Khoja v. Gonzales ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT September 13, 2006
Charles R. Fulbruge III
Clerk
No. 05-60320
____________________
NURUDDIN KARIM ALI KHOJA,
Petitioner,
versus
ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,
Respondent.
On Petition for Review from an Order of
the Board of Immigration Appeals
Before BARKSDALE, BENAVIDES, and OWEN, Circuit Judges.
PER CURIAM:*
Nuruddin Karim Ali Khoja petitions this Court to review his
order of removal. Because Khoja’s arguments are refuted by
precedent directly on point, we deny the petition.
Khoja first claims that his removal order is invalid because
the federal government’s National Security Entry/Exit Registration
System (“NSEERS”), which brought him to the attention of the
immigration authorities, violates equal protection. We rejected
the same argument Khoja makes here in two recent decisions, which
*
Pursuant to 5th Cir. R. 47.5, this Court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5th Cir. R.
47.5.4.
held that any impact NSEERS has on removal proceedings does not
amount to a violation of equal protection. See Ahmed v. Gonzales,
447 F.3d 433, 440 (5th Cir. 2006) (challenge to initiation of
proceedings); Ali v. Gonzales, 440 F.3d 678, 681–82 (5th Cir. 2006)
(suppression claim). Under Ahmed and Ali, Khoja’s equal protection
claim fails.
Khoja’s second claim is that evidence obtained from his NSEERS
interview must be suppressed because it was gathered in violation
of 8 C.F.R. § 287.3. We rejected this argument in Ali, holding (1)
that the exclusionary rule does not ordinarily apply to civil
removal proceedings and (2) that any error was harmless where the
petitioner admitted removability and failed to point to any
specific piece of evidence that should have been suppressed. 440
F.3d at 682. As with the petitioner in Ali, Khoja fails to cite
any authority showing that the exclusionary rule should apply. In
addition, any error is harmless because Khoja admitted his
removability and does not point to any particular piece of evidence
that should have been excluded. Ali refutes Khoja’s second claim.
Third, Khoja claims, citing the Seventh Circuit’s decision in
Subhan v. Ashcroft, 383 F.3d 591 (7th Cir. 2004), that the
Immigration Court abused its discretion by denying him a
continuance to pursue labor certification. We rejected Subhan’s
analysis in Ahmed, 447 F.3d at 438–39, holding instead that a
pending labor certification does not amount to good cause for a
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continuance because the chances that a pending labor certification
will actually become grounds for relief are too speculative:
“[T]he receipt of [a] pending labor certification [i]s only the
first step in [a] long and discretionary process.” Id. at 439. In
accord with Ahmed, we reject Khoja’s third claim.
Khoja’s final argument is that he remains eligible for
additional relief before the Immigration Court because (1) his
instant petition for review tolls the voluntary departure clock and
(2) the non-adjudication of his labor certification represents
exceptional circumstances for his failure to depart. These claims
are not ripe for our review. See Ali, 440 F.3d at 682.
In conclusion, the petition for review is DENIED.
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