Ali v. Gonzales, No. 05-60343. Summary Calendar.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtPer Curiam
Citation440 F.3d 678
PartiesImtiaz ALI, Petitioner, v. Alberto R. GONZALES, U.S. Attorney General, Respondent.
Decision Date15 February 2006
Docket NumberNo. 05-60343. Summary Calendar.
440 F.3d 678
Imtiaz ALI, Petitioner,
v.
Alberto R. GONZALES, U.S. Attorney General, Respondent.
No. 05-60343. Summary Calendar.
United States Court of Appeals, Fifth Circuit.
February 15, 2006.

Page 679

Frank Guerra, George R. Willy, Sugar Land, TX, for Ali.

Jennifer Paisner, David V. Bernal, Thomas Ward Hussey, Dir., OIL, John Clifford Cunningham, Luis Enrique Perez, Civ. Div., Imm. Lit., U.S. Dept. of Justice, Washington, DC, Anne M. Estrada, U.S. INS, Dallas, TX, Caryl G. Thompson, U.S. INS, Dist. Directors Office, Attn: Joe A. Aguilar, New Orleans, LA, for Respondent.

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

Before HIGGINBOTHAM, BENAVIDES and DENNIS, Circuit Judges.

PER CURIAM:


Imtiaz Ali petitions for review from the Board of Immigration Appeals ("BIA"). The BIA affirmed without opinion the immigration judge's ("IJ") order of removal. We deny the petition.

I. BACKGROUND

Ali, a citizen of Pakistan, entered the United States on a visitor's visa in May of 2000. He was authorized to remain in the country for one year. Ali overstayed.

In 2002, the Attorney General announced a new National Security Entry/Exit Registration System ("NSEERS"), which required male nonimmigrant aliens from designated countries to be fingerprinted and registered. See generally, Roudnahal v. Ridge, 310 F.Supp.2d 884, 885-87 (N.D.Ohio 2003). The program allowed the Department of Homeland Security to more closely monitor aliens "who may present elevated national security concerns" because they are from countries where Al-Qaeda or other terrorist organizations have been active. Press Release, Dep't of Homeland Security, Fact Sheet: Changes to National Security Entry/Exit Registration System (NSEERS) (December 1, 2003), available at http://www.dhs.gov/dhspublic/display?theme=43&content= 3020. Pakistan was among those countries designated. Ali duly registered, and this apparently brought him to the attention of the immigration authorities.

On May 9, 2003, Ali was placed in removal proceedings. The Government charged him with overstaying his visa, 8 U.S.C. § 1227(a)(1)(B), and with violating the conditions of his nonimmigrant status by accepting unauthorized employment, 8 U.S.C. § 1227(a)(1)(C)(i). Over the Government's objections, the IJ continued Ali's case seven times for a variety of reasons, including lawyer preparation, scheduling conflicts, and a family-related emergency. On January 6, 2004, the IJ denied Ali's request for an eighth continuance and ordered him removed. The IJ

Page 680

granted Ali's alternative request for voluntary departure. The BIA affirmed without opinion. Before this Court, Ali challenges the order of removal on the grounds that (1) the IJ abused his discretion by refusing him a continuance to pursue labor certification; (2) evidence obtained pursuant to NSEERS should have been excluded because that program violated the equal protection principles of the Fifth Amendment; and (3) evidence was obtained in violation of Department of Justice regulations and should have been excluded. Ali also argues that he remains eligible to adjust his status even though the stated deadline for his voluntary departure has passed.

II. DISCUSSION

A. DENIAL OF CONTINUANCE

At Ali's final hearing, the IJ denied his request for an eighth continuance. Ali contends that he should have been permitted the continuance to pursue labor certification, citing the Seventh Circuit's decision in Subhan v. Ashcroft, 383 F.3d 591, 594 (7th Cir.2004). An IJ may grant a continuance only "for good cause shown." 8 C.F.R. § 1003.29. The grant of a continuance "lies within the sound discretion of the immigration judge." Witter v. I.N.S., 113 F.3d 549, 555-56 (5th Cir.1997). "When, as in this instance, the BIA affirms without opinion, we review the IJ's decision." Mireles-Valdez v. Ashcroft, 349 F.3d 213, 215 (5th Cir.2003). We hold that the IJ did not abuse his discretion.

We have frequently faced claims relating to labor certification applications in recent months. Assessing these claims in the wake of the Seventh Circuit's Subhan decision, we have repeatedly held that to show cause for a continuance an alien must, at a minimum, "mak[e] some showing before the IJ" that the application was filed on or before April 30, 2001. Ramchandani v. Gonzales, 434 F.3d 337, 338 (5th Cir.2005); see (Nizar) Ali v. Gonzales, 2006 WL 73613, ___ F.3d ___ (5th Cir. Jan.11, 2006) (unpublished); (Akbar) Ali v. Gonzales, 155 Fed.Appx. 777, 778 (5th Cir. 2005) (unpublished). This is because an alien is only eligible to adjust status under section 245(i) of the INA if the labor certification application was filed on or before April 30, 2001. Id. Absent some showing that the labor certification application was timely filed, "the alien cannot show that he would meet the statutory requirements [for relief] ... even if the case were continued." Ramchandani, 434 F.3d at 338.

Ali failed to make a showing before the IJ that his labor certification application was filed on or before April 30, 2001. At his hearing before the IJ on December 2, 2003, Ali claimed that he had a labor certification pending. The IJ granted a seventh continuance until January 6, 2004 and specifically informed Ali that he would need to produce evidence or written applications relating to labor certification before meriting any further relief on that ground. Ali did not do so.1 Accordingly, the IJ's decision to deny a further continuance was not an abuse of discretion.2

Ali also argues that the IJ's decision denied him due process. His claim is

Page 681

similarly unavailing when framed in due process terms. We have...

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25 practice notes
  • Rajah v. Mukasey, Docket No. 06-3493-ag.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • September 24, 2008
    ...the Program does not violate Equal Protection guarantees. See Kandamar v. Gonzales, 464 F.3d 65, 73-74 (1st Cir.2006); Ali v. Gonzales, 440 F.3d 678, 681 n. 4 (5th Cir.2006); Zafar v. U.S. Att'y Gen., 461 F.3d 1357, 1367 (11th Cir. 2006); Shaybob v. Att'y Gen., 189 Fed. Appx. 127, 129-30 (3......
  • Khan v. Atty. Gen. of U.S., No. 04-4336.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • May 22, 2006
    ...requires non-citizens from specified countries to register with the National Security Entry-Exit Registration System. See Ali v. Gonzales, 440 F.3d 678, 679 (5th Cir.2006) (per curiam); Murtuza v. Gonzales, 427 F.3d 508, 509 (7th Cir.2005); Registration and Monitoring of Certain Nonimmigran......
  • Heaven v. Gonzales, No. 05-61022.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • December 14, 2006
    ...However, we review de novo claims of constitutional error, such as due process violations, in immigration proceedings. Ali v. Gonzales, 440 F.3d 678, 681 (5th Cir.2006) (per curiam); Anwar v. INS, 116 F.3d 140, 144 (5th III. DISCUSSION Heaven raises three issues on appeal: (1) whether the s......
  • Puc-Ruiz v. Holder, Nos. 09-1296
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • December 23, 2010
    ...requirements set forth in 8 C.F.R. § 287.3 could not be presumed to have prejudiced the respondent's interests); Ali v. Gonzales, 440 F.3d 678, 682 (5th Cir.2006) (finding prejudice cannot be presumed for violations of 8 C.F.R. § 287.3); Navarro-Chalan v. Ashcroft, 359 F.3d 19, 23 n. 3 (1st......
  • Request a trial to view additional results
25 cases
  • Rajah v. Mukasey, Docket No. 06-3493-ag.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • September 24, 2008
    ...the Program does not violate Equal Protection guarantees. See Kandamar v. Gonzales, 464 F.3d 65, 73-74 (1st Cir.2006); Ali v. Gonzales, 440 F.3d 678, 681 n. 4 (5th Cir.2006); Zafar v. U.S. Att'y Gen., 461 F.3d 1357, 1367 (11th Cir. 2006); Shaybob v. Att'y Gen., 189 Fed. Appx. 127, 129-30 (3......
  • Khan v. Atty. Gen. of U.S., No. 04-4336.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • May 22, 2006
    ...requires non-citizens from specified countries to register with the National Security Entry-Exit Registration System. See Ali v. Gonzales, 440 F.3d 678, 679 (5th Cir.2006) (per curiam); Murtuza v. Gonzales, 427 F.3d 508, 509 (7th Cir.2005); Registration and Monitoring of Certain Nonimmigran......
  • Heaven v. Gonzales, No. 05-61022.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • December 14, 2006
    ...However, we review de novo claims of constitutional error, such as due process violations, in immigration proceedings. Ali v. Gonzales, 440 F.3d 678, 681 (5th Cir.2006) (per curiam); Anwar v. INS, 116 F.3d 140, 144 (5th III. DISCUSSION Heaven raises three issues on appeal: (1) whether the s......
  • Puc-Ruiz v. Holder, Nos. 09-1296
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • December 23, 2010
    ...requirements set forth in 8 C.F.R. § 287.3 could not be presumed to have prejudiced the respondent's interests); Ali v. Gonzales, 440 F.3d 678, 682 (5th Cir.2006) (finding prejudice cannot be presumed for violations of 8 C.F.R. § 287.3); Navarro-Chalan v. Ashcroft, 359 F.3d 19, 23 n. 3 (1st......
  • Request a trial to view additional results

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