Noorani v. United States Attorney General

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
Nos. 05-11883 & 05-13986 ELEVENTH CIRCUIT
OCTOBER 20, 2006
________________________
THOMAS K. KAHN
CLERK
BIA Nos. A95 246 684 & A95-247-442
SHAHZAD NOORANI,
Petitioner,
versus
UNITED STATES ATTORNEY GENERAL,
Respondent.
________________________
Petitions for Review of a Decision of the
Board of Immigration Appeals
_________________________
(October 20, 2006)
Before ANDERSON, HULL and CUDAHY,* Circuit Judges.
PER CURIAM:
Shahzad Noorani petitions for review of the decision of the Board of
*
Honorable Richard D. Cudahy, United States Circuit Judge for the Seventh Circuit,
sitting by designation
Appeals (“BIA”) affirming the Immigration Judge’s (“IJ”) denial of a continuance.
He also appeals the BIA’s denial of his motion to reconsider. We review the denial
of a motion for continuance for abuse of discretion, see Olvera v. INS, 504 F.2d
1372, 1374 (5th Cir. 1974), and denial of motion to reconsider for abuse of
discretion, see Ass’ad v. U.S. Attorney General, 332 F.3d 1321, 1341 (11th Cir.
2003).
On appeal, Noorani argues that the IJ abused its discretion when it denied his
motion for a continuance because by having an approved labor certification, he was
eligible for adjustment under INA § 245(i), 8 U.S.C. §1255(i). Noorani also had an
approved I-140 but withdrew it before the government decided his pending I-485
petition. His new employer submitted a letter, asking to be substituted for a
previous employer upon whose employment offer the I-140 had been granted.
Noorani argues that he inadvertently withdrew his application for the I-485 but
tried to reinstate it.
We vacate the BIA’s opinion and remand for reconsideration in light of
Merchant v. U.S. Attorney General, 461 F.3d 1375 (11th Cir. 2006), Zafar v. U.S.
Attorney General, 461 F.3d 1357 (11th Cir. 2006), and Ugokwe v. U.S. Attorney
General, 453 F.3d 1325 (11th Cir. 2006). Also, it is unclear from the record
whether or not Noorani had validly filed I-140 and I-485 petitions pending. In
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addition to reconsidering this case in light of Merchant, Zafar, and Ugokwe, the
BIA and/or IJ may determine the status of Noorani’s filings.
VACATED and REMANDED.
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