                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                                                              April 24, 2006
                       FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                                                                 Clerk
                       ____________________

                           No. 05-60041
                       ____________________


     ABDUL HAMEED MEMON; HUMAIR HAMEED MEMON

                                    Petitioners

          v.

     ALBERTO R. GONZALES, United States Attorney General,

                                    Respondent


_________________________________________________________________

             Petitions for Review of an Order of the
                  Board of Immigration Appeals
_________________________________________________________________

Before KING, SMITH and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Petitioners Abdul Hameed Memon and Humair Hameed Memon

petition this court for review of a final order of removal by the

Board of Immigration Appeals.   In its per curiam order, the Board

of Immigration Appeals affirmed, without opinion, an immigration

judge’s refusal to continue the petitioners’ removal proceedings.

The petitioners now argue that the Board erred in affirming both

the immigration judge’s refusal to continue their removal

     *
        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that this opinion should not be published and is not precedent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.
proceedings and the order of removal.     For the following reasons,

we DENY the petition for review.

                            I.   BACKGROUND

     Petitioners Abdul Hameed Memon and Humair Hameed Memon are

both natives and citizens of Pakistan, who were admitted to the

United States as visitors on October 6, 2000, with permission to

remain in the United States until January 17, 2002.    Abdul Hameed

Memon (“Memon”) is the lead petitioner; his son Humair Hameed

Memon’s potential eligibility for adjustment of status as a

derivative beneficiary is entirely dependent upon Memon’s

application.

     On February 5, 2003, the Department of Homeland Security

(“DHS”) initiated removal proceedings against the petitioners.

DHS claimed that the petitioners were removable under 8 U.S.C.

§ 1227(a)(1)(B), as nonimmigrants who remained in the United

States longer than permitted.     On May 29, 2003, the petitioners,

represented by counsel, appeared before an immigration judge who

consolidated their cases.    At this time, the petitioners informed

the immigration judge that Memon had a labor certification

pending with the Department of Labor, and they requested a

continuance.   The immigration judge declined to rule on the

petitioners’ request for a continuance, and the hearing was

adjourned to allow the attorneys time to prepare their arguments.




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     On July 17, 2003, the petitioners, again represented by

counsel, admitted to the facts alleged by DHS and conceded their

removability.   Again, they informed the immigration judge of

Memon’s pending labor certification.   The immigration judge set a

hearing date of November 14, 2003, and gave the petitioners a

filing date of October 3, 2003, to file applications for relief

from removal.   The immigration judge also informed the

petitioners at this time that it would be “difficult to justify a

continuance” based solely on the pending labor certification.    On

October 31, 2003, the petitioners filed a written motion for a

continuance to allow more time for the approval of the pending

labor certification.

     On November 14, 2003, the petitioners appeared before the

immigration judge for their scheduled hearing, and made another

oral motion for a continuance.   The immigration judge denied the

petitioners’ request for a continuance but granted their

alternative request for voluntary departure.   In his oral

decision, the immigration judge acknowledged that with both an

approved labor certification and an approved visa petition, the

petitioners might be eligible for relief from removal.    However,

because the petitioners had only a pending application for labor

certification, the immigration judge found that they were

essentially requesting an “indefinite continuance.”   Therefore,

the immigration judge denied their motion for a continuance for

failure to establish good cause.

                                   3
     The petitioners appealed from the immigration judge’s

decision to the Board of Immigration Appeals (“BIA”).     On

December 23, 2004, the BIA affirmed, without further opinion, the

decisions of the immigration judge.     On January 20, 2005, the

petitioners filed their petition for review of the BIA’s decision

with this court.   One week later, on January 27, 2005, the

petitioners filed a motion to reconsider with the BIA.     The BIA

denied the petitioners’ motion to reconsider on February 17,

2005.   On March 15, 2005, the petitioners filed a second petition

for review with this court.     This opinion disposes of both

petitions for review.

     The petitioners now argue, citing the Seventh Circuit’s

decision in Subhan v. Ashcroft, 383 F.3d 591 (7th Cir. 2004),

that the refusal to continue their removal proceedings violated

rights created by 8 U.S.C. § 1255.     They also claim that the

decisions of the BIA and the immigration judge violated their

constitutional due process rights.

                          II.    DISCUSSION

     The petitioners raise statutory arguments and due process

constitutional claims virtually identical to those raised in

Ahmed v. Gonzales, No. 05-60032, --- F.3d ---- (5th Cir. 2006).

Applying our reasoning in Ahmed to the matter at hand, we reject

the petitioners’ interpretation of 8 U.S.C. § 1255 and, along

with it, we reject the petitioners’ argument that the immigration



                                   4
judge’s refusal to continue their proceedings was an abuse of

discretion.    See Ahmed, --- F.3d at ---- (rejecting a similar

interpretation of § 1255 which was also based on Subhan).     We

also hold that the petitioners have failed to raise a cognizable

constitutional claim because discretionary relief from removal,

including an application for an adjustment of status, is not a

liberty or property right that requires due process protection.

See, e.g., Assaad v. Ashcroft, 378 F.3d 471, 475 (5th Cir. 2004)

(stating that due process claims revolving around an alleged

failure to receive discretionary relief are not based upon a

constitutionally protected liberty interest); Mireles-Valdez v.

Ashcroft, 349 F.3d 213, 219 (5th Cir. 2003) (holding that

eligibility for discretionary relief from a removal order is not

a liberty or property interest warranting due process

protection).   Therefore, we DENY this petition for review.




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