                              UNPUBLISHED ORDER
                         Not to be cited per Circuit Rule 53



           United States Court of Appeals
                             For the Seventh Circuit
                             Chicago, Illinois 60604

                               Argued April 18, 2006
                               Decided June 1, 2006

                                       Before

                     Hon. ILANA DIAMOND ROVNER, Circuit Judge

                     Hon. TERENCE T. EVANS, Circuit Judge

                     Hon. DIANE S. SYKES, Circuit Judge

No. 05-2984

MAHOOB M. ALI,                                  Petition for Review of an Order of
    Petitioner,                                 the Board of Immigration Appeals

      v.                                        No. A76-773-979

ALBERTO R. GONZALES,
    Respondent.

                                      ORDER

      Mahoob Ali petitions for review of the Board of Immigration Appeals’ order

affirming an Immigration Judge’s (“IJ”) denial of a motion to continue his removal

proceedings. Ali asked for more time to await the United States Department of

Labor’s decision on his foreign labor certification application that had been pending

two and a half years. Because the Board’s denial was insufficiently reasoned, we

must grant the petition for review.
Nos. 05-2984                                                                     Page 2

      Ali, a native and citizen of Pakistan and the father of two U.S. citizen

children, entered the United States in 1995 on a non-immigrant visa and

overstayed its expiration in 1996. In 2001, wishing to employ Ali as a baker,

Dunkin’ Donuts applied for a foreign labor certification with the Illinois

Department of Labor. While that application was pending, Ali appeared for “special

registration”—a post-911 program requiring noncitizens from specified countries to

register with the National Security Entry-Exit Registration System, see

Registration and Monitoring of Certain Nonimmigrants, 67 Fed. Reg. 52584 (Aug.

12, 2002); 8 C.F.R. § 264.1(f)—and thus came to the attention of the Department of

Homeland Security (“DHS”). The DHS issued a Notice to Appear charging Ali with

being removable. Appearing before an IJ, Ali conceded removability, but requested

a continuance to await the Department of Labor’s decision on his labor certification

application. If approved, it would enable him to petition for an employment-based

visa, which would in turn allow him to apply to adjust his status to that of a lawful

permanent resident. See 8 U.S.C. § 1255(i)(B)(ii); Subhan v. Ashcroft, 383 F.3d 591,

593 (7th Cir. 2004). The IJ granted two continuances spanning more than a year to

await a decision on Ali’s application.

      The IJ denied a third continuance, however, and granted Ali voluntary

departure, reasoning he still had not petitioned for an employment-based visa and

that he had stayed here illegally since 1996. Ali’s application was still pending

when the Board affirmed, adopting the IJ’s decision, and adding that “any
Nos. 05-2984                                                                     Page 3

continuance would have been open-ended given the speculative nature of the relief

sought.”1

      In his petition for review, Ali argues that the Board’s decision affirming the

denial of his request for a third continuance was unreasoned. Because neither the

IJ nor the Board supported the denial with a reason consistent with the

adjustment-of-status statute, 8 U.S.C. § 1255(i), Ali contends, we cannot uphold the

order of removal.

      At the outset, the government argues that the IJ’s denial of a continuance is

a discretionary ruling, and that 8 U.S.C. § 1252(a)(2)(B)(ii) therefore strips us of

jurisdiction to review it. This overstates matters. As the government recognizes,

we retain jurisdiction to determine whether the denial was supported by a reason

consistent with § 1255(i). Subhan, 383 F.3d at 595. We must therefore decide the

merits of Ali’s argument in order to ascertain our jurisdiction, and will dismiss his

claim only if the denial was properly reasoned. Sokolov v. Gonzales, 442 F.3d 556,

569-70 (7th Cir. 2006).



      1
        At oral argument, Ali’s counsel informed us that, while this appeal was
pending, the Department of Labor approved Ali’s labor certification and he filed
with the DHS an employment-based visa petition, which is now pending. We asked
the parties to address the impact of that development on the outcome of this appeal.
Ali has responded that, under the agency’s rules, if he were now before the Board,
he would be eligible to apply to adjust his status. The government has replied, but
does not address that argument, instead contending for the first time that Ali is
ineligible to adjust status because he did not voluntarily depart by August 13, 2005,
as required by the Board’s order. See 8 U.S.C. 1229c(d). That issue has been in this
case since before Ali filed his petition for review, and so we decline to take it up
now. The government is free to raise the issue on remand.
Nos. 05-2984                                                                      Page 4

      When the Board adopts the IJ’s decision, but supplements his reasoning, the

IJ’s decision as supplemented by the Board’s becomes the basis for our review.

Niam v. Ashcroft, 354 F.3d 652, 656 (7th Cir. 2004). Where an alien requests a

continuance of his removal proceedings in order to await a decision on his pending

labor certification application, a denial of the motion must be supported by a reason

consistent with the adjustment-of-status statute. Subhan, 383 F.3d at 595. In

particular, the denial must be consistent with the statute’s policy of allowing

“eligible aliens,” which include those who have overstayed their tourist visas, see 8

U.S.C. § 1255(c)(8), “to adjust status without having to leave the United States, to

relieve the burden on the United States citizen with whom the aliens had the

requisite family or other relationship, on the United States consulates abroad, and

on the alien.” Benslimane v. Gonzales, 430 F.3d 828, 832-33 (7th Cir. 2005) (quoting

Succar v. Ashcroft, 394 F.3d 8, 22 (1st Cir. 2005)). Merely stating the “obvious”—for

example, that the Department of Labor has not yet acted on a pending

application—is not a reason at all. Subhan, 383 F.3d at 595. However, valid

reasons can include that the alien engaged in criminal activity, Sokolov, 442 F.3d at

569-70, or that his adjustment-of-status application is hopeless on the merits, Pede

v. Gonzales, 442 F.3d 570, 571 (7th Cir. 2006).

      The government argues that Subhan was wrongly decided, and points to the

subsequent decisions of three circuits, holding that the pendency of a labor

certification is reason enough to deny a motion to continue removal proceedings.

See Khan v. Attorney General of the United States, 2006 WL 1377054 at *8 (3d Cir.
Nos. 05-2984                                                                      Page 5

May 22, 2006); Ahmed v. Gonzales, 2006 WL 1064196 at *4-5 (5th Cir. Apr. 24,

2006); Zafar v. United States Attorney General, 426 F.3d 1330, 1335-36 (11th Cir.

2005). We decline the invitation to overrule Subhan.

      The government contends that, in affirming the denial, the Board

supplemented the IJ’s decision with an additional reason that is consistent with the

statute: that “any continuance would have been open-ended given the speculative

nature of the relief sought.” We do no see how the Board’s statement here differs

from the one we rejected in Subhan: that although the alien “may be able to

eventually acquire lawful permanent resident status by virtue of employment,”

since he had not yet done so, he was “not eligible for this form of relief at this time.”

Subhan, 383 F.3d at 594. We said that was “not a reason . . . but merely a

statement of the obvious.” Id. Neither statement articulates a discrete rationale;

both merely recite what’s true in every such case—that a pending application is no

guarantee of certification. The government suggests that the Board’s statement

here is “fundamentally no different” than a hypothetical reason approved in

Subhan—that “an illegal alien should not be allowed to delay his removal

proceedings beyond a year.” In contrast to the reasons given by the Board here and

in Subhan, however, the hypothetical reason approved in Subhan does not apply in

every case. And, although Ali did delay his removal more than a year, we will not

as the government suggests assume that was the reason the Board denied a

continuance. See SEC v. Chenery Corp., 332 U.S. 194 (1943).
Nos. 05-2984                                                                     Page 6

       The government does not attempt to defend either of the IJ’s reasons for

denying a continuance. Indeed, both are inconsistent with the adjustment-of-status

statute. That Ali “has never filed with the Department of Homeland Security” the

application to adjust his status adds nothing when he had not yet received the

certification from the department of labor department that he needs to apply for the

adjustment. It is not a reason but “a statement of the obvious.” See Subhan, 383

F.3d at 593. And Ali’s “illegal status” is irrelevant because the statute by its terms

specifically applies to aliens like Ali who overstay their visas. See 8 U.S.C.

§ 1255(i), (c)(8).

       Because neither the Board nor the IJ gave a reason consistent with the

statute for denying a continuance, we GRANT the petition for review, VACATE the

Board’s decision, and REMAND the case for further proceedings consistent with

this order.
