                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-22-2007

Khan v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1079




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                                             NOT PRECEDENTIAL

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT
               ____________

                   No. 06-1079
                  ____________

            HAQUE MOINUL KHAN,

                         Petitioner

                         v.

ATTORNEY GENERAL OF THE UNITED STATES,

                         Respondent
                  ____________

          On Petition for Review from an
     Order of the Board of Immigration Appeals
              (Board No. A77 629 364)
        Immigration Judge Henry S. Doggin
                   ____________

     Submitted Under Third Circuit LAR 34.1(a)
                 January 9, 2007

Before: McKEE, AMBRO and FISHER, Circuit Judges.

              (Filed: March 22, 2007)
                   ____________

            OPINION OF THE COURT
                 ____________
FISHER, Circuit Judge.

       Haque Moinul Khan petitions for review of a decision of the Board of Immigration

Appeals (“BIA”) affirming the denial of his request for a fifth continuance of removal

proceedings. For the reasons that follow, we will deny the petition.

                                              I.

       As we write only for the parties, we forgo a lengthy recitation of the factual

background of this case. Petitioner Khan, a citizen and native of Bangladesh, lawfully

entered the United States on May 10, 1995, as a non-immigrant visitor for business with

authorization to remain in the U.S. for a period not to exceed ten days. He overstayed this

visa and on April 23, 2003, the Department of Homeland Security (“DHS”) served him

with a Notice to Appear, charging him as removable under 8 U.S.C. § 1227(a)(1)(B).

       Khan originally appeared before the IJ on July 30, 2003, but his hearing was

continued until October 29, 2003, to allow him to obtain counsel. His hearing was then

continued several more times until July 13, 2004, when Khan appeared before the IJ and

conceded his removability. At that hearing, Khan testified that his wife was a lawful

permanent resident, that she had filed an I-130 petition for alien relative on his behalf,

and that she had an application for naturalization pending. The IJ continued the hearing

once again until September 14, 2004, to provide additional time for Khan’s applications

to be processed.




                                              2
       At the September 14, 2004 hearing, Khan’s applications were still pending, and

Khan requested another continuance. The IJ observed that Khan had already been

granted at least four continuances 1 in anticipation that his I-130 petition would be granted,

and that there was still no visa available. He also acknowledged that Khan’s wife still

had a naturalization petition pending, but observed that there was no date certain when

she would naturalize. Based on these facts, the IJ declined to continue the case, stating

“all we’re doing is constantly adjourning this case. Until I have some date certain, and I

know that the wife is going to be a citizen, I will not adjourn it again.” He proceeded to

order removal but granted Khan’s motion for voluntary departure. On December 12,

2005, the BIA adopted and affirmed the IJ’s decision, finding that Khan had not

established good cause to have his hearing continued. This petition for review followed.

                                               II.

       Because the BIA adopted the IJ’s decision, we review the IJ’s decision. Dia v.

Ashcroft, 353 F.3d 228, 247 (3d Cir. 2003). We review the denial of a continuance for

abuse of discretion and will reverse that decision only if it is “arbitrary, irrational or

contrary to law.” Khan v. United States AG, 448 F.3d 226, 233 (citations omitted). We

have stated that “the question whether denial of a continuance in an immigration

proceeding constitutes an abuse of discretion cannot be decided through the application of


       1
        It appears from the record that five continuances had been granted by this point.
However, we need not resolve this discrepancy as it will ultimately have no bearing on
the disposition of this case.

                                               3
bright-line rules; it must be resolved on a case by case basis according to the facts and

circumstances of each case.” Ponce-Leiva v. Ashcroft, 331 F.3d 369, 377 (3d Cir. 2003)

(quoting Baires v. INS, 856 F.2d 89, 91 (9th Cir. 1988) (citation omitted)).

       Regulations provide that an IJ “may grant a motion for continuance for good cause

shown,” but do not define “good cause.” See 8 C.F.R. § 1003.29 (2006). However, in

Matter of Garcia, the BIA clarified that while “an alien does not have an absolute right”

to a continuance of removal proceedings, an IJ generally should grant such a continuance

where an alien has submitted “a prima facie approvable visa petition.” 16 I. & N. Dec.

653, 656-57 (BIA 1978). In addition, the BIA held that “discretion should, as a general

rule, be favorably exercised where a prima facie approvable visa petition and adjustment

application have been submitted in the course of a deportation hearing or upon a motion

to reopen.” Id. at 657.

       In this case, Khan’s I-130 petition was not a prima facie approvable petition. To

be eligible for adjustment of status, an alien must have an “immediately available” visa.

See 8 U.S.C. § 1255(a)(3); INS v. Miranda, 459 U.S. 14, 15 (1982). The IJ in this case

correctly observed that Khan had no immediately available visa. As the intended

beneficiary of an I-130 petition filed by a lawful permanent resident, Khan is subject to

the worldwide and numerical limitations on the allocation of visas set forth in 8 U.S.C.

§ 1153(a). These limitations mean, as a practical matter, that applicants often must wait

for long periods of time, usually years, before they can apply for permanent residency. It



                                              4
was squarely within the IJ’s discretion to deny the request for a continuance as a result.

Khan, 448 F.3d at 226 (finding no abuse of discretion where petitioner could not show

that a visa was immediately available); Ahmed v. Gonzales, 447 F.3d 433, 439 (3d Cir.

2006) (“We decline to hold that the decision to end this lengthy and discretionary

adjustment of status process was itself an abuse of discretion.”).

       Furthermore, although a visa would be immediately available to Khan were he the

beneficiary of an I-130 submitted by a U.S. citizen rather than a lawful permanent

resident, Khan’s wife was not a naturalized citizen at the time she submitted an I-130.

Although Khan testified at his hearing that he expected his wife would soon be

naturalized, he provided no assurances, beyond the fact that his wife was scheduled to be

fingerprinted, that this development was likely to take place and, if so, when. In the

context of immigration proceedings, the consequence of delay “is to permit and prolong a

continuing violation of United States law.” Reno v. American-Arab Anti-Discrimination

Comm., 525 U.S. 471, 473 (1999). Given that numerous continuances had already been

granted, it was not an abuse of discretion for the IJ in this case to deny yet another

continuance even though Khan’s wife’s naturalization application was pending.

       Finally, Khan’s claim that his wife is now a naturalized citizen is not properly

before this Court, as that claim has not been submitted first to the BIA. See 8 U.S.C.

§ 1252(d)(1) (providing for judicial review of claims only where an alien has exhausted

all administrative remedies available to the alien as of right); Abdulrahman v. Ashcroft,



                                              5
330 F.3d 587, 594-95 (“[A]n alien is required to raise and exhaust his or her remedies as

to each claim or ground for relief if he or she is to preserve the right of judicial review of

that claim.”). To the extent Khan wishes to present evidence that his wife is now a

naturalized citizen, the appropriate recourse is to file a motion to reopen the proceedings

with the BIA. Al-Fara v. Gonzales, 404 F.3d 733, 743 (3d Cir. 2005). Although such a

motion to reopen would be untimely, see 8 C.F.R. § 1003.2(c)(2) (requiring motions to

reopen to be filed generally within 90 days after the date on which the final administrative

decision was rendered), it is still within the BIA’s discretion to consider that motion sua

sponte. See 8 C.F.R. § 1003.2(a). Alternatively, Khan may request that the DHS join in a

motion to reopen before the BIA. 8 C.F.R. § 1003.2(c)(3)(iii).

                                              III.

       For the foregoing reasons, the petition will be denied.




                                               6
