Ali 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 February 15, 2006
Charles R. Fulbruge III
No. 05-60343 Clerk
Summary Calendar
IMTIAZ ALI,
Petitioner,
versus
ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,
Respondent.
____________________
On Petition for Review from an Order of
the Board of Immigration Appeals
No. A95-319-948
_____________________
Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:
Imtiaz Ali petitions for review from the Board of Immigration
Appeals (“BIA”). The BIA affirmed without opinion the immigration
judge’s (“IJ”) order of removal. We deny the petition.
I. BACKGROUND
Ali, a citizen of Pakistan, entered the United States on a
visitor’s visa in May of 2000. He was authorized to remain in the
country for one year. Ali overstayed.
In 2002, the Attorney General announced a new National Security
Entry/Exit Registration System (“NSEERS”), which required male
nonimmigrant aliens from designated countries to be fingerprinted
and registered. See generally, Roudnahal v. Ridge, 310 F. Supp. 2d
884, 885-87 (N.D. Ohio 2003). The program allowed the Department
of Homeland Security to more closely monitor aliens “who may present
elevated national security concerns” because they are from countries
where Al-Qaeda or other terrorist organizations have been active.
Press Release, Dep’t of Homeland Security, Fact Sheet: Changes to
National Security Entry/Exit Registration System (NSEERS) (December
1, 2003), available at http://www.dhs.gov/
dhspublic/display?theme=43&content=3020. Pakistan was among those
countries designated. Ali duly registered, and this apparently
brought him to the attention of the immigration authorities.
On May 9, 2003, Ali was placed in removal proceedings. The
Government charged him with overstaying his visa, 8 U.S.C. §
1227(a)(1)(B), and with violating the conditions of his nonimmigrant
status by accepting unauthorized employment, 8 U.S.C. §
1227(a)(1)(C)(i). Over the Government’s objections, the IJ
continued Ali’s case seven times for a variety of reasons, including
lawyer preparation, scheduling conflicts, and a family-related
emergency. On January 6, 2004, the IJ denied Ali’s request for an
eighth continuance and ordered him removed. The IJ granted Ali’s
alternative request for voluntary departure. The BIA affirmed
without opinion. Before this Court, Ali challenges the order of
removal on the grounds that (1) the IJ abused his discretion by
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refusing him a continuance to pursue labor certification; (2)
evidence obtained pursuant to NSEERS should have been excluded
because that program violated the equal protection principles of the
Fifth Amendment; and (3) evidence was obtained in violation of
Department of Justice regulations and should have been excluded.
Ali also argues that he remains eligible to adjust his status even
though the stated deadline for his voluntary departure has passed.
II. DISCUSSION
A. DENIAL OF CONTINUANCE
At Ali’s final hearing, the IJ denied his request for an eighth
continuance. Ali contends that he should have been permitted the
continuance to pursue labor certification, citing the Seventh
Circuit’s decision in Subhan v. Ashcroft, 383 F.3d 591, 594 (7th
Cir. 2004). An IJ may grant a continuance only “for good cause
shown.” 8 C.F.R. § 1003.29. The grant of a continuance “lies
within the sound discretion of the immigration judge.” Witter v.
I.N.S., 113 F.3d 549, 555-56 (5th Cir. 1997). “When, as in this
instance, the BIA affirms without opinion, we review the IJ’s
decision.” Mireles-Valdez v. Ashcroft, 349 F.3d 213, 215 (5th Cir.
2003). We hold that the IJ did not abuse his discretion.
We have frequently faced claims relating to labor certification
applications in recent months. Assessing these claims in the wake
of the Seventh Circuit’s Subhan decision, we have repeatedly held
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that to show cause for a continuance an alien must, at a minimum,
“mak[e] some showing before the IJ” that the application was filed
on or before April 30, 2001. Ramchandani v. Gonzales, __ F.3d __,
2005 WL 3485873, *1–2 (5th Cir. Dec. 21, 2005); see (Nizar) Ali v.
Gonzales, 2006 WL 73613 (5th Cir. Jan. 11, 2006) (unpublished);
(Akbar) Ali v. Gonzales, 2005 WL 3150723, *1 (5th Cir. Nov. 28,
2005) (unpublished). This is because an alien is only eligible to
adjust status under section 245(i) of the INA if the labor
certification application was filed on or before April 30, 2001.
Id. Absent some showing that the labor certification application
was timely filed, “the alien cannot show that he would meet the
statutory requirements [for relief] . . . even if the case were
continued.” Ramchandani, __ F.3d at __, 2006 WL 3485873, at *2.
Ali failed to make a showing before the IJ that his labor
certification application was filed on or before April 30, 2001.
At his hearing before the IJ on December 2, 2003, Ali claimed that
he had a labor certification pending. The IJ granted a seventh
continuance until January 6, 2004 and specifically informed Ali that
he would need to produce evidence or written applications relating
to labor certification before meriting any further relief on that
ground. Ali did not do so.1 Accordingly, the IJ’s decision to deny
1
Ali attached some evidence of a timely labor certification
application to his brief to the BIA on appeal. This is
insufficient because the showing of good cause must be made
before the IJ, not the BIA. See 8 C.F.R. § 1003.29. “Except for
taking administrative notice of commonly known facts such as
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a further continuance was not an abuse of discretion.2
Ali also argues that the IJ’s decision denied him due process.
His claim is similarly unavailing when framed in due process terms.
We have previously held that the denial of a continuance does not
violate due process where an alien fails to show good cause. See
Bright v. I.N.S., 837 F.2d 1330, 1332 (5th Cir. 1988); Patel v. U.S.
I.N.S., 803 F.2d 804, 806–07 (5th Cir. 1986). In sum, Ali’s claim
that he was entitled to an eighth continuance is without merit.
B. SUPPRESSION OF NSEERS EVIDENCE
Ali also claims that NSEERS violates the equal protection
principles embodied in the Fifth Amendment, arguing that it
discriminates on the basis of nationality, gender, race, and
current events or the contents of official documents, the Board
will not engage in factfinding in the course of deciding
appeals.” 8 CFR § 1003.1. The proper method for presenting
additional evidence to the immigration courts is through a motion
to reopen. See Witter v. I.N.S., 113 F.3d 549, 556 (5th Cir.
1997). None was filed here.
2
Because there was no showing that Ali’s application was
timely filed, we again “decline to further address the
persuasiveness of the reasoning in Subhan.” (Nizar) Ali, 2006 WL
73613, at *3. We note, however, that there is a Circuit split as
to whether evidence of a timely filed, pending labor
certification application amounts to good cause for a
continuance. The Eleventh Circuit has rejected the Seventh
Circuit’s position that it does. See Zafar v. United States
Atty. Gen., 426 F.3d 1330, 1135-36 (11th Cir. 2005); Pirzada v.
U.S. Atty. Gen., 2006 WL 167454 (11th Cir. Jan. 24, 2006)
(unpublished).
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religion.3 He contends that this alleged constitutional infirmity
requires the exclusion of all evidence obtained through NSEERS. We
review de novo claims of constitutional error in immigration
proceedings. Soadjede v. Ashcroft, 324 F.3d 830, 831 (5th Cir.
2003).
Even assuming arguendo that NSEERS is a violation of equal
protection,4 Ali’s argument is flawed for at least two reasons.
First, the exclusionary rule does not ordinarily apply to removal
proceedings. Administrative immigration cases are civil. See
United States v. Lopez-Ortiz, 313 F.3d 225, 230 (5th Cir. 2002).
“The Supreme Court has never applied the exclusionary rule to civil
cases, state or federal.” Wren v. Towe, 130 F.3d 1154, 1158 (5th
Cir. 1997). Indeed, the Supreme Court has specifically refused to
extend the exclusionary rule to immigration proceedings, citing the
high social costs of allowing an alien to remain illegally in this
country and the incompatibility of the rule with the administrative
nature of those proceedings. See I.N.S. v. Lopez-Mendoza, 468 U.S.
3These last two classifications, Ali claims, are implicit
because the program targets (with the exception of North Korea)
“primarily Muslim/Arab countries.”
4
We note that NSEERS’s nationality classification has been
repeatedly upheld by this Court and others against constitutional
attack. See (Nizar) Ali, 2006 WL 73613, at *3; Lakhani v.
Gonzales, 2006 WL 73616, *4 (5th Cir. Jan. 11, 2006)
(unpublished); Sewani v. Gonzales, 2006 WL 39251, *2 (5th Cir.
Jan. 9, 2006) (unpublished); Zafar, 426 F.3d at 1336; Roudnahal,
310 F.Supp.2d at 892.
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1032, 1050 (1984); see also Mendoza-Solis v. I.N.S., 36 F.3d 12, 14
(5th Cir. 1994) (“It is well established that the fourth amendment
exclusionary rule is not to be applied in deportation proceedings.”)
Additionally, Ali cites no authority for the proposition that
suppression of evidence is an appropriate remedy for violations of
equal protection, even in criminal proceedings. See United States
v. Lopez-Moreno, 420 F.3d 420, 434 (5th Cir. 2005) (declining to
reach the issue but noting, “Neither the Supreme Court nor our Court
has ruled that there is a suppression remedy for violations of the
Fourteenth Amendment’s Equal Protection Clause”).
Second, Ali has not shown any prejudice. He fails to point us
to a particular piece of evidence that was obtained pursuant to
NSEERS and used against him. Additionally, Ali admitted that he was
removable when he appeared before the IJ on January 6. Thus,
assuming arguendo that NSEERS is unconstitutional, and even if
suppression were an appropriate remedy, any violation of Ali’s equal
protection rights would be harmless. See Beltran-Resendez v.
I.N.S., 207 F.3d 284, 287 (5th Cir. 2000). For these reasons, Ali’s
equal protection/suppression claim fails.
C. SUPPRESSION OF EVIDENCE OBTAINED IN VIOLATION OF SECTION 287.3
Ali’s third claim is that evidence obtained at his NSEERS
interview should have been suppressed because it was obtained in
violation of 8 C.F.R. § 287.3. That regulation provides that aliens
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arrested without a warrant should be advised, inter alia, of the
reasons for their arrest and that statements made could be used
against them in subsequent proceedings. The record contains no
evidence to support Ali’s claim that the immigration authorities
violated section 287.3. There is nothing in the record to show that
Ali was arrested without a warrant or that he was interrogated
without being advised of his rights. Furthermore, as with his equal
protection claim, Ali (1) cites no authority for the proposition
that a suppression remedy would be appropriate for violations of
section 287.35 and (2) fails to show any prejudice since he does
not point us to a particular statement that should have been
suppressed and since he admitted his removability. Accordingly,
Ali’s section 287.3 claim is without merit.
D. ELIGIBILITY FOR FURTHER RELIEF
Lastly, Ali argues that he remains eligible for additional
relief before the Immigration Court. The BIA ordered that Ali had
until April 24, 2005 to depart voluntarily. That date has passed.
The voluntary departure statute provides that an alien who fails to
depart within the specified period shall “be ineligible for a period
of 10 years for any further relief.” 8 U.S.C. § 1229c(d). Ali
argues that the voluntary departure period has been tolled by his
5
Other Circuits have held that no such remedy is warranted.
See Navarro-Chalan v. Ashcroft, 359 F.3d 19, 20 (1st Cir. 2004);
Odukwe v. I.N.S., 977 F.2d 573 (4th Cir. Oct. 22, 1992)
(unpublished).
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filing of a petition for review in this Court. He asks us to
declare that section 1229c(d) is inapplicable and that he remains
eligible “for all relief available to him including adjustment of
status in further proceedings before the Immigration Court.” We
have no jurisdiction to do so.
To our knowledge, Ali has neither moved to reopen nor applied
to adjust his status. The BIA has not had an opportunity to rule
on this relief. We have no power to preemptively proclaim incorrect
a decision that the BIA has not yet made. Ali’s claim is not ripe.
See United States v. Garcia, 416 F.3d 440, 441 (5th Cir. 2005);
Abdallah v. Gonzales, 132 Fed Appx. 12, 13 (5th Cir. 2005)
(unpublished).
III. CONCLUSION
For the reasons stated above, Ali’s petition for review is
DENIED.
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