        08-4134-ag(L); 09-1128-ag(CON)
        Rana v. Holder

                        UNITED STATES COURT OF APPEALS
                            FOR THE SECOND CIRCUIT

                                 SUMMARY ORDER

     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO
     A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS
     GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S
     LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED
     WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER").      A PARTY
     CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
     REPRESENTED BY COUNSEL.

 1           At a stated term of the United States Court of Appeals
 2      for the Second Circuit, held at the Daniel Patrick Moynihan
 3      United States Courthouse, 500 Pearl Street, in the City of
 4      New York, on the 2 nd day of February, two thousand ten.
 5
 6
 7      PRESENT: PIERRE N. LEVAL,
 8               RICHARD C. WESLEY,
 9                    Circuit Judges,
10               JOHN GLEESON, *
11                    District Judge.
12
13
14
15      Khalid Rana, also known as Khalid Pervez Rana,
16
17                Petitioner,
18
19                v.                     08-4134-ag(L); 09-1128-ag(CON)
20
21      Eric H. Holder, Jr., United States Attorney General, **
22      Immigration & Customs Enforcement, United States Secretary
23      of the Department of Homeland,
24
25                Respondents.
26

             *
             The Honorable John Gleeson, of the United States
        District Court for the Eastern District of New York, sitting
        by designation.
             **
              Pursuant to Federal Rule of Appellate Procedure
        43(c)(2), Attorney General Eric H. Holder, Jr. is
        automatically substituted for former Attorney General
        Michael B. Mukasey as respondent in this case.
 1   APPEARING FOR PETITIONER:          P ANKAJ M ALIK, Malik &
 2                                      Associates, East Elmhurst,
 3                                      N.Y.
 4
 5   APPEARING FOR RESPONDENTS:         A NH-T HU P. M AI-W INDLE, Senior
 6                                      Litigation Counsel (Tony
 7                                      West, Assistant Attorney
 8                                      General, and Thomas B.
 9                                      Fatouros, Assistant
10                                      Director, on the brief),
11                                      Office of Immigration
12                                      Litigation, U.S. Department
13                                      of Justice, Washington, D.C.
14
15       Appeal from the Board of Immigration Appeals.
16
17        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
18   AND DECREED that the petition is GRANTED and the matter
19   REMANDED.
20
21       Petitioner Khalid Rana appeals from two orders of the

22   Board of Immigration Appeals (“BIA”), one dismissing his

23   appeal of an order of removal and the other denying his

24   motion to reopen.   We assume the parties’ familiarity with

25   the underlying facts, the procedural history of the case,

26   and the issues on appeal.

27       After the BIA dismissed Petitioner’s appeal, we issued

28   our decision Rajah v. Mukasey, 544 F.3d 449 (2d Cir. 2008).

29   In Rajah, we reviewed an Immigration Judge’s refusal to

30   grant a continuance where the petitioner awaited

31   adjudication of his labor certification.     Id. at 453.     We

32   concluded that we could not answer whether the Immigration

33   Judge had abused her discretion, because the BIA had not

34   sufficiently identified the boundaries of that discretion in

                                    2
1    the context of a pending labor certification.   Id. at 456.

2    We remanded to the BIA, noting “it [was] imperative that the

3    agency connect the notion of ‘sufficient time’ with the

4    practicalities of the labor certification and immigration

5    process as well as with the intentions of Congress.”     Id.

6        On remand, in Matter of Rajah, the BIA addressed our

7    request to outline the standard to be used to evaluate a

8    petitioner’s motion for continuance when a petitioner has a

9    pending labor certification.   25 I & N. Dec. 127 (B.I.A.

10   2009); see also Rajah, 544 F.3d at 450.   The BIA looked

11   first to its recent decision in Matter of Hashmi, which

12   outlined a variety of factors that may be considered by

13   Immigration Judges and the BIA when evaluating a request for

14   a continuance, including: “(1) the [Department of Homeland

15   Security] response to the motion; (2) whether the underlying

16   visa petition is prima facie approvable; (3) the

17   respondent’s statutory eligibility for adjustment of status;

18   (4) whether the respondent’s application for adjustment

19   merits a favorable exercise of discretion; and (5) the

20   reason for the continuance and other procedural factors.”

21   Id. at 130 (quoting Matter of Hashmi, 24 I & N Dec. 785, 790

22   (B.I.A. 2009)).   The BIA determined that when, as here,

23   Petitioner has a pending I-140 application, “the Immigration

24   Judge should consider the applicable factors we identified
                                    3
1    in Matter of Hashmi, and any other relevant considerations

2    when deciding whether to continue removal proceedings to

3    await adjudication by the [United States Citizenship and

4    Immigration Services] or the [United States Department of

5    Labor]. . . .[T]he focus of the inquiry is the likelihood of

6    success on the adjustment application. . . . evaluat[ing]

7    the individual facts and circumstances relevant to each

8    case.”   Id. at 135-36.

9        Neither the BIA’s dismissal of Petitioner’s appeal of

10   his order of removal, nor the BIA’s denial of Petitioner’s

11   motion to reopen, contained the necessarily analysis to meet

12   the standard Matter of Rajah outlines.   Though Petitioner

13   raised the existence of his I-140 application in both his

14   appeal brief and in his motion to reopen, neither order even

15   acknowledged Petitioner’s pending application.   Accordingly,

16   the case must be remanded to the BIA to conduct the review

17   in light of its decision in Matter of Rajah.

18       For the foregoing reasons, the petition is GRANTED and

19   the matter REMANDED for further proceedings not inconsistent

20   with this decision.

21                               FOR THE COURT:
22                               Catherine O’Hagan Wolfe, Clerk
23
24
25




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