Zafar v. U.S. Attorney General

Citation: 426 F.3d 1330Docket: Nos. 04-16613, 04-16689 and 04-16750

Court: Court of Appeals for the Eleventh Circuit; September 27, 2005; Federal Appellate Court

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Petitioners, Amirmohammed Habib Lakhani, Mohammed Zeeshan Zafar, and Nizar Ghulamani, are Pakistani nationals residing in the U.S. on expired visas, facing removal proceedings initiated by the Department of Homeland Security (DHS) in 2003. Both Lakhani and Zafar sought continuances in their removal cases while waiting for pending labor certifications. The Court confirmed its jurisdiction under 8 U.S.C. 1252(a)(2)(B)(ii) to review the denials of these motions but found no abuse of discretion in the immigration judges' rulings.

Lakhani entered the U.S. in 1995 as a nonimmigrant visitor and was charged with overstaying his visa in 2003. He admitted the allegations in court but requested a continuance based on his pending labor certification, which was denied by Immigration Judge G. Mackenzie Rast due to lack of supporting authority. Lakhani was ordered removed, and the Board of Immigration Appeals (BIA) affirmed this decision.

Zafar entered the U.S. in 2000 and was similarly charged with overstaying his visa. He also conceded removability but requested a continuance to consolidate his case with his father’s ongoing labor certification process. Judge Rast denied this request, citing a lack of authority for such a continuance before labor certification approval. Zafar was ordered removed, and the BIA upheld the decision.

Both petitions for review were ultimately denied.

Nizar Ghulamani entered the U.S. as a nonimmigrant visitor on June 7, 1997, with a six-month visa. He applied for labor certification on April 30, 2001. On March 21, 2003, the Department of Homeland Security (DHS) began removal proceedings against him. During a hearing on January 8, 2004, Ghulamani conceded to removability and requested a continuance based on his pending labor certification. Immigration Judge Paul L. Johnson denied this request, stating there was insufficient good cause for a continuance, as per 8 C.F.R. 1003.29, and characterized the labor certification's approval as speculative. The Board of Immigration Appeals (BIA) affirmed the judge's decision without opinion.

The government argues that the court lacks jurisdiction to review the denial of the continuance, citing INA § 242(a)(2)(B)(ii), which removes judicial review of discretionary decisions by the Attorney General. Petitioners counter that the immigration judge’s authority to grant a continuance is based on 8 C.F.R. 1003.29, not under the specified subchapter of the INA, thus asserting that the court retains jurisdiction for review. The court affirms it has jurisdiction to review the immigration judge's decision, clarifying that the authority to grant continuances does not fall within the discretionary powers outlined in the specific subchapter where § 1252(a)(2)(B)(ii) is located. The authority for continuances is derived from INS regulations, not explicitly from the INA sections that limit judicial review.

Congressionally-defined discretionary powers of the Attorney General are outlined in sections 1151 through 1378, allowing for actions such as waiving visa or passport requirements and authorizing immigration officers to record resident departures. However, the discretionary decisions made by immigration judges regarding continuances in removal proceedings are not expressly specified under these statutory powers, and thus fall outside the jurisdictional-stripping provisions of 8 U.S.C. 1252(a)(2)(B)(ii). The authority for immigration judges to grant or deny continuances is derived from 8 C.F.R. 1003.29, a regulation rather than a statutory provision. Consequently, courts retain jurisdiction to review these discretionary decisions.

The review of past case law, including Zhao v. Gonzales and Medina-Morales v. Ashcroft, supports the view that judicial review is permissible when the discretion exercised is not rooted in explicit statutory authority. Despite having jurisdiction, the immigration judges did not abuse their discretion in denying motions for continuance, as such decisions are within their broad discretion. The references to past cases, such as Olvera v. INS, affirm this discretionary authority, underscoring the judges' autonomy in such matters.

The immigration judge has the discretion to grant a continuance of a deportation hearing upon a showing of good cause. Under Section 245(i) of the Immigration and Nationality Act (INA), certain aliens can adjust their status to that of a permanent resident by paying a penalty if they are beneficiaries of labor certification applications filed by April 30, 2001, that were approvable when filed. An application is considered approvable when it is properly filed and non-frivolous. The Attorney General may adjust an alien's status if they are eligible for an immigrant visa, which cannot be granted until the labor certification is approved. In this case, the petitioners failed to show that they had a visa petition immediately available, as they only presented a speculative possibility of future labor certification. Consequently, they did not meet the eligibility criteria for adjustment of status under 8 U.S.C. 1255(i) and 8 C.F.R. 245.10(a)(3).

The immigration judges' denials of the petitioners' motions to continue their removal proceedings were upheld, with no abuse of discretion noted. The petitioners also claimed violations of their due process and equal protection rights. However, there is no constitutional right to discretionary relief, and the requirement for registration in the National Security Entry-Exit Registration System does not constitute a violation of equal protection, as the INS has prosecutorial discretion in initiating removal proceedings. The petitioners' arguments for equal protection violations regarding inconsistent practices among jurisdictions were rejected as unsupported. Therefore, their petitions were denied.