Haswanee v. U.S. Atty. Gen., 06-12636 Non-Argument Calendar.

• Decision Date: 08 December 2006
• Docket Number: No. 06-12636 Non-Argument Calendar.,06-12636 Non-Argument Calendar.
• Citation: 471 F.3d 1212
• Parties: Nazeer HASWANEE, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent.
• Court: U.S. Court of Appeals — Eleventh Circuit

471 F.3d 1212

Nazeer HASWANEE, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent.

No. 06-12636 Non-Argument Calendar.

United States Court of Appeals, Eleventh Circuit.

December 8, 2006.

Karen Weinstock, Siskind, Susser, Haas & Devine, P.C., Atlanta, GA, for Petitioner.

Russell J.E. Verby, David V. Bernal, Jamie M. Dowd, Regina Byrd, U.S. Dept. of Justice, Civil Div., OIL, Washington, DC, for Respondent.

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

Before BLACK, MARCUS and FAY, Circuit Judges.

PER CURIAM:

Nazeer Haswanee petitions for review of the decision of the Board of Immigration Appeals ("BIA") dismissing Haswanee's appeal of the Immigration Judge's ("IJ's") denial of a continuance and order of removal. Haswanee raises two issues. First, he argues that the IJ abused its discretion in denying his motion for a continuance because he had an approved labor certification and an immediately available visa number, and his Form I-140 petition for an employment-based visa was pending. Second, he argues that the BIA and IJ denied him due process and equal protection of the law in denying his motion to continue while his visa petition was pending. For the reasons set forth more fully below, we grant Haswanee's petition for review in part, vacate the decision of the BIA, and remand for further proceedings.

I. Background

Haswanee, a native citizen of Pakistan, entered the United States on March 23, 1999 as a nonimmigrant visitor for pleasure with authorization to remain until September 21, 1999, which time was extended one year, until September 22, 2000. Haswanee, however, remained in the United States beyond that date, and, on March 6, 2003, the former Immigration and Naturalization Service ("INS")¹ issued him a notice to appear ("NTA"), charging him with removability under INA § 237(a)(1)(B), (a)(1)(C)(i), 8 U.S.C. § 1227(a)(1)(B), (a)(1)(C)(i), as an alien who remained in the United States longer than permitted and who failed to comply with the conditions of his nonimmigrant status. The NTA further charged that Haswanee had been employed for wages or other compensation from March 15, 2000 to the time of his NTA without authorization from the INS. On April 25, 2001, Haswanee's employer filed an application for alien employment certification ("labor certification") on his behalf, which the United States Department of Labor ("DOL") certified on February 18, 2004. In addition the DOL instructed that the certification must be attached to the I-140 petition and filed with the INS. On April 20, 2004, Haswanee's employer filed an I-140 immigrant petition for alien worker on his behalf. The INS confirmed receipt of Haswanee's I-140 on May 5, 2004, and indicated that it generally took 350 to 400 days to process such a case.

During his hearing before the IJ in his removal proceedings, Haswanee moved to continue his proceedings until the resolution of his I-140 petition. The IJ denied Haswanee's motion for a continuance, finding that, unlike a family-based visa petition, no case law existed that required a continuance based upon a pending employment-based visa petition. The IJ further found that Haswanee's knowing violation of the immigration laws could not be overlooked, "and, as a matter of discretion, the [IJ did] not find that the approved labor cert[ification] [wa]s compelling either to grant a continuance or to grant voluntary departure."

Haswanee appealed the decision to the BIA. The BIA dismissed his appeal, affirming the IJ's decision to deny the continuance. It noted that Haswanee's I-140 visa petition had not been approved as of the date of the BIA's decision. The BIA further found that Haswanee had not established that he was prima facie eligible for adjustment of status under INA § 245(a), 8 U.S.C. § 1255(a) because he was not the beneficiary of an approvable visa petition and had been "out of status" for failing to refrain from working unlawfully and to leave the United States by his required date. Citing Zafar v. U.S. Att'y Gen., 426 F.3d 1330 (11th Cir.2005), the BIA concluded that the IJ did not abuse its discretion in denying Haswanee's motion to continue, and, further, that Bull v. INS, 790 F.2d 869 (11th Cir.1986) did not apply because Haswanee did not establish his prima facie eligibility for relief.

II. Discussion

A. Continuance

Haswanee argues on appeal that he is eligible to adjust his status pursuant to INA § 245(i), 8 U.S.C. § 1255(i), but that the IJ's denial of his request for a continuance and order of removal jeopardizes his eligibility because, if he leaves the United States, he will become ineligible for relief. He contends that the BIA deviated from its own policies and prior unpublished decisions, in which the BIA had granted a continuance in cases where an I-140 petition was pending. He also asserts that the IJ's denial was in direct conflict with our decision in Zafar because, according to Haswanee, our reasoning in Zafar is that, where a petitioner has an approved labor certification and there is a visa immediately available, the continuance should be granted. Haswanee further argues that the facts of his case are analogous to those in Bull because petitioners for an I-140 employment-based visa that are not on a waiting list are akin to petitioners for an 1-130 family-based visa. In his reply brief, he notes that his case is similar to, and should be governed by, our recent decision in Merchant v. U.S. Att'y Gen., 461 F.3d 1375 (11th Cir.2006).

An IJ has discretion to grant a continuance in an immigration proceeding "for good cause shown." 8 C.F.R. § 1003.29. We have jurisdiction to review the IJ's discretionary decision to deny Haswanee's motion for a continuance for an abuse of discretion. Zafar v. U.S. Att'y Gen., 461 F.3d 1357, 1362 (11th Cir.2006).

An alien that is present in the United States may adjust his status to that of an alien lawfully admitted for permanent residence pursuant to the requirements in INA § 245, 8 U.S.C. § 1255. In the case of an alien lawfully admitted into the United States, such alien may adjust his status "if (1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him at the time his application is filed." INA § 245(a), 8 U.S.C. § 1255(a). However, an alien that overstayed his visa and became illegal is barred from applying for § 1255(a) adjustment of status. INA § 245(c), 8 U.S.C. § 1255(c).

Nevertheless, as an exception to § 1255(c)'s bar, § 1255(i) states that,

(1) Notwithstanding the provisions of subsections (a) and (c) of this section, an alien physically present in the United States—

(A) who—

(i) entered the United States without inspection; or

(ii) is within one of the classes enumerated in subsection (c) of this section;

(B) who is the beneficiary (including a spouse or child of the principal alien, if eligible to receive a visa under section 1153(d) of this title) of—

(i) a petition for classification under section 1154 of this title that was filed with the Attorney General on or before April 30, 2001; or

(ii) an application for a labor certification under section 1182(a)(5)(A) of this title that was filed pursuant to the regulations of the Secretary of Labor on or before such date; and

(C) who, in the case of a beneficiary of a petition for classification, or an application for labor certification, described in subparagraph (B) that was filed after January 14, 1998, is physically present in the United States on December 21, 2000;

may apply to the Attorney General for the adjustment of his or her status to that of an alien lawfully admitted for permanent residence.

INA § 245(i)(1), 8 U.S.C. § 1255(i)(1). Nonetheless, as we explained in Zafar, "[t]he mere filing of a labor certificate application with the DOL does not make an alien eligible for adjustment of status under § 1255(i). Rather, there are two additional and more difficult statutory eligibility requirements in § 1255(i) that must also be met." Zafar, 461 F.3d at 1363 (emphasis in original). Specifically, § 1255(i)(2) provides:

(2) Upon receipt of such an 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).

Here, Haswanee sought an employment-based visa and his employer filed an I-140 visa petition on his behalf. According to the federal regulations that describe the procedure for receiving an employment-based visa, "[a]ny [U.S.] employer desiring and intending to employ an alien may file a petition for classification of the alien"—an I-140 visa petition—which must be "[a]ccompanied by any required individual labor certification." 8 C.F.R. § 204.5(a), (c), (g), (l). The petition may be approved or denied, and in the event of approval: (1) a visa number will be assigned if available and (2) "the approved visa petition (Form I-140), will be retained by the [immigration service] for consideration with the application for permanent residence (Form I-485)." 8 C.F.R. §§ 204.5(n), 245.1(g). Haswanee had immediately available visa numbers during his proceedings before the IJ and BIA.²

In Zafar, we addressed the issue of whether the IJs abused their discretion in denying three petitioners' motions to continue where the petitioners did not have approved labor certifications and had not filed I-140 visa petitions or I-485 adjustment of status applications. Zafar, 461 F.3d at 1362. We held that the IJs did not abuse their discretion because, at the time of the petitioners' removal hearings, they had not...