                           In the
 United States Court of Appeals
              For the Seventh Circuit
                        ____________

No. 05-3965
SHAIKH W. AHMED,
                                                      Petitioner,
                              v.

ALBERTO R. GONZALES,
Attorney General
of the United States,
                                                     Respondent.
                        ____________
                  Petition for Review of an Order
              of the Board of Immigration Appeals.
                         No. A76-773-978
                        ____________
   ARGUED AUGUST 8, 2006—DECIDED OCTOBER 16, 2006
                    ____________


  Before MANION, ROVNER, and SYKES, Circuit Judges.
  PER CURIAM. Shaikh Ahmed, who overstayed a visitor’s
visa, conceded removability but contended that he was
“grandfathered” under section 245(i) of the Immigration and
Nationality Act (“INA”)—which means that he would be
entitled to apply for adjustment of status to become
a permanent resident when a visa became available.
Ahmed’s grandfathered status was based on a family-based
visa petition his sister filed on his behalf. He informed the
Immigration Judge (“IJ”) about that petition, but then
requested a continuance to simultaneously pursue adjust-
2                                                No. 05-3965

ment of status through the labor certification process. The
IJ denied a continuance because no labor certification
application had been filed at the time of the hearing. But
the IJ did not address the family-based visa petition that
had been filed. Ahmed now contends the decision was
unreasoned. We grant his petition for review.


                      I. Background
  Ahmed, a native and citizen of Pakistan, came to the
United States in September 1994 and overstayed his six-
month visitor’s visa. In spring 2003 the Immigration and
Naturalization Service (now Department of Homeland
Security (“DHS”)), began removal proceedings against
him for overstaying. He had a hearing before an IJ on
May 9, 2003, and was granted a continuance to get a
lawyer.
  At his second hearing seven months later, Ahmed con-
ceded removability but explained that he was attempting to
adjust his immigration status to legal permanent resident
because he was grandfathered under section 245(i) of the
INA. His grandfathered status, he said, was based on a
family-based visa petition—filed by his sister in 1995—
naming him as a beneficiary. That petition, he admitted,
did not automatically entitle him to a visa at the time of the
hearing or to immediately apply for adjustment of status,
but it did entitle him to apply for adjustment of status,
without leaving the United States, when a visa became
available.
  At the hearing Ahmed sought a continuance so that he
could pursue a visa through an employment-based visa
application. Ahmed told the IJ that his employer had begun
the process of obtaining a labor certification that he
planned to file in support of an employment-based visa
application. Confronted with the possibility that Ahmed
might later become eligible for permanent resident status,
No. 05-3965                                                   3

the IJ asked the DHS attorney whether the agency had
a policy on what to do with aliens in Ahmed’s position.
Counsel said it did not, but opposed the continuance
nonetheless.
  The IJ denied the continuance. Without addressing the
effect of the family-based visa petition filed by Ahmed’s
sister, the IJ said, “I’m going to find that you’re not eligible
for permanent resident status at this time. But you may
be eligible in the future, but you’re not now, and since
you violated your visitor status, I have to enter a departure
order.” The IJ noted Ahmed’s grandfathered eligibility to
seek adjustment of status when a visa became available,
but decided that since Ahmed had not yet filed his labor
certification, he was not “prima facie” eligible for adjust-
ment of status. Therefore, he had not shown good cause for
the “indefinite continuance” that he sought. “Even if a labor
certification is filed,” added the IJ, “this still would not
mean that the respondent is prima facie eligible for adjust-
ment of status under Section 245 of the Act.” The IJ
concluded the proceedings by granting Ahmed voluntary
departure.
  Ahmed appealed to the BIA, arguing generally that the
IJ’s decision to deny the continuance was unreasoned and
that it deprived him of his right to pursue adjustment
of status. The BIA affirmed. It too focused on the labor
certification as a basis for adjustment of status without
commenting on the fact that Ahmed was the beneficiary of
a family-based visa petition. The BIA stated that at the
time of hearing, “the respondent admitted that a labor
certification had not yet even been filed on his behalf, much
less approved.” The BIA observed that “the respondent had
not shown that he was prima facie eligible for any relief,”
and agreed that Ahmed was not entitled to “an indefinite
continuance pending the filing and anticipated approval of
a labor certification.”
4                                                 No. 05-3965

  In his petition for review, Ahmed argues that the IJ
and BIA wrongly concluded that he was not prima facie
eligible for relief. He maintains that, in fact, he was eligible
for adjustment of status on account of his status as a
grandfathered alien by virtue of the visa petition filed by
his sister. And, anticipating a jurisdictional problem
because of the discretionary nature of the IJ’s decision,
Ahmed argues that we have jurisdiction to review this
particular discretionary decision because the IJ and BIA
stripped him of his right to pursue adjustment of status
under section 245(i) without giving a reason consistent with
the statute, contrary to Subhan v. Ashcroft, 383 F.3d 591
(7th Cir. 2004).


                       II. Discussion
  Before addressing our jurisdiction, we summarize the
so-called grandfather provisions of section 245(i). Pursu-
ant to 8 U.S.C. § 1255(i), an alien who overstays his visa is
grandfathered under section 245(i) of the Immigration and
Nationality Act and therefore can apply for adjustment of
status without leaving the United States if he or she is the
beneficiary of a visa petition or labor certification applica-
tion filed before the end of April 2001. The alien cannot file
the application for adjustment of status, though, until a
visa has become available, 8 U.S.C. §§ 1255(a)(3),
1255(i)(2)(B), and the regulations refer to an alien whose
visa has become available as “eligible” to apply for adjust-
ment of status, 8 C.F.R. §§ 245.10(b)(2), 1245.10(b)(2). Thus,
a grandfathered alien is entitled to apply for adjustment of
status but is not prima facie eligible for adjustment of
status until the visa becomes available. Compare 8 U.S.C.
§ 1255(i)(1), with 8 C.F.R. §§ 245.10(b)(2), 1245.10(b)(2).
That creates a sort of “limbo” for properly grandfathered
aliens whose visas are still not available by the time they
are ordered to appear for removal proceedings. As counsel
No. 05-3965                                                  5

for the government admitted, the immigration agency has
offered no guidance on how these cases ought to be handled.
  By requesting a continuance to pursue a labor certifica-
tion application, Ahmed attempted to speed up his eligibil-
ity for adjustment of status. He believed that obtaining
an employment-based visa would be faster than waiting
for his priority date on his sister’s petition to become
current. Ahmed argues that the IJ erred in denying a
continuance because the fact that he was grandfathered and
waiting for the issuance of a visa on his sister’s petition was
“good cause” to warrant the grant of a continuance.
  Ahmed is correct that a continuance may be granted
for “good cause.” 8 C.F.R. § 1002.39; Subhan, 383 F.3d
at 595. But since the denial of a continuance is a discretion-
ary decision, the Attorney General’s response is that we
lack jurisdiction to review it. True, we are barred from
reviewing most discretionary decisions, including the denial
of a continuance by an IJ. 8 U.S.C. § 1252(a)(2)(B)(ii);
Subhan, 383 F.3d at 595. But we have held that
§ 1252(a)(2)(B) does not bar us from reviewing a decision
that would, without stated reasons consistent with the
statute, operate to prevent an alien from pursuing statutory
rights. Subhan, 383 F.3d at 595. And that situation exists
here. Ahmed is statutorily entitled under § 1255(i) to adjust
his status when a visa becomes available, but the decisions
by the BIA and IJ ordering his removal effectively prevent
him from doing so. To adjust status, an alien must be
physically present in the United States. 8 C.F.R.
§§ 245.10(b)(1), 1245.10(b)(1).
  To determine whether we have jurisdiction, therefore,
we must decide whether the IJ gave a reason consistent
with § 1255(i) for denying Ahmed the right to apply for
adjustment of status. Subhan, 383 F.3d at 595. In Subhan
the only reason the IJ gave for denying a grandfathered
alien’s request for a continuance was that he was not
6                                                No. 05-3965

yet eligible for relief. Id. at 593. We characterized that
statement as an explanation about the posture of his
case—not a reason to deny a continuance—and granted the
petition for review. Id. We held that any reason consistent
with the statute, like foot-dragging, criminal activity, or
lack of merit to his application, could have justified the IJ’s
decision. Id. at 593-94; Pede v. Gonzales, 442 F.3d 570, 571
(7th Cir. 2006). But without such a reason, the agency’s
action could not stand. Subhan, 383 F.3d at 595.
   Here, as in Subhan, the IJ’s reason for denying Ahmed’s
request for a continuance was that he was not yet eligible
to apply for adjustment of status because the paperwork
to pursue the labor certification process had not been
filed. The Attorney General argues that Ahmed’s case is
different than Subhan because there the alien’s labor
certification application had already been filed at the time
of the hearing. That may be a distinction, but it is a distinc-
tion without a difference because it misses a
more important point: Ahmed was already grandfathered
and waiting for a visa through his family-based visa
petition. Ahmed’s pursuit of the additional labor certifica-
tion application was simply an effort to speed up the
issuance of the visa.
   We cannot say that the refusal to grant a continuance was
reasoned where the IJ ignored the effect of Ahmed’s family-
based visa petition. The IJ knew that Ahmed’s sister had
filed the petition and that he was simply waiting for his
priority date to become available. Hernandez v. Ashcroft,
345 F.3d 824, 842-43 (9th Cir. 2003) (explaining that IJ’s
knowledge of alien’s priority date meant that IJ knew
family visa petition had been approved). The Attorney
General’s response is that Ahmed could not apply for
adjustment of status on the basis of his sister’s petition
because at the time he sought the continuance, an immi-
grant visa was not “immediately available” to him. 8 U.S.C.
§§ 1255(a)(3), 1255 (i)(2)(B). Apparently, in December 2003,
No. 05-3965                                                7

when Ahmed sought the continuance, the priority date for
family-based visa petitions like his was February 1,
1992—meaning that only petitions filed before that date
were current as of December 2003. 8 C.F.R. § 245.1(g)(1);
U.S. Department of State, Visa Bulletin (December 2003)
reprinted at http://www.immigration.com/newsletter/2003-
12.html. Since Ahmed’s sister did not file the petition until
1995, the Attorney General continues, an immigrant visa
was not immediately available to Ahmed in December 2003,
and he was not eligible to apply for adjustment of status
at that time. Hernandez, 345 F.3d at 842-45 (explaining
process by which immigrant visas become current according
to priority dates).
  But he was grandfathered and therefore statutorily
entitled to apply. To say that he was not yet eligible is, as
we held in Subhan, simply a statement of the procedural
posture of the case. The absence of an immediately avail-
able visa is not a reason to deny a continuance “but
merely a statement of the obvious.” Subhan, 383 F.3d at
593. But see Ahmed v. Gonzales, 447 F.3d 433, 437-38 (5th
Cir. 2006) (holding that denial of continuance because
grandfathered alien did not yet possess immigrant visa
is not abuse of discretion); Zafar v. U.S. Att’y. Gen.,
426 F.3d 1330, 1335-36 (11th Cir. 2005) (same). The alien
in Subhan did not have a visa immediately available to him
at the time of the hearing because the Department of Labor
had not approved his labor certification application by that
point (and a visa does not become immediately available at
least until the labor certificate is approved, 8 U.S.C.
§ 1182(a)(5); Zafar, 426 F.3d at 1336). Subhan, 383 F.3d at
593. Ahmed’s case is no different; he did not have a visa
immediately available to him at the time of the hearing
because he was waiting for his priority date on his sister’s
visa petition to become current. Accordingly, we GRANT the
petition for review and REMAND to the agency for proceed-
ings consistent with this opinion.
8                                         No. 05-3965

A true Copy:
      Teste:

                    ________________________________
                    Clerk of the United States Court of
                      Appeals for the Seventh Circuit




               USCA-02-C-0072—10-16-06
