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)    has been a person of good m oral character during such period;
               (C )   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
               (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 74-

915-726 (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.




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