                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-25-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-4431




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NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                  Case No: 04-4431

                                 CIRO PESANTEZ,
                                        Petitioner

                                           v.

                ATTORNEY GENERAL OF THE UNITED STATES,
                                 Respondent


                         On Petition for Review of a Decision
                         of the Board of Immigration Appeals
                                Agency No. 78-435-344
                          Immigration Judge: Annie S. Garcy


                  Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                 February 15, 2008

                  Before: SLOVITER AND SMITH, Circuit Judges,
                           and DIAMOND, District Judge *

                              (Filed: February 25, 2008 )


                                      OPINION


DIAMOND, District Judge.



      *
       The Honorable Gustave Diamond, Senior District Judge for the Western District
of Pennsylvania, sitting by designation.

                                          1
       Ciro Pesantez seeks review of an order of the Board of Immigration Appeals

(“BIA”) dismissing his appeal from the decision of the Immigration Judge (“IJ”) denying

Pesantez’s motion for a continuance and ordering his removal. The Government

responded with a motion to dismiss for lack of subject matter jurisdiction, or,

alternatively, for summary affirmance of the removal order. For the reasons set forth

below, we will deny both the Government’s motion to dismiss for lack of subject matter

jurisdiction and Pesantez’s petition for review.

                                             I.

       In January of 2001, removal proceedings were instituted against Pesantez, an

Ecuadoran national who had arrived in the United States in 1991. Pesantez appeared pro

se at a hearing in March of 2001 at which time his case was rescheduled so he could

obtain counsel. On November 27, 2001, Pesantez, with counsel, appeared before an IJ

and conceded that he was removable. However, he requested a continuance of removal

proceedings until March 19, 2002, pending a determination from the Department of Labor

(“DOL”) on his application for labor certification which he filed on April 27, 2001, and

which, if granted, would permit him to apply for adjustment of status to lawful permanent

resident under 8 U.S.C. § 1255(i).1




       1
          Pursuant to 8 U.S.C. § 1255(i), the Attorney General is authorized to grant an
alien present in the United States an adjustment of status if he “is eligible to receive an
immigrant visa and is admissible” and “an immigrant visa is immediately available to the
alien at the time the application is filed.”

                                             2
       In February of 2003, Pesantez was granted another two-month extension of

removal proceedings because his application still was pending before the DOL. When

Pesantez and his counsel failed to appear at a hearing on April 2, 2003, the IJ found him

removable in absentia. Pesantez’s motion to reopen his proceedings was granted and,

after another series of postponements, Pesantez appeared with counsel at a hearing on

December 19, 2003, at which time he moved for an indefinite continuance pending a

determination from the DOL on his then already 32-month-old application for labor

certification. The IJ denied any further continuance and ordered Pesantez’s removal. By

per curiam order dated October 28, 2004, the BIA declined to disturb the IJ’s

discretionary decision to deny any further continuance and dismissed Pesantez’s appeal.

                                             II.

       As an initial matter, we must determine whether we have subject-matter

jurisdiction. Generally, 8 U.S.C. § 1252(a)(1) confers jurisdiction upon this Court to

review a final order of removal. However, the Government has moved to dismiss for lack

of subject matter jurisdiction on the ground that the denial of Pesantez’s motion for

continuance was a discretionary decision not subject to review pursuant to 8 U.S.C. §

1252(a)(2)(B)(ii).2 The Government argues that this section divests this Court of




       2
         “Notwithstanding any other provision of law ... no court shall have jurisdiction
to review ... any other decision or action of the Attorney General ... the authority for
which is specified under this subchapter to be in the discretion of the Attorney General ...
other than the granting of [asylum] ....” (emphasis added). 8 U.S.C. §1252(a)(2)(B)(ii).

                                             3
jurisdiction to review the denial of Pesantez’s continuance motion because the IJ’s

decision was discretionary under 8 C.F.R. § 1003.29 (2006), which provides that an IJ

“may grant a motion for continuance for good cause shown.”

       After the Government filed its motion to dismiss in this case, we had occasion to

address this exact jurisdictional issue in Khan v. Attorney General of the United States,

448 F.3d 226 (3d Cir. 2006). Presented with the identical argument raised by the

Government in the case sub judice, we expressly found in Khan that § 1252(a)(2)(B)(ii)

does not bar jurisdiction where, as here, there is no statute expressly granting discretion to

the Attorney General, but discretionary authority instead is extant under a federal

regulation. Id. at 233. Khan is dispositive of the jurisdictional issue raised by the

Government. Thus, in light of Khan’s holding that § 1252(a)(2)(B)(ii) does not deprive

this court of jurisdiction over a decision to deny a motion for continuance, the

Government’s motion to dismiss for lack of subject matter jurisdiction must be denied.

                                             III.

       Turning to the merits, Pesantez raises two arguments on appeal. First, he contends

that the BIA erred in affirming the IJ’s discretionary decision to deny his motion for a

continuance pending a determination on his application for labor certification. Upon

review, we find no abuse of discretion in the denial of Pesantez’s motion.

       As already noted, 8 C.F.R. § 1003.29 (2006) provides that an IJ “may grant a

motion for continuance for good cause shown.” We review a denial of a continuance



                                              4
motion for abuse of discretion, Ponce-Leiva v. Ashcroft, 331 F.3d 369, 377 (3d Cir.

2003), and a discretionary determination should not be disturbed unless it is “found to be

arbitrary, irrational, or contrary to the law.” Santana-Gonzalez v. Attorney General of the

United States, 506 F.3d 274, 276 (3d Cir. 2007) (citation omitted). Where an alien has

failed to submit a visa petition, the IJ’s decision to deny that alien’s continuance request

“is squarely within the IJ’s broad discretion” absent “extraordinary circumstances.”

Khan, 448 F.3d at 234.

       Here, Pesantez did not submit a visa petition and he presently is ineligible for an

adjustment of status under § 1255(i) because he is neither eligible to receive an immigrant

visa nor can he show that such a visa is “immediately available” to him, or will be

available to him at some estimable time, because it is speculative as to whether the DOL

will grant his labor certification application.3 And, as we noted in Khan, there is no

authority for the proposition that government delay in the processing of an application for

labor certification constitutes “extraordinary circumstances” warranting an open-ended

continuance. Id. at 235. Accordingly, we find no abuse of discretion in the denial of

Pesantez’s motion for an indefinite continuance under the circumstances of this case.




       3
         On appeal, Pesantez relies on the BIA’s ruling in In Re Mario Eduardo Velarde-
Pacheco, 21 I. & N. Dec. 253 (BIA 2002), in which it was held that an alien awaiting
approval of a marriage-based visa petition could pursue adjustment of status upon clear
and convincing evidence that the alien’s marriage was bona fide and genuine. However,
unlike in Velarde, Pesantez cannot show that he is “otherwise prima facie eligible for
adjustment.” Thus, there was no error in the BIA’s finding that Velarde is inapplicable.

                                              5
       Second, Pesantez contends that the denial of his motion for a continuance pending

the adjudication of his application for labor certification violated his right to due process

of law as guaranteed by the Fifth Amendment to the United States Constitution. We

review constitutional claims and questions of law de novo. Debeato v. Attorney General

of the United States, 505 F.3d 231, 235 (3d Cir. 2007). We find no due process violation

on the record before us because Pesantez has shown neither that he was prevented from

reasonably presenting his case nor that he was substantially prejudiced by the denial of his

continuance motion, as there is no evidence as to when, if ever, his labor certification

might be granted. Khan, 448 F.3d at 236.

                                             IV.

       Accordingly, for the foregoing reasons, we will deny the Government’s motion to

dismiss for lack of subject matter jurisdiction and will deny on the merits Pesantez’s

petition for review.




                                              6
