Ali Mehndy v. Eric Holder, Jr, U S Attorney ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 21, 2009
No. 09-60178
Summary Calendar Charles R. Fulbruge III
Clerk
ALI MEHNDY, also known as Mehndy Ali, also known as Mehndi Ali, also
known as Mehdi Ali,
Petitioner
v.
ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A95 319 826
Before GARZA, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
Ali Mehndy, a native and citizen of Pakistan, petitions for review of the
Board of Immigration Appeals’ (BIA) order, affirming the Immigration Judge’s
(IJ) decision to deny a further continuance of Mehndy’s removal proceedings.
The BIA found Mehndy was ineligible for adjustment of status under the
Immigration and Nationality Act (INA) § 245, 8 U.S.C. § 1255, because an I-140
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
No. 09-60178
petition filed by his employer had been denied, and he did not have an
“immediately available” visa.
Mehndy’s case has a lengthy procedural history. Removal proceedings
began in 2005. In 2006, an IJ found Mehndy removable and denied a
continuance and the BIA dismissed Mehndy’s appeal of the decision, putting him
on the verge of removal. He moved to reopen with the BIA because his employer
had filed an I-140 visa petition that could adjust his status to that of a lawful
permanent resident. The BIA granted the motion and remanded the case to the
IJ. The I-140 visa petition was subsequently denied by the United States
Citizenship and Immigration Services. In 2008, Mehndy was again before the
IJ and again sought a continuance for extra time to await resolution of the I-140
appeal. The IJ denied the continuance and ordered Mehndy’s removal. The BIA
affirmed, and Mehndy now petitions for review.
Although an IJ may grant a continuance of removal proceedings upon a
showing of good cause, the decision is within his sound discretion. See Masih v.
Mukasey, 536 F.3d 370, 373 (5th Cir. 2008). We review the denial of a
continuance for abuse of discretion. See Witter v. INS, 113 F.3d 549, 555-67 (5th
Cir. 1997). Even though we have authority to review only the BIA’s decision, we
may consider the IJ’s decision to the extent that it influenced the BIA. See
Mikhael v. I.N.S., 115 F.3d 299, 302 (5th Cir. 1997).
Mehndy argues that the BIA abused its discretion in finding that he failed
to show good cause for the IJ to continue his removal proceedings. Although the
I-140 visa application filed on his behalf had been denied, an appeal was pending
with the Administrative Appeals Office. Mehndy claims this appeal, which
potentially could adjust his status to that of a lawful permanent resident,
provides good cause for continuing the removal proceedings.
The problem with Menhdy’s argument is that having a pending I-140
appeal, however meritorious, does not bring him within the criteria for
adjustment of status set forth in § 1255(i). Specifically, § 1255(i)(2) provides:
2
No. 09-60178
Upon receipt of such an [adjustment of status] application . . . the
Attorney General may adjust the status of the alien to that of an
alien lawfully admitted for permanent residence if--
(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 is filed.
(emphasis added). Because Mehndy’s visa petition had been denied and was on
appeal, he did not have an immigrant visa “immediately available,”as required
by § 1255(i). Accordingly, he was statutorily ineligible to adjust his status and
could not show good cause for a continuance. See Masih, 536 F.3d at 373
(distinguishing between cases in which alien was statutorily eligible and those
in which he was statutory ineligible in determining whether good cause existed);
see also Ahmed v. Gonzales, 447 F.3d 433 (5th Cir. 2006); Ali v. Gonzalez, 440
F.3d 678 (5th Cir. 2006) (per curiam).
A request to continue proceedings in order to await a prospective or
collateral event, such as the possibility of future relief, does not amount to good
cause as such potential relief is speculative and the statute requires the visa to
be “immediately available.” Ahmed, 447 F.3d at 438-39. Mehndy was placed in
removal proceedings years ago and has already received a continuance affording
him the opportunity to obtain relief. Even Subhan, the Seventh Circuit case
upon which Mehndy heavily relies, provides no support for finding that an alien
who has delayed proceedings beyond a year is entitled to a further continuance
based on a pending I-140 visa appeal. See Subhan v. Ashcroft, 383 F.3d 591,
593-94 (7th Cir. 2004).
Although Mehndy dedicates a substantial portion of his brief to the merits
of his visa appeal, his emphasis is misplaced because that appeal is not before
us. The only issue before us is whether there was an abuse of discretion in
denying Mehndy’s request to continue his removal proceedings. We will not
3
No. 09-60178
speculate as to the merits of Mehndy’s pending visa appeal as that is a collateral
issue. See Conti v. I.N.S., 780 F.2d 698, 702 (1985) (noting that the disposition
of a visa application is a collateral issue outside the purview of an appeal of an
order of deportation). Our conclusion that the IJ was within his discretion to
deny the continuance because Mehndy was statutorily ineligible for adjustment
of status is sufficient to resolve this petition for review.
Mehndy also argues that the BIA erred in attributing “harmless error” to
the IJ’s comments that the case should have been over in 2005 and that Mehndy
abused the immigration laws by remaining in the United States. In Mehndy’s
view, the comments seriously undermined the fairness of the proceedings. While
we do not condone the comments made by the IJ, we do not believe they rise to
a level of prejudice which denied Mehndy an opportunity for a fair and impartial
hearing. See Marcello v. Ahrens, 212 F.2d 830, 837-38 (5th Cir. 1954). This is
particularly true given that the decision to deny the continuance was grounded
on a proper determination of statutory ineligibility. Id. at 838.
In sum, we find no abuse of discretion in the denial of Mehndy’s request
for continuance. At the time of the IJ’s denial of Mehndy’s motion for
continuance, he was statutorily ineligible for adjustment to permanent status
under § 1255(i) because he did not have an immediately available visa. As his
appeal had been pending for many years and he has had previous opportunities
during that time to obtain relief, denying a further continuance was not an
abuse of discretion.
Mehndy’s petition for review is DENIED.
4