                                                             [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS
                                                                     FILED
                        FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                          ________________________ ELEVENTH CIRCUIT
                                                                  SEPT 19, 2008
                                No. 07-13379                    THOMAS K. KAHN
                          ________________________                  CLERK


                            Agency No. A98-498-409

AL HAFIZ JIVAN,


                                                                         Petitioner,

                                      versus

U.S. ATTORNEY GENERAL,

                                                                       Respondent.


                          ________________________

                     Petition for Review of a Decision of the
                          Board of Immigration Appeals
                          _________________________

                              (September 19, 2008)

Before DUBINA, HULL and FAY, Circuit Judges.

PER CURIAM:

      Al Hafiz Jivan timely filed a petition for review of the Board of Immigration

Appeals’ (“BIA’s”) June 25, 2007 order affirming its March 8, 2007 affirmation of
the IJ’s denial of Jivan’s request for a continuance and dismissal of Jivan’s appeal

of the Immigration Judge’s (“IJ’s”) removal order. After oral argument and

review, we remand this case to the BIA with instructions to remand to the IJ for

further proceedings consistent with this opinion.

                                I. BACKGROUND

      On August 19, 2005, the Department of Homeland Security (“DHS”) served

Jivan with a notice to appear and charged him with removability. At the January 5,

2006 hearing, Jivan conceded removability. During the hearing, Jivan’s counsel

raised the issue of whether the IJ would permit a continuance on the grounds that

Jivan already had filed concurrently an I-140 visa petition and an I-485

adjustment-of-status application which remained pending before DHS.

      The IJ denied the request and responded, “Not for that because we’ve

already gone up to the 11th Circuit on that as you are well aware and so that is not

a basis for a continuance waiting for the approval.” The IJ concluded that under

Eleventh Circuit precedent that awaiting a DHS decision on pending I-140 and I-

485 applications is not a valid basis for a continuance of a removal hearing.

      Jivan’s counsel then informed the IJ that, rather than take a voluntary

departure, “we’ll take an order and reserve the right to appeal.” The IJ continued

with the hearing and ordered Jivan to voluntarily depart. The IJ concluded the

hearing by noting:
                                          2
      It will be March 6, 2006 – two months because you chose to appeal.
      If you didn’t appeal, I could give you the 120 days. Now, do you
      understand that if they are not successful on appeal and you don’t
      leave then you have that ten-year bar as also defined and all the other
      consequences I explained. Okay? So you make the choice that’s best
      for you.

      On March 8, 2007, the BIA affirmed the IJ’s decision. On June 25, 2007,

the BIA granted Jivan’s motion for reconsideration, but affirmed its prior decision.

Jivan timely petitioned this Court for review.

                                  II. DISCUSSION

      As of January 5, 2006, the date when the IJ denied Jivan’s continuance

request, the relevant Eleventh Circuit case addressing the continuance of a removal

hearing to await DHS’s adjudication of I-140 and I-485 applications was Zafar v.

United States Attorney General (“Zafar I”), 426 F.3d 1330, 1335 (11th Cir. 2005).

In Zafar I, this Court affirmed the IJ’s denial of a continuance of removal hearings

where petitioners had pending requests for labor certificates to support their later

seeking I-140 visas and 1-485 adjustments of status. 426 F.3d at 1335-36. But

after the IJ here concluded that Jivan’s pending I-140 and I-485 applications were

not a basis for a continuance, we granted rehearing in Zafar I, vacated our prior

opinion, and replaced it with a narrower opinion in Zafar v. United States Attorney

General (“Zafar II”), 461 F.3d 1357, 1367 (11th Cir. 2006).




                                           3
      In Zafar II, we still affirmed the IJ’s denial of a continuance, but based it on

the fact that petitioners had filed only applications for labor certificates and were

not even “eligible” to receive an immigrant visa because they did not have

approved labor certificates. 461 F.3d at 1365. There was also no evidence that

there was a visa “immediately available” as required by 8 U.S.C. § 1255(i)(2)(B).

Id. at 1363. Because petitioners could not even ask for adjustment-of-status relief

at the time of the removal hearings, Zafar II held that the IJ did not abuse his

discretion in denying a continuance. Id. at 1364. The Zafar II Court added that

“we need not, and thus do not, reach the issue of what should happen on any other

facts, such as, for example, if aliens have approved labor certificates and are

statutorily eligible for adjustment of status under § 1255(i).” Id. at 1367.

      Subsequently, in Merchant v. United States Attorney General, 461 F.3d

1375 (11th Cir. 2006), we held that an IJ abused his discretion in denying a

continuance of the removal hearing where the petitioner had an approved labor

certificate, had filed I-140 visa and I-485 adjustment-of-status applications with

DHS, and had demonstrated an immigrant visa number was immediately available

as required by § 1255(i)(2)(B). Id. at 1377-79, 1379 n.6. In vacating the denial of

the continuance, we explained that “[t]his leaves undone only actions to be

performed by the DHS (the very agency seeking his removal)-i.e., a decision on his

immigrant visa and a decision on his application for adjustment.” Id. at 1379.
                                           4
      As to the timing of when the visa is “immediately available,” the Merchant

Court also noted that § 1255(i)(2)(B)’s eligibility requirement is that “‘an

immigrant visa is immediately available to the alien at the time the [adjustment-of-

status] application is filed.’” Id. at 1377 (quoting Zafar II, 461 F.3d at 1363, which

quotes § 1255(i)(2)(B)). The Merchant Court pointed out that the BIA acted

inconsistently in these matters by holding some adjustment-of-status cases in

abeyance until visa numbers became available, if visa numbers previously were

available at the time of the application’s filing:

      We also note that the BIA has not been entirely consistent in its
      handling of these matters. For example, in the Matter of Ho, 15 I. &
      N. Dec. 692, 1976 WL 32356 (BIA 1976), the BIA, recognizing
      Operations Instruction 254.4(a)(6), held that an alien’s application for
      adjustment of status should be held in abeyance if there were visa
      numbers available at the time of the application’s filing but not when
      the visa was approved. Thus, with respect to another prerequisite set
      out in § 1255(i), namely the requirement that the immigrant visa be
      immediately available at the time the application for adjustment is
      filed, the BIA apparently has been following an INS policy and
      holding such cases in abeyance. Other instances of inconsistent
      treatment of such continuance requests, either in unpublished decisions
      of the BIA (e.g. In Matter of DaCosta, No. A96 437 521 (BIA Oct. 6,
      2004)) or anecdotally, have been called to our attention; these are
      matters the BIA may want to take into its consideration, although we
      do not rely upon them.

Id. at 1379 n.7. Further, in Matter of Ho, the BIA concluded that holding such

applications in abeyance until a visa number became available again “should not be

foreclosed to an alien merely because he happens to apply for adjustment of status

                                            5
after having been placed in deportation proceedings.” 15 I. & N. Dec. 692, 694

(BIA 1976).1

       In any event, the government conceded in Merchant that a visa number was

immediately available to the petitioner. Thus, Merchant did not grapple with

whether it matters if a visa number remains immediately available at the time of

the removal hearing or whether § 1255(i)(2)(B) requires only that the visa number

be immediately available at the time of the filing of the application for adjustment

of status. See 8 U.S.C. § 1255(i)(2)(B).

       Subsequently, in Haswanee v. United States Attorney General, 471 F.3d

1212 (11th Cir. 2006), this Court held that the IJ abused his discretion in denying a

continuance of the removal hearing where the petitioner had an approved labor

certificate, had filed an I-140 visa petition, and had an immediately available visa

number, but had not yet filed an I-485 adjustment-of-status application (although

he intended to do so). Id. at 1217. We concluded “[t]he only difference between

Haswanee and Merchant is that Merchant had also filed an I-485 adjustment of

status application.” Id. Despite this difference, the Haswanee Court concluded


       1
         Operations Instruction 254.4(a)(6) specifies that “‘[w]hen a properly filed application
[for adjustment of status] cannot be completed solely because visa numbers became unavailable
subsequent to the filing, the application will be held in abeyance until a visa number is
allocated.’” Masih v. Mukasey, 536 F.3d 370, 374-75 (5th Cir. 2008) (alterations in original)
(quoting Operations Instruction 245.4(a)(6) and stating that under Matter of Ho, “the IJ should
take into consideration OI 245.4(a)(6) when it decides whether to grant the alien’s request for a
continuance” of a removal hearing).
                                                  6
there was still an abuse of discretion in denying the continuance request. Id. at

1218.

        Turning to Jivan’s case, it is clear the IJ based his January 5, 2006 denial of

a continuance on the Eleventh Circuit precedent at that time, i.e., Zafar I.

However, Zafar I was vacated shortly thereafter and limited to cases where the

alien had only a pending application for a labor certification. Indeed, as Jivan’s

counsel noted in her Reply Brief, “The Respondents fail to acknowledge in their

Response that the IJ denied continuance not because of lack of grandfathering

proof, or proof of I-140 and I-485 filings, or visa unavailability - it was denied

based on the IJ’s . . . wrong interpretation of the aforementioned 11 th Circuit

precedents that a continuance was not warranted in this case . . . .” In short, the

IJ’s ruling was based on an understanding of Eleventh Circuit case law as it existed

in January 2006, without the benefit of Zafar II and Merchant, both decided in

August 2006, or Haswanee, decided in December 2006.

        Moreover, at the removal hearing, Jivan’s counsel stated, without challenge,

that he had filed concurrently I-140 and I-485 applications. There is also

indication that Jivan has a valid labor certificate and that a visa number was

available to Jivan at the time he filed his I-140 and I-485 applications.2 Therefore,

        2
         Although the government now claims visa numbers were not immediately available to
Jivan at the time of the removal hearing, the IJ did not consider that issue or base its denial of a
continuance on that fact. Moreover, Jivan submitted some evidence to the BIA that visas were
                                                  7
based on recent developments in Eleventh Circuit case law, we grant Jivan’s

petition for review, vacate the BIA’s decisions of June 25, 2007 and March 8,

2007, and remand this case to the BIA with instructions to vacate the removal

order and to remand this case to the IJ for full reconsideration of Jivan’s request for

a continuance until the DHS rules on his I-140 and I-485 applications, which have

been pending since 2004, and for further proceedings consistent with this opinion.

       PETITION GRANTED.




available at the time he filed his I-485 application for adjustment of status in 2004 and also when
the BIA ruled in 2007. Because the IJ did not base the denial of his continuance on the
availability of visas, we decline to reach that issue and leave it to the parties to develop the
record as to that issue before the IJ on remand.
                                                   8
