                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-15-2009

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Precedential or Non-Precedential: Non-Precedential

Docket No. 08-2680




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                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                     No. 08-2680
                                     ___________

                           MOHAMMAD SUHAIL BUTT;
                               MUSTAFA BUTT,
                                      Petitioners

                                           v.

                 ATTORNEY GENERAL OF THE UNITED STATES,
                                                      Respondent
                    ____________________________________

                          On Petition for Review of an Order
                         of the Board of Immigration Appeals
                      Agency Nos. A98 493 362 and A98 493 363
                          Immigration Judge: Frederic Leeds
                      ____________________________________

                  Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  May 12, 2009
         Before: FISHER, JORDAN and VAN ANTWERPEN, Circuit Judges

                             (Opinion filed: May 15, 2009)
                                    ___________

                                      OPINION
                                     ___________

PER CURIAM

      Mohammad Suhail Butt (“Mohammad”) and his son, Mohammad Mustafa Butt

(“Mustafa”) petition for review of an order of the Board of Immigration Appeals (“BIA”

or “Board”), which denied their motion to reconsider the Board’s previous order
dismissing their appeal from an Immigration Judge’s final removal order. We will grant

the petition for review as to Mustafa, and remand for further proceedings. We will deny

the petition as to Mohammad.

       Mohammad is a native of India and citizen of Pakistan. Mustafa is a native of Iraq

and citizen of Pakistan. They entered the United States in 1999. Mohammad entered

with false documents and was placed in removal proceedings because he did not have

valid documents. A.R. 119. Mustafa was placed in removal proceedings because he was

present in the U.S. without having been admitted or paroled. Both father and son

conceded removability but requested continuances based on pending labor certification

requests. On September 26, 2006, an Immigration Judge (“IJ”) denied a final request for

a continuance, noting that he had already granted a continuance that had “gone on for

almost a year and a half” and that no labor certifications had been approved. The IJ

ordered the Butts removed to Pakistan.

       On January 30, 2008, the BIA dismissed the Butts’ appeal, finding that the IJ had

not abused his discretion in denying a continuance, as no labor certification had been

approved, and the two had not presented any evidence that either was the beneficiary of

an approved Immigrant Petition for Alien Worker (I-140), nor had they submitted copies

of applications for adjustment of status.

       On February 27, 2008, the Butts filed a Motion to Reconsider, which the BIA also

considered as a motion to reopen. The motion stated that Mustafa Butt was the



                                             2
beneficiary of an approved alien labor certification application, and that he had a pending

Immigrant Petition for Alien Worker (I-140) and had filed an Application for Adjustment

of Status (I-485). The motion also stated that Mohammad Butt would be eligible for

adjustment of status “upon approval of his presently pending Application for Labor

Certification ... .”

       The BIA denied the motion as a motion to reconsider, as the Butts had not pointed

to any legal or factual error in the BIA’s prior decision. The BIA also denied the motion

to reopen, stating that the Butts had provided no evidence that Mustafa was the

beneficiary of an approved labor certification, and had provided no evidence of an

approved employment-based visa petition for either respondent. The BIA stated that the

evidence consisted only of filing receipts and completed application forms and did not

show a “reasonable likelihood” that they would be able to establish adjustment of status

should be granted. The Butts filed a timely petition for review.

       In order to succeed on a motion to reopen,1 the alien must, among other things,

establish a prima facie case for the relief sought. Guo v. Ashcroft, 386 F.3d 556, 563 (3d

Cir. 2004). We review the BIA’s denial of such a motion under an abuse of discretion

standard. Id. at 562. In this case, Petitioners assert that they satisfied the reopening

requirements through the labor petition process for adjustment of status to permanent



  1
    The only possible merit to Petitioners’ motion is as a motion to reopen. As the BIA
properly noted, the Butts did not point out any error of fact or law in the prior BIA
decision, so it fails as a motion to reconsider.

                                              3
residency. This process involves three general steps: (1) the employer files a labor

certification application with the Department of Labor; (2) the employer then files with

the Department of Homeland Security (“DHS”) both the approved labor certification as

well as an I-140 alien worker petition; and (3) the alien receives a visa number and finally

files an I-485 application to adjust status with the DHS. See, e.g., Khan v. Attorney

General, 448 F.3d 226, 228 n.2 (3d Cir. 2006).

       According to Petitioners, Mustafa is potentially eligible for adjustment of status

because he has an approved labor certification and has pending an I-140 petition and an

I-485 application. Because the labor certification application filed by his employer had a

processing date of April 30, 2001, Mustafa is apparently “grandfathered” under 8 U.S.C.

§ 1255(i)(1)(B)(ii).2 In Mohammad’s case, he only has a “pending” labor certification

request.

       In Khan, this Court held that an IJ did not abuse his discretion where he denied a

request for a continuance based on the alien’s wife’s pending labor certification

application. The Court held that because any relief was speculative, Khan could not show

that he was prima facie eligible for adjustment of status and the IJ thus did not abuse his

discretion in denying the request. Khan, 448 F.3d at 234. Mohammad’s motion to reopen



  2
    The Legal Immigration Family Equity Act of 2000, Pub. L. 106-554, 114 Stat. 2763,
(“LIFE Act”), enabled certain aliens to remain in the United States while seeking to
adjust their status. It had a sunset date of April 30, 2001 for the filing of qualifying
petitions or applications, for example, Department of Labor certifications. INA
§ 245(i)(1)(B), 8 U.S.C. § 1255(i)(1)(B). See also Khan, 448 F.3d at 228-29 & n.2.

                                              4
is similarly based on purely speculative relief–he does not have an approved labor

petition. The BIA thus did not abuse its discretion in denying his motion to reopen.

       As for Mustafa, the BIA stated that Mustafa had not provided any evidence of his

assertion that he was the beneficiary of an approved labor certification. However,

Mustafa attached to his motion to reopen a page from an Application for Permanent

Employment Certification, which appears to be “certified” by a Government official in

Section “O.” A.R. 11. This appears to be an approved labor certification. Mustafa also

presented evidence that he has pending an I-140 and an I-485. See pages 13 and 14 of

162 of the A.R. Thus, it is unclear why the BIA stated that Mustafa had not presented

evidence of an approved labor certification.

       We express no opinion as to whether the approved certification would be sufficient

to cause the BIA to decide to reopen, but the matter should be remanded to allow the BIA

to evaluate the evidence in the first instance.3 We will therefore grant the petition for

review as to Mustafa, and remand for further proceedings.




  3
    Mustafa’s motion also had attached a “Notice of Case Closure” which postdates the
labor certification approval date. It is not clear what effect this “notice” has on his
application. See A.R. 14.

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