Iqbal Ali v. Gonzales

• Decision Date: 14 September 2007
• Docket Number: No. 06-3879.,No. 06-3240.,06-3240.,06-3879.
• Citation: 502 F.3d 659
• Parties: Syed IQBAL ALI, Petitioner, v. Alberto R. GONZALES, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

502 F.3d 659

Syed IQBAL ALI, Petitioner, v. Alberto R. GONZALES, Respondent.

No. 06-3240.

No. 06-3879.

United States Court of Appeals, Seventh Circuit.

Argued February 22, 2007.

Decided September 14, 2007.

Christopher W. Helt (argued), Chicago, IL, for Petitioner.

Karen Lundgren, Department of Homeland Security, Office of the Chief Counsel, Chicago, IL, Karen Stewart, Mary J. Candaux (argued), Stephen J. Flynn, Department of Justice Civil Division, Immigration Litigation, Washington, DC, for Respondent.

Before BAUER, EVANS, and SYKES, Circuit Judges.

SYKES, Circuit Judge.

Syed Ali petitions for review of decisions of the Board of Immigration Appeals ("BIA") affirming an immigration judge's ("IJ") denial of his request for a continuance and denying his subsequent motion for reconsideration. Ali sought to continue his removal hearing to await a disposition on his son Zeeshan's application for American citizenship; once naturalized, Zeeshan could sponsor Ali's petition to adjust his status to that of a lawful permanent resident. Ali now argues, as he did before the BIA, that the IJ failed to provide an adequate reason for denying the continuance. He also contends that the National Security Entry-Exit Registration System ("NSEERS") program, through which his illegal presence in the United States was brought to the attention of the immigration authorities in the first place, unconstitutionally targets aliens from Arab and Muslim countries.

This circuit has previously assumed, without deciding, that the jurisdiction-stripping provision of § 242(a)(2)(B)(ii) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1252(a)(2)(B)(ii), generally precludes judicial review of continuance decisions of immigration judges. Subhan v. Ashcroft, 383 F.3d 591, 595 (7th Cir.2004). The Attorney General now argues, in a change of position, that § 1252(a)(2)(B)(ii) does not apply to denials of continuances. We note the concession but disagree.

Section 1252(a)(2)(B)(ii) provides (with an exception not relevant here) that "no court shall have jurisdiction to review ... any other decision or action of the Attorney General . . . the authority for which is specified under this subchapter to be in the discretion of the Attorney General." 8 U.S.C. § 1252(a)(2)(B)(ii) (emphasis added). The Attorney General's current view is that this provision is inapplicable to continuance decisions because an immigration judge's authority to grant continuances is conferred by regulation, not statute. While it is true that continuances are specifically mentioned only in the administrative regulations, see 8 C.F.R. § 1003.29, an immigration judge's authority to grant or deny a continuance is statutory; it derives from 8 U.S.C. § 1229a, which confers upon immigration judges the plenary authority to conduct removal proceedings. The regulation regarding continuances simply implements the immigration judge's statutory authority to control the course of removal proceedings.

Accordingly, as suggested but not decided in Subhan, an immigration judge's denial of a continuance motion is a discretionary "decision or action" the "authority for which" is committed to the immigration judge by the relevant subchapter of the INA, and the jurisdictional bar in § 1252(a)(2)(B)(ii) generally precludes judicial review. Although this is the minority position among the circuits that have considered the question, we think it the sound one and now adopt it.¹ This position is consistent with our recent decision in Leguizamo-Medina v. Gonzales, 493 F.3d 772, 775 (7th Cir.2007), which interpreted the preceding subsection of the jurisdiction-stripping statute, § 1252(a)(2)(B)(i). Leguizamo-Medina held that where § 1252(a)(2)(B)(i) removes jurisdiction to review a final immigration decision (the statute eliminates judicial review of agency decisions regarding certain forms of immigration relief), review of continuance denials and other interim orders leading up to the final decision is also precluded.

Here, Ali conceded removability but sought a continuance so he could pursue adjustment of status if his son's application for citizenship was approved. He now seeks review of the denial of the continuance, but our review is barred by both § 1252(a)(2)(B)(ii) and the logic of Leguizamo-Medina. Adjustment of status determinations are unreviewable under § 1252(a)(2)(B)(i); the IJ's continuance decision is interim to Ali's contemplated adjustment of status application, and interim orders entered along the road to an unreviewable final order are themselves unreviewable.

We also hold that Ali's case does not fall within the exception to the jurisdictional bar recognized in Subhan. Finally, we lack jurisdiction to consider Ali's constitutional challenge to the NSEERS program.

I. Background

Ali, a citizen of Pakistan, entered the United States in 1996 on a six-month visitor's visa. He overstayed his visa and in 2003 was placed in removal proceedings. After a preliminary hearing in April 2003, his case was continued, and at the next hearing in November, Ali conceded removability. Through counsel, he told the IJ that his son Zeeshan had a pending application for citizenship and that once he was naturalized, Zeeshan intended to file a family-based visa petition (I-130) on Ali's behalf. Ali also informed the IJ that although he missed the one-year deadline for seeking asylum, he intended to apply for withholding of removal and relief under the Convention Against Torture. (He apparently never did apply for these forms of relief.) The IJ continued the hearing twice more, until February 2005.

Meanwhile, Zeeshan — who had not yet been granted citizenship — filed an I-130 petition on Ali's behalf. Zeeshan, a permanent resident, represented that he was sponsoring Ali as a "parent of U.S. citizen." Ali moved to have his removal case continued again, or administratively closed, to await a decision on Zeeshan's citizenship application. The government opposed the motion.

At the February 2005 hearing, Ali argued that his son's naturalization application was still pending and that it would be unjust to "tear a father from his son" if Ali could adjust his status once Zeeshan became a citizen. To support his request for a continuance, Ali offered into evidence a "walk-in form" that Zeeshan had submitted to the office of United States Senator Richard Durbin requesting intervention in his citizenship application. On that form Zeeshan stated his interview and citizenship test had been held in January 2004, and his application for citizenship had been denied on the ground of "poor moral character."

Without mentioning this form — evidence submitted by Ali establishing that Zeeshan's naturalization application had already been denied — the IJ concluded that Ali had not established the requisite "good cause" for a continuance. 8 C.F.R. § 1003.29. The IJ explained that Ali was not immediately eligible for a visa, that a long continuance had already been granted based on Ali's representation that his son's application would be decided soon, and that "everyone who appears before me has family ties in the United States." The IJ denied the continuance and granted relief in the form of voluntary departure.

Ali appealed the IJ's decision to the BIA, arguing that the denial of a continuance was erroneous under In re Velarde-Pacheco, 23 I. & N. Dec. 253 (BIA 2002), and Subhan, 383 F.3d at 593-94. In Velarde-Pacheco, the BIA determined that a properly filed motion to reopen for adjustment of status based on a marriage-based visa petition may be granted in the exercise of discretion as long as certain criteria are met. 23 I. & N. Dec. at 256. In Subhan, this court held that an IJ had erred by arbitrarily denying a continuance to an alien seeking to adjust his status based on an employment certification, the application for which was awaiting action by the state and federal labor departments. 383 F.3d at 595. The BIA rejected Ali's argument that his case was analogous to either Subhan or Velarde-Pacheco and concluded that the IJ had given adequate reasons for denying the continuance. In addition, the BIA held that the continuance was properly denied based on the evidence Ali submitted indicating that Zeeshan's citizenship application had already been denied due to poor moral character.

Ali moved for reconsideration. The BIA denied the motion because Ali merely reiterated the arguments he made on appeal rather than citing any legal or factual omission or defect in the BIA's decision.² Ali now petitions for review.

II. Discussion

Ali contends the IJ improperly denied a continuance simply because no visa was immediately available for him, a flaw in reasoning that led to our granting the petition for review in Subhan, which he argues is indistinguishable from his case. He also faults the BIA for relying on the apparent denial of his son's citizenship application, which he asserts is still pending and which was not (he now claims) the only basis for adjusting his status. Ali asserts that Zeeshan's permanent resident status provides an alternate ground to adjust status. Finally, Ali challenges the constitutionality of the NSEERS program that brought him to the attention of the Department of Homeland Security ("DHS") and led to the commencement of removal proceedings against him.

Before reaching the merits of Ali's arguments, we must first consider our jurisdiction to review a denial of a continuance in a removal proceeding. In Subhan, we assumed jurisdiction to review continuance decisions was lacking by virtue of the jurisdiction-stripping provision of § 1252(a)(2)(B)(ii). But we sidestepped an ultimate decision on the question, reasoning that if the denial of a continuance effectively nullified the statutory opportunity to adjust status, see 8 U.S.C. § 1255, the IJ must provide a reason for the denial consistent with § 1255, not just a statement of the procedural posture of the case. 383 F.3d at 593-94. The...