Mohammed Nasir Khan v. Attorney General of the United States

Citation: 448 F.3d 226Docket: 04-4336

Court: Court of Appeals for the Third Circuit; May 22, 2006; Federal Appellate Court

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Mohammed Nasir Khan, a 47-year-old native of Bangladesh, sought review from the Third Circuit after the Board of Immigration Appeals upheld an Immigration Judge's (IJ) denial of his request for a continuance in his removal proceedings. Khan entered the U.S. in 1996 on a temporary business visa, but was placed in removal proceedings for overstaying after voluntarily reporting to the Department of Homeland Security (DHS) in 2003. During his hearings, Khan, represented by counsel, conceded his removability and applied for voluntary departure, requesting either a continuance or termination of the proceedings based on his wife's pending Labor Certification application. The IJ denied the continuance, stating that without a filed visa petition, Khan was not prima facie eligible for status adjustment. The IJ also dismissed Khan’s argument regarding the validity of the special registration requirement and ordered his removal, allowing a 60-day voluntary departure period. Khan appealed to the BIA, arguing the constitutionality of the registration process and the IJ's error in denying the continuance, asserting that his wife's Labor Certification had been approved at the state level and was only pending with the federal DOL.

Khan contended that he should not be held responsible for the government's delay in processing Labor Certifications. On October 27, 2004, the Board of Immigration Appeals (BIA) affirmed the Immigration Judge's (IJ) order without opinion and allowed Khan thirty days for voluntary departure. Khan subsequently filed a timely petition for review. The government moved to dismiss, claiming the court lacked jurisdiction and, alternatively, requested summary affirmance. 

The threshold issue is whether the court has jurisdiction over the review petition. The BIA's order, which affirmed the IJ's removal order after denying Khan's motion for a continuance, is considered a final order of removal, thus falling within the court's review jurisdiction under 8 U.S.C. § 1252(a)(1). The government argued that the court lacks jurisdiction over the IJ's denial of the continuance request because it is a discretionary determination under 8 U.S.C. § 1252(a)(2)(B)(ii), which precludes judicial review of certain Attorney General decisions specified as discretionary.

The jurisdictional question hinges on whether the IJ's authority to grant a continuance is specified under the relevant subchapter of the Immigration and Nationality Act. No statutory provision explicitly confers such discretion, though a federal regulation allows the IJ to grant a continuance for good cause. The courts are divided on whether this regulatory authority constitutes "authority specified under this subchapter." Previous case law, such as Bakhtriger v. Elwood, examined the reviewability of discretionary decisions in asylum cases and concluded that habeas review must focus on constitutional and statutory law rather than the exercise of discretion.

The decision referenced is not applicable to the current case, as it does not involve a "criminal alien," which allows for broader review beyond just "constitutional challenges or errors of law." Previous cases, such as Bakhtriger, did not address the "specified under this subchapter" language of 8 U.S.C. § 1252(a)(2)(B)(ii), but later cases like Soltane and Urena-Tavarez did. In Soltane, the court ruled that the language in 8 U.S.C. § 1153(b)(4) did not grant discretion to the Attorney General regarding preference visa denials, thus allowing for judicial review. Conversely, Urena-Tavarez held that 8 U.S.C. § 1186a(c)(4), which does grant discretion to the Attorney General, barred review of the denial of a waiver.

The only other relevant case, Jilin Pharmaceutical USA, Inc. v. Chertoff, concluded that discretion provided by 8 U.S.C. § 1155 to revoke visa petitions also precluded court review under § 1252(a)(2)(B)(ii). None of these cases addressed whether § 1252(a)(2)(B)(ii) limits jurisdiction in instances where no statute expressly grants discretion, but discretion exists under federal regulation, marking this case as a first impression for the court.

The Eighth and Tenth Circuits have interpreted § 1252(a)(2)(B)(ii) as barring review of a petitioner's motion for a continuance in removal proceedings, citing discretion granted to Immigration Judges (IJs) under 8 C.F.R. § 1003.29. These courts reasoned that the statutory text encompasses IJ orders denying continuances. Conversely, other courts have argued that discretionary authority to grant a continuance cannot be deemed "specified under this subchapter" if the authority is found only in regulations.

In Zafar v. U.S. Att'y Gen., the court ruled that denials of motions to continue in immigration proceedings are not discretionary acts specified under 8 U.S.C. § 1252(a)(2)(B)(ii), thus allowing for judicial review of such denials. The Eleventh Circuit's decision aligns with those of the Fifth and Ninth Circuits, which similarly concluded that the statute does not strip courts of authority to review discretionary immigration decisions unless explicitly stated. The courts emphasized that the language of § 1252(a)(2)(B)(ii) specifically restricts review only for discretionary authority defined within that subchapter, not for broader discretionary acts. The Second Circuit also joined this consensus, affirming that the discretion to grant or deny continuances in immigration proceedings is not covered by the specified discretion of the Attorney General outlined in the statute. As such, judicial review remains available, consistent with the strong presumption in favor of such review in immigration cases, as noted in INS v. St. Cyr.

The Second, Fifth, Ninth, and Eleventh Circuit Courts of Appeals correctly interpret 8 U.S.C. § 1252(a)(2)(B)(ii), which stipulates that the jurisdictional bar applies only when discretion is explicitly specified by statute. The term "specify" denotes a clear statement of authority. In contrast, 8 U.S.C. § 1229a(a) does not articulate an Immigration Judge's (IJ) power to grant or deny a continuance. The Sixth Circuit, while agreeing with the Eleventh Circuit on the jurisdiction to review an IJ's denial of a continuance, based its conclusion on different reasoning, interpreting the power to "conduct proceedings" under § 1229a(a)(1) as inclusive of denying continuances. However, it ultimately concurred that § 1252(a)(2)(B)(ii) only strips jurisdiction for decisions made at the discretion of the Attorney General. The court affirmed that the IJ's discretion to grant or deny a continuance is not specified under the relevant statutes, thereby maintaining jurisdiction.

Reviewing the merits, since the Board of Immigration Appeals (BIA) affirmed the IJ's decision without opinion, the court evaluates the IJ's ruling directly. An IJ may grant a continuance for good cause, which is reviewed for abuse of discretion, a standard requiring the decision to not be arbitrary or irrational. Khan argues that the IJ's denial of his continuance request constituted an abuse of discretion and a violation of due process, as it hindered his ability to adjust his status under the LIFE Act. He claims this denial was unjust, citing delays caused by the government in processing his wife's Labor Certification. Khan references Subhan v. Ashcroft to support his assertion of abuse of discretion by the IJ.

The court in Subhan determined that while 1252(a)(2)(B)(ii) typically bars jurisdiction over motions for continuance, this does not apply when an alien requests a continuance pending Labor Certification, especially if the Immigration Judge (IJ) denies it without a reasoned explanation. The IJ's denial of the petitioner's third continuance request was based solely on the fact that the petitioner had not yet acquired lawful permanent residence, which was deemed insufficient reasoning. The Seventh Circuit found that this reasoning did not justify the denial and constituted an abuse of discretion, as it disregarded the provisions of 1255(i) that allow for adjustment of status if an immigrant visa is available and the applicant is admissible.

In Khan's case, the IJ similarly ruled that Khan was not eligible for relief due to the absence of a visa petition, as his wife's Labor Certification was still pending. The IJ concluded that it was inappropriate to grant a continuance because Khan could not demonstrate prima facie eligibility for adjustment of status. The IJ’s discretion in denying the continuance was upheld, as there were no extraordinary circumstances present. Khan did not provide adequate justification for why the delay in processing his wife's Labor Certification warranted an indefinite continuance, nor could he establish that an immigrant visa was immediately available to him. The Eleventh Circuit's precedent indicated that merely speculative future possibilities of obtaining a labor certification did not meet the criteria for showing eligibility for adjustment of status under 1255(i). Thus, the BIA's decision not to remand for a continuance was not an abuse of discretion.

Khan's complaint regarding the Department of Labor's (DOL) delay in processing his wife's Labor Certification does not limit the immigration judge's (IJ) discretion to only granting a continuance. The IJ exercised discretion appropriately by denying Khan a continuance despite the delay. Khan has acknowledged his removability, does not seek asylum or other relief, and has not filed a visa petition, rendering him ineligible for status adjustment. The IJ ruled that Khan lacked good cause for a continuance due to his ineligibility under relevant statutes and his speculative claim regarding future Labor Certification. The authority to adjust Khan's status lies with the Attorney General, and the denial of the continuance is deemed not an abuse of discretion.

Additionally, Khan asserts that the denial of his continuance request violated his Fifth Amendment right to due process, which requires a showing that he was unable to present his case reasonably. However, he has not demonstrated such a hindrance, as his due process argument mirrors his abuse-of-discretion claim. Due process challenges in deportation proceedings necessitate proof of substantial prejudice, which Khan cannot establish due to the uncertainty of his wife's Labor Certification timeline. The government contends that Khan lacks a constitutional right to delay proceedings while he seeks to restore his status. Consequently, the government's motion to dismiss for lack of jurisdiction is denied, and Khan's petition for review is denied on the merits.

The process for an alien to obtain lawful permanent resident status involves several steps. First, the prospective employer must file a Labor Certification application (Form ETA-750) with the Department of Labor (DOL), which assesses the availability of U.S. workers for the position. If the application meets specific criteria, such as a lack of qualified U.S. workers, the DOL certifies the request. Second, the employer submits the approved Labor Certification along with a Visa Petition for Prospective Immigrant Employee (Form I-140) to the Department of Homeland Security (DHS). Approval of this petition classifies the alien as eligible for a visa. If successful, the alien receives an immigrant visa number from the Department of State. Third, if the alien is in the U.S., they must file an Application to Adjust Status (Form I-485) with DHS, which will review both Forms I-140 and I-485 to determine if the alien’s status can be adjusted to lawful permanent resident. If granted, the alien receives a green card. 

The LIFE Act allows certain unlawfully present aliens to remain in the U.S. while seeking status adjustment. Legal precedents indicate that judicial review of continuances granted by immigration judges may be limited. The BIA has stated that while aliens do not have an absolute right to a continuance, it is generally appropriate to grant one if a prima facie approvable visa petition is submitted. However, an immigration judge may deny a request for a continuance if the petition is deemed frivolous or if the adjustment application would be denied for statutory reasons. In Khan's appeal to the BIA regarding a denied continuance, he did not frame his argument in terms of constitutional due process, raising questions about whether he exhausted his remedies related to that claim. The court will only have jurisdiction over claims that have been properly raised and exhausted.

In Abdulrahman v. Ashcroft, the Third Circuit established that the exhaustion of administrative remedies is a jurisdictional requirement, but noted exceptions exist when a petitioner raises a due process claim. Specifically, due process claims are often exempt from this requirement since the Board of Immigration Appeals (BIA) lacks jurisdiction over constitutional issues. In Bonhometre v. Gonzales, the court treated a claim framed as a due process issue as a procedural error that could have been addressed by the BIA, ruling that jurisdiction was lacking because the issue had not been raised before the BIA. The current case mirrors Bonhometre in that the petitioner, Khan, also raised his procedural due process claim for the first time in his petition for review. However, unlike Bonhometre, Khan had previously mentioned this claim in his appellate brief before the BIA, thus satisfying the exhaustion requirement. Consequently, the court has jurisdiction to review Khan's claim, but it will be treated as a procedural error that could have been corrected administratively. The case reinforces the necessity of exhausting remedies while allowing for the treatment of certain claims as procedural errors rather than strict due process violations.