Elbahja v. Keisler, No. 06-2671 (2d Cir. 2007)

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06-2671-ag Elbahja v. Keisler UN ITED STATES COURT OF APPEALS FO R TH E SECO N D CIRCU IT August Term, 2006 (Argued: June 28, 2007 Decided: O ctober 10, 2007) Docket N o. 06-2671-ag SAMIR ELBAH JA , Petitioner, v. P ETER D. KEISLER, A C T IN G A T T O RN EY G EN ERA L 1 O F T H E U N I TED STA TES, Respondent. Before: C A BR AN E S A N D R A G G I, Circuit Judges, and BERMAN , District Judge.2 Immigration Judge ( IJ ) Paul A. Defonzo denied petitioner s request to continue his removal proceedings in order to permit adjudication of his pending application for labor certification. The Board of Immigration Appeals affirmed without opinion. We conclude that it does not constitute an abuse of discretion for an IJ to decline to grant multiple continuances in order to permit adjudication of a removable alien s pending labor certification. 1 Pu rsuan t to Feder al Ru le of A p p ellate P rocedu re 43(c)(2), Actin g At torn ey G en eral P eter D . Keisler is au t o m at ically su b st it u t ed fo r fo r m er A t t or n ey G en er al A lb er t o R. G o n z ales as r esp o n den t in t h is case. 2 T h e H o n o rable R ich ard M . Berm an , o f th e U n ited States D istr ict C ourt for th e South ern D istr ict of N ew Y or k , sitt ing b y d esign atio n . 1 Petition for review is denied. A LEXAN DER J. SEGAL , Brooklyn, N Y, for Petitioner. BAR RY J. P ET T IN A T O , (David V. Bernal, Assistant Director, Russell J.E. Verby, Trial Attorney, on the brief), O ffice of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington, D.C., for Respondent. P ER C URIAM . Petitioner Samir Elbahja, a native and citizen of Morocco, seeks review of a March 4, 2005 decision of Immigration Judge ( IJ ) Paul A. Defonzo denying his motion for further continuance of his removal proceedings and ordering him removed. The Board of Immigration Appeals ( BIA ) affirmed the IJ s decision without opinion on May 10, 2006. See In re Elbahja, Samir, N o. A 74-915-726 (B.I.A. May 10, 2006). O n appeal, Elbahja contends that, in light of his pending application for labor certification, the IJ s decision to deny him a further continuance constituted an abuse of discretion. H e also contends that he is eligible for relief by virtue of a previously filed application to adjust his status based on his marriage to a United States citizen. We find these arguments to be without merit but write to clarify that it is not an abuse of discretion for an IJ to decline to grant multiple continuances in order to permit processing of a removable alien s pending labor certificate application. BA CKGRO U N D Elbahja entered the United States on a student visa in O ctober 1987 and remained after 2 his legal status expired in June 1988. In April 1997, he married Bernadette Morales, a U nited States citizen. Shortly thereafter, Elbahja attempted to adjust his status based on his marriage to Ms. Morales.3 This petition was denied, first in N ovember 2000 and again in August 2001, due to the failure of Elbahja and Morales to appear at scheduled interviews. In July 2002, the then-Immigration and N aturalization Service initiated removal proceedings against Elbahja pursuant to 8 U .S.C. § 1227(a)(1).4 O n December 6, 2002, Elbahja appeared before the IJ for a calendar hearing. At the hearing, he informed the IJ that he wished to be represented by counsel but did not have a lawyer at that time. The IJ continued the proceedings until March 7, 2003 so that Elbahja could obtain a lawyer. At Elbahja s second hearing, Elbahja, still proceeding pro se, confirmed his removability but contended that he was eligible for relief on the basis of his 1997 marriage, although he and his wife were not living together at that time. The IJ, agreeing that Elbahja s marriage made him potentially eligible for cancellation of removal pursuant to 8 U .S.C. § 1229b(b)(1),5 granted Elbahja a continuance so that Elbahja could file the proper 3 A n alien w h o is p h y sically present in U n it ed Stat es . . . m ay apply to th e A ttorn ey G en eral fo r th e adju stm en t of h is o r h er stat u s to th at of an alien law fu lly adm it ted fo r per m an en t resid en ce, 8 U .S.C . § 1255(i), based on a pet itio n for classification filed by a U n ited States citizen spou se on or befor e Ap ril 30, 2001, id. § 1255(i)(1)(B)(i). See also id. § 1154(a)(1)(A)(i) (stat in g th at an y citizen of th e U n ited States claim in g th at an alien is ent itled t o [adju stm en t to im m igran t stat us] by reason of . . . im m ediat e relative status . . . m ay file a p etit io n w it h th e A ttorn ey G en eral fo r such classificatio n ); id. § 1151(b )(2)(A)(i) (defin in g th e term im m ediat e r elat ives to in clu de spo u ses . . . o f a cit izen of th e U n it ed Stat es ). 4 8 U .S.C . § 1227(a)(1)(C )(i) auth o rizes rem oval o f an alien w h o w as adm itted as a n on im m igran t an d w h o h as failed t o m aint ain t h e no n im m igran t stat us in w h ich t h e alien w as adm itt ed. 5 T h is pro visio n stat es, in relevan t part, t h at:: T h e A tto rn ey G en eral m ay can cel r em oval o f . . . an alien w h o is in adm issible or dep ortab le from th e U n ited St ates if t h e alien -(A ) h as b een ph y sically presen t in th e U n it ed Stat es fo r a co n tin uous per io d of n ot less th an 10 years im m ediat ely p recedin g th e dat e of such app licatio n ; 3 paperwork. O n June 13, 2003, Elbahja, now represented by counsel, presented the IJ with an application for cancellation of removal. The IJ, observing that the application did not contain proof of Elbahja s continuous presence in the United States, continued the proceedings until September 19, 2003 so that Elbahja s counsel could gather suitable evidence. At Elbahja s fourth hearing, Elbahja s counsel informed the IJ that Elbahja had previously filed a petition for adjustment of status and asked for additional time to determine whether it would be best to (1) file a new petition for adjustment of status or (2) pursue an application for cancellation of removal. The IJ granted this request. At the next hearing before the IJ, held on December 19, 2003, Elbahja s counsel notified the IJ that Elbahja would not be applying for adjustment of status but, rather, would be proceeding on the basis of his earlier-submitted application for cancellation of removal. The IJ, in response, scheduled a merits hearing on Elbahja s application for cancellation of removal. Elbahja appeared before the IJ for a sixth time on January 3, 2005. At that hearing, his counsel informed the IJ that Elbahja had divorced his wife and so would no longer be seeking cancellation of removal in connection with that relationship. Counsel also informed the IJ that Elbahja appeared to have obtained an approved labor certification . . . and an approved (B) (C ) (D ) has been a person of good m oral character during such period; h as no t been con vict ed o f an o ffense un der section 1182(a)(2), 1227(a)(2), o r 1227(a)(3) o f th is tit le, sub ject t o paragrap h (5); an d estab lishes th at r em oval w ould r esult in exception al and ext rem ely u n usual h ard ship to th e alien s sp o u se, par en t, o r ch ild, w h o is a citizen of th e U n ited States or an alien law fully adm itted fo r perm an en t residen ce. 4 I-140 employment-based visa,6 rendering him eligible to adjust his status pursuant to 8 U.S.C. § 1255(i).7 Counsel then requested a continuance so that copies of these documents could be obtained and presented to the Immigration Court. The Government, while not opposing this request, did state its view that if there is no approved I-140 by the time of the next hearing, the IJ should proceed with the other relief [Elbahja] has available, which is voluntary departure. J.A. 72. Elbajha s counsel did not object to this proposal. At the next hearing before the IJ, held on March 4, 2005, Elbahja s counsel clarified that the Department of Labor had not yet approved either the application for labor certification associated with Elbahja s case or Elbahja s request to be substituted into that application. Counsel then asked for a continuance to allow for further proceedings on the labor certification. Id. at 82. The IJ explained that, having previously been led to believe that not only the labor certification, but an I-140 petition had [already] been approved, he was now of the view that the labor certification application was very much speculative at this point . . . [b]oth with regard to the original applicant, and to the substitution of [Elbahja]. Id. After stating that he was not inclined to grant the adjournment request, he asked whether Elbahja was still seeking voluntary departure. Id. Elbahja s counsel answered that Elbahja was not. H aving clarified that the only relief Elbahja was seeking was 6 Sp ecifically, cou n sel stated th at E lbah ja was being substit uted in to a[n] existin g [labo r cert ificatio n ] case asso ciated w ith an app ro ved I-140. J.A . 71. 7 Sectio n 1255(i) states th at a n o n -im m igran t alien m ay apply for an adju stm en t to perm an en t residen t st at u s if h e o r sh e meets th ree req u irem en ts. First, he or she must be the beneficiary of an application for labor certificatio n filed on or befor e Ap ril 30, 2001. Id. § 1255(i)(1)(B)(i). Secon d, h e or she m ust b e eligible to receive an im m igran t v isa and . . . adm issible t o t h e U n ited States for per m anen t r esidence. Id. § 1255(i)(2)(A ). T h ird , an im m igran t v isa [m ust b e] im m ediately available t o t h e alien at t h e tim e th e application is filed. Id. § 1255(i)(2)(B). 5 a continuance to allow for the processing of the labor certification, the IJ issued an oral decision denying the continuance and ordering Elbahja removed. The oral decision contained the following statement of reasons: Although the respondent now seeks a continuance for the purpose of allowing his application for substitution into the labor certification application to occur, there is no indication how long it will take to accomplish this, or, in fact, if it will ever be accomplished. In coming to the decision not to grant the respondent a continuance, the Court has considered the opposition of the Service to the continuance request, as well as the fact that the underlying labor certification in which the respondent is seeking to be substituted has not been approved. . . . Consequently, it would appear that no purpose other than an unnecessary delay of the proceedings would be served by granting a continuance . . . in view of the speculative nature of the relief being sought by the respondent at this time. Id. at 26-27. O n March 31, 2005, Elbahja filed a notice of appeal with the BIA. O n May 10, 2006, the BIA affirmed the decision of the IJ without an opinion. In re Elbahja, Samir, N o. A 74915-726 (B.I.A. May 10, 2006). D ISCU SSION Where . . . the BIA affirms the result below without opinion, we review the IJ s decision directly. Twum v. INS, 411 F.3d 54, 58 (2d Cir. 2005). As we have previously noted, we have jurisdiction to review an IJ s denial of a continuance, and . . . we conduct that review under a highly deferential standard of abuse of discretion. Morgan v. Gonzales, 445 F.3d 549, 551 (2d Cir. 2006). U nder this standard, we will uphold an IJ s denial of a 6 continuance unless (1) [his] decision rests on an error of law (such as application of the wrong legal principle) or a clearly erroneous factual finding or (2) [his] decision though not necessarily the product of a legal error or a clearly erroneous factual finding cannot be located within the range of permissible decisions. Id. at 551 52 (quoting Zervos v. V erizon N.Y., Inc., 252 F.3d 163, 169 (2d Cir. 2001)). In Morgan, we rejected the claim that an IJ had abused his discretion in denying the petitioner s request for an indefinite continuance pending the outcome of [an] I-130 visa application. 445 F.3d at 551. As we explained, the petitioner was not, at the time of the hearing, eligible for adjustment of status, and he had no right to yet another delay in the proceedings so that he could attempt to become eligible for such relief. Id. at 552. The same can be said of Elbahja. At the time of Elbahja s March 4, 2005 hearing before the IJ, Elbahja was only at the first step in [a] long and discretionary process. Ahmed v. Gonzales, 447 F.3d 433, 439 (5th Cir. 2006). H e had not yet obtained either an approved labor certification or approval of his application to be substituted into the pending labor certification associated with his case. N or was he the beneficiary of an approved family-based immigrant visa petition. H is eligibility for adjustment of status was, therefore, speculative at best.8 Under these circumstances, we cannot say that the IJ was incorrect to deny Elbahja s request for a continuance. In coming to this conclusion, we join the Third, Fifth, and Eleventh Circuits, all of which have determined, for substantially the same reasons given here, that it does not 8 See supra n o tes 3 and 7 (describ in g th e procedu res th at 8 U .S.C . § 1255(i) sets for th for adju stm en t of stat u s based on (1) m ar riage t o a U n it ed Stat es cit izen an d (2) receipt of an em plo ym en t-based im m igr an t visa). 7 constitute an abuse of discretion for an IJ to decline to continue a removal proceeding in order to permit adjudication of a removable alien s pending labor certification. See Khan v. Att y Gen., 448 F.3d 226, 235 (3d Cir. 2006) (upholding an IJ s denial of a continuance where the petitioner, who had requested the continuance on the basis of a pending application for labor certification, was presently ineligible for an immigrant visa, . . . [and] [could not] show that a visa [wa]s immediately available to him or even that one will be available to him at some estimable time in the future ); Ahmed, 447 F.3d at 438 39 (same); Zafar v. U.S. Att y Gen., 461 F.3d 1357, 1366 67 (11th C ir. 2006) (same). C O N C LU SIO N For the reasons given above, Elbahja s petition for review is denied. 8

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