK, Malik &
2 Associates, East Elmhurst,
3 N.Y.
45 APPEARING FOR RESPONDENTS: A NH-T HU P. M AI-W INDLE, Senior
6 Litigation Counsel (Tony
7 West, Assistant Attorney
8 General, and Thomas B.
9 Fatouros, Assistant
10 Director, on the brief),
11 Office of Immigration
12 Litigation, U.S. Department
13 of Justice, Washington, D.C.
14
15 Appeal from the Board of Immigration Appeals.
16
17 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
18 AND DECREED that the petition is GRANTED and the matter
19 REMANDED.
20
21 Petitioner Khalid Rana appeals from two orders of the
22 Board of Immigration Appeals (“BIA”), one dismissing his
23 appeal of an order of removal and the other denying his
24 motion to reopen. We assume the parties’ familiarity with
25 the underlying facts, the procedural history of the case,
26 and the issues on appeal.
27 After the BIA dismissed Petitioner’s appeal, we issued
28 our decision Rajah v. Mukasey, 544 F.3d 449 (2d Cir. 2008).
29 In Rajah, we reviewed an Immigration Judge’s refusal to
30 grant a continuance where the petitioner awaited
31 adjudication of his labor certification. Id. at 453. We
32 concluded that we could not answer whether the Immigration
33 Judge had abused her discretion, because the BIA had not
34 sufficiently identified the boundaries of that discretion in
2
1 the context of a pending labor certification. Id. at 456.
2 We remanded to the BIA, noting “it [was] imperative that the
3 agency connect the notion of ‘sufficient time’ with the
4 practicalities of the labor certification and immigration
5 process as well as with the intentions of Congress.” Id.
6 On remand, in Matter of Rajah, the BIA addressed our
7 request to outline the standard to be used to evaluate a
8 petitioner’s motion for continuance when a petitioner has a
9 pending labor certification. 25 I & N. Dec. 127 (B.I.A.
10 2009); see also Rajah, 544 F.3d at 450. The BIA looked
11 first to its recent decision in Matter of Hashmi, which
12 outlined a variety of factors that may be considered by
13 Immigration Judges and the BIA when evaluating a request for
14 a continuance, including: “(1) the [Department of Homeland
15 Security] response to the motion; (2) whether the underlying
16 visa petition is prima facie approvable; (3) the
17 respondent’s statutory eligibility for adjustment of status;
18 (4) whether the respondent’s application for adjustment
19 merits a favorable exercise of discretion; and (5) the
20 reason for the continuance and other procedural factors.”
21 Id. at 130 (quoting Matter of Hashmi, 24 I & N Dec. 785, 790
22 (B.I.A. 2009)). The BIA determined that when, as here,
23 Petitioner has a pending I-140 application, “the Immigration
24 Judge should consider the applicable factors we identified
3
1 in Matter of Hashmi, and any other relevant considerations
2 when deciding whether to continue removal proceedings to
3 await adjudication by the [United States Citizenship and
4 Immigration Services] or the [United States Department of
5 Labor]. . . .[T]he focus of the inquiry is the likelihood of
6 success on the adjustment application. . . . evaluat[ing]
7 the individual facts and circumstances relevant to each
8 case.” Id. at 135-36.
9 Neither the BIA’s dismissal of Petitioner’s appeal of
10 his order of removal, nor the BIA’s denial of Petitioner’s
11 motion to reopen, contained the necessarily analysis to meet
12 the standard Matter of Rajah outlines. Though Petitioner
13 raised the existence of his I-140 application in both his
14 appeal brief and in his motion to reopen, neither order even
15 acknowledged Petitioner’s pending application. Accordingly,
16 the case must be remanded to the BIA to conduct the review
17 in light of its decision in Matter of Rajah.
18 For the foregoing reasons, the petition is GRANTED and
19 the matter REMANDED for further proceedings not inconsistent
20 with this decision.
21 FOR THE COURT:
22 Catherine O’Hagan Wolfe, Clerk
23
24
25
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