Memon v. Gonzales

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
April 24, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
____________________
No. 05-60041
____________________
ABDUL HAMEED MEMON; HUMAIR HAMEED MEMON
Petitioners
v.
ALBERTO R. GONZALES, United States Attorney General,
Respondent
_________________________________________________________________
Petitions for Review of an Order of the
Board of Immigration Appeals
_________________________________________________________________
Before KING, SMITH and BENAVIDES, Circuit Judges.
PER CURIAM:*
Petitioners Abdul Hameed Memon and Humair Hameed Memon
petition this court for review of a final order of removal by the
Board of Immigration Appeals. In its per curiam order, the Board
of Immigration Appeals affirmed, without opinion, an immigration
judge’s refusal to continue the petitioners’ removal proceedings.
The petitioners now argue that the Board erred in affirming both
the immigration judge’s refusal to continue their removal
*
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that this opinion should not be published and is not precedent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.
proceedings and the order of removal. For the following reasons,
we DENY the petition for review.
I. BACKGROUND
Petitioners Abdul Hameed Memon and Humair Hameed Memon are
both natives and citizens of Pakistan, who were admitted to the
United States as visitors on October 6, 2000, with permission to
remain in the United States until January 17, 2002. Abdul Hameed
Memon (“Memon”) is the lead petitioner; his son Humair Hameed
Memon’s potential eligibility for adjustment of status as a
derivative beneficiary is entirely dependent upon Memon’s
application.
On February 5, 2003, the Department of Homeland Security
(“DHS”) initiated removal proceedings against the petitioners.
DHS claimed that the petitioners were removable under 8 U.S.C.
§ 1227(a)(1)(B), as nonimmigrants who remained in the United
States longer than permitted. On May 29, 2003, the petitioners,
represented by counsel, appeared before an immigration judge who
consolidated their cases. At this time, the petitioners informed
the immigration judge that Memon had a labor certification
pending with the Department of Labor, and they requested a
continuance. The immigration judge declined to rule on the
petitioners’ request for a continuance, and the hearing was
adjourned to allow the attorneys time to prepare their arguments.
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On July 17, 2003, the petitioners, again represented by
counsel, admitted to the facts alleged by DHS and conceded their
removability. Again, they informed the immigration judge of
Memon’s pending labor certification. The immigration judge set a
hearing date of November 14, 2003, and gave the petitioners a
filing date of October 3, 2003, to file applications for relief
from removal. The immigration judge also informed the
petitioners at this time that it would be “difficult to justify a
continuance” based solely on the pending labor certification. On
October 31, 2003, the petitioners filed a written motion for a
continuance to allow more time for the approval of the pending
labor certification.
On November 14, 2003, the petitioners appeared before the
immigration judge for their scheduled hearing, and made another
oral motion for a continuance. The immigration judge denied the
petitioners’ request for a continuance but granted their
alternative request for voluntary departure. In his oral
decision, the immigration judge acknowledged that with both an
approved labor certification and an approved visa petition, the
petitioners might be eligible for relief from removal. However,
because the petitioners had only a pending application for labor
certification, the immigration judge found that they were
essentially requesting an “indefinite continuance.” Therefore,
the immigration judge denied their motion for a continuance for
failure to establish good cause.
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The petitioners appealed from the immigration judge’s
decision to the Board of Immigration Appeals (“BIA”). On
December 23, 2004, the BIA affirmed, without further opinion, the
decisions of the immigration judge. On January 20, 2005, the
petitioners filed their petition for review of the BIA’s decision
with this court. One week later, on January 27, 2005, the
petitioners filed a motion to reconsider with the BIA. The BIA
denied the petitioners’ motion to reconsider on February 17,
2005. On March 15, 2005, the petitioners filed a second petition
for review with this court. This opinion disposes of both
petitions for review.
The petitioners now argue, citing the Seventh Circuit’s
decision in Subhan v. Ashcroft, 383 F.3d 591 (7th Cir. 2004),
that the refusal to continue their removal proceedings violated
rights created by 8 U.S.C. § 1255. They also claim that the
decisions of the BIA and the immigration judge violated their
constitutional due process rights.
II. DISCUSSION
The petitioners raise statutory arguments and due process
constitutional claims virtually identical to those raised in
Ahmed v. Gonzales, No. 05-60032, --- F.3d ---- (5th Cir. 2006).
Applying our reasoning in Ahmed to the matter at hand, we reject
the petitioners’ interpretation of 8 U.S.C. § 1255 and, along
with it, we reject the petitioners’ argument that the immigration
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judge’s refusal to continue their proceedings was an abuse of
discretion. See Ahmed, --- F.3d at ---- (rejecting a similar
interpretation of § 1255 which was also based on Subhan). We
also hold that the petitioners have failed to raise a cognizable
constitutional claim because discretionary relief from removal,
including an application for an adjustment of status, is not a
liberty or property right that requires due process protection.
See, e.g., Assaad v. Ashcroft, 378 F.3d 471, 475 (5th Cir. 2004)
(stating that due process claims revolving around an alleged
failure to receive discretionary relief are not based upon a
constitutionally protected liberty interest); Mireles-Valdez v.
Ashcroft, 349 F.3d 213, 219 (5th Cir. 2003) (holding that
eligibility for discretionary relief from a removal order is not
a liberty or property interest warranting due process
protection). Therefore, we DENY this petition for review.
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