Lendo v. Gonzales ( 2007 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
NOCK FREDERICK LENDO, 
Petitioner,
v.
 No. 05-1715
ALBERTO R. GONZALES, Attorney
General,
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals.
(A72-167-593)
Argued: May 22, 2007
Decided: July 10, 2007
Before NIEMEYER and MICHAEL, Circuit Judges,
and WILKINS, Senior Circuit Judge.
Petition denied by published opinion. Senior Judge Wilkins wrote the
opinion, in which Judge Niemeyer and Judge Michael joined.
COUNSEL
ARGUED: Alexander Manjanja Chanthunya, Silver Spring, Mary-
land, for Petitioner. Kristin Kay Edison, UNITED STATES
DEPARTMENT OF JUSTICE, Office of Immigration Litigation,
Civil Division, Washington, D.C., for Respondent. ON BRIEF: Peter
D. Keisler, Assistant Attorney General, Civil Division, M. Jocelyn
Lopez Wright, Assistant Director, Office of Immigration Litigation,
2 LENDO v. GONZALES
UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Respondent.
OPINION
WILKINS, Senior Circuit Judge:
Nock Frederick Lendo petitions for review of an order of the Board
of Immigration Appeals (Board) summarily affirming the denial of
his motion to continue removal proceedings against him. Because the
immigration judge (IJ) did not abuse her discretion in refusing to con-
tinue the removal proceedings, we deny Lendo’s petition.
I.
In September 1998, Lendo, a native and citizen of Indonesia, was
admitted to the United States as a nonimmigrant visitor for a period
not to exceed six months. After Lendo remained in the United States
beyond this period, removal proceedings were brought against him.
At a hearing before the IJ in November 2003, Lendo admitted the fac-
tual allegations against him and conceded the charge of removability.
He nonetheless stated that he was "exploring the possibility" of seek-
ing asylum, withholding of removal, and protection under the Con-
vention Against Torture. Supp. J.A. 28. Lendo also indicated that his
wife had filed a "labor certification [application] . . . prior to April 30,
2001." Id. at 27; see 8 U.S.C.A. § 1255(i) (West 2005) (permitting,
subject to several conditions, an unlawfully present alien who is the
beneficiary of a labor certification application filed on or before April
30, 2001, to apply for adjustment of status). The IJ continued the
hearing until January 6, 2004, and directed Lendo to file his asylum
application by that date. The IJ noted, however, that she would not
continue the removal proceedings further to await a decision on the
pending labor certification application.
At the January 2004 hearing, Lendo informed the IJ that he would
not be filing an asylum application because he did not "feel there is
a basis . . . for asylum" in his case. Supp. J.A. 32. Instead, Lendo
requested "another continuance . . . to see if this labor certification
LENDO v. GONZALES 3
[application] that was filed by his wife will get approved." Id. The IJ,
adhering to her earlier position, denied Lendo’s request for a further
continuance. Because Lendo had not filed an asylum application and
was unwilling to accept voluntary departure, the IJ ordered that Lendo
be removed to Indonesia. Lendo appealed the IJ’s denial of a continu-
ance; the Board affirmed the IJ’s decision without opinion.
II.
Lendo contends that the IJ improperly denied his request for a fur-
ther continuance to await a decision on his wife’s labor certification
application and that the Board erred in affirming that ruling. When,
as here, the Board affirms an IJ’s decision without opinion, the IJ’s
ruling "is essentially the decision under review." Khattak v. Ashcroft,
332 F.3d 250, 253 (4th Cir. 2003). An IJ "may grant a motion for con-
tinuance for good cause shown." 8 C.F.R. § 1003.29 (2007).
"Whether to grant a motion to continue deportation proceedings is
within the sound discretion of the IJ and is reviewed for abuse of dis-
cretion only." Onyeme v. INS, 146 F.3d 227, 231 (4th Cir. 1998).
Thus, we must uphold the IJ’s denial of a continuance "unless it was
made without a rational explanation, it inexplicably departed from
established policies, or it rested on an impermissible basis, e.g., invid-
ious discrimination against a particular race or group." Id. (internal
quotation marks omitted).1
1
The Government argued in its brief that we are barred by statute from
reviewing the IJ’s discretionary denial of a continuance. See 8 U.S.C.A.
§ 1252(a)(2)(B)(ii) (West 2005) (providing that "[n]otwithstanding 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"). The Government, however, has since withdrawn that
argument. In any event, we agree with the majority of circuits that have
considered the issue that § 1252(a)(2)(B)(ii) does not bar judicial review
of an IJ’s denial of a motion to continue removal proceedings. See Zafar
v. U.S. Att’y Gen., 461 F.3d 1357, 1360-62 (11th Cir. 2006); Khan v.
Att’y Gen., 448 F.3d 226, 229-33 (3d Cir. 2006); Ahmed v. Gonzales, 447
F.3d 433, 436-37 (5th Cir. 2006); Sanusi v. Gonzales, 445 F.3d 193, 198-
99 (2d Cir. 2006) (per curiam); Abu-Khaliel v. Gonzales, 436 F.3d 627,
631-34 (6th Cir. 2006). But see Yerkovich v. Ashcroft, 381 F.3d 990, 992-
95 (10th Cir. 2004) (holding that § 1252(a)(2)(B)(ii) deprives court of
appeals of jurisdiction to review denial of continuance); Onyinkwa v.
Ashcroft, 376 F.3d 797, 799 (8th Cir. 2004) (same).
4 LENDO v. GONZALES
To properly assess Lendo’s claim, it is necessary to understand the
general process by which aliens may obtain permanent residence in
the United States through employment. First, an alien’s prospective
employer must petition the Department of Labor (DOL) for a "Labor
Certification" on the alien’s behalf by filing an Application for Alien
Employment Certification. See United States v. Ryan-Webster, 353
F.3d 353, 355-56 (4th Cir. 2003). If that application meets certain
requirements, "it is then ‘certified’ and constitutes a valid Labor Cer-
tification." Id. at 356. Next, the alien’s prospective employer must file
with the Department of Homeland Security (DHS) the Labor Certifi-
cation along with an Immigrant [Visa] Petition for Alien Worker
(Form I-140). The filing of Form I-140
constitutes a request to the [DHS] that the alien named in
the Labor Certification be classified as eligible to apply for
designation within a specified visa preference employment
category. See 8 U.S.C. § 1153(b). If the [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.
Id. After that, if the alien presently resides in the United States, the
alien must file with the DHS an Application to Register Permanent
Residence or Adjust Status (Form I-485). See id. The DHS then con-
siders Forms I-140 and I-485 to determine whether to adjust the
alien’s status to lawful permanent resident, thus allowing the alien to
live and work in the United States. See 8 U.S.C.A. § 1255(a) (West
Supp. 2007). If the alien is granted lawful permanent resident status,
the DHS issues a "green card" reflecting the alien’s immigration sta-
tus.
Although the record contains little information about Lendo’s
wife’s labor certification application, that application was apparently
filed pursuant to 8 U.S.C.A. § 1255(i), which (as is relevant here)
allows certain aliens unlawfully present in the United States to apply
for adjustment of status if they are the beneficiary of a labor certifica-
tion application filed on or before April 30, 2001. According to the
parties, Lendo’s wife’s application was filed on April 16, 2001.
Lendo sought a continuance of his removal proceedings to await the
approval of that application, after which he would be entitled to peti-
LENDO v. GONZALES 5
tion for a visa and to apply for adjustment of status. See id.
§ 1255(i)(1)(B) (extending benefits of § 1255(i) to spouses and chil-
dren of principal aliens). The IJ, however, refused to "continue the
case indefinitely for the speculative relief of a labor cert[ification
application] to be adjudicated." J.A. 3. The IJ noted that Lendo’s
efforts to obtain adjustment of status had "not even yet reached the
stage of [a Form] I-140 that is filed after a labor cert[ification applica-
tion] ha[s] been approved." Id. Lendo argues that this ruling was an
abuse of discretion. We disagree.
Under § 1255(i), the timely filing of a labor certification applica-
tion, by itself, does not make an alien eligible for adjustment of status.
Rather, the Attorney General may adjust the alien’s status only if two
additional requirements are met:
(A) the alien is eligible to receive an immigrant visa and
is admissible to the United States for permanent residence;
and
(B) an immigrant visa is immediately available to the
alien at the time the application [for adjustment of status] is
filed.
8 U.S.C.A. § 1255(i)(2)(A), (B) (emphasis added). When Lendo
sought a continuance, he met neither of these requirements. Because
Lendo’s wife’s labor certification application had not yet been
approved, neither she nor Lendo was eligible even to apply for an
employment-based immigrant visa. See Dekoladenu v. Gonzales, 459
F.3d 500, 502 (4th Cir. 2006), petition for cert. filed, 75 U.S.L.W.
3530 (U.S. Mar. 22, 2007) (No. 06-1285); Ryan-Webster, 353 F.3d at
356.
We conclude that the IJ did not abuse her discretion in refusing to
continue Lendo’s removal proceedings indefinitely to await a decision
on his wife’s labor certification application. Lendo, who had con-
ceded that he was removable, was not eligible for adjustment of status
when he sought a continuance—indeed, he had not even completed
the first step toward obtaining that discretionary relief. Further, his
wife’s labor certification application had been pending for nearly
three years. It was not an abuse of discretion for the IJ to refuse to
6 LENDO v. GONZALES
grant an open-ended continuance based on the mere possibility that
this application would eventually be approved and that Lendo would
someday be eligible for adjustment of status. As the Eleventh Circuit
held in a similar case,
All petitioners offered the IJs was the speculative possi-
bility that at some point in the future they might have
received . . . approved labor certifications from the DOL,
and only then could the required I-140 visa petitions be
filed, and only then would petitioners be able to file the I-
485 applications for adjustment of status with the DHS and
ask for adjustment-of-status relief. Given that petitioners
had filed only labor certificate applications with the DOL,
were not yet statutorily eligible for adjustment of status
under § 1255(i), and had not filed I-485 applications for
adjustment-of-status relief under § 1255(i), it clearly was
not an abuse of discretion for the IJs to deny the motions for
continuances of the removal proceedings.
Zafar v. U.S. Att’y Gen., 461 F.3d 1357, 1363-64 (11th Cir. 2006);
accord Khan v. Att’y Gen., 448 F.3d 226, 234-35 (3d Cir. 2006);
Ahmed v. Gonzales, 447 F.3d 433, 438-39 (5th Cir. 2006); see also
Onyeme, 146 F.3d at 232-33 (holding that IJ did not abuse discretion
in refusing to continue removal proceedings to await resolution of
pending visa petition because petitioner had not yet applied for adjust-
ment of status and was ineligible for status adjustment absent discre-
tionary relief by Attorney General). But see Subhan v. Ashcroft, 383
F.3d 591, 593-95 (7th Cir. 2004) (holding that IJ’s refusal to grant
additional continuance to await outcome of labor certification applica-
tion was an abuse of discretion).2
2
In Subhan, the Seventh Circuit rejected the IJ’s conclusion that a con-
tinuance was unwarranted because the petitioner’s eventual eligibility for
adjustment of status was speculative. See id. at 593-94. Noting that the
petitioner bore no fault for the delay in the labor certification process, the
court apparently concluded that the IJ’s reasoning was inconsistent with
Congress’ intent to allow certain aliens to seek adjustment of status
under § 1255(i) after receiving labor certifications. See id. at 593-94,
595. As other courts have recognized, however, nothing in the language
of § 1255(i) requires that a removable alien be allowed to remain in the
United States indefinitely based on the mere filing of a labor certification
application. See Zafar, 461 F.3d at 1365, 1367; Ahmed, 447 F.3d at 438.
LENDO v. GONZALES 7
III.
For the reasons discussed above, we deny Lendo’s petition for
review.3
PETITION DENIED
3
The parties have informed us that (1) after the IJ issued her ruling,
Lendo’s wife’s labor certification was approved, and (2) after the Board
affirmed the IJ’s decision, Lendo’s wife was granted a visa and received
an adjustment of status. In the interests of justice, we would be inclined
to remand Lendo’s case for consideration of these intervening develop-
ments; but we are barred by statute from doing so. See 8 U.S.C.A.
§ 1252(a)(1) (West 2005) (providing that "the court may not order the
taking of additional evidence under section 2347(c) of Title 28"); see,
e.g., Najjar v. Ashcroft, 257 F.3d 1262, 1281 (11th Cir. 2001) (holding
that § 1252(a)(1) prohibits courts of appeals from remanding to the BIA
for consideration of evidence presented for the first time on appeal); see
also 8 U.S.C.A. § 1252(b)(4)(A) (West 2005) ("[T]he court of appeals
shall decide the petition [for review] only on the administrative record
on which the order of removal is based.").
It therefore appears that Lendo’s only possible remedy is to move to
reopen his removal proceedings. See 8 U.S.C.A. § 1229a(c)(7) (West
2005 & Supp. 2007); 8 C.F.R. § 1003.2(c) (2007); Najjar, 257 F.3d at
1283 n.13. Although such a motion generally would be time-barred, see
8 C.F.R. § 1003.2(c)(2) (providing that a motion to reopen removal pro-
ceedings must be filed within 90 days after the final administrative deci-
sion), this time bar could be avoided if the Government joined in
Lendo’s motion to reopen, see id. § 1003.2(c)(3)(iii). We also note that
the Board has the power to reopen Lendo’s case sua sponte. See id.
§ 1003.2(a).