Chacku v. U.S. Atty. Gen.

• Decision Date: 19 November 2008
• Docket Number: No. 07-15911.,No. 08-11870 Non-Argument Calendar.,07-15911.,08-11870 Non-Argument Calendar.
• Citation: 555 F.3d 1281
• Parties: Sikkander Subjali CHACKU, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent.
• Court: U.S. Court of Appeals — Eleventh Circuit

555 F.3d 1281

Sikkander Subjali CHACKU, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent.

No. 07-15911.

No. 08-11870 Non-Argument Calendar.

United States Court of Appeals, Eleventh Circuit.

November 19, 2008.

Christopher W. Helt, Chicago, IL, for Chacku.

R. Alexander Goring, David V. Bernal, Jesse M. Bless, Andrew C. McLachlan, Cindy S. Ferrier, Michelle G. Latour, U.S. Dept. of Justice, OIL, Washington, DC, for U.S. Atty. Gen.

Petitions for Review of a Decision of the Board of Immigration Appeals.

Before TJOFLAT, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

Petitioner Sikkander Chacku, a native and citizen of India, entered the United States on April 27, 1997, as a nonimmigrant visitor authorized to remain for a period not to exceed three months. On December 3, 2004, the Department of Homeland Security ("DHS") served Chacku with a Notice to Appear, which alleged that he was removable as a nonimmigrant because he had remained in the United States longer than permitted and failed to comply with the conditions of the nonimmigrant status.

On November 17, 2005, Chacku, represented by counsel, appeared before an Immigration Judge ("IJ") and stated that he had filed a Form I-140 Immigrant Petition for Alien Worker ("visa petition") based upon an approved Application for Alien Employment Certification ("labor certification"). He represented that the visa petition had been filed on September 19, 2005, and because his labor certification already had been approved, he would be eligible for an adjustment of status under Immigration and Nationality Act ("INA") § 245(I), 8 U.S.C. § 1255(I), if his visa petition were approved. He therefore requested a continuance of his removal proceedings so that his visa petition could be adjudicated. The IJ continued the removal proceedings to January 5, 2006, after Chacku and the Government agreed that, if his visa petition were not approved by that date and the IJ ordered his removal, he would immediately depart voluntarily.

The removal hearing commenced on January 5, as scheduled. His attorney was not prepared to go forward, so the hearing was continued to February 9, 2006, when it was reconvened. At that time, Chacku conceded removability and requested another continuance because his visa petition had not yet been adjudicated. The IJ denied his request for a continuance and, at the conclusion of the hearing, ordered Chacku's removal, granting him the voluntary departure he and the Government had previously agreed to. In ordering Chacku's removal, the IJ cited Board of Immigration Appeals ("BIA") precedent holding that an alien has no absolute right to the adjournment of removal proceedings in order to await the disposition of an application for adjustment of status. Moreover, the denial of a continuance for adjudication of a pending employment-based visa petition was discretionary since Chacku was not eligible for an adjustment of status until his pending petition was approved.

On March 10, 2006, Chacku appealed the IJ's decision to the BIA. On December 7, 2006, while the appeal was pending, he moved the BIA to remand the case to the IJ because his visa petition had been approved on November 15, 2006. He attached to his motion a copy of a Form I-485, Application to Register as Permanent Resident or Adjust Status ("adjustment application"), which showed that he filed the application on December 6, 2006, representing that "an immigrant petition giving [him] an immediate available immigrant visa number ha[d] been approved." He also attached a copy of a "Notice of Action," which showed that, as a skilled worker, his priority date¹ for a visa was February 21, 2003.² (Id. at 130). Because he attached new evidence, the BIA apparently construed his motion as a motion to reopen.

On November 30, 2007, the BIA affirmed the IJ's decision, dismissed Chacku's appeal, and denied his motion to remand. The BIA held that the IJ did not abuse his discretion in denying the continuance, as the IJ was under no obligation to hold the removal proceedings in abeyance indefinitely, and unlike the petitioner in Merchant v. U.S. Att'y Gen., 461 F.3d 1375 (11th Cir.2006), Chacku did not have either an approved visa petition or a visa immediately available to him by the date of the hearing. The BIA stated that, pursuant to INA § 245(i)(2), the Attorney General may adjust the status of an alien if that alien "is eligible to receive an immigrant visa and is admissible to the United States for permanent residence; and an immigrant visa is immediately available to the alien at the time the application is filed." See INA § 245(i)(2), 8 U.S.C. § 1255(i)(2). The BIA noted that, according to the Department of State Visa Bulletin, Chacku's priority date for a visa to become available to him was February 21, 2003, and the current priority date for a third-preference category visa for India was May 1, 2001.³ The BIA accordingly concluded that, because Chacku was not similarly situated to the alien in Merchant and was not currently statutorily eligible for a visa, the IJ's had ruled correctly. Furthermore, because a visa was not immediately available to Chacku, he failed to make a prima facie showing that he was eligible for an adjustment of status.

On December 31, 2007, Chacku moved the BIA to reconsider its disposition, asserting that the BIA had erred in denying his motion to remand. He contended that the date for measuring whether an applicant's priority date is current, such that a visa number is immediately available to him, is the date on which the applicant files his application for adjustment of status, or when he requests a remand. He argued that, on the date that he filed his application for adjustment of status and when he filed his motion to remand, his priority date was current; thus, he should not have been penalized by the subsequent retrogression of priority dates,⁴ which caused his priority date not to be current. In support of his argument, he cited the BIA's decision in Matter of Briones, 24 I & N Dec. 355 (BIA 2007), which states that, because the respondent had a current priority date when he submitted his adjustment application to the IJ, he was "not rendered ineligible for such relief by virtue of the subsequent retrogression of his priority date, although final approval of the application would have to be held in abeyance."

On March 19, 2008, the BIA denied Chacku's motion to reconsider, finding that, unlike the respondent in Briones, Chacku did not have a current priority date when he filed his adjustment application or when he filed his motion to remand. This is because the priority date for a visa to become available to him was February 21, 2003, and, on December 7, 2006—the date on which he filed both his application for adjustment and his motion to remand—the priority date for an employment-based third-preference category visa for India, which is what he was seeking, was April 22, 2001. Thus, he was not prima facie eligible for adjustment of status when he filed his application, and therefore, he was not entitled to have his application held in abeyance.

Chacku seeks review of the BIA's decisions in two petitions for review. The first challenges the BIA's order denying his motion to remand and affirming the IJ's denial of a continuance. The second challenges the BIA's denial of his motion to reconsider. We have consolidated the two petitions.

In his petitions for review, Chacku first contends that the BIA's dismissal of his appeal from the IJ's denial of a continuance was improper because the record demonstrated that a labor certification already had been approved for him, and a visa petition was pending on the date of his last removal proceeding before the IJ. Second, he contends that the BIA erred in denying his motions to reopen and reconsider, as a visa was available to him in June and July 2007.

We review the denial of a motion for continuance for an abuse of discretion. Haswanee v. U.S. Att'y Gen., 471 F.3d 1212, 1214 (11th Cir.2006). When the BIA issues a decision, we review only that decision, except to the extent that the BIA expressly adopts the IJ's decision. Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir.2001). Here, the BIA issued its own decision, affirming the IJ's denial of Chacku's request for a continuance; thus, we review the BIA's decision.

The immigration regulations provide that the IJ may grant a continuance "for good cause shown." 8 C.F.R. § 1003.29. Section 245(i) of the INA, 8 U.S.C. § 1255(i), allowed certain aliens who were ineligible to adjust their status to pay a penalty fee for the convenience of adjusting their status without leaving the United States. This provision has expired, but Chacku was "grandfathered" in because an application for a labor certification was filed on his behalf on or before April 30, 2001, which was approvable when filed. See INA § 245(i)(1)(B)(ii), § 1255(i)(1)(B)(ii). Section 1255(i)(2) provides:

(2) Upon receipt of [an adjustment] application and the sum hereby required, the Attorney General may adjust the status of the alien to that of an alien lawfully admitted for permanent residence if—

(A) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence; and

(B) an immigrant visa is immediately available to the alien at the time the application is filed.

INA § 245(i)(2), 8 U.S.C. § 1255(i)(2). An applicant for adjustment of status also must meet the other statutory eligibility requirements of INA § 245(a), which provides that, in the case of an alien lawfully admitted into the United States, such alien may adjust his status "if (1) the alien makes an...