Ahmed v. Gonzales

• Decision Date: 24 April 2006
• Docket Number: No. 05-60032.,05-60032.
• Citation: 447 F.3d 433
• Parties: Mushtaq AHMED, Petitioner, v. Alberto R. GONZALES, United States Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 433

447 F.3d 433

Mushtaq AHMED, Petitioner, v. Alberto R. GONZALES, United States Attorney General, Respondent.

No. 05-60032.

United States Court of Appeals, Fifth Circuit.

April 24, 2006.

William F. Harmeyer (argued), William F. Harmeyer & Associates, Houston, TX, for Petitioner.

Anthony P. Nicastro (argued), U.S. Dept. of Justice, Civil Div. Immigration Litigation, Thomas Ward Hussey, Director, U.S. Dept. of Justice, Office of Immigration Litigation, Alberto R. Gonzales, U.S. Dept. of Justice, Barry Joseph Pettinato, U.S. Dept. of Homeland Sec., Washington, DC, Caryl G. Thompson, U.S. I.N.S., Attn: Joe A. Aguilar, New Orleans, LA, Sharon A. Hudson, U.S. Citizenship & Immigration Services, Houston, TX, for Respondent.

Petition for Review of an Order of the Board of Immigration Appeals.

Before JONES, Chief Judge, and KING and DENNIS, Circuit Judges.

KING, Circuit Judge:

Petitioner Mushtaq Ahmed petitions this court for review of a final order of removal by the Board of Immigration Appeals. In its order, the Board of Immigration Appeals also affirmed an immigration judge's refusal to continue Ahmed's removal proceedings. Ahmed now argues that the Board erred in affirming both the immigration judge's refusal to continue his removal proceedings and the order of removal. For the following reasons, we DENY the petition for review.

I. BACKGROUND

Petitioner Mushtaq Ahmed ("Ahmed"), is a fifty-two-year-old citizen and native of Pakistan, who was admitted to the United States on August 21, 2000, as a nonimmigrant crewman. Ahmed's visa allowed him to remain in the United States for a period not to exceed twenty-nine days. Ahmed did not seek an extension of this period. Instead, he remained in the United States without authorization after his visa expired.

On April 26, 2001, American Rags, Inc. ("American Rags"), filed an application for labor certification with the Department of Labor on Ahmed's behalf. Subsequently, Ahmed registered in the special registration program of the National Security Entry/Exit Registration System ("NSEERS"), as required by law for male nonimmigrants from certain countries, including Pakistan.¹ On April 24, 2003, the Department of Homeland Security ("DHS") initiated removal proceedings against Ahmed. Ahmed asserts that these removal charges were the direct result of his registration in NSEERS.

The amended removal charges filed against Ahmed alleged that he was removable, pursuant to 8 U.S.C. § 1227(a)(1)(B), as a nonimmigrant who remained in the United States for a time longer than permitted.² On December 12, 2003, Ahmed appeared with counsel before the immigration judge, admitted to DHS's factual allegations, and conceded removability. He also requested a continuance in order to permit adjudication of his pending labor certification. In the course of this hearing, the immigration judge denied Ahmed's request for a continuance for lack of good cause, after noting that Ahmed lacked an approved labor certification, a valid visa, or even a pending visa application with DHS. The same day, the immigration judge ordered Ahmed's removal.

Ahmed appealed the immigration judge's decision to the Board of Immigration Appeals ("BIA"), arguing, inter alia, that the immigration judge's decision to deny Ahmed's request for a continuance, in combination with the required NSEERS registration process, violated Ahmed's constitutional rights in various ways and also violated Ahmed's rights protected by 8 U.S.C. § 1255(i). On December 22, 2004, the BIA affirmed the immigration judge's decision. Citing its own precedent, the BIA noted that "there is no certainty that [Ahmed] would receive certification" and observed that the decision to grant or deny continuances rests within the "sound discretion" of an immigration judge. Therefore, the BIA concluded that the immigration judge was justified in refusing to grant a continuance "because an Immigration Judge may neither terminate nor indefinitely adjourn the proceedings in order to delay an alien's deportation." Ahmed filed his petition for review with this court on January 14, 2005.

II. DISCUSSION

The issues raised by Ahmed before this court all relate to the immigration judge's refusal to grant a continuance pending the adjudication of his labor certification. First, citing the recent decision of the Seventh Circuit in Subhan v. Ashcroft, 383 F.3d 591 (7th Cir.2004), Ahmed argues that the immigration judge's refusal to grant a continuance violated relief rights established by 8 U.S.C. § 1255(i). Second, Ahmed argues that the immigration judge's refusal to grant a continuance, in combination with the government's registration requirements in the NSEERS program and the immigration judge's order of removal, violated his equal protection and due process rights protected by the Fifth Amendment. Ahmed concludes that this court should grant his petition for review and return his case to the relevant immigration officials for further proceedings after the adjudication of his pending labor certification.

In response, the government briefly questions our jurisdiction to review Ahmed's statutory arguments and argues that both the statutory and the constitutional arguments are groundless. On the merits, the government argues that the immigration judge's decision was correct: the slim prospect of relief from removal based on the mere possibility that Ahmed might, at some later date, be granted a labor certification that would, in turn, only enable an employment-based visa petition is too speculative to establish the requisite "good cause" for the granting of a continuance. More specifically, the government argues that Subhan's reasoning and conclusion should be rejected and asserts that Ahmed has wholly failed to state a cognizable constitutional violation.

We will address the government's jurisdictional point first, the issues raised by Ahmed's statutory arguments second, and the issues raised by Ahmed's constitutional arguments last.

A. Jurisdiction

In its brief before this court, the government suggests that an appellate court's jurisdiction to review an immigration judge's discretionary decision to deny an alien's motion for a continuance is an "open question" for this court. Other circuits, notably the Eighth Circuit in Onyinkwa v. Ashcroft, 376 F.3d 797 (8th Cir. 2004), and the Tenth Circuit in Yerkovich v. Ashcroft, 381 F.3d 990 (10th Cir.2004), have analyzed this issue and reached a holding contrary to the conclusion we reach today. As the government correctly acknowledged in its briefs, however, this court recently noted its disagreement with these decisions from the Eighth and Tenth Circuits in Zhao v. Gonzales, 404 F.3d 295 (5th Cir.2005). And as the government correctly conceded at oral argument, Zhao's jurisdictional reasoning has been reaffirmed by this court. See Manzano-Garcia v. Gonzales, 413 F.3d 462, 467 (5th Cir.2005) (per curiam) (quoting Zhao).

This jurisdictional point revolves around the language of § 1252(a)(2)(B)(ii). As we noted in Zhao, "[o]ne might mistakenly read § 1252(a)(2)(B)(ii) as stripping us of the authority to review any discretionary immigration decision." 404 F.3d at 303. Such a reading is mistaken, however, "because § 1252(a)(2)(B)(ii) strips us only of jurisdiction to review" the discretionary authority that is "specified in the statute." Id. As we have repeatedly noted, we observe again that the language of § 1252(a)(2)(B)(ii) is thoroughly "pellucid on this score; it does not allude generally to `discretionary authority' or to `discretionary authority exercised under this statute,' but specifically to `authority for which is specified under this subchapter to be in the discretion of the Attorney General.'" Id. (quoting § 1252(a)(2)(B)(ii)) (emphasis in Zhao); see also Manzano-Garcia, 413 F.3d at 467 (quoting same).

This court concluded in Zhao that it had authority to review the BIA's discretionary denial of an alien's motion for reconsideration, despite an awareness of "caselaw from other circuits to the contrary," specifically Onyinkwa and Yerkovich. 404 F.3d at 303. In Onyinkwa, the Eighth Circuit held that it lacked jurisdiction to review an immigration judge's denial of a continuance, stating that because the "power to grant continuances is within the discretion of immigration judges ... courts generally have no jurisdiction to review the exercise of that discretion." 376 F.3d at 799. We rejected Onyinkwa's reasoning in Zhao because we refused to endorse Onyinkwa's interpretation of § 1252(a)(2)(B)(ii) "whereby any statutorily authorized regulation conferring discretion necessarily forecloses judicial review." 404 F.3d at 303 n. 6. We held that such a reading was both "contrary to Congress's language and has clear policy consequences." Id. In Yerkovich, the Tenth Circuit held that it lacked jurisdiction to review an immigration judge's denial of a continuance, citing, inter alia, the Eighth Circuit's decision in Onyinkwa. 381 F.3d at 994. Again, we rejected this reasoning in Zhao, pointing out that Yerkovich's holding depended on a misstatement of the statutory text of § 1252(a)(2)(B)(ii) itself. 404 F.3d at 303 n. 6. More specifically, we pointed out that Yerkovich omitted the phrase "the authority for which is specified" in its discussion of § 1252(a)(2)(B)(ii). Id. We concluded in Zhao that this misstatement caused the Tenth Circuit to "analyze statutory language that Congress did not adopt," a mistake we declined and continue to decline to follow. Id.

Even if a panel of this court had the authority to revisit our holdings in Manzano-Garcia and Zhao and our interpretation of § 1252(a)(2)(B)(ii), Onyinkwa, and Yerkovich, which it does not, the government has provided us with no new reasons to do so. Therefore, we apply our previous reasoning to the matter at hand and conclude that we have jurisdiction to review the immigration judge's decision to deny Ahmed's motion for a continuance. Cf. Zafar v....