Request for a continuance and order of removal

United States 11th Circuit Court of Appeals Reports

HASWANEE v. U.S. ATTORNEY GENERAL, 06-12636 (11th Cir.
12-8-2006) NAZEER HASWANEE, Petitioner, v. U.S. ATTORNEY
GENERAL, Respondent. No. 06-12636. United States Court of
Appeals, Eleventh Circuit. DECEMBER 8, 2006.

Petition for Review of a Decision of the Board of
Immigration Appeals.

Before BLACK, MARCUS and FAY, Circuit Judges.

PER CURIAM.

Nazeer Haswanee petitions for review of the decision of the
Board of Immigration Appeals (“BIA”) dismissing Haswanee’s
appeal of the Immigration Judge’s (“IJ’s”) denial of a
continuance and order of removal. Haswanee raises two
issues. First, he argues that the IJ abused its discretion
in denying his motion for a continuance because he had an
approved labor certification and an immediately available
visa number, and his Form I-140 petition for an employment
— based visa was pending. Second, he argues that the
BIA and IJ denied him due process and equal protection of
the law in denying his motion to continue while his visa
petition was pending. For the reasons set forth more fully
below, we grant Haswanee’s petition for review in part,
vacate the decision of the BIA, and remand for further
proceedings.

I. Background

Haswanee, a native citizen of Pakistan, entered the United
States on March 23, 1999 as a nonimmigrant visitor for
pleasure with authorization to remain until September 21,
1999, which time was extended one year, until September 22,
2000. Haswanee, however, remained in the United States
beyond that date, and, on March 6, 2003, the former
Immigration and Naturalization Service (“INS”)[fn1] issued
him a notice to appear (“NTA”), charging him with
removability under INA § 237(a)(1)(B), (a)(1)(C)(i),
8 U.S.C. § 1227(a)(1)(B), (a)(1)(C)(i), as an alien
who remained in the United States longer than permitted and
who failed to comply with the conditions of his
nonimmigrant status. The NTA further charged that Haswanee
had been employed for wages or other compensation from
March 15, 2000 to the time of his NTA without authorization
from the INS. On April 25, 2001, Haswanee’s employer filed
an application for alien employment certification (“labor
certification”) on his behalf, which the United States
Department of Labor (“DOL”) certified on February 18, 2004.
In addition the DOL instructed that the certification must
be attached to the I-140 petition and filed with the INS. On
April 20, 2004, Haswanee’s employer filed an I-140
immigrant petition for alien worker on his behalf. The INS
confirmed receipt of Haswanee’s I-140 on May 5, 2004, and
indicated that it generally took 350 to 400 days to process
such a case.

During his hearing before the IJ in his removal
proceedings, Haswanee moved to continue his proceedings
until the resolution of his I-140 petition. The IJ denied
Haswanee’s motion for a continuance, finding that, unlike a
family — based visa petition, no case law existed
that required a continuance based upon a pending employment
— based visa petition. The IJ further found that
Haswanee’s knowing violation of the immigration laws could
not be overlooked, “and, as a matter of discretion, the [IJ
did] not find that the approved labor cert[ification] [wa]s
compelling either to grant a continuance or to grant
voluntary departure.”

Haswanee appealed the decision to the BIA. The BIA
dismissed his appeal, affirming the IJ’s decision to deny
the continuance. It noted that Haswanee’s I-140 visa
petition had not been approved as of the date of the BIA’s
decision. The BIA further found that Haswanee had not
established that he was prima facie eligible for adjustment
of status under INA § 245(a), 8 U.S.C. §
1255(a) because he was not the beneficiary of an approvable
visa petition and had been “out of status” for failing to
refrain from working unlawfully and to leave the United
States by his required date. Citing Zafar v. U.S. Att’y
Gen., 426 F.3d 1330 (11th Cir. 2005), the BIA concluded
that the IJ did not abuse its discretion in denying
Haswanee’s motion to continue, and, further, that Bull v.
INS, 790 F.2d 869 (11th Cir. 1986) did not apply because
Haswanee did not establish his prima facie eligibility for
relief.

II. Discussion

A. Continuance

Haswanee argues on appeal that he is eligible to adjust his
status pursuant to INA § 245(i), 8 U.S.C. §
1255(i), but that the IJ’s denial of his request for a
continuance and order of removal jeopardizes his
eligibility because, if he leaves the United States, he will
become ineligible for relief. He contends that the BIA
deviated from its own policies and prior unpublished
decisions, in which the BIA had granted a continuance in
cases where an I-140 petition was pending. He also asserts
that the IJ’s denial was in direct conflict with our
decision in Zafar because, according to Haswanee, our
reasoning in Zafar is that, where a petitioner has an
approved labor certification and there is a visa
immediately available, the continuance should be granted.
Haswanee further argues that the facts of his case are
analogous to those in Bull because petitioners for an I-140
employment — based visa that are not on a waiting
list are akin to petitioners for an I-130 family —
based visa. In his reply brief, he notes that his case is
similar to, and should be governed by, our recent decision
in Merchant v. U.S. Att’y Gen., 461 F.3d 1375 (11th Cir.
2006).

An IJ has discretion to grant a continuance in an
immigration proceeding “for good cause shown.” 8 C.F.R.
§ 1003.29. We have jurisdiction to review the IJ’s
discretionary decision to deny Haswanee’s motion for a
continuance for an abuse of discretion. Zafar v. U.S. Att’y
Gen., 461 F.3d 1357, 1362 (11th Cir. 2006).

An alien that is present in the United States may adjust
his status to that of an alien lawfully admitted for
permanent residence pursuant to the requirements in INA
§ 245, 8 U.S.C. § 1255. In the case of an
alien lawfully admitted into the United States, such alien
may adjust his status “if (1) the alien makes an
application for such adjustment, (2) the alien is eligible
to receive an immigrant visa and is admissible to the
United States for permanent residence, and (3) an immigrant
visa is immediately available to him at the time his
application is filed.” INA § 245(a), 8 U.S.C.
§ 1255(a). However, an alien that overstayed his
visa and became illegal is barred from applying for
§ 1255(a) adjustment of status. INA § 245(c),
8 U.S.C. § 1255(c).

Nevertheless, as an exception to § 1255(c)’s bar,
§ 1255(i) states that,

(1) Notwithstanding the provisions of subsections (a) and
(c) of this section, an alien physically present in the
United States —

(A) who —

(i) entered the United States without inspection; or

(ii) is within one of the classes enumerated in
subsection (c) of this section;

(B) who is the beneficiary (including a spouse or child
of the principal alien, if eligible to receive a visa
under section 1153(d) of this title) of —

(i) a petition for classification under section 1154 of
this title that was filed with the Attorney General on or
before April 30, 2001; or

(ii) an application for a labor certification under
section 1182(a)(5)(A) of this title that was filed
pursuant to the regulations of the Secretary of Labor on
or before such date; and

(C)who, in the case of a beneficiary of a petition for
classification, or an application for labor certification,
described in subparagraph (B) that was filed after January
14, 1998, is physically present in the United States on
December 21, 2000;

may apply to the Attorney General for the adjustment of
his or her status to that of an alien lawfully admitted
for permanent residence.

INA § 245(i)(1), 8 U.S.C. § 1255(i)(1).
Nonetheless, as we explained in Zafar, “[t]he mere filing
of a labor certificate application with the DOL does not
make an alien eligible for adjustment of status under
§ 1255(i). Rather, there are two additional and more
difficult statutory eligibility requirements in §
1255(i) that must also be met.” Zafar, 461 F.3d at 1363
(emphasis in original). Specifically, § 1255(i)(2)
provides:

(2) Upon receipt of such an application and the sum
hereby required, the Attorney General may adjust the
status of the alien to that of an alien lawfully admitted
for permanent residence if —

(A) the alien is eligible to receive an immigrant visa
and is admissible to the United States for permanent
residence; and

(B) an immigrant visa is immediately available to the
alien at the time the application is filed.

INA § 245(i)(2), 8 U.S.C. § 1255(i)(2).

Here, Haswanee sought an employment — based visa and
his employer filed an I-140 visa petition on his behalf.
According to the federal regulations that describe the
procedure for receiving an employment — based visa,
“[a]ny [U.S.] employer desiring and intending to employ an
alien may file a petition for classification of the alien”
— an I-140 visa petition — which must be
“[a]ccompanied by any required individual labor
certification.” 8 C.F.R. § 204.5(a), (c), (g), (l).
The petition may be approved or denied, and in the event of
approval: (1) a visa number will be assigned if available
and (2) “the approved visa petition (Form I-140), will be
retained by the [immigration service] for consideration
with the application for permanent residence (Form I-485).”
8 C.F.R. §§ 204.5(n), 245.1(g). Haswanee had
immediately available visa numbers during his proceedings
before the IJ and BIA.[fn2]

In Zafar, we addressed the issue of whether the IJs abused
their discretion in denying three petitioners’ motions to
continue where the petitioners did not have approved labor
certifications and had not filed I-140 visa petitions or
I-485 adjustment of status applications. Zafar, 461 F.3d at
1362. We held that the IJs did not abuse their discretion
because, at the time of the petitioners’ removal hearings,
they had not received an approved labor certification, filed
an I-140 visa petition, or filed an I-485 application. Id.
at 1363-64. We thus concluded that the petitioners were not
eligible to receive an immigrant visa nor had they
established that an immigrant visa was immediately
available, and, therefore, they could not meet the
statutory requirements for adjustment of status under INA
§ 245(i)(2), 8 U.S.C. § 1255(i)(2). Id.

In Merchant v. U.S. Att’y Gen., 461 F.3d 1375 (11th Cir.
2006), we faced the issue of whether the IJ abused its
discretion in denying a continuance where Merchant had an
approved labor certification and had filed I-140 and I-485
applications. Merchant, 461 F.3d at 1376-77. Whilethe
government in Merchant conceded that Merchant had the
aforementioned documents, the government maintained that
Merchant had not satisfied § 1255(i)(2)(A) because
his visa petition had not been approved. Id. at 1378. We
rejected that argument, stating that “the statute clearly
provides that an alien in Merchant’s shoes need only be
`eligible’ to receive the visa, not that he must have the
visa in hand.” Id. Further, we determined that §
1255(i)(2)(B) also did not require that the alien have the
visa “in hand” because “both the Regulations and the BIA
case law construe . . . § 1255(i)(2)(B) as meaning
that an immigrant visa number be immediately available to
the alien.” Id. at 1378 n. 4 (emphasis added). Thus, we
concluded that Merchant was eligible for an immigrant visa
and eligible for adjustment of status under §
1255(i) because he had an approved labor certification and
an immediately available visa number, and had filed an
I-140 petition for visa and an I-485 application for
adjustment of status. Id. at 1378-79. We also explained
that our decision was not inconsistent with Zafar, as Zafar
“expressly left open issues involving stages of this
process beyond the mere filing of the application for labor
certification.” Id. at 1380 (citing Zafar, 461 F.3d at
1367).[fn3]

As an initial matter, Haswanee’s case is distinguishable
from Zafar because Haswanee had an approved labor
certification and had filed an I-140 visa petition. Based
upon the record in the instant case, Haswanee is at a stage
in the process that is between where the Zafar petitioners
and Merchant sat during their removal proceedings.
Specifically, Haswanee has an approved labor certification
and has filed an I-140 visa petition, which places him at a
later stage than the Zafar petitioners, but has not
established that he filed a I-485 application for
adjustment of status as Merchant had. Therefore, Haswanee’s
case will turn on the question of whether an approved labor
certification, an immediately available visa number, and an
I-140 visa petition are sufficient to satisfy the statutory
requirements of INA § 245(i)(2), 8 U.S.C. §
1255(i)(2).

Following the reasoning of both Zafar and Merchant,
Haswanee has satisfied the statutory requirements. Pursuant
to the Federal Regulations, Haswanee had completed his
duties with regard to his I-140 visa petition, namely,
obtaining an approved labor certification and filing it
along with his petition. See 8 C.F.R. § 204.5(a),
(c), (g), (l). Moreover, he had an immigrant visa number
immediately available. See 8 C.F.R. § 204.5(d); 8
C.F.R. § 245.1(g)(1). Thus, Haswanee was “eligible
to receive an immigrant visa” and an “immigrant visa [wa]s
immediately available to the alien at the time the
application [wa]s filed.” INA § 245(i)(2), 8 U.S.C.
§ 1255(i)(2). The only difference between Haswanee
and Merchant is that Merchant had also filed an I-485
adjustment of status application. Regardless, Haswanee met
the statutory requirements and, according to Merchant, we
conclude that he was eligible for adjustment of status
under § 1255(i). See Merchant, 461 F.3d at 1379.

However, the government argues, and the BIA alternatively
found, that because Haswanee had not filed an application
for adjustment of status under § 1255(i), he could
only be considered for an adjustment under §
1255(a), which left him subject to the statutory bar of
§ 1255(c). The government cites no authority for
this proposition. In response, Haswanee notes he was not
required to file the application for status adjustment
during removal proceedings because the DHS could not have
adjudicated it. Federal Regulations clearly state that the
DHS does not have jurisdiction over adjustment of status
applications when the alien has been placed in removal
proceedings. See 8 C.F.R. §§ 245.2(a)(1),
1245.2(a)(1). Hashwanee is therefore eligible for status
adjustment; the unfiled application cannot render him
ineligible under § 1255(i) when the DHS would not
even have had jurisdiction over his petition. The record
establishes that, at the time Haswanee requested his
continuance, he stated that he intended to file for relief
under § 1255(i). There is nothing in the
government’s arguments, the record, or our binding
precedent that would support applying the § 1255(c)
bar here because, as discussed above, Hashwanee met the
relevant statutory requirements of § 1255(i) and
indicated before the IJ that he would pursue such
relief.[fn4]Accordingly, in applying the reasoning and
holdings of Zafar and Merchant to Haswanee’s case, we hold
that the IJ abused its discretion in denying Haswanee’s
motion for continuance where he had an approved labor
certification and an immediately available visa number, and
had a pending visa petition.

B. Due Process and Equal Protection

Haswanee argues on appeal that the BIA’s dismissal of his
appeal, and the IJ’s denial of his motion to continue,
violated his due process rights because the findings
require him to leave the country despite his immediate
eligibility for adjustment of status relief. He also
maintains that his equal protection rights were violated
because, had he not been required because of his Pakistani
origin to appear for registration as part of the
now-suspended National Security Entry Exit Registration
System (“NSEERS”), he would not have been placed in removal
proceedings. He further asserts that, in other
jurisdictions, IJs typically grant continuances in
circumstances such as these, but in Atlanta, aliens are
treated differently. Lastly, Haswanee maintains that it was
beyond the INS’s internal policy and general public policy
to deny him the opportunity to legalize his status under
§ 1255(i).

We have jurisdiction to review substantial constitutional
claims raised in the immigration context. Moore v.
Ashcroft, 251 F.3d 919, 923-24 (11th Cir. 2001). The
petitioners in Zafar raised constitutional claims similar
to those raised by Haswanee. See Zafar, 461 F.3d at 1367.
We rejected the petitioners’ due process arguments because
their requested relief, namely, a continuance of their
removal proceedings, was discretionary relief for which no
constitutionally protected right existed. See id. (citing
Tefel v. Reno, 180 F.3d 1286, 1300 (11th Cir. 1999)). As to
their equal protection claims, we first determined that it
was not an equal protection violation to require the aliens
to register pursuant to the NSEERS process. Zafar, 461 F.3d
at 1367 (citing Reno v. American — Arab Anti
— Discrimination Comm., 525 U.S. 471, 489-92, 119
S.Ct. 936, 142 L.Ed.2d 940 (1999) (finding that the INS
retains inherent prosecutorial discretion as to whether to
bring removal proceedings)). We also rejected the Zafar
petitioners’ equal protection argument regarding differing
treatment between IJs in Atlanta and those in other
jurisdictions because the petitioners did not cite, nor did
we find, any case law supporting the argument. Id.

Because Haswanee’s due process and equal protection
arguments are nearly identical to those made by the
petitioners in Zafar, we will follow our precedent and
similarly reject Haswanee’s arguments. First, pursuant to
Zafar, there is no constitutionally protected right to the
discretionary relief of a continuance of his removal
proceedings. Moreover, as to his equal protection
arguments, Haswanee offers no support in the record or case
law tending to show an equal protection violation. Lastly,
to the extent that Haswanee argues that the BIA violated
the INS’s internal policies, we need not rely on those
policies given the statutory basis for our decision, which
is discussed in issue II.A. above, and our recognition that
INS internal memoranda “are for the convenience of the INS
and [do] not have the force and effect of law.” Id. at 1365
(quotation omitted) (alteration in original).

III. Conclusion

For all of the foregoing reasons, we hold that the IJ
abused his discretion in denying Haswanee’s motion for a
continuance. We nonetheless conclude that the IJ’s and
BIA’s denial of the motion to continue did not violate
Haswanee’s constitutional rights. Accordingly, we grant
Haswanee’s petition for review in part, vacate the decision
of the BIA, and remand for further proceedings.

PETITION GRANTED IN PART.

[fn1] The Homeland Security Act (“HSA”), effective November
25, 2002, created the Department of Homeland Security
(“DHS”) and abolished the INS. Pub.L. No. 107-296, 116
Stat. 2135. The HSA transferred INS functions to the DHS.
This case was initiated while the INS was still in
existence. This opinion, therefore, refers to the INS rather
than the DHS as the relevant agency.

[fn2] Visa availability information is distributed by the
U.S. Department of State (“DOS”), and availability is based
on the priority given to the alien’s employment
classification. 8 U.S.C. § 1153(b)(3); see also 8
C.F.R. § 245.1(g)(1). Haswanee’s classification was
that of “Skilled Worker” under INA § 203(b)(3)(A).
According to the DOS’s Visa Bulletins for December 2004 and
April 2006, the months within which the IJ and BIA,
respectively, denied Haswanee’s motion for a continuance,
visa numbers were available for aliens in Haswanee’s
http://travel.state.gov/visa/frvi/bulletin/bulletin_1343.ht
http://travel.state.gov/visa/frvi/bulletin/bulletin_2847.ht
classification. See ml; ml. On appeal, Haswanee asserts
that he had immediately available visa numbers during his
proceedings before the IJ and BIA. The government does not
concede that fact, but neither does it explicitly contest
it. While Haswanee’s exact priority date is unclear from
the record and his brief, the date the DOL accepted his
labor certification for processing was April 25, 2001.
Thus, April 25, 2001 is his priority date for purposes of
his I-140 visa petition. See 8 C.F.R. § 204.5(d)
(“The priority date of any petition filed for
classification under section 203(b) of the Act which is
accompanied by an individual labor certification from the
[DOL] shall be the date the request for certification was
accepted for processing by any office within the employment
service system of the [DOL]”). “An immigrant visa is
considered available for accepting and processing the
application Form I-485 i[f] the [employment classification
of the] applicant has a priority date on the waiting list
which is earlier than the date shown in the [DOS’s Visa]
Bulletin (or the Bulletin shows that numbers for visa
applicants in his or her category are current).” 8 C.F.R.
§ 245.1(g)(1).

[fn3] Also in Merchant, we addressed the applicability of
our previous decision in Bull, in which we held that the IJ
abused its discretion by refusing to grant a continuance
where the petitioner was married to a U.S. citizen and had
filed an I-130 application for a family — based
visa. Merchant, 461 F.3d at 1378. Similar to Merchant,
Haswanee asserts that the rationale we applied in Bull
should be applied to his case. Our treatment of Bull in
Merchant is equally applicable here:

Although Bull’s involvement with the favored family
— based visa context is a distinguishing factor,
[the petitioners in Bull and Merchant] are somewhat
similar in that both had applied for visas and both were
eligible for them. Thus, we think Bull provides some
support for the conclusion we reach[ed] [in Merchant].

Merchant, 461 F.3d at 1378. Similarly, as discussed more
fully below, our decision in Bull provides some support for
our holding that the district court abused its discretion
in denying Haswanee’s request for a continuance.

[fn4] Haswanee also appears to contend that, after the BIA’s
dismissal of his appeal, he filed a motion to reopen in the
BIA and submitted a copy of his I-485 and I-485A adjustment
of status forms. The record does not contain evidence of
Haswanee’s motion to reopen or adjustment of status forms,
and Haswanee did not file a notice of appeal with regard to
the BIA’s alleged denial of his motion to reopen.
Accordingly, we will not consider any argument with regard
to the alleged motion to reopen.