                                                             [DO NOT PUBLISH]




              IN THE UNITED STATES COURT OF APPEALS
                                                           FILED
                       FOR THE ELEVENTH CIRCUIT   U.S. COURT OF APPEALS
                         ________________________   ELEVENTH CIRCUIT
                                                        APRIL 17, 2008
                                                     THOMAS K. KAHN
                               No. 07-13655
                                                          CLERK
                           Non-Argument Calendar
                         ________________________

                             BIA No. A97-941-994

JOAN ELIZABETH LINDSAY,

                                                               Petitioner,

                                     versus

U.S. ATTORNEY GENERAL,

                                                               Respondent.

                         ________________________

                    Petition for Review of a Decision of the
                         Board of Immigration Appeals
                         _________________________

                                (April 17, 2008)

Before TJOFLAT, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

     Petitioner Joan Elizabeth Lindsay, a native and citizen of Jamaica, seeks
review of the Board of Immigration Appeals’ (“BIA”) decision dismissing her

appeal of the order of removal of an Immigration Judge (“IJ”) issued after denying

her request to “terminate” the removal proceeding under the LIFE Act, 8 U.S.C.

§ 1255(I).1 The BIA concluded that Lindsay failed to demonstrate that an I-130

family-sponsored visa petition had been approved; therefore, she was not eligible

for adjustment of status under § 1255(I). The I-130 petition was purportedly filed

on her behalf by her sister, who is a United States citizen. In her appeal to us,

Lindsay appears to argue that approval of the I-130 petition was not required to

preserve her eligibility to apply for adjustment of status under § 1255(I).

       As indicated above, Lindsay moved the IJ to “terminate” the removal

proceedings. We construe her motion as a motion for a continuance under 8 C.F.R.

§ 1003.29. See 8 C.F.R. § 1003.29 (permitting the IJ to grant a continuance if

good cause is shown). We review the denial of a motion for the continuance of a

removal proceeding for an abuse of discretion. Zafar v. U.S. Att’y Gen., 461 F.3d

1357, 1362 (11th Cir. 2006).

       1
             Legal Immigration Family Equity Act (“LIFE”), Pub. L. No. 106-553, 114 Stat.
2762A-142 through 2762A-149 (2000); LIFE Act Amendments of 2000, Pub. L. No. 106-554,
114 Stat. 2763A-324 through 2763A-326. The case began with a Notice to Appear charging
petitioner and her husband, Desmond Ewart Lindsey, with removability under 8 U.S.C. §
1227(a)(1)(B) on the ground that they had remained in the United States beyond the period of
authorization. They conceded removability, but applied for asylum, withholding of removal
under the Immigration and Nationality Act and the Convention Against Torture. They
subsequently abandoned their application, leaving the LIFE Act issue presented here as the sole
issue remaining in the case. Petitioner’s husband has not joined petitioner in the proceeding
before us.
                                                2
       Under the LIFE Act, certain aliens may apply to the Attorney General for

adjustment of status to that of an alien lawfully admitted for permanent residence.

8 U.S.C. § 1255(i)(1). To be eligible to apply, the alien must be a beneficiary of

either a petition for classification or an application for a labor certification filed

before April 30, 2001. 8 U.S.C. § 1255(i)(1)(B). A petition for classification

includes an I-130 Petition for an Alien Relative filed on behalf of a sibling. See 8

U.S.C. § 1154(a)(1)(A)(i), cross referencing 8 U.S.C. § 1153(a)(4); 8 C.F.R.

§§ 204.1(a)(1), 204.2(g).

       In addition to filing the petition for classification or application for a labor

certification before April 30, 2001, to be eligible to apply for adjustment of status,

the alien must meet the definition of a “grandfathered alien.” 8 C.F.R.

§ 1245.10(b). A “grandfathered alien” includes a beneficiary of a petition or

application that was properly filed before April 30, 2001, and was “approvable

when filed.” 8 C.F.R. § 1245.10(a)(1)(i)(A). “Approvable when filed” means that

the petition “was properly filed, meritorious in fact, and non-frivolous.” 8 C.F.R.

§ 1245.10(a)(3). Furthermore, a beneficiary of a petition that was filed after

January 4, 1998, must also have been physically present in the United States by

December 21, 2000. 8 U.S.C. § 1255(i)(1)(C); 8 C.F.R. § 1245.10(a)(1)(ii).

       Once the Attorney General has received an application for adjustment of

status, he may adjust the alien’s status if: “(A) the alien is eligible to receive an
                                             3
immigrant visa and is admissible to the United States for permanent residence; and

(B) an immigrant visa is immediately available to the alien at the time the

application is filed.” 8 U.S.C. § 1255(i)(2)(A)-(B).

      In Zafar v. U.S. Att’y Gen., we addressed adjustment of status relief under

§ 1255(i) in the labor context. 461 F.3d at 1362. There we held that the IJ

committed no abuse of discretion by denying the petitioners’ motion to continue

the removal proceeding where the petitioners did not yet have approved labor

certifications and had not filed visa applications or applications for adjustment of

status under § 1255(i). Id. This holding was based on the fact that the petitioners

failed to satisfy the statutory criteria for adjustment of status under § 1255(i)(2),

namely, eligibility to receive an immigrant visa and the immediate availability of

such a visa. Id. at 1363-64. In Merchant v. U.S. Att’y Gen., 461 F.3d 1375, 1377-

80 (11th Cir. 2006), we found an abuse of discretion in the IJ’s denial of a

continuance where the petitioner had an approved labor certification and had filed

both a visa application and an application for adjustment of status. Even though he

did not have the visa in hand, the petitioner met the statutory criteria. Id. at 1378-

79. We distinguished Merchant from Zafar, as Merchant “expressly left open

issues involving stages of this process beyond the mere filing of the application for

labor certification.” Id. at 1380. In Haswanee v. U.S. Att’y Gen., 471 F.3d 1212,

1216-17 (11th Cir. 2006), after similarly distinguishing Zafar, we applied
                                            4
Merchant and held that the IJ abused his discretion by denying a motion for

continuance where the petitioner had an approved labor certification, had filed a

visa petition, but had not filed an application for adjustment of status under

§ 1255(i). This holding was again based on the fact that the petitioner had

satisfied the statutory criteria for adjustment of status under § 1255(i)(2). Id. at

1217-18.

      In the present case, to continue the removal proceeding, Lindsay was

required by our precedent to demonstrate that she was eligible for

adjustment-of-status-relief under § 1255(i)(2). She failed to do so. The BIA did

not abuse its discretion in dismissing her appeal. Her petition is therefore due to be

denied.

      PETITION DENIED.




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