           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                         December 7, 2007

                                       No. 06-60054                   Charles R. Fulbruge III
                                                                              Clerk

SALMANALI SADRUDDIN SAJAN

                                                  Petitioner
v.

MICHAEL B MUKASEY, US ATTORNEY GENERAL

                                                  Respondent



                        Petition for Review of an Order of the
                           Board of Immigration Appeals


Before KING, GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:*
       Salmanali Sadruddin Sajan petitions this court for review of the Board of
Immigrations Appeals’ December 27, 2005, final removal order affirming the
Immigration Judge’s denial of Sajan’s request for administrative closure or
indefinite continuance of his removal proceedings. We have jurisdiction to
review the petition pursuant to 8 U.S.C. § 1252(a), and for the reasons set forth
below, grant the petition.




       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                 No. 06-60054

           I. FACTUAL AND PROCEDURAL BACKGROUND
      Salmanali Sadruddin Sajan is a twenty-nine-year-old citizen and native
of Pakistan. Sajan testified in Immigration Court on September 29, 2003, before
an Immigration Judge (“IJ”) that he arrived in the United States with his family
in 1981, when he was just three years old. Sajan presented affidavits supporting
his testimony, as well as school and immunization records dating back to 1983.
Since then, Sajan has twice traveled to Pakistan with his family to visit
relatives, once from May 1984 to June 1984 and again from June 1989 to August
1989. On or about August 29, 1989, Sajan reentered the United States with his
family on a nonimmigrant tourist visa.
      On March 20, 2003, Immigration and Customs Enforcement (“ICE”) issued
a Notice to Appear, initiating removal proceedings against Sajan on the grounds
that he had overstayed his visa pursuant to § 237(a)(1)(B) of the Immigration
and Nationality Act (the “INA”), 8 U.S.C. § 1227(a)(1)(B). In a June 30, 2003,
hearing before the IJ, Sajan admitted the charges and conceded removability.
Based on these admissions, the IJ determined that Sajan was subject to removal.
However, during the June 30 hearing, Sajan requested a continuance on account
of his pending legalization application under the Legal Immigration Family
Equity Act (“LIFE Act”), § 245A of the INA, 8 U.S.C. § 1255a. The continuance
was granted, and a hearing was scheduled for September 29, 2003.
      At the September 29, 2003, hearing, Sajan argued that his proceedings
should be terminated or administratively closed because he was prima facie
eligible for legalization pursuant to an imminent class action settlement in
Newman v. Bureau of Citizenship and Immigration Services, No. 87-4757 (C.D.
Cal. Feb. 17, 2004) (the “Newman Settlement”). In the alternative, Sajan
requested either a continuance until the district court approved the Newman
Settlement, or voluntary departure. Without the IJ making a determination of
Sajan’s prima facie eligibility, the Department of Homeland Security (“DHS”)

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opposed termination on the grounds that he previously had admitted the charges
and conceded removability. The IJ denied all of Sajan’s requests and ordered
him removed to Pakistan.
      Sajan appealed the decision of the IJ to the Board of Immigration Appeals
(the “BIA”).     On December 20, 2004, the BIA issued a per curiam order,
unopposed by DHS, remanding the proceedings to the IJ for Sajan to apply for
adjustment of status pursuant to the LIFE Act and the Newman Settlement. In
a February 7, 2005, hearing, the IJ asked Sajan for statutory or regulatory
authority under which the Immigration Court had jurisdiction to make a
determination of eligibility for legalization. Finding no authority, the IJ insisted
that the Immigration Court lacked jurisdiction to determine Sajan’s ultimate
eligibility under the Newman Settlement, but granted a continuance for him to
pursue his application with DHS.
      On March 28, 2005, the IJ granted a second continuance for the processing
of Sajan’s Newman Settlement application but made no determination of his
eligibility for adjustment of status. The IJ refused to terminate the proceedings,
denied an indefinite continuance, and set a third hearing for June 27, 2005. On
June 27, the IJ denied Sajan’s motions for a third continuance or termination of
the proceedings and certified the case back to the BIA.
      On December 27, 2005, the BIA issued a final removal order affirming the
IJ’s decision.   The BIA cited to the regulations that implement the LIFE
Act—suggesting that the IJ has jurisdiction to grant administrative closure to
legalization applicants—noting that they “provide . . . that removal proceedings
against legalization applicants may be administratively closed or continued
indefinitely until the DHS adjudicates the alien’s application, with the
concurrence of DHS.” However, the BIA found that the “respondent did not
request administrative closure in proceedings before the Immigration Judge.”



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      On January 25, 2006, Sajan filed a motion to reopen seeking only
voluntary departure, which was granted on April 12, 2006. Also on January 25,
2006, Sajan filed a timely petition for review of the BIA’s final removal order
with this court. On April 24, 2006, Sajan filed a motion for a stay of removal and
of the voluntary departure period, which DHS did not oppose. This court issued
the stays on June 19, 2006.
                        II. STANDARD OF REVIEW
      On a petition for review of a BIA decision, we review the BIA’s decision
and the IJ’s decision to the extent that it influenced the BIA. Mikael v. INS, 115
F.3d 299, 302 (5th Cir. 1997). Questions of law are reviewed de novo. Lopez-
Gomez v. Ashcroft, 263 F.3d 442, 444 (5th Cir. 2001). We afford considerable
“deference to the BIA’s interpretation of immigration statutes unless the record
reveals compelling evidence that the BIA’s interpretation is incorrect.” Mikhael,
115 F.3d at 302. We will not substitute the interpretation of this court for that
of the BIA if it is reasonable, but we are compelled to reject any construction by
the BIA that is arbitrary, capricious, or manifestly contrary to the to the statute.
Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837, 844 (1984). Factual findings
are reviewed for substantial evidence, Mikhael, 115 F.3d at 302, which “requires
only that the BIA’s decision be supported by record evidence and be substantially
reasonable,” Omagah v. Ashcroft, 288 F.3d 254, 258 (5th Cir. 2002).
                               III. DISCUSSION
      In its December 27, 2005, order, the BIA acknowledged that the
regulations implementing the LIFE Act provide the IJ or the BIA the
jurisdictional authority by which “removal proceedings against legalization
applicants may be administratively closed or continued indefinitely until the
DHS adjudicates the alien’s application.” The relevant regulation states:
            An alien who is prima facie eligible for adjustment of
            status under LIFE Legalization who is in exclusion,


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            deportation, or removal proceedings before the
            Immigration Court or the Board of Immigration
            Appeals (Board), or who is awaiting adjudication of a
            motion to reopen or motion to reconsider filed with the
            Immigration Court of the Board, may request that the
            proceedings be administratively closed or that the
            motion filed be indefinitely continued, in order to allow
            the alien to pursue a LIFE Legalization application. In
            the request to administratively close the matter or
            indefinitely continue the motion, the alien must include
            documents demonstrating prima facie eligibility for the
            relief, and proof that the application for relief had been
            properly filed with the Service as prescribed in this
            section. With the concurrence of Service counsel, if the
            alien appears eligible to file for relief under LIFE
            Legalization, the Immigration Court or the Board,
            whichever has jurisdiction, shall administratively close
            the proceeding or continue the motion indefinitely.

8 C.F.R. § 245a.12(b)(1). In other words, upon request of the petitioner, the IJ
or the BIA, whichever has jurisdiction, must consider the petitioner’s prima facie
eligibility for legalization. If the IJ or the BIA determines that the petitioner is
prima facie eligible for relief and DHS concurs, the removal proceeding must be
administratively closed or indefinitely continued while DHS considers the
petitioner’s application for legalization.
      In its December 27, 2005, order, the BIA found that Sajan “did not request
administrative closure in proceedings before the Immigration Judge.” This
factual finding is not supported by substantial evidence. To the contrary, during
the September 29, 2003, hearing, Sajan expressly requested administrative
closure on the grounds that he was prima facie eligible for membership in the
impending Newman class. Further, the IJ’s September 29, 2003, oral decision
referenced Sajan’s request for administrative closure, stating that the
Immigration Court could not administratively close proceedings based on the
then-anticipated Newman Settlement absent agreement from DHS, which DHS


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withheld, arguing that Sajan’s admissions put his removal properly before the
IJ.
      Since Sajan did request administrative closure in proceedings before the
IJ, the BIA’s December 27, 2005, order was incomplete because it failed to
consider whether the IJ correctly denied Sajan’s request for administrative
closure without determining his prima facie eligibility for LIFE Act relief under
the Newman Settlement as authorized by 8 C.F.R. § 245a.12(b)(1). Because the
BIA did not review the IJ’s failure to consider Sajan’s prima facie eligibility for
the Newman class, we do not reach the issue of Sajan’s eligibility, if any, for
relief under the Newman Settlement and the LIFE Act. Similarly, as the BIA
did not review the grounds provided by DHS for opposing administrative
closure—that Sajan’s admission to overstaying his 1989 nonimmigrant visa
established that he did not meet the continuous presence requirement under the
LIFE Act and Newman Settlement—we do not decide whether DHS’s refusal to
consent was reasonable, or if it need be reasonable, in this case.
                              IV. CONCLUSION
      For the foregoing reasons, we GRANT the petition for review and remand
the case to the BIA for reconsideration consistent with this opinion.




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