Ali, Mahboob M. v. Gonzales, Alberto

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued April 18, 2006
Decided June 1, 2006
Before
Hon. ILANA DIAMOND ROVNER, Circuit Judge
Hon. TERENCE T. EVANS, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 05-2984
MAHOOB M. ALI, Petition for Review of an Order of
Petitioner, the Board of Immigration Appeals
v. No. A76-773-979
ALBERTO R. GONZALES,
Respondent.
ORDER
Mahoob Ali petitions for review of the Board of Immigration Appeals’ order
affirming an Immigration Judge’s (“IJ”) denial of a motion to continue his removal
proceedings. Ali asked for more time to await the United States Department of
Labor’s decision on his foreign labor certification application that had been pending
two and a half years. Because the Board’s denial was insufficiently reasoned, we
must grant the petition for review.
Nos. 05-2984 Page 2
Ali, a native and citizen of Pakistan and the father of two U.S. citizen
children, entered the United States in 1995 on a non-immigrant visa and
overstayed its expiration in 1996. In 2001, wishing to employ Ali as a baker,
Dunkin’ Donuts applied for a foreign labor certification with the Illinois
Department of Labor. While that application was pending, Ali appeared for “special
registration”—a post-911 program requiring noncitizens from specified countries to
register with the National Security Entry-Exit Registration System, see
Registration and Monitoring of Certain Nonimmigrants, 67 Fed. Reg. 52584 (Aug.
12, 2002); 8 C.F.R. § 264.1(f)—and thus came to the attention of the Department of
Homeland Security (“DHS”). The DHS issued a Notice to Appear charging Ali with
being removable. Appearing before an IJ, Ali conceded removability, but requested
a continuance to await the Department of Labor’s decision on his labor certification
application. If approved, it would enable him to petition for an employment-based
visa, which would in turn allow him to apply to adjust his status to that of a lawful
permanent resident. See 8 U.S.C. § 1255(i)(B)(ii); Subhan v. Ashcroft, 383 F.3d 591,
593 (7th Cir. 2004). The IJ granted two continuances spanning more than a year to
await a decision on Ali’s application.
The IJ denied a third continuance, however, and granted Ali voluntary
departure, reasoning he still had not petitioned for an employment-based visa and
that he had stayed here illegally since 1996. Ali’s application was still pending
when the Board affirmed, adopting the IJ’s decision, and adding that “any
Nos. 05-2984 Page 3
continuance would have been open-ended given the speculative nature of the relief
sought.”1
In his petition for review, Ali argues that the Board’s decision affirming the
denial of his request for a third continuance was unreasoned. Because neither the
IJ nor the Board supported the denial with a reason consistent with the
adjustment-of-status statute, 8 U.S.C. § 1255(i), Ali contends, we cannot uphold the
order of removal.
At the outset, the government argues that the IJ’s denial of a continuance is
a discretionary ruling, and that 8 U.S.C. § 1252(a)(2)(B)(ii) therefore strips us of
jurisdiction to review it. This overstates matters. As the government recognizes,
we retain jurisdiction to determine whether the denial was supported by a reason
consistent with § 1255(i). Subhan, 383 F.3d at 595. We must therefore decide the
merits of Ali’s argument in order to ascertain our jurisdiction, and will dismiss his
claim only if the denial was properly reasoned. Sokolov v. Gonzales, 442 F.3d 556,
569-70 (7th Cir. 2006).
1
At oral argument, Ali’s counsel informed us that, while this appeal was
pending, the Department of Labor approved Ali’s labor certification and he filed
with the DHS an employment-based visa petition, which is now pending. We asked
the parties to address the impact of that development on the outcome of this appeal.
Ali has responded that, under the agency’s rules, if he were now before the Board,
he would be eligible to apply to adjust his status. The government has replied, but
does not address that argument, instead contending for the first time that Ali is
ineligible to adjust status because he did not voluntarily depart by August 13, 2005,
as required by the Board’s order. See 8 U.S.C. 1229c(d). That issue has been in this
case since before Ali filed his petition for review, and so we decline to take it up
now. The government is free to raise the issue on remand.
Nos. 05-2984 Page 4
When the Board adopts the IJ’s decision, but supplements his reasoning, the
IJ’s decision as supplemented by the Board’s becomes the basis for our review.
Niam v. Ashcroft, 354 F.3d 652, 656 (7th Cir. 2004). Where an alien requests a
continuance of his removal proceedings in order to await a decision on his pending
labor certification application, a denial of the motion must be supported by a reason
consistent with the adjustment-of-status statute. Subhan, 383 F.3d at 595. In
particular, the denial must be consistent with the statute’s policy of allowing
“eligible aliens,” which include those who have overstayed their tourist visas, see 8
U.S.C. § 1255(c)(8), “to adjust status without having to leave the United States, to
relieve the burden on the United States citizen with whom the aliens had the
requisite family or other relationship, on the United States consulates abroad, and
on the alien.” Benslimane v. Gonzales, 430 F.3d 828, 832-33 (7th Cir. 2005) (quoting
Succar v. Ashcroft, 394 F.3d 8, 22 (1st Cir. 2005)). Merely stating the “obvious”—for
example, that the Department of Labor has not yet acted on a pending
application—is not a reason at all. Subhan, 383 F.3d at 595. However, valid
reasons can include that the alien engaged in criminal activity, Sokolov, 442 F.3d at
569-70, or that his adjustment-of-status application is hopeless on the merits, Pede
v. Gonzales, 442 F.3d 570, 571 (7th Cir. 2006).
The government argues that Subhan was wrongly decided, and points to the
subsequent decisions of three circuits, holding that the pendency of a labor
certification is reason enough to deny a motion to continue removal proceedings.
See Khan v. Attorney General of the United States, 2006 WL 1377054 at *8 (3d Cir.
Nos. 05-2984 Page 5
May 22, 2006); Ahmed v. Gonzales, 2006 WL 1064196 at *4-5 (5th Cir. Apr. 24,
2006); Zafar v. United States Attorney General, 426 F.3d 1330, 1335-36 (11th Cir.
2005). We decline the invitation to overrule Subhan.
The government contends that, in affirming the denial, the Board
supplemented the IJ’s decision with an additional reason that is consistent with the
statute: that “any continuance would have been open-ended given the speculative
nature of the relief sought.” We do no see how the Board’s statement here differs
from the one we rejected in Subhan: that although the alien “may be able to
eventually acquire lawful permanent resident status by virtue of employment,”
since he had not yet done so, he was “not eligible for this form of relief at this time.”
Subhan, 383 F.3d at 594. We said that was “not a reason . . . but merely a
statement of the obvious.” Id. Neither statement articulates a discrete rationale;
both merely recite what’s true in every such case—that a pending application is no
guarantee of certification. The government suggests that the Board’s statement
here is “fundamentally no different” than a hypothetical reason approved in
Subhan—that “an illegal alien should not be allowed to delay his removal
proceedings beyond a year.” In contrast to the reasons given by the Board here and
in Subhan, however, the hypothetical reason approved in Subhan does not apply in
every case. And, although Ali did delay his removal more than a year, we will not
as the government suggests assume that was the reason the Board denied a
continuance. See SEC v. Chenery Corp., 332 U.S. 194 (1943).
Nos. 05-2984 Page 6
The government does not attempt to defend either of the IJ’s reasons for
denying a continuance. Indeed, both are inconsistent with the adjustment-of-status
statute. That Ali “has never filed with the Department of Homeland Security” the
application to adjust his status adds nothing when he had not yet received the
certification from the department of labor department that he needs to apply for the
adjustment. It is not a reason but “a statement of the obvious.” See Subhan, 383
F.3d at 593. And Ali’s “illegal status” is irrelevant because the statute by its terms
specifically applies to aliens like Ali who overstay their visas. See 8 U.S.C.
§ 1255(i), (c)(8).
Because neither the Board nor the IJ gave a reason consistent with the
statute for denying a continuance, we GRANT the petition for review, VACATE the
Board’s decision, and REMAND the case for further proceedings consistent with
this order.