Ahmed v. Gonzales

• Decision Date: 16 October 2006
• Docket Number: No. 05-3965.,05-3965.
• Parties: Shaikh W. AHMED, Petitioner, v. Alberto R. GONZALES, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

465 F.3d 806

Shaikh W. AHMED, Petitioner, v. Alberto R. GONZALES, Attorney General of the United States, Respondent.

No. 05-3965.

United States Court of Appeals, Seventh Circuit.

Argued August 8, 2006.

Decided October 16, 2006.

Guy Croteau (argued), Immigration Law Center, Chicago, IL, for Petitioner.

Karen Lundgren, Department of Homeland Security Office of the Chief Counsel, Chicago, IL, William C. Erb, Jr., Hillel R. Smith (argued), Department of Justice Civil Division, Immigration Litigation, Washington, DC, for Respondent.

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 adjustment 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 conceded 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, 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 adjustment 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 adjustment 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."

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). Pursuant 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 application 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 adjustment 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 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 certification application, Ahmed attempted to speed up his eligibility 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 discretionary 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...