Khan v. Atty Gen USA ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
5-22-2006
Khan v. Atty Gen USA
Precedential or Non-Precedential: Precedential
Docket No. 04-4336
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PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-4336
MOHAMMED NASIR KHAN,
Petitioner
v.
*ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
*Pursuant to F.R.A.P. 43(c)
Petition for Review of the Order
of the Board of Immigration Appeals
(A79 708 104)
Immigration Judge: Daniel A. Meisner
Argued December 15, 2005
Before: SLOVITER, SMITH, and VAN ANTWERPEN,
Circuit Judges
(Filed May 22, 2006)
Jeffrey C. Bloom
Flushing, NY 11354
Francois-Ihor Mazur (Argued)
Philadelphia, PA l9l03
Attorneys for Petitioner
Michael P. Lindemann
Douglas E. Ginsburg (Argued)
Lyle D. Jentzer
United States Department of Justice
Office of Immigration Litigation
Washington, DC 20044
Attorneys for Respondent
OPINION OF THE COURT
SLOVITER, Circuit Judge.
Petitioner Mohammed Nasir Khan seeks review of the
decision of the Board of Immigration Appeals (“BIA”) affirming
the decision of the Immigration Judge (“IJ”) who denied Khan’s
request for a continuance of his removal proceeding. We must
decide at the outset whether we have jurisdiction.
I.
Background
Khan is a forty-seven-year-old native and citizen of
Bangladesh. He entered the United States as a non-immigrant
business visitor on September 20, 1996, with permission to
remain for a period not to exceed one month. On March 25,
2003, Khan voluntarily reported to the offices of the Department
of Homeland Security (“DHS”) to register in compliance with
DHS’s “special registration” program.1 DHS placed Khan into
1
The special registration program, which DHS enlarged
post-9/11, requires non-citizens from specified countries to
register with the National Security Entry-Exit Registration System.
See Ali v. Gonzales, 440 F.3d 678, 679 (5th Cir. 2006) (per
curiam); Murtuza v. Gonzales, 427 F.3d 508, 509 (7th Cir. 2005);
2
removal proceedings that same day by serving him with a Notice
to Appear in which it charged him with removability under INA
§ 237(a)(1)(B) for overstaying his visa.
On October 2, 2003, Khan appeared pro se for a hearing
before an IJ who adjourned the proceeding so that Khan could
seek counsel. On November 20, 2003, Khan again appeared
before the IJ, this time with counsel. Khan conceded his
removability as charged and did not apply for asylum or other
substantive relief. Instead, he applied for voluntary departure
and submitted a written motion seeking a continuance of the
removal proceeding or, in the alternative, a termination of the
proceeding on the ground that his wife (also an alien from
Bangladesh) had a pending application for an Alien Employment
Certification (“Labor Certification”) with the United States
Department of Labor (“DOL”).2
Registration and Monitoring of Certain Nonimmigrants, 67 Fed.
Reg. 52,584 (Aug. 12, 2002); 8 C.F.R. § 264.1(f) (2002).
2
Employment-based permanent residency (a “green card”)
is available to aliens through a three-step process. First, the alien’s
prospective employer must file an application for Labor
Certification (Form ETA-750) with the DOL, which refers the
petition to the appropriate state-level authority, such as the
Pennsylvania Department of Labor. If the application satisfies
certain requirements (e.g., sufficient United States workers are
unwilling or unable to perform the job in question), the state labor
office and, thereafter, the DOL will “certify” the labor request.
Second, the alien’s prospective employer must file with DHS the
approved Labor Certification along with a Visa Petition for
Prospective Immigrant Employee (Form I-140):
A Visa Petition constitutes a request to [DHS] that the alien
named in the Labor Certification be classified as eligible to
apply for designation within a specified visa preference
employment category. If [DHS] approves the Visa Petition
and classifies the certified alien as so eligible, the alien is
assigned an immigrant visa number by the Department of
State.
3
Khan and his wife, Rehana Begum, were married in
Bangladesh in 1982; they have a United States citizen minor
child. On April 30, 2001, a prospective employer in
Pennsylvania filed a Labor Certification for permission to
employ Begum as a “Household Cook” at a private residence.
Khan’s wife timely applied for the Labor Certification under
INA § 245(i), 8 U.S.C. § 1255(i) (“LIFE Act”), which had a
sunset date of April 30, 2001.3 As relevant to the instant case,
the LIFE Act provides that a legal permanent resident alien’s
spouse and minor children are eligible, by virtue of their relation
to the alien, to apply for adjustment of status if otherwise
qualified. See 8 U.S.C. § 1255(i)(1)(B); 8 U.S.C. § 1153(d).
At the November 20, 2003 hearing, Khan’s counsel
represented to the IJ that it “usually takes about 45 days to get a
response from the regional” on an application for a Labor
Certification. App. at 49. The IJ denied the requested
continuance, reasoning that Begum’s application for a Labor
Certification was merely pending, no visa petition had yet been
filed, and therefore Khan was not prima facie eligible to adjust
his status. The IJ also denied Khan’s alternative request to
terminate the removal proceedings altogether, rejecting Khan’s
suggestion that termination was warranted because DHS had
United States v. Ryan-Webster, 353 F.3d 353, 356 (4th Cir. 2003)
(citing 8 U.S.C. § 1153(b)). Third, and finally, after the alien
receives a visa number under Form I-140, and if the alien presently
resides in the United States (as does Khan’s wife), then the alien
must file with DHS an Application to Adjust Status (Form I-485).
DHS then considers Forms I-140 and I-485 to determine whether
to adjust the alien’s status to lawful permanent resident. Such
adjustment permits the alien to live and work in the United States.
If the alien is granted lawful permanent resident status, DHS will
issue a “green card” to the alien.
3
The LIFE Act enabled certain aliens unlawfully present in
the United States to pay an application fee and remain here while
seeking to adjust their status based on employment. 8 U.S.C. §
1255(i)(1).
4
failed to follow its own regulations in requiring Khan to register
under the special registration program. The IJ noted that Khan,
through counsel, had conceded his removability as charged and
declined to rule on Khan’s due process challenge to the
registration program. The IJ ordered Khan’s removal to
Bangladesh but granted him a sixty-day window to depart
voluntarily.
Khan timely appealed to the BIA, raising two arguments:
(1) the special registration procedure “is repugnant to the US
constitution;” and (2) the IJ erred in refusing to grant a
continuance on the ground that Begum’s application for a Labor
Certification was pending. App. at 5. Khan noted that Begum’s
Labor Certification already had been approved at the state level
and was pending only before the federal Regional Office of the
DOL. Khan argued that he should not be faulted for the
government’s delay in processing Labor Certifications. On
October 27, 2004, the BIA summarily affirmed the IJ’s order
without opinion and permitted Khan thirty days to depart
voluntarily.
Khan timely filed this petition for review. The
Government filed a motion to dismiss on the ground that this
court lacks jurisdiction and, alternatively, for summary
affirmance.
II.
As we noted above, this case presents at the threshold the
question whether this court has jurisdiction over the petition for
review. The BIA issued a final order summarily affirming the
IJ’s removal order, which the IJ entered after denying Khan’s
motion for a continuance. Thus, the BIA order falls within our
jurisdiction to review a “final order of removal,” 8 U.S.C. §
1252(a)(1).
The Government argues we lack jurisdiction to review the
IJ’s denial of Khan’s request for a continuance because such
denial constitutes a “discretionary determination.” Motion to
Dismiss at 4. The Government relies upon the language of INA
5
§ 242(a)(2)(B)(ii), 8 U.S.C. § 1252(a)(2)(B)(ii), which provides
in pertinent part:
Notwithstanding any other provision of law . . . , no court
shall have jurisdiction to review . . . any other 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 . . . , other than the granting of
[asylum] relief under section 1158(a) of this title.
Id. (emphasis added).
As the Government suggests, the question whether we
have jurisdiction in the present case turns on whether the IJ’s
authority to grant Khan a continuance of the removal proceeding
is “specified under this subchapter,” and therefore precluded
from review. Id. We have previously explained that, “[t]he
language ‘this subchapter’ in the foregoing provision refers to
Subchapter II in Chapter 12 of Title 8 of the United States
Code,” which consists of 8 U.S.C. §§ 1151-1378 (“Subchapter”).
Urena-Tavarez v. Ashcroft 367 F.3d 154, 158 (3d Cir. 2004).
There is no statutory provision within the Subchapter that
explicitly confers discretion on an IJ to grant a continuance. The
only provision in the Subchapter which might be construed to
confer such discretion is 8 U.S.C. § 1229a(a), which grants
authority to “[a]n immigration judge [to] conduct proceedings
for deciding the inadmissibility or deportability of an alien.” 8
U.S.C. § 1229a(a)(1). Arguably, a tribunal authorized to hear a
matter has inherent authority to continue the hearing to another
time. In any event, a federal regulation explicitly confers
discretion upon the IJ to grant a continuance: “The Immigration
Judge may grant a motion for continuance for good cause
shown.” 8 C.F.R. § 1003.29 (2006).
Significant for present purposes is the issue whether the
IJ’s decision on such a motion can be reviewed by this court.
The Courts of Appeals are divided on the question whether an
express grant of discretionary authority in a federal regulation
implemented pursuant to the Subchapter amounts to authority
6
“specified under this subchapter.”
We look first to whether this court has spoken on this
issue. In Bakhtriger v. Elwood, 360 F.3d 414 (3d Cir. 2004), we
engaged in an extensive examination of the authority of the
Courts of Appeals to review discretionary decisions in asylum
cases prior to enactment of the REAL ID Act of 2005. We
examined the “kinds of challenges [that] are cognizable in
criminal alien removal habeas petitions,” id. at 420, and
concluded that 28 U.S.C. § 2241 habeas review does not
incorporate an examination of the exercise of discretion but
“must be confined to questions of constitutional and statutory
law.” Id. at 424. That decision is inapplicable here because the
present case does not involve a “criminal alien” and therefore
our review is not restricted to “constitutional challenges or errors
of law.” Id. at 425. In Bakhtriger, we did not have occasion to
consider the applicability of the “specified under this
subchapter” language of 8 U.S.C. § 1252(a)(2)(B)(ii).
Thereafter, we did consider this language in Soltane v.
U.S. Dep’t of Justice, 381 F.3d 143 (3d Cir. 2004). In that case
the issue before us was whether jurisdiction to review the IJ’s
denial of a preference visa to certain special immigrants under 8
U.S.C. § 1153(b)(4) was barred by § 1252(a)(2)(B)(ii). Id. at
146. Because the language of § 1153(b)(4) stated that a “visa
‘shall’ issue if [certain] requirements are met,” we could “not
read § 1153(b)(4) as having ‘specified’ that the granting of the
visas in question ‘be in the discretion of the Attorney General.’”
Id. at 147.
We also considered the language of § 1252(a)(2)(B)(ii) in
Urena-Tavarez, 367 F.3d 154. In Urena-Tavarez, we held that 8
U.S.C. § 1186a(c)(4), which governs the grant of conditional
permanent resident status based on marriage to a United States
citizen, by its terms explicitly assigns discretion to the Attorney
General and therefore § 1252(a)(2)(B)(ii) precluded review by
this court of the denial of a waiver under § 1186a(c)(4). Id. at
161.
The only other precedential opinion in which we have
7
considered § 1252(a)(2)(B)(ii) is our recent decision in Jilin
Pharmaceutical USA, Inc. v. Chertoff, No. 05-2788, __ F.3d __
(3d Cir. May 10, 2006). In Jilin, we held that 8 U.S.C. § 1155
explicitly provides the Attorney General with discretion to
revoke the prior approval of a visa petition and therefore such
revocation is shielded from court review pursuant to 8 U.S.C. §
1252(a)(2)(B)(ii). Jilin, Slip Op. at 8-21, 24.
In none of the cases referred to above, Soltane,
Urena-Tavarez , and Jilin, did we address the issue before this
court in the instant case–namely, whether § 1252(a)(2)(B)(ii)
bars jurisdiction when there is no statute expressly granting
discretion to the Attorney General but discretionary authority is
extant under a federal regulation. Accordingly, the issue before
us is one of first impression for this court.
The Eighth and Tenth Circuit Courts of Appeals have
interpreted § 1252(a)(2)(B)(ii) to mean that a Court of Appeals
has no jurisdiction to review the denial of a petitioner’s motion
for a continuance of a removal proceeding. Yerkovich v.
Ashcroft, 381 F.3d 990, 995 (10th Cir. 2004); Onyinkwa v.
Ashcroft, 376 F.3d 797 (8th Cir. 2004). In Yerkovich, the court
felt itself bound by its earlier decision in Van Dinh v. Reno, 197
F.3d 427, 433 (10th Cir. 1999), which had broadly construed the
preclusive effect of § 1252(a)(2)(B)(ii). See 990 F.3d at 994.
Both Yerkovich and Onyinkwa based their decisions that review
of the denial of a motion for a continuance is barred on the
ground that 8 C.F.R. § 1003.29, which implements an IJ’s
statutory authority under § 1229a(a)(1) to “conduct
proceedings,” confers discretion upon the IJ to grant a
continuance. Therefore, they reasoned, “‘the plain meaning of §
1252(a)(2)(B)’s text’ bar[ring] courts from reviewing relief
‘specified under this subchapter’” encompasses orders of the IJ
denying continuances. Yerkovich, 381 F.3d at 994 (quoting
Samirah v. O’Connell, 335 F.3d 545, 549 (7th Cir. 2003));
accord Onyinkwa, 376 F.3d at 799.4
4
In Subhan v. Ashcroft, 383 F.3d 591 (7th Cir. 2004), the
Seventh Circuit addressed this jurisdictional issue, but only in
8
Courts that have held to the contrary have ruled that
discretionary authority to grant a continuance cannot be
considered “specified under this subchapter” where the language
that expressly provides for such authority appears only in a
regulation. See Ahmed v. Gonzales, No. 05-60032, 2006 WL
1064196, at *3 (5th Cir. Apr. 24, 2006); Sanusi v. Gonzales, No.
01-4047-ag, 2006 U.S. App. LEXIS 9640, at *10-*14 (2d Cir.
Apr. 18, 2006) (per curiam); Zafar v. U.S. Att’y Gen., 426 F.3d
1330, 1335 (11th Cir. 2005). As the court stated in Zafar,
“Because denials of motions to continue are not
statutorily-proscribed discretionary acts ‘specified under this
sub[chapter]’ to the Attorney General, as enumerated in §
1252(a)(2)(B)(ii), we have jurisdiction to review them.” 426
F.3d at 1335; accord Ahmed, 2006 WL 1064196, at *3; Sanusi,
2006 U.S. App. LEXIS 9640, at *10-*14; see also Abu-Khaliel
v. Gonzales, 436 F.3d 627 (6th Cir. 2006) (agreeing with the
result, but not the reasoning, of Zafar).
The Courts of Appeals for the Fifth and Ninth Circuits
have adopted similar reasoning in concluding that the language
of § 1252(a)(2)(B)(ii) does not bar review of the denial of a
motion to reopen removal proceedings, a proceeding comparable
to a motion to continue in its invocation of the IJ’s discretion. In
Zhao v. Gonzales, 404 F.3d 295 (5th Cir. 2005), the court stated,
One might mistakenly read § 1252(a)(2)(B)(ii) as
stripping us of the authority to review any discretionary
immigration decision. That reading, however, is
incorrect, because § 1252(a)(2)(B)(ii) strips us only of
jurisdiction to review discretionary authority specified in
the statute. The statutory language is uncharacteristically
pellucid on this score; it does not allude generally to
“discretionary authority” or to “discretionary authority
dicta. The Subhan court ““[s]uppos[ed,] . . . without having to
decide, that section 1252(a)(2)(B)(ii) generally bars judicial review
of a continuance granted by an immigration judge in a removal
proceeding.” Id. at 595.
9
exercised under this statute,” but specifically to
“authority for which is specified under this subchapter to
be in the discretion of the Attorney General.”
Id. at 303 (quoting § 1252(a)(2)(B)(ii)); see also
Medina-Morales v. Ashcroft, 371 F.3d 520, 528 (9th Cir. 2004)
(“Because 8 U.S.C. § 1229a(c) neither grants nor limits the
Attorney General’s discretion to deny motions to reopen, [it] can
perhaps be said to have left such authority to the Attorney
General by default. But default authority does not constitute the
specification required by § 1252(a)(2)(B)(ii).”).
In its recent opinion in Sanusi, 2006 U.S. App. LEXIS
9640, the Second Circuit reviewed the conflicting opinions and
weighed in on the side of those courts that hold the Courts of
Appeals have jurisdiction to review for abuse of discretion a
claim that an IJ wrongly denied a motion for a continuance in an
immigration proceeding. Id. at *11-*14. The court surveyed the
statutory landscape and noted its agreement with those circuits
that have held “that the decision by an IJ or the BIA to grant or
to deny a continuance in an immigration proceeding is not a
decision ‘specified under [the relevant] subchapter to be in the
discretion of the Attorney General.’” Id. at *13 (alteration in
original) (citations omitted); accord Ahmed, 2006 WL 1064196,
at *3. The court then stated:
Although the presiding officer at a hearing traditionally
has discretion to grant or to deny continuances requested
by the parties appearing before him, we cannot conclude
that the decision to grant or to deny a continuance in
immigration proceedings is “specified under [the
relevant] subchapter to be in the discretion of the
Attorney General.” Indeed, continuances are not even
mentioned in the subchapter. We therefore hold that 8
U.S.C. § 1252(a)(2)(B)(ii) does not deprive us of
jurisdiction to review decisions by IJs to grant or to deny
continuances, which accords with our general
presumption in favor of judicial review. See INS v. St.
Cyr, 533 U.S. 289, 298, 121 S. Ct. 2271, 150 L. Ed. 2d
347 (2001) (stating that despite specific jurisdiction-
10
denying provisions, in immigration cases there still exists
a “strong presumption in favor of judicial review of
administrative action”).
Sanusi, 2006 U.S. App. LEXIS 9640, at *14 (alteration in
original) (footnotes omitted).
In our view, the Second, Fifth, Ninth and Eleventh Circuit
Courts of Appeals have adopted the correct reading of §
1252(a)(2)(B)(ii). As we have previously observed, “[t]he key to
§ 125[2](a)(2)(B)(ii) lies in its requirement that the discretion
giving rise to the jurisdictional bar must be ‘specified’ by statute.
In other words, ‘the language of the statute in question must
provide the discretionary authority’ before the bar can have any
effect.” Soltane, 381 F.3d at 146 (quoting Spencer Enterprises,
Inc. v. United States, 345 F.3d 683, 689 (9th Cir. 2003)).
Indeed, “to specify” means “[t]o state explicitly or in detail,”
American Heritage College Dictionary 1307 (3d ed. 1993), and §
1229a(a) states nothing at all about an IJ’s power to grant or
deny a continuance.
In Abu-Khaliel, the Sixth Circuit agreed with the
Eleventh Circuit that “we have jurisdiction to review the IJ’s
denial of a continuance” but reached this conclusion through
different reasoning. Abu-Khaliel, 436 F.3d at 633. In contrast
to the Eleventh Circuit, the Sixth Circuit interpreted the power to
“conduct proceedings” conferred by § 1229a(a)(1) to include the
power to deny a continuance. Id. at 634 (noting that “a
necessary component of” the power to conduct proceedings is
“the ability to decide . . . when it is appropriate to delay a
proceeding until a later time”). Therefore, unlike the Eleventh
Circuit, the Sixth Circuit concluded that the power to deny
continuances is indeed “specified under this subchapter” within
the meaning of § 1252(a)(2)(B)(ii). Id. However, the Sixth
Circuit agreed with the ultimate holding of the Eleventh Circuit
on the ground that § 1252(a)(2)(B)(ii) “only stripped this court
of jurisdiction for decisions within subchapter II it left to the
discretion of the Attorney General.” Id. (emphasis added). The
Abu Khaliel court held that because § 1229a(a)(1) leaves
discretion to the IJ rather than the Attorney General, “we have
11
jurisdiction to review the IJ’s decision to deny a continuance.”
Id.5
Although we agree with the Sixth Circuit that we have
jurisdiction to review an IJ’s denial of a continuance, we do not
adopt its conclusion that an IJ’s discretionary power to grant or
deny a continuance is “specified” in § 1229a(a)(1). Because the
IJ’s authority to rule on a continuance motion is not “specified
under [8 U.S.C. §§ 1151-1378] to be in the discretion of the
Attorney General,” we hold that § 1252(a)(2)(B)(ii) does not
deprive this court of jurisdiction.
III.
Merits
Because the BIA summarily affirmed without opinion, we
review the IJ’s decision. Dia v. Ashcroft, 353 F.3d 228, 247 (3d
Cir. 2003) (en banc). An IJ “may grant a motion for continuance
for good cause shown.” 8 C.F.R. § 1003.29 (2006). We review
the denial of a continuance for abuse of discretion. Ponce-Leiva
v. Ashcroft, 331 F.3d 369, 377 (3d Cir. 2003). The IJ’s decision
should be reversed only if it is arbitrary, irrational or contrary to
law. Tipu v. INS, 20 F.3d 580, 582 (3d Cir. 1994) (citations
omitted). In Ponce-Leiva, we explained that “‘[t]he question
whether denial of a continuance in an immigration proceeding
constitutes an abuse of discretion cannot be decided through the
application of bright-line rules; it must be resolved on a case by
case basis according to the facts and circumstances of each
5
Under Abu-Khaliel, if § 1229a(a)(1) had granted the power
to “conduct proceedings” to the Attorney General rather than to IJs,
the Attorney General could then delegate that power to IJs and
thereby strip federal courts of jurisdiction to review the denial of
a continuance under § 1252(a)(2)(B)(ii). See Abu-Khaliel, 436
F.3d at 634 (noting that “we do not believe that an IJ and the
Attorney General are the same when the IJ is carrying out duties
conferred by statute as opposed to when the IJ is performing duties
delegated by the Attorney General”).
12
case.’” Ponce-Leiva, 331 F.3d at 377 (quoting Baires v. INS,
856 F.2d 89, 91 (9th Cir. 1988)).
Khan argues that the denial of his continuance request
amounted to an abuse of discretion and deprived him of due
process of law because it effectively denied him the benefit of
seeking to adjust his status under the LIFE Act. Khan contends
that a continuance was warranted because he had done
everything in his power to comply with the law and should not
have been faulted for the government’s delay in processing his
wife’s Labor Certification.
Khan cites Subhan v. Ashcroft, 383 F.3d 591 (7th Cir.
2004), for the proposition that the IJ abused his discretion in
refusing to grant a continuance. The court in Subhan assumed,
without deciding, that § 1252(a)(2)(B)(ii) “generally” bars
jurisdiction over the denial of a motion for a continuance. Id. at
595.6 The court held, however, that the jurisdictional bar cannot
extend to a case in which an alien seeks a continuance pending a
Labor Certification if the IJ denies the continuance without a
reasoned explanation for the denial. Id. In Subhan, the IJ had
denied the petitioner’s third request for a continuance by
explaining that although the petitioner eventually might have
acquired lawful permanent residence by virtue of his labor
petition, his failure to have done so rendered him “not eligible
for this form of relief at this time.” Id. at 593. The Seventh
Circuit rejected this explanation, concluding that “[t]his 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. The Subhan court concluded that the IJ’s denial of
the continuance without stating a reasoned basis for the decision
constituted an abuse of discretion because such denial nullified
the terms of § 1255(i), which authorizes the Attorney General to
grant an alien present in the United States an adjustment of
status if s/he “is eligible to receive an immigrant visa and is
admissible” and “an immigrant visa is immediately available to
the alien at the time the application is filed.” 8 U.S.C. §
6
See supra note 4.
13
1255(i)(2)(A)-(B).
In the instant case, as in Subhan, the IJ’s explanation for
refusing Khan a continuance amounted to a determination that
Khan was “not eligible for this form of relief at this time.”
Subhan, 383 F.3d at 593. The IJ found that “[t]here is no
underlying visa petition (I-140) filed [in Khan’s name] because
[his wife’s] labor certification is pending.” App. at 36. Based
on this finding, the IJ ruled “that it would be inappropriate to
grant an . . . adjournment of these proceedings” because Khan
could not establish prima facie eligibility for adjustment of
status. Id.
Where, as here, an alien has failed to submit a visa
petition, an IJ’s decision to deny the alien’s continuance request
is squarely within the IJ’s broad discretion, at least absent
extraordinary circumstances not extant in the present case.7 See
Onyeme v. INS, 146 F.3d 227, 234 (4th Cir. 1998) (“Because he
had not established a prima facie case for an adjustment of
status, the BIA did not abuse its discretion in declining to
remand this case for a continuance pending resolution of the
third visa petition filed on Onyeme's behalf.”). Khan cites no
authority for the proposition that government “delay” in
processing his wife’s Labor Certification constitutes an
extraordinary circumstance that would warrant an open-ended
7
In Matter of Garcia, the BIA held that while “an alien does
not have an absolute right” to a continuance of removal
proceedings, an IJ generally should grant such a continuance where
an alien has submitted “a prima facie approvable visa petition.”
Matter of Garcia, 16 I. & N. Dec. 653, 656-57 (BIA 1978)
modified on other grounds by In re Arthur, 20 I & N Dec. 475
(BIA 1992). However, the BIA suggested that, even where an
alien has submitted a visa petition, “[i]t clearly would not be an
abuse of discretion for the immigration judge to summarily deny a
request for a continuance . . . upon his determination that the visa
petition is frivolous or that the Adjustment Application would be
denied on statutory grounds or in the exercise of discretion
notwithstanding the approval of the petition.” Id. at 657.
14
continuance of removal proceedings.
It is undisputed that Khan is presently ineligible for an
immigrant visa, which is a prerequisite to an adjustment of status
under § 1255(i). Moreover, Khan cannot show that a visa is
“immediately available” to him or even that one will be available
to him at some estimable time in the future. Khan has provided
no estimate, beyond the 45 days he suggested to the IJ on
November 20, 2003, of how long it would take for his wife’s
Labor Certification to be approved; therefore, any continuance
would be indefinite. As the Eleventh Circuit explained on similar
facts in Zafar:
[S]ince all that the petitioners offered the immigration
judges was the “speculative” possibility that at some point
in the future they may receive, or in Zafar’s case, his
father may receive, labor certification, petitioners have
failed to demonstrate that they had a visa petition
“immediately available” to them because they could not
have filed an “approvable” visa petition without the labor
certification in the first place, which is a prerequisite for
relief under 8 U.S.C. § 1255(i) and 8 C.F.R. §
245.10(a)(3). At the time of the immigration judges’
denials of the petitioners’ motions to continue their
removal proceedings, it is clear that the petitioners were
ineligible for adjustments to permanent resident status
under § 1255(i) and there thus were no visas
“immediately available” to them.
Zafar, 426 F.3d at 1336 (citations omitted); accord Ahmed, 2006
WL 1064196, at *5.
It is true, as Khan complains, that DOL’s apparent delay
in processing his wife’s Labor Certification is beyond his
control, and that if the DOL had acted more promptly he might
be adjusting his status rather than facing removal. However, on
the present facts that delay does not restrict the IJ’s scope of
discretion to the sole option of granting continuance. Cf.
Ahmed, 2006 WL 1064196, at *5 (“In this matter, the
immigration judge simply exercised his discretion at the first
15
stage of this lengthy and discretionary process when he refused
to grant Ahmed a continuance for good cause shown.”). Khan
has conceded that he is removable as charged and makes no
claim for asylum, withholding of removal, or relief under the
Convention Against Torture. Moreover, he has failed to file a
visa petition and is presently ineligible for an adjustment of
status. See id. (ruling that an alien in Khan’s position “lacked
good cause for a continuance because he was ineligible for relief
under the relevant statutes”).
As with the petitioners in Ahmed and Zafar, Khan has
offered only “the ‘speculative’ possibility that at some point in
the future . . . his [wife] may receive, labor certification.” Zafar,
426 F.3d at 1336. Ultimately, the decision to adjust Khan’s
status lies within the discretion of the Attorney General, and we
cannot say that on the present facts the refusal of a continuance
was an abuse of discretion. Cf. id. (“Based on this record, there
was no abuse of discretion in denying [the] motions to continue
[the] removal proceedings.”); Ahmed, 2006 WL 1064196, at *5.
In addition to his abuse-of-discretion claims, Khan claims
that the rejection of his continuance request worked a denial of
his right to due process of law under the Fifth Amendment.8 To
8
On appeal before the BIA, Khan claimed that the IJ
improperly denied him a continuance but did not put this claim in
terms of constitutional due process. See App. at 5. Therefore, we
consider briefly whether Khan has exhausted his remedies with
respect to this claim.
We have jurisdiction over an alien’s claim only where the
alien has “raise[d] and exhaust[ed] his or her remedies as to [that]
claim.” Abdulrahaman v. Ashcroft, 330 F.3d 587, 594-95 (3d Cir.
2003); see Bak v. INS, 682 F.2d 441, 442-43 (3d Cir. 1982) (per
curiam) (holding exhaustion requirement is jurisdictional).
However, “exhaustion of administrative remedies is not always
required when the petitioner advances a due process claim.”
Sewak v. INS, 900 F.2d 667, 670 (3d Cir. 1990); see Bonhometre
v. Gonzales, 414 F.3d 447 n.7 (3d Cir. 2005) (citing Vargas v. INS,
16
831 F.2d 906, 908 (9th Cir. 1987) (“[D]ue process claims generally
are exempt from [the exhaustion requirement] because the BIA
does not have jurisdiction to adjudicate constitutional issues.”)).
In Bonhometre, Petitioner Bonhometre raised before this
court a claim of procedural error he had not raised before the BIA.
Although he presented his claim “in the language of procedural due
process,” we instead viewed it as an administrative claim of
procedural error that the BIA could have addressed on appeal.
Bonhometre, 414 F.3d at 448; see Sewak, 900 F.2d at 670 (noting
that where a “due process claim amounts to a procedural error
correctable through the administrative process,” we consider
whether the correctable error was raised below for exhaustion
purposes). Because Bonhometre’s claim, stripped of its “due
process” label, had not been raised before the BIA, we held that we
lacked jurisdiction to review the claim. Bonhometre, 414 F.3d at
448; see also Sewak, 900 F.2d at 670-71; Vargas, 831 F.2d at 908.
The present case is similar to Bonhometre in two respects.
First, Khan raises a procedural due process claim for the first time
in his petition for review. Second, because this claim, stripped of
its “due process” label, is a claim of procedural error that could
have been addressed by the BIA on appeal, the requirement that
Khan exhaust remedies applies. However, unlike in Bonhometre,
Khan did raise this claim (without its “due process” label) in his
appellate brief before the BIA. App. at 5 (challenging “the IJ’s
refusal to grant an adjournment”). Therefore, we have jurisdiction
over Khan’s “due process” claim, but we treat it as a claim of mere
“procedural error correctable through the administrative process.”
Sewak, 900 F.2d at 670; see Bonhometre, 414 F.3d at 447 n.8
(citing Sewak, 900 F.2d at 670); cf. Sewak, 900 F.2d at 670-71
(“Sewak's due process claim amounts to a procedural error
correctable through the administrative process. Thus, before we
can consider Sewak's petition, we must assure ourselves that he has
exhausted his administrative remedies. . . . Sewak raised before the
BIA, and the BIA considered, the same issues he raises in his
petition for review in this Court. It cannot be denied that Sewak
has exhausted his remedy of appeal to the BIA.”) (footnote
17
make this claim successfully, Khan “must show that he was
prevented from reasonably presenting his case.” Uspango v.
Ashcroft, 289 F.3d 226, 231 (3d Cir. 2002) (quotation marks and
citation omitted). He has failed to make any such showing.
Indeed, Khan’s due process argument merely recasts his abuse-
of-discretion argument in constitutional terms and can be denied
for the reasons already stated. Moreover, “[d]ue process
challenges to deportation proceedings require an initial showing
of substantial prejudice.” Anwar v. INS, 116 F.3d 140, 144 (5th
Cir. 1997). Khan cannot show that he has been prejudiced by
the IJ’s denial of his continuance motion because there is no
evidence as to when, if ever, his wife’s Labor Certification
might be granted. The Government correctly argues that Khan
“has no constitutional right to have his proceedings held in
abeyance while he attempts, belatedly, to restore his status.”
Motion to Dismiss at 11.
IV.
For the foregoing reasons, the Government’s motion to
dismiss for want of jurisdiction is denied and Khan’s petition for
review is denied on the merits.
omitted).