               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 11a0663n.06
                                                                                        FILED
                                          No. 10-3011
                                                                                   Sep 09, 2011
                          UNITED STATES COURT OF APPEALS                     LEONARD GREEN, Clerk
                               FOR THE SIXTH CIRCUIT



RAMESHBABU RAMU KUPPUSAMY, aka )
Kuppusamy Ramu Ramesh Badu,            )
                                       )
      Petitioner,                      )
                                       )                 ON APPEAL FROM THE BOARD OF
v.                                     )                 IMMIGRATION APPEALS
                                       )
ERIC H. HOLDER, JR., Attorney General, )
                                       )
      Respondent.                      )




       Before: COLE and STRANCH, Circuit Judges; ZATKOFF, District Judge.*

       JANE B. STRANCH, Circuit Judge. Petitioner, Rameshbabu Kuppusamy, has been

employed in the United States at least since 2006. He had an approved I-140 petition for immigrant

visa filed by his employer listing his job as a physical therapist. Citizenship and Immigration

Services (“CIS”) denied his corresponding I-485 application for adjustment of status because

Kuppusamy did not pass Michigan’s physical therapist certification exam. A series of subsequent

filings failed to rectify the problem and Kuppusamy was ordered removed to India. The Board of

Immigration Appeals (“BIA”) affirmed.




       *
       The Honorable Lawrence P. Zatkoff, United States District Judge for the Eastern District
of Michigan, sitting by designation.
No. 10-3011                           Kuppusamy v. Holder                                   Page 2

       The BIA did not err in affirming the immigration judge’s determination that she lacked

jurisdiction over Kuppusamy’s new I-485 and in concluding Kuppusamy’s counsel did not

demonstrate good cause for a continuance. Moreover, equitable remedies cannot rectify the mistakes

in this case. Therefore, we DECLINE the petition for review.

                                       I. BACKGROUND

       Kuppusamy, a citizen of India, was granted advance parole into the United States by the

Department of Homeland Security (“DHS”) on March 23, 2006. His pending application for

adjustment of status (Form “I-485”) as a physical therapist was based on a petition for an immigrant

visa (Form “I-140”) that was filed by his employer. Kuppusamy filed a number of I-485 applications

corresponding to this I-140 culminating in an April 18, 2006 denial of his third I-485 (“original I-

485”) by CIS. On April 19, 2006, DHS issued a Notice to Appear charging Kuppusamy with

removability pursuant to § 212(a)(7)(A)(i)(I) of the Immigration and Nationality Act (“INA”). 8

U.S.C. § 1182(a)(7)(A)(i)(I).

A. May 17, 2006: Initial Hearing

       At his May 17, 2006 initial hearing before the immigration judge (“IJ”), Kuppusamy was

represented by attorney Sher Akhtar. Akhtar conceded Kuppusamy’s removability, but argued CIS

denied Kuppusamy’s I-485 merely because Kuppusamy failed the English portion of Michigan’s

physical therapist certification exam. The IJ determined she could not adjust Kuppusamy’s status

at this time because Michigan had not certified him to practice physical therapy.

       At the hearing, Akhtar presented an I-140 filed by Kuppusamy’s employer, Wellness Care.

The IJ pointed out that the only I-140 visa petition she had was filed by Primecare Physical Therapy

Inc. Akhtar explained that the companies were the same employer as one was merely a successor-in-
No. 10-3011                            Kuppusamy v. Holder                                    Page 3

function. The IJ concluded she did not have jurisdiction because the successor-in-function

determination must be made by CIS; however, she granted a continuance for counsel to file the

appropriate documentation with CIS.1 The new hearing was tentatively scheduled for October 23,

2006, three months after Kuppusamy was scheduled to take his physical therapist certification exam

yet again.

       On October 6, 2006, Primecare filed a second I-140, this time listing Kuppusamy’s job title

as a rehabilitation coordinator. This petition was approved by CIS on December 15. Instead of filing

a I-485 corresponding to the new I-140 with CIS, Akhtar filed the new I-485 directly with the

immigration court.

B. December 28, 2007: Second Hearing Before the IJ

       The proceedings to adjudicate Kuppusamy’s removability were continued until December

28, 2007. Akhtar did not alert the court to the change of the I-140 and I-485 before the court. The

IJ stated that the hearing was to adjudicate Kuppusamy’s removability due to the April 16, 2006

denial of the original I-485. Kuppusamy’s attorney argued that the I-485 filed directly with the court

was a modification of the old I-485 denied by CIS. The IJ disagreed and determined she had no

jurisdiction to review the new I-485 before her as it had not been presented to CIS.

       Counsel then requested another continuance to allow Kuppusamy to take the certification

exam a ninth time. The IJ denied the continuance request as untimely, noting local operating

procedures required the filing of a Motion for Continuance 14 days prior to the hearing. She

explained,



       1
        There is no evidence in the record counsel ever filed the documents with CIS to establish
successor-in-function status.
No. 10-3011                            Kuppusamy v. Holder                                        Page 4

       counsel had been advised by the Court of the necessity of submitting evidence of
       state certification, passage of the appropriate tests, at hearing in May of 2006. If the
       Respondent failed to pass successfully the certification requirements in 2006 or 2007
       counsel clearly had ample time to file a Motion for Continuance.

Administrative Record at 71. The IJ also denied Kuppusamy’s motion to terminate the proceedings.

The IJ specifically stated that Kuppusamy’s counsel should have filed the application for Adjustment

with CIS following the approval of the new I-140; had he done so, the new I-485 probably would

have been adjudicated by the December 28, 2007 hearing and the IJ would have had jurisdiction.

C. BIA Appeal

       Instead of attempting to file the new “rehabilitation coordinator” I-485 with CIS, Akhtar

appealed the IJ’s decision to the BIA. He argued that the application for adjustment of status was

the same as the original I-485, even though it was based on a different I-140, and that the IJ should

have granted a continuance to pursue the I-485 from the initial proceeding.

       The BIA affirmed on December 31, 2009. Its decision rejected the argument that the I-485

filed with the court was a renewal of the previously denied application. The BIA reasoned that when

an application for adjustment (I-485) relies on a new employment-based visa petition (I-140), the IJ

lacks jurisdiction because the adjustment of status application is new and must be reviewed by CIS

before the IJ may consider it. The BIA also held that the IJ was reasonable in denying a continuance

requested.

                                        II. DISCUSSION

A. Standard of Review

       When the BIA issues a separate opinion upon review of an IJ’s decision, this Court treats the

BIA ruling as the final agency determination. Morgan v. Keisler, 507 F.3d 1053, 1057 (6th Cir.
No. 10-3011                           Kuppusamy v. Holder                                    Page 5

2007). To the extent the BIA adopted the IJ’s reasoning, however, this Court also reviews the IJ’s

decision. Khalili v. Holder, 557 F.3d 429, 435 (6th Cir. 2009). Legal determinations are reviewed

de novo, but substantial deference is granted to the BIA’s interpretation of the INA and the

accompanying regulations. Morgan, 507 F.3d at 1057. This Court reviews both the IJ’s and the

BIA’s factual findings under the substantial-evidence standard, in which factual determinations are

sustained if they are “supported by reasonable, substantial, and probative evidence on the record

considered as a whole.” Al-Ghorbani v. Holder, 585 F.3d 980, 991 (6th Cir. 2009) (internal

quotation marks and citation omitted); see also Khalili, 557 F.3d at 435. This Court does not reverse

such findings simply because it would have decided them differently. Khalili, 557 F.3d at 435.

B. Issues on Appeal

       1. Petitioner’s Arguments

       Kuppusamy first argues that the IJ violated his due process rights by not informing him that

the I-485 was incorrectly filed, an issue not raised before the BIA. This Court lacks subject matter

jurisdiction to review Kuppusamy’s procedural due process claim because administrative remedies

were not exhausted on this issue. 8 U.S.C. § 1252(d)(1); Madrigal v. Holder, 572 F.3d 239, 243 (6th

Cir. 2009).2

       Petitioner’s second argument relates to issues of travel for advance parolees who previously

overstayed their visas and filed an I-131 application to travel. This section of Kuppusamy’s brief

fails to develop an argument discernibly related to the decisions below. However, for the first time



       2
         Although there is an exception to the exhaustion requirement for constitutional challenges
to the IJ and BIA decisions, that exception is irrelevant here because it applies only to claims
involving procedural problems that are not correctable by the BIA. See Sterkaj v. Gonzales, 439 F.3d
273, 279 (6th Cir. 2006); Lin v. Holder, 565 F.3d 971, 979 (6th Cir. 2009).
No. 10-3011                            Kuppusamy v. Holder                                    Page 6

at oral argument, counsel for Petitioner argued that Kuppusamy was not an arriving alien but,

instead, had visa overstay status. We do not address this argument because the claim was not

exhausted below as Kuppusamy never contested his status as an arriving alien before the IJ or BIA.

Madrigal, 572 F.3d at 243.

       2. The IJ’s Jurisdiction

       The second issue is jurisdictional. An IJ lacks jurisdiction over a I-485 that was not reviewed

by CIS. See 8 C.F.R. § 1245.2(a)(1)(ii) (describing the prerequisites for the IJ’s jurisdiction). When

adjustment of status is based on a new employment-based visa petition, the corresponding I-485 is

also new and the applicant is ineligible to apply for adjustment before the IJ until the I-485 is

reviewed by CIS. See Matter of Silitonga, 25 I.&N. Dec. 89, 92 (BIA 2009).

       The IJ had good reason to conclude the I-485 before her in the second hearing was new. This

I-485 was signed by Akhtar on January 30, 2007 and was filed with the immigration court along with

the newly approved I-140 that listed Kuppusamy’s job title as a rehabilitation coordinator. The IJ

reasonably concluded she lacked jurisdiction because this new I-485, corresponding to the new I-

140, was never reviewed by CIS. Therefore, the BIA did not err in affirming the IJ’s conclusion that

she lacked jurisdiction over the I-485 before her.

       3. Denial of the Request for Continuance

       On appeal to the BIA, Akhtar also argued the IJ erred in not granting Kuppusamy another

continuance on his initial I-485. An IJ has discretion to continue immigration proceedings upon a

showing of good cause. 8 C.F.R. § 1003.29.3 The IJ decided not to continue the proceedings


       3
        Generally, this Court does not have jurisdiction to review the IJ’s discretionary decisions.
See 8 U.S.C. § 1252(a)(2)(B); Kucana v. Holder, 130 S.Ct. 827, 831–32 (2010). However, in Young
Hee Kwak v. Holder we held, even in light of Kucana, this Court has jurisdiction to review denials
No. 10-3011                             Kuppusamy v. Holder                                     Page 7

because the motion was untimely. Kuppusamy’s counsel requested a continuance at the hearing even

though the rules required filing at least 14 days in advance. Moreover, Kuppusamy took the physical

therapist certification test approximately five months before the second hearing and, as found by the

IJ, had ample time to ask before the hearing for another continuance to allow Kuppusamy to retake

the certification exam yet again. Because the motion for continuance could have been filed well

before 14 days in advance of the hearing, the BIA did not abuse its discretion in affirming the IJ’s

decision not to grant a continuance. See Ukpabi v. Mukasey, 525 F.3d 403, 407 (6th Cir. 2008)

(reviewing the BIA’s affirmance of the IJ’s denial of a motion for continuance under an abuse-of-

discretion standard); see also Ilic-Lee v. Mukasey, 507 F.3d 1044, 1047 (6th Cir. 2007) (an abuse

of discretion occurs if “the denial . . . was made without a rational explanation, inexplicably departed

from established policies, or rested on an impermissible basis such as invidious discrimination.”)

(internal quotation marks and citation omitted).

C. Availability of Equitable Remedies

        Principles of equity govern this Court’s ability to consider issues sua sponte to prevent

manifest injustice. And we have done so. See Brown v. Crowe, 963 F.2d 895, 898 (6th Cir. 1992)

(“[A] federal appellate court is always empowered to resolve any issue not considered below ‘where

the proper resolution is beyond any doubt or where injustice . . . might otherwise result.’”) (quoting

Meador v. Cabinet for Human Res., 902 F.2d 474, 477 (6th Cir. 1990)). This Court has held that

ineffective assistance of counsel in an immigration case may be appropriate grounds for equitable

tolling. See Mezo v. Holder, 615 F.3d 616, 620 (6th Cir. 2010). Equitable tolling or another



of a motion for a continuance because the IJ’s discretion over these motions derives not from statute
but from 8 C.F.R. § 1003.29. 607 F.3d 1140, 1143 (6th Cir. 2010).
No. 10-3011                            Kuppusamy v. Holder                                    Page 8

equitable remedy, however, cannot aid Kuppusamy. Kuppusamy cannot file the new I-485 because

his visa is no longer current. Moreover, he has already left the country and thus would not be present

in the United States as required to pursue the new I-485.

                                       III. CONCLUSION

       The circumstances of this case are unfortunate. Kuppusamy was valued by his employer and

his removal could have been avoided by proper filing of his immigration forms. However, the IJ did

not err in ordering Kuppusamy’s removal to India. Therefore, we DECLINE the petition for review.
