Ali, Syed I. v. Keisler, Peter D. ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 06-3240 & 06-3879
SYED IQBAL ALI,
Petitioner,
v.
ALBERTO R. GONZALES,
Respondent.
____________
Petitions for Review of Orders of
the Board of Immigration Appeals.
No. A95-925-079
____________
ARGUED FEBRUARY 22, 2007—DECIDED SEPTEMBER 14, 2007
____________
Before BAUER, EVANS, and SYKES, Circuit Judges.
SYKES, Circuit Judge. Syed Ali petitions for review of
decisions of the Board of Immigration Appeals (“BIA”)
affirming an immigration judge’s (“IJ”) denial of his
request for a continuance and denying his subsequent
motion for reconsideration. Ali sought to continue his
removal hearing to await a disposition on his son
Zeeshan’s application for American citizenship; once
naturalized, Zeeshan could sponsor Ali’s petition to
adjust his status to that of a lawful permanent resident.
Ali now argues, as he did before the BIA, that the IJ
failed to provide an adequate reason for denying the
continuance. He also contends that the National Security
Entry-Exit Registration System (“NSEERS”) program,
2 Nos. 06-3240 & 06-3879
through which his illegal presence in the United States
was brought to the attention of the immigration authori-
ties in the first place, unconstitutionally targets aliens
from Arab and Muslim countries.
This circuit has previously assumed, without deciding,
that the jurisdiction-stripping provision of § 242(a)(2)(B)(ii)
of the Immigration and Nationality Act (“INA”), 8 U.S.C.
§ 1252(a)(2)(B)(ii), generally precludes judicial review of
continuance decisions of immigration judges. Subhan v.
Ashcroft, 383 F.3d 591, 595 (7th Cir. 2004). The Attor-
ney General now argues, in a change of position, that
§ 1252(a)(2)(B)(ii) does not apply to denials of continu-
ances. We note the concession but disagree.
Section 1252(a)(2)(B)(ii) provides (with an exception not
relevant here) that “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 Gen-
eral.” 8 U.S.C. § 1252(a)(2)(B)(ii) (emphasis added). The
Attorney General’s current view is that this provision is
inapplicable to continuance decisions because an im-
migration judge’s authority to grant continuances is
conferred by regulation, not statute. While it is true that
continuances are specifically mentioned only in the
administrative regulations, see 8 C.F.R. § 1003.29, an
immigration judge’s authority to grant or deny a continu-
ance is statutory; it derives from 8 U.S.C. § 1229a, which
confers upon immigration judges the plenary authority
to conduct removal proceedings. The regulation regard-
ing continuances simply implements the immigration
judge’s statutory authority to control the course of re-
moval proceedings.
Accordingly, as suggested but not decided in Subhan, an
immigration judge’s denial of a continuance motion is a
discretionary “decision or action” the “authority for which”
Nos. 06-3240 & 06-3879 3
is committed to the immigration judge by the relevant
subchapter of the INA, and the jurisdictional bar in
§ 1252(a)(2)(B)(ii) generally precludes judicial review.
Although this is the minority position among the circuits
that have considered the question, we think it the
sound one and now adopt it.1 This position is consistent
with our recent decision in Leguizamo-Medina v. Gonzales,
493 F.3d 772, 775 (7th Cir. 2007), which interpreted the
preceding subsection of the jurisdiction-stripping statute,
§ 1252(a)(2)(B)(i). Leguizamo-Medina held that where
§ 1252(a)(2)(B)(i) removes jurisdiction to review a final
immigration decision (the statute eliminates judicial
review of agency decisions regarding certain forms of
immigration relief), review of continuance denials and
other interim orders leading up to the final decision is
also precluded.
Here, Ali conceded removability but sought a cont-
inuance so he could pursue adjustment of status if his
son’s application for citizenship was approved. He now
seeks review of the denial of the continuance, but our
review is barred by both § 1252(a)(2)(B)(ii) and the logic
of Leguizamo-Medina. Adjustment of status determina-
tions are unreviewable under § 1252(a)(2)(B)(i); the IJ’s
continuance decision is interim to Ali’s contemplated
adjustment of status application, and interim orders
entered along the road to an unreviewable final order are
themselves unreviewable.
1
This opinion has been circulated among all judges of this court
in regular active service pursuant to Circuit Rule 40(e). A
majority did not favor rehearing en banc on the question
of whether the jurisdiction-stripping provision, 8 U.S.C.
§ 1252(a)(2)(B)(ii), applies to continuance decisions of immigra-
tion judges. Judges Ripple, Rovner, Wood, and Williams voted
to rehear this case en banc.
4 Nos. 06-3240 & 06-3879
We also hold that Ali’s case does not fall within the
exception to the jurisdictional bar recognized in Subhan.
Finally, we lack jurisdiction to consider Ali’s constitutional
challenge to the NSEERS program.
I. Background
Ali, a citizen of Pakistan, entered the United States
in 1996 on a six-month visitor’s visa. He overstayed his
visa and in 2003 was placed in removal proceedings. After
a preliminary hearing in April 2003, his case was con-
tinued, and at the next hearing in November, Ali con-
ceded removability. Through counsel, he told the IJ that
his son Zeeshan had a pending application for citizen-
ship and that once he was naturalized, Zeeshan intended
to file a family-based visa petition (I-130) on Ali’s behalf.
Ali also informed the IJ that although he missed the one-
year deadline for seeking asylum, he intended to apply
for withholding of removal and relief under the Conven-
tion Against Torture. (He apparently never did apply
for these forms of relief.) The IJ continued the hearing
twice more, until February 2005.
Meanwhile, Zeeshan—who had not yet been granted
citizenship—filed an I-130 petition on Ali’s behalf.
Zeeshan, a permanent resident, represented that he was
sponsoring Ali as a “parent of U.S. citizen.” Ali moved to
have his removal case continued again, or administra-
tively closed, to await a decision on Zeeshan’s citizenship
application. The government opposed the motion.
At the February 2005 hearing, Ali argued that his son’s
naturalization application was still pending and that it
would be unjust to “tear a father from his son” if Ali could
adjust his status once Zeeshan became a citizen. To
support his request for a continuance, Ali offered into
evidence a “walk-in form” that Zeeshan had submitted to
Nos. 06-3240 & 06-3879 5
the office of United States Senator Richard Durbin re-
questing intervention in his citizenship application. On
that form Zeeshan stated his interview and citizenship
test had been held in January 2004, and his application
for citizenship had been denied on the ground of “poor
moral character.”
Without mentioning this form—evidence submitted by
Ali establishing that Zeeshan’s naturalization application
had already been denied—the IJ concluded that Ali had
not established the requisite “good cause” for a continu-
ance. 8 C.F.R. § 1003.29. The IJ explained that Ali was
not immediately eligible for a visa, that a long continu-
ance had already been granted based on Ali’s representa-
tion that his son’s application would be decided soon, and
that “everyone who appears before me has family ties in
the United States.” The IJ denied the continuance and
granted relief in the form of voluntary departure.
Ali appealed the IJ’s decision to the BIA, arguing that
the denial of a continuance was erroneous under In re
Velarde-Pacheco, 23 I. & N. Dec. 253 (BIA 2002), and
Subhan, 383 F.3d at 593-94. In Velarde-Pacheco, the
BIA determined that a properly filed motion to reopen
for adjustment of status based on a marriage-based visa
petition may be granted in the exercise of discretion as
long as certain criteria are met. 23 I. & N. Dec. at 256.
In Subhan, this court held that an IJ had erred by arbi-
trarily denying a continuance to an alien seeking to adjust
his status based on an employment certification, the
application for which was awaiting action by the state
and federal labor departments. 383 F.3d at 595. The BIA
rejected Ali’s argument that his case was analogous to
either Subhan or Velarde-Pacheco and concluded that
the IJ had given adequate reasons for denying the con-
tinuance. In addition, the BIA held that the continuance
was properly denied based on the evidence Ali submitted
indicating that Zeeshan’s citizenship application had
already been denied due to poor moral character.
6 Nos. 06-3240 & 06-3879
Ali moved for reconsideration. The BIA denied the
motion because Ali merely reiterated the arguments he
made on appeal rather than citing any legal or factual
omission or defect in the BIA’s decision.2 Ali now petitions
for review.
II. Discussion
Ali contends the IJ improperly denied a continuance
simply because no visa was immediately available for him,
a flaw in reasoning that led to our granting the petition
for review in Subhan, which he argues is indistinguish-
able from his case. He also faults the BIA for relying on
the apparent denial of his son’s citizenship application,
which he asserts is still pending and which was not (he
now claims) the only basis for adjusting his status. Ali
asserts that Zeeshan’s permanent resident status pro-
vides an alternate ground to adjust status. Finally, Ali
challenges the constitutionality of the NSEERS program
that brought him to the attention of the Department of
Homeland Security (“DHS”) and led to the commence-
ment of removal proceedings against him.
Before reaching the merits of Ali’s arguments, we
must first consider our jurisdiction to review a denial of
a continuance in a removal proceeding. In Subhan, we
assumed jurisdiction to review continuance decisions
was lacking by virtue of the jurisdiction-stripping provision
of § 1252(a)(2)(B)(ii). But we sidestepped an ultimate
decision on the question, reasoning that if the denial of
a continuance effectively nullified the statutory opportu-
2
Although we are dismissing the petitions for review for lack
of jurisdiction, we note that the BIA’s reason for denying
reconsideration is consistent with Rehman v. Gonzales, 441 F.3d
506, 508 (7th Cir. 2006).
Nos. 06-3240 & 06-3879 7
nity to adjust status, see 8 U.S.C. § 1255, the IJ must
provide a reason for the denial consistent with § 1255, not
just a statement of the procedural posture of the case. 383
F.3d at 593-94. The IJ in Subhan had denied a continuance
simply because the alien’s labor certification had not yet
been processed, which we viewed as “merely a statement
of the obvious,” not a reason. Id. at 593.
While the Attorney General has argued in other cases
that we lack jurisdiction to review continuance denials
(and also has sought to distinguish or limit Subhan), in
this case and others more recently, he “declined to assert”
the jurisdictional bar. We have noted the impropriety of
this position; “jurisdiction always comes ahead of the
merits.” Leguizamo-Medina, 493 F.3d at 774. When
questioned about jurisdiction at oral argument, the
agency’s attorney informed us that the Department of
Justice now takes the position that the jurisdiction-
stripping provision, § 1252(a)(2)(B)(ii), does not apply to
continuance decisions. We asked for supplemental brief-
ing on the matter. We have carefully considered the
Department’s changed position and find ourselves unable
to agree with it.
The jurisdiction-stripping provision at issue here pre-
cludes judicial review of immigration decisions “the
authority for which is specified under this subchapter to be
in the discretion of the Attorney General.” 8 U.S.C.
§ 1252(a)(2)(B)(ii) (emphasis added). By its terms, this
statute removes jurisdiction to review only those deci-
sions the authority for which is committed to the discre-
tion of the Attorney General by 8 U.S.C. §§ 1151-1381(the statutes comprising subchapter II of Chapter 12 of
the INA). The Attorney General now argues that be-
cause continuances are referenced only in the immigra-
tion regulations, not the statutes, the discretionary
authority to grant or deny a continuance is not “speci-
fied under this subchapter” within the meaning of
8 Nos. 06-3240 & 06-3879
§ 1252(a)(2)(B)(ii), and the jurisdictional bar therefore
does not apply.
It is true that the relevant subchapter of the INA is
silent on the subject of continuances. As we noted in
Subhan, 383 F.3d at 595, continuances are mentioned in
the implementing administrative regulations, at 8 C.F.R.
§§ 1003.29; this regulation provides that an immigration
judge “may grant a motion for continuance for good cause
shown.” But an immigration judge’s authority to grant
or deny a continuance derives not from the regulation
but from a statute, 8 U.S.C. § 1229a, and this statute is
part of the relevant subchapter of the INA. Section
1229a(a)(1) confers on immigration judges the plenary
authority to conduct removal proceedings; § 1229a(b)(1)
describes that authority in general terms (it provides, for
example, that the immigration judge has the authority
to “administer oaths, receive evidence, and interrogate,
examine, and cross-examine the alien and any witnesses”
and “issue subpoenas”). The regulation pertaining to
continuances implements these statutes, but the im-
migration judge’s authority to conduct and control the
course of removal proceedings is “specified in” subchapter
II of the INA, and this necessarily encompasses the
discretion to continue the proceedings, whether on
the motion of a party or sua sponte. The jurisdictional
bar therefore applies to continuance decisions.
We suggested this interpretation in Subhan but did
not affirmatively adopt it. 383 F.3d at 595 (noting that
§ 1229a authorizes immigration judges to conduct re-
moval proceedings and observing that “since orders
denying motions for continuances, like other orders
governing the management of trials, are traditionally and
indeed inevitably discretionary in character[,] . . . it is
apparent that section 1252(a)(2)(B)(ii) withdraws from
the courts the power to review such rulings when made
by an immigration judge”). We now do so. There is a circuit
Nos. 06-3240 & 06-3879 9
split on this question, and we recognize that we
are aligning ourselves with the minority view. The Eighth
and Tenth Circuits have adopted the same interpretation
as we do here. See Yerkovich v. Ashcroft, 381 F.3d 990,
993-95 (10th Cir. 2004); Onyinkwa v. Ashcroft, 376 F.3d
797, 799 (8th Cir. 2004). The First, Second, Third, Fifth,
Sixth, and Eleventh Circuits have accepted the inter-
pretation now asserted by the Attorney General. See
Alsamhouri v. Gonzales, 484 F.3d 117, 122 (1st Cir. 2007);
Zafar v. Att’y Gen., 461 F.3d 1357, 1360-62 (11th Cir.
2006); Khan v. Att’y Gen., 448 F.3d 226, 232-33 (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); Abu-Khaliel v. Gonzales, 436 F.3d 627, 633-34 (6th
Cir. 2006). The majority position, however, cannot be
reconciled with our recent opinion in Leguizamo-Medina.
The alien in Leguizamo-Medina had sought a continu-
ance in order to present more testimony on her claim for
cancellation of removal. Her motion was denied and she
petitioned for judicial review. The jurisdictional bar at
issue in Leguizamo-Medina was § 1252(a)(2)(B)(i), the
subsection preceding the statute at issue here. Section
1252(a)(2)(B)(i) eliminates judicial review of “any judg-
ment regarding the granting of relief under section
1182(h), 1182(i), 1229b, 1229c, or 1255 of this title.” The
listed statutes pertain to the Attorney General’s au-
thority to make decisions regarding waiver of inadmissi-
bility, cancellation of removal, voluntary departure, and
adjustment of status. Because § 1252(a)(2)(B)(i) “puts
the [cancellation of removal] decision beyond review,” we
held that the statute also “insulates the choices leading
up to that decision,” including the continuance decision.
Leguizamo-Medina, 493 F.3d at 775. “When a decision is
unreviewable, any opinion one way or the other on the
propriety of the steps that led to that decision would be
an advisory opinion.” Id. (citing Powerex Corp. v. Reliant
10 Nos. 06-3240 & 06-3879
Energy Servs., Inc., 127 S. Ct. 2411, 2419 (2007); Daniels
v. Liberty Mut. Ins. Co., 484 F.3d 884, 887-88 (7th Cir.
2007)).
Here, Ali sought a continuance in order to pursue
adjustment of status if his son naturalized. Of course
we are not reviewing a final decision denying adjust-
ment of status (the case never got that far), but Ali’s
continuance motion was ancillary to his contemplated
petition to adjust status—that is, it was a procedural step
along the way to an unreviewable final decision—and
the denial of the motion is therefore unreviewable.3
This leaves us to consider whether Ali’s case falls within
the exception noted in Subhan. It does not. The BIA
affirmed the IJ’s denial of a continuance based on evid-
ence in the record indicating that Zeeshan’s citizenship
application had already been denied; this is a reason
consistent with the adjustment statute, not merely a
“statement of the obvious.” The “walk-in” form Zeeshan
submitted to Senator Durbin’s office stated that he had
been denied citizenship “on poor moral character.” The BIA
was entitled to rely on this evidence—which was intro-
duced, after all, by Ali himself.
3
Final orders of removal such as the one before us are gen-
erally reviewable pursuant to 8 U.S.C. § 1252(a)(1), but this
general review authority is subject to the jurisdiction-stripping
provisions in subsection (a)(2) of that statute, two of which
we have been discussing here. The prefatory language in
§ 1252(a)(2)(B) states, in pertinent part: “Notwithstanding any
other provision of law (statutory or nonstatutory) . . . and
regardless of whether the judgment, decision, or action is made
in removal proceedings, no court shall have jurisdiction to re-
view . . . .” (emphasis added). Subsections (i) and (ii), under
consideration here, immediately follow this language. We note
also that Ali conceded removability; his petition for review
challenges only the denial of his continuance motion and the
constitutionality of the NSEERS program.
Nos. 06-3240 & 06-3879 11
Ali protests, however, that Zeeshan’s citizenship ap-
plication remains viable, despite the contrary written
evidence he submitted to the IJ. At oral argument, Ali’s
counsel confirmed that Zeeshan’s first application indeed
was denied on moral character grounds.4 Counsel repre-
sented, however, that Zeeshan was able to reapply within
five years and has done so. At the time of oral argument,
no action had been taken on the second application. Ali’s
counsel also told us that all three of Ali’s sons have
pending citizenship applications. And after oral argu-
ment Ali’s attorney sent us a copy of a Notice of Action
on the citizenship application for Haris Ali, one of Ali’s
sons, scheduling an appointment for March 23, 2007. This
form was unaccompanied by any explanation as to its
significance for the case before us, although we assume
that Ali would like to try to adjust his status based on
Haris’s citizenship if it is granted.
These developments are beside the point, however. At
the time the BIA reviewed the denial of the continuance,
the only record evidence concerning Zeeshan’s citizenship
application indicated that it was denied. To the best of the
BIA’s knowledge, it would have been futile to grant a
continuance. See Pede v. Gonzales, 442 F.3d 570, 571 (7th
Cir. 2006) (holding that “ultimate hopelessness” of ap-
plication for adjustment of status is “perfectly acceptable
basis” for denying continuance). Because the denial of a
continuance did not have the effect of nullifying the
4
The Attorney General, however, represented that Zeeshan’s
application was dismissed for lack of prosecution after he failed
to file documents pertaining to his criminal history (which,
according the Attorney General, includes more than one crim-
inal charge). Also, Zeeshan failed to prosecute the administra-
tive appeal of the denial of his citizenship application, and
the appeal was dismissed.
12 Nos. 06-3240 & 06-3879
statutory opportunity to adjust status, the Subhan excep-
tion to the jurisdictional bar does not apply.5
Finally, Ali raises a constitutional challenge to the
NSEERS program that caused him to come to the attention
of the DHS. Ali contends that he was unconstitutionally
targeted for registration and removal based on his religion
and ethnicity. But we have held that under 8 U.S.C.
§ 1252(g), we lack jurisdiction to review a challenge to the
constitutionality of the NSEERS program. See Hadayat v.
Gonzales, 458 F.3d 659, 665 (7th Cir. 2006). Section
1252(g) bars federal courts from hearing claims “by or on
behalf of any alien arising from the decision or action by
the Attorney General to commence proceedings.” Accord-
ingly, selective prosecution claims by aliens are largely
barred. See Reno v. Am.-Arab Anti-Discrimination Comm.,
525 U.S. 471, 491 (1999); Hadayat, 458 F.3d at 665;
Ahmed, 447 F.3d at 439-40. Although a narrow exception
remains for certain “outrageous” cases, see Am.-Arab Anti-
Discrimination Comm., 525 U.S. at 491, Ali’s bare allega-
tions of discrimination are insufficient to invoke that
exception. See Hadayat, 458 F.3d at 665.
For the foregoing reasons, Ali’s petitions for review are
DISMISSED for lack of jurisdiction.
5
Insofar as Ali contends that he could also adjust his status
because Zeeshan (and apparently his other sons) had a green
card, he is simply incorrect. A legal permanent resident may
sponsor a spouse or an unmarried child but not a parent. See
8 U.S.C. § 1153(a)(2).
Nos. 06-3240 & 06-3879 13
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—9-14-07