                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                 January 11, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 05-60204
                          Summary Calendar



RAMZAN ALI LAKHANI

                 Petitioner

     v.

ALBERTO R GONZALES, U S ATTORNEY GENERAL

                 Respondent



               Petition for Review of an Order of the
                     Board of Immigration Appeals
                            No. A79 008 101


Before KING, Chief Judge, and WIENER and DEMOSS, Circuit Judges.

PER CURIAM:*

     Petitioner Ramzan Ali Lakhani petitions this court for

review of a final order of the Board of Immigration Appeals.          For

the following reasons, we GRANT the government’s motion to

dismiss the petition for review in part for lack of jurisdiction

and DENY the equal protection challenge.




     *
        Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.

                                 -1-
                I. FACTUAL AND PROCEDURAL BACKGROUND

     On October 19, 1998, Lakhani, a native and citizen of

Pakistan, entered the United States as a non-immigrant visitor

with authorization to remain for six months.    Lakhani later

received a six-month extension, authorizing him to remain in the

United States until October 18, 1999.    Since then, he has

remained in the United States without authorization.

     On April 19, 2001, an application of labor certification was

filed with the United States Department of Labor seeking to

sponsor Lakhani for employment.    As required by law, Lakhani

subsequently registered with the National Security Entry-Exit

Registration System (“NSEERS”).    On March 19, 2003, the

Department of Homeland Security (“DHS”) issued Lakhani a Notice

to Appear (“NTA”), charging him with removability under section

237(a)(1)(B) of the Immigration and Nationality Act, 8 U.S.C.

§ 1227(a)(1)(B).1

     On September 8, 2003, at his initial hearing before the

Immigration Judge (“IJ”), Lakhani conceded the charges of

removability.   At the hearing, after the IJ asked Lakhani’s

counsel if he wished to designate a country of removal and

received a negative reply, the following colloquy occurred:

     1
        The government, in its motion to dismiss, contends that
the DHS initiated removal proceedings on April 24, 2003, with the
filing of the NTA. A review of the record shows that a special
agent served Lakhani with the NTA on March 19, 2003. The copy is
stamped “RECEIVED” by the DHS on April 24, 2003. A.R. at 350-51;
see also id. at 160, 167.

                                  -2-
     JUDGE:       All right.    In the absence of designation
                  Court corrects removal to [Lakhani’s] native
                  country of Pakistan.   And what relief would
                  [Lakhani] be seeking?

     COUNSEL:     Your Honor, there’s a labor certification
                  filed in this case dated April 19th, 2001, I’m
                  not aware at this time of any approval of a
                  labor –-

     JUDGE:       April --

     COUNSEL:     19th --

     JUDGE:       -- 19 of –-

     COUNSEL:     2001.

     JUDGE:       -- 2001.

     COUNSEL:     Not aware of any approval of a labor
                  certification at this time (indiscernible).

     JUDGE:       All right.    What relief will you be seeking?

     COUNSEL:     Withholding of removal and voluntary departure
                  in the alternative at the conclusion.

     JUDGE:       And is [Lakhani] declining voluntary
                  departure -- or at the completion of
                  proceedings?

     COUNSEL:     Yes, Your Honor.

     JUDGE:       When can you file applications –- any other
                  relief first of all?

     COUNSEL:     No, Your Honor.

A.R. at 174-75.     After hearing Lakhani’s requests for withholding

of removal, or in the alternative, voluntary departure, and

asking Lakhani’s counsel about the relief Lakhani was seeking,

the IJ proceeded to set the case for a hearing on the merits.

     On October 22, 2003, Lakhani filed his application for


                                     -3-
withholding of removal.   At his second hearing before the IJ on

November 5, 2003, Lakhani testified before the IJ in an attempt

to prove his claim for withholding of removal.   During the

hearing, neither Lakhani’s counsel nor the government asked

Lakhani questions about his application for labor certification

or requested a continuance.   At the conclusion of the hearing,

the IJ denied Lakhani’s requests for withholding of removal and

voluntary departure and ordered him removed to Pakistan.   The IJ

concluded that Lakhani’s testimony was not credible and that even

if Lakhani was credible, he had failed to meet his burden of

proof for the requested relief.

     On November 24, 2003, Lakhani appealed the IJ’s decision to

the Board of Immigration Appeals (“BIA”).   In his BIA appeal,

Lakhani challenged, inter alia, the IJ’s failure to continue the

proceedings based on Lakhani’s pending labor certification

application.   Lakhani did not challenge the IJ’s failure to

continue the proceedings on due process or equal protection

grounds.

     On February 14, 2005, the BIA adopted and affirmed the IJ’s

order in a per curiam opinion.    The only BIA holding relevant to

Lakhani’s petition for review is the BIA’s decision declining to

consider Lakhani’s argument that the IJ erred in not granting a

continuance.   Specifically, the BIA found that the issue had

neither been raised before nor ruled upon by the IJ.   The BIA

concluded that the record did not reflect that Lakhani ever

                                  -4-
requested a continuance during the hearing and determined that it

lacked jurisdiction to consider the issue.    See A.R. at 3 (citing

Matter of Jimenez, 21 I. & N. Dec. 567 (B.I.A. 1996) (issue

raised on appeal but neither raised before nor ruled upon by the

IJ not properly before the BIA)).

     On March 15, 2005, Lakhani filed this timely petition for

review of the BIA’s decision.    In his petition for review,

Lakhani argues that by failing to continue the proceedings to

allow him to pursue his application for adjustment of status, the

IJ violated his Legal Immigration Family Equity (“LIFE”) Act2

relief rights and his due process and equal protection rights

under the Fifth Amendment.    On July 18, 2005, the government

filed a motion to dismiss in lieu of an opening brief.

                           II. DISCUSSION

     As a preliminary matter, the government contends that this

court lacks jurisdiction to consider Lakhani’s petition for

review.    According to the government, there is nothing in the

colloquy between Lakhani’s counsel and the IJ that could remotely

be construed as a request by Lakhani to continue his removal

proceedings.    The government asserts that Lakhani was required to

exhaust his continuance request before the IJ because the

regulations give the IJ the discretionary authority to grant a

continuance upon a showing of good cause.    See Resp’t Mot. to


     2
          Pub. L. No. 106-554, 114 Stat. 2763 (2000).

                                 -5-
Dismiss at 6 (citing 8 C.F.R. § 1003.29 (2005) (“The Immigration

Judge may grant a motion for continuance for good cause

shown.”)); see also Witter v. INS, 113 F.3d 549, 555 (5th Cir.

1997) (“The grant of a continuance of a deportation hearing lies

within the sound discretion of the immigration judge, who may

grant a continuance upon a showing of good cause.”).    His failure

to exhaust his administrative remedies, according to the

government, precludes this court’s review of his petition for

review.   See 8 U.S.C. § 1252(d)(1) (2000) (noting that a court

may review a final order of removal only if the alien has

exhausted all administrative remedies).   Thus, the government

requests that this court dismiss Lakhani’s petition for review

for lack of jurisdiction.

     In response to the government’s motion to dismiss, Lakhani

argues:

     The identification of the pending labor certification as
     a form of relief, was, in fact, a continuance request
     since the only way relief could be granted on that ground
     was if the removal proceedings were continued in order to
     permit adjudication. The [IJ] overruled that request by
     setting the hearing on the merits without allowing a
     continuance.

Pet’r Resp. at 2.

     We note, as an initial matter, that this court has

jurisdiction to determine the proper scope of its own

jurisdiction.   See Flores-Garza v. INS, 328 F.3d 797, 802 (5th

Cir. 2003); see also Okoro v. INS, 125 F.3d 920, 925 n.10 (5th

Cir. 1997) (“When judicial review depends on a particular fact or

                                -6-
legal conclusion, then a court may determine whether that

condition exists.   The doctrine that a court has jurisdiction to

determine whether it has jurisdiction rests on this

understanding.”) (internal quotation marks and citation omitted).

After carefully reviewing the administrative record, we conclude

that we do not have jurisdiction over Lakhani’s LIFE Act and due

process claims because Lakhani did not request a continuance

before the IJ and thus failed to exhaust his administrative

remedies.

     Based on the colloquy between Lakhani’s counsel and the IJ,

Lakhani clearly did not request a continuance before the IJ.

When asked several times by the IJ what relief Lakhani would be

seeking, Lakhani’s counsel identified only Lakhani’s claims for

withholding of removal and voluntary departure.   Lakhani’s

counsel never asked the IJ for a continuance or implied that

Lakhani was seeking a continuance to pursue rights applicable to

his pending labor certification application.   There is simply

nothing in the record--at either the September 8, 2003 or

November 5, 2003 hearing--that can be construed as a request for

a continuance.   Lakhani’s assertion to the contrary

mischaracterizes the colloquy between his counsel and the IJ and

the administrative record as a whole.   Because Lakhani did not

request a continuance before the IJ, thus giving the IJ the

discretionary authority to grant or deny the continuance pursuant

to 8 C.F.R. § 1003.29, Lakhani has not exhausted his

                                -7-
administrative remedies.    In light of Lakhani’s failure to

exhaust his administrative remedies, we do not have jurisdiction

to consider his argument that the IJ violated his LIFE Act relief

rights by not continuing the proceedings.    See Cardoso v. Reno,

216 F.3d 512, 518 (5th Cir. 2000) (“As a matter of jurisdiction,

courts may not review the administrative decisions of the INS

unless the appellant has first exhausted ‘all administrative

remedies.’”) (quoting 8 U.S.C. § 1252(d)(1)); see also Witter,

113 F.3d at 554.

     With regard to his due process challenge, Lakhani contends

that the IJ’s “arbitrary failure” to grant him a continuance to

pursue his application for adjustment of status violated his due

process rights.    As this argument is inextricably intertwined

with our discussion concerning Lakhani’s failure to request a

continuance before the IJ (and corresponding failure to exhaust

his administrative remedies), it is axiomatic that this due

process challenge has no merit.3   Accordingly, we grant the

government’s motion to dismiss in part for lack of jurisdiction.


     3
        Even if we had jurisdiction to consider Lakhani’s due
process claim, Lakhani could not prevail because he is
challenging the IJ’s failure to continue the proceedings, which
is a form of discretionary relief. See 8 C.F.R. § 1003.29. This
court previously has determined that there is no constitutionally
protected right to discretionary relief. See Manzano-Garcia v.
Gonzales, 413 F.3d 462, 471 (5th Cir. 2005) (“[W]hat the
[petitioners] presuppose is that they have a constitutionally
protected right to actual discretionary relief from removal or to
be eligible for such discretionary relief . . . . This is
incorrect.”).

                                 -8-
     We do have jurisdiction, however, to consider Lakhani’s

equal protection challenge.   Even though Lakhani failed to raise

this claim before the BIA, we retain jurisdiction to consider

“substantial constitutional claims.”    See 8 U.S.C.

§ 1252(a)(2)(D) (noting that nothing in the provisions limiting

or eliminating judicial review “shall be construed as precluding

review of constitutional claims”); see also Flores-Ledezma v.

Gonzales, 415 F.3d 375, 380 (5th Cir. 2005) (stating that the

amendments under the REAL ID Act of 2005 preserve, if not expand,

this circuit’s settled case law that we have jurisdiction to

consider “substantial constitutional claims”) (internal quotation

marks and citations omitted).   We review constitutional

challenges de novo.    See De Zavala v. Ashcroft, 385 F.3d 879, 883

(5th Cir. 2004); Ogbemudia v. INS, 988 F.2d 595, 598 (5th Cir.

1993).

     Lakhani asserts that the requirement that he register under

NSEERS triggered the initiation of his removal proceedings.

Because NSEERS targets only non-immigrant males over age sixteen

from certain targeted countries, including Pakistan, Lakhani

contends that his registration with NSEERS alerted the government

to his expired visa.   Lakhani alleges that other aliens with

pending labor certification applications who do not meet the

requirements of NSEERS are not required to register and thus are

not at risk of being placed in removal proceedings.    According to

Lakhani, such “disparate treatment” violated his equal protection

                                 -9-
rights under the Fifth Amendment.

     We find no merit in Lakhani’s equal protection argument.

This court previously has noted that the Attorney General has

broad discretion to initiate removal proceedings against aliens

who violate the immigration laws of the United States.   See

Cardoso, 216 F.3d at 517 (stating that Congress has intended “to

protect from judicial intervention the Attorney General’s long-

established discretion to decide whether and when to prosecute or

adjudicate removal proceedings or to execute removal orders”)

(internal quotation marks and citation omitted).   Lakhani does

not challenge the fact that he remained in the United States

beyond the expiration date of his temporary visa in violation of

§ 1227(a)(1)(B).   Because the IJ found Lakhani removable on

§ 1227(a)(1)(B) grounds and not pursuant to his registration

under NSEERS, we reject Lakhani’s equal protection challenge.4

     4
        Moreover, in considering an equal protection challenge
against certain nationality-sensitive provisions in the
Nicaraguan Adjustment and Central American Relief Act (“NACARA”),
this court previously has stated:
     The core of Congress’s power over immigration is the
     ability to set the requirements an alien must meet to
     qualify for admission to, or continued residence in, the
     United States or for naturalization as a United States
     citizen. Due process does not require Congress to grant
     aliens from all nations the same chances for admission to
     or remaining within the United States.      Congress may
     permissibly set immigration criteria that are sensitive
     to an alien’s nationality or place of origin. . . . We
     hold that the equal protection principles that are
     implicit in the Due Process Clause of the Fifth Amendment
     do not in any way restrict Congress’s power to use
     nationality or place of origin as criteria for the
     naturalization of aliens or for their admission to or

                               -10-
                         III. CONCLUSION

     For the foregoing reasons, we GRANT the government’s motion

to dismiss for lack of jurisdiction in part and DENY the petition

for review on Lakhani’s equal protection claim.   All pending

motions are denied.




     exclusion or removal from the United States.
Rodriguez-Silva v. INS, 242 F.3d 243, 248 (5th Cir. 2001); see
also Zafar v. U.S. Att’y Gen., 426 F.3d 1330, 1336 (11th Cir.
2005) (holding that the “[p]etitioners’ equal protection rights
were not violated by being required to be registered in the
[NSEERS], which they argue precipitated them being placed in
these discretionary removal proceedings by the Attorney General,
where other non-Pakistani citizens were not so required to
register”).

                              -11-
