                Not for Publication in West's Federal Reporter
               Citation Limited Pursuant to 1st Cir. Loc. R. 32.3



              United States Court of Appeals
                        For the First Circuit

No. 04-1862

                    CARLOS RAMON PAEZ-RODRIGUEZ,

                                Petitioner,
                                     v.

                 JOHN ASHCROFT, ATTORNEY GENERAL,

                                Respondent.


              ON PETITION FOR REVIEW OF AN ORDER OF

                 THE BOARD OF IMMIGRATION APPEALS


                                   Before

                          Boudin, Chief Judge,

                Lipez and Howard, Circuit Judges.


     Jeffrey B. Rubin and Law Offices of Jeffrey B. Rubin, P.C. on
brief for petitioner.
     Emily Anne Radford, Assistant Director, Office of Immigration
Litigation, Civil Division, Department of Justice, Peter D.
Keisler, Assistant Attorney General, Civil Division, Department of
Justice, and Papu Sandhu, Senior Litigation Counsel, on brief for
respondent.



                            February 3, 2005
           Per   Curiam.    Petitioner    Carlos   Ramon     Paez-Rodriguez

("Paez") seeks review of the June 2, 2004, final order of removal

issued by the Board of Immigration Appeals ("Board") affirming the

immigration judge's decision.     Paez is a citizen of the Dominican

Republic who overstayed a non-immigrant visa.                Paez does not

contest removability; what he objects to is the refusal of the

immigration judge and the Board to continue the removal proceeding

so that he could pursue alternative relief.

           Paez entered this country in 1994, and in 1997, Paez and

his wife Mary Luz Lopez applied for permanent residency for Paez

based on his marriage to a U.S. citizen.        On July 24, 2000, the INS

denied the application because Paez had in 1999 failed to respond

to the INS's request that he be fingerprinted.          The INS initiated

removal proceedings on April 26, 2002.

           On February 13, 2003, after a delay to permit Paez to

obtain   counsel,   Paez   indicated    his    intent   to   apply   for   an

adjustment of status based on his marriage to a U.S. citizen.              By

this time it appears that Paez and his wife were contemplating a

divorce,   but   the   immigration     judge    nevertheless    granted     a

continuance to allow Paez to submit evidence that his spouse had

submitted or re-submitted a visa petition on his behalf.                   On

February 21, a further continuance was granted, Paez being directed

to submit proof of a visa application by March 10.




                                  -2-
           Paez never submitted the application.                Instead, on April

10, 2003, his counsel explained that Paez' wife was unwilling to

sign a visa application but that Paez was now seeking through his

employer a labor certification to support a visa application, and

he    requested    a   further     continuance      to   pursue     this    effort.

Accepting the government's argument that this route should have

been pursued at an earlier time, the immigration judge denied the

continuance "under the circumstances of the case."

            On    April    17,    2003,    Paez's   counsel      again     sought   a

continuance for Paez to pursue the labor certification, filing with

the    immigration        court   a   recently      completed       certification

application.      The immigration judge "reaffirm[ed]" her denial of

the continuance,       noting     that    there   was    no    evidence    that   the

application had actually been filed and that it had in any event

been prepared only two days before.             Paez appealed from the denial

of the continuance to the Board, which summarily affirmed pursuant

to 8 C.F.R. § 1003.1(e)(4) (2004).

            Paez now appeals from the denial of his motion for a

continuance, asserting that it was a violation of his due process

rights in addition to an abuse of discretion.                 He also asserts that

the Board erred by summarily affirming rather than having a full

panel review his case.            We note without resolving a threshold

objection by the government and deny the petition for review on the

merits.


                                          -3-
           The   government   at   the    outset     asserts    that    we   lack

jurisdiction to review the immigration judge's denial of the motion

for continuance because of 8 U.S.C. § 1252(a)(2)(B) (2000), which

states:

           Notwithstanding any other provision of law, no
           court shall have jurisdiction to review -- . .
           . (ii) any other decision or action of the
           Attorney General the authority for which is
           specified under this subchapter to be in the
           discretion of the Attorney General.

The government argues that immigration judges conducting removal

proceedings    are   exercising    the    Attorney       General's   powers    by

delegation, and it notes that 8 C.F.R. § 1003.29 (2004) says that

the "immigration judge may grant a motion for continuance for good

cause shown." (emphasis supplied).

           At least two circuit courts share the government's view.

See, e.g., Yerkovic v. Ashcroft, 381 F.3d 990, 995 (10th Cir.

2004); Onyinkwa v. Ashcroft, 376 F.3d 797, 799 (8th Cir. 2004).               On

the other hand, one could argue about whether the rule's grant of

discretion to the immigration judge is a matter "which is specified

under   this   subchapter"    to   be    within    the    Attorney     General's

discretion, given that the grant or denial of continuances in

removal proceedings is not listed as a discretionary decision in

the statute.     See Medina-Morales v. Ashcroft, 371 F.3d 520, 528

(9th Cir. 2004).     Contra 8 U.S.C. § 1184(d) (2000) (providing that

the "Attorney General in his discretion" may waive a particular

visa requirement).

                                    -4-
              In any event the outcome in this case is effectively the

same regardless of whether we have authority to review the denial

of   a   continuance,          because      the     denial      was     not    an     abuse   of

discretion--let alone a denial of due process.                                 Steel Co. v.

Citizens for        a    Better       Environment,        523    U.S.    83,    101    (1998),

requiring     us    to        assure   ourselves      that       we     have    Article       III

jurisdiction, does not require that we resolve the threshold

question; the government's objection goes only to our statutory

authority to review a specific class of decisions.                               Restoration

Preservation Masonry, Inc. v. Grove Europe Ltd., 325 F.3d 54, 60

(1st Cir. 2003).

              Under an abuse-of-discretion standard, this is not a

close case.     Paez had to know from the start that his prospects in

the removal proceeding for obtaining a visa based on marriage were

doubtful.      Yet between February and mid-April 2003, he did not

pursue    a   labor      certification.             Although      Paez        says    that    the

immigration        judge       gave    no   reason        for    refusing       the    initial

continuance for this purpose, in context it is apparent that she

accepted the government's argument of undue delay.

              When Paez renewed the request on April 17, he still had

not actually filed a visa application based on a labor certificate

(and     he   may       not    have    even       filed    the    labor        certification

application).       Contra Matter of Garcia, 16 I & N Dec. 653, 657 (BIA

1978), quoted in Oluyemi v. INS, 902 F.2d 1032, 1034 (1st Cir.


                                              -5-
1990) (continuance encouraged when an alien has submitted a "prima

facie approvable visa petition").              Yet the alien must first submit

and have approved a labor certification application, then submit a

visa petition based on the labor certification; only once that is

approved is the alien eligible for permanent residency, see United

States v. Ryan-Webster, 353 F.3d 353, 356 (4th Cir. 2003).

          Finally,        we    reject      Paez's   contention   that   summary

affirmance     in   his        case   was      improper   under   8   C.F.R.   §

1003.1(a)(7)(ii), (e)(4)(i), (e)(6). Whatever the reviewability of

the decision to act summarily, this case posed a fact-specific

procedural matter and involved no new legal issues.

             The petition for review is denied.




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