Khan v. Atty. Gen. of U.S., No. 04-4336.

CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)
Writing for the CourtSloviter
Citation448 F.3d 226
PartiesMohammed Nasir KHAN, Petitioner v. <SMALL><SUP>*</SUP></SMALL>ATTORNEY GENERAL OF THE UNITED STATES, Respondent.
Decision Date22 May 2006
Docket NumberNo. 04-4336.
448 F.3d 226
Mohammed Nasir KHAN, Petitioner
v.
*ATTORNEY GENERAL OF THE UNITED STATES, Respondent.
No. 04-4336.
United States Court of Appeals, Third Circuit.
Argued December 15, 2005.
May 22, 2006.

Page 227

Jeffrey C. Bloom, Flushing, NY, Francois-Ihor Mazur (Argued), Philadelphia, PA, for Petitioner.

Michael P. Lindemann, Douglas E. Ginsburg (Argued), Lyle D. Jentzer, United States Department of Justice, Office of Immigration Litigation, Washington, DC, for Respondent.

Before SLOVITER, SMITH, and VAN ANTWERPEN, Circuit Judges.

Page 228

OPINION OF THE COURT

SLOVITER, Circuit Judge.


Petitioner Mohammed Nasir Khan seeks review of the decision of the Board of Immigration Appeals ("BIA") affirming the decision of the Immigration Judge ("IJ") who denied Khan's request for a continuance of his removal proceeding. We must decide at the outset whether we have jurisdiction.

I.
Background

Khan is a forty-seven-year-old native and citizen of Bangladesh. He entered the United States as a non-immigrant business visitor on September 20, 1996, with permission to remain for a period not to exceed one month. On March 25, 2003, Khan voluntarily reported to the offices of the Department of Homeland Security ("DHS") to register in compliance with DHS's "special registration" program.1 DHS placed Khan into removal proceedings that same day by serving him with a Notice to Appear in which it charged him with removability under INA § 237(a)(1)(B) for overstaying his visa.

On October 2, 2003, Khan appeared pro se for a hearing before an IJ who adjourned the proceeding so that Khan could seek counsel. On November 20, 2003, Khan again appeared before the IJ, this time with counsel. Khan conceded his removability as charged and did not apply for asylum or other substantive relief. Instead, he applied for voluntary departure and submitted a written motion seeking a continuance of the removal proceeding or, in the alternative, a termination of the proceeding on the ground that his wife (also an alien from Bangladesh) had a pending application for an Alien Employment Certification ("Labor Certification") with the United States Department of Labor ("DOL").2

Page 229

Khan and his wife, Rehana Begum, were married in Bangladesh in 1982; they have a United States citizen minor child. On April 30, 2001, a prospective employer in Pennsylvania filed a Labor Certification for permission to employ Begum as a "Household Cook" at a private residence. Khan's wife timely applied for the Labor Certification under INA § 245(i), 8 U.S.C. § 1255(i) ("LIFE Act"), which had a sunset date of April 30, 2001.3 As relevant to the instant case, the LIFE Act provides that a legal permanent resident alien's spouse and minor children are eligible, by virtue of their relation to the alien, to apply for adjustment of status if otherwise qualified. See 8 U.S.C. § 1255(i)(1)(B); 8 U.S.C. § 1153(d).

At the November 20, 2003 hearing, Khan's counsel represented to the IJ that it "usually takes about 45 days to get a response from the regional" on an application for a Labor Certification. App. at 49. The IJ denied the requested continuance, reasoning that Begum's application for a Labor Certification was merely pending, no visa petition had yet been filed, and therefore Khan was not prima facie eligible to adjust his status. The IJ also denied Khan's alternative request to terminate the removal proceedings altogether, rejecting Khan's suggestion that termination was warranted because DHS had failed to follow its own regulations in requiring Khan to register under the special registration program. The IJ noted that Khan, through counsel, had conceded his removability as charged and declined to rule on Khan's due process challenge to the registration program. The IJ ordered Khan's removal to Bangladesh but granted him a sixty-day window to depart voluntarily.

Khan timely appealed to the BIA, raising two arguments: (1) the special registration procedure "is repugnant to the U.S. constitution;" and (2) the IJ erred in refusing to grant a continuance on the ground that Begum's application for a Labor Certification was pending. App. at 5. Khan noted that Begum's Labor Certification already had been approved at the state level and was pending only before the federal Regional Office of the DOL. Khan argued that he should not be faulted for the government's delay in processing Labor Certifications. On October 27, 2004, the BIA summarily affirmed the IJ's order without opinion and permitted Khan thirty days to depart voluntarily.

Khan timely filed this petition for review. The Government filed a motion to dismiss on the ground that this court lacks jurisdiction and, alternatively, for summary affirmance.

II.

As we noted above, this case presents at the threshold the question whether this court has jurisdiction over the petition for review. The BIA issued a final order summarily affirming the IJ's removal order, which the IJ entered after denying Khan's motion for a continuance. Thus, the BIA order falls within our jurisdiction to review a "final order of removal," 8 U.S.C. § 1252(a)(1).

The Government argues we lack jurisdiction to review the IJ's denial of Khan's request for a continuance because such denial constitutes a "discretionary determination." Motion to Dismiss at 4. The Government relies upon the language of INA § 242(a)(2)(B)(ii), 8 U.S.C.

Page 230

§ 1252(a)(2)(B)(ii), which provides in pertinent part:

Notwithstanding any other provision of law . . ., 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 . . ., other than the granting of [asylum] relief under section 1158(a) of this title.

Id. (emphasis added).

As the Government suggests, the question whether we have jurisdiction in the present case turns on whether the IJ's authority to grant Khan a continuance of the removal proceeding is "specified under this subchapter," and therefore precluded from review. Id. We have previously explained that, "[t]he language `this subchapter' in the foregoing provision refers to Subchapter II in Chapter 12 of Title 8 of the United States Code," which consists of 8 U.S.C. §§ 1151-1378 ("Subchapter"). Urena-Tavarez v. Ashcroft 367 F.3d 154, 158 (3d Cir.2004).

There is no statutory provision within the Subchapter that explicitly confers discretion on an IJ to grant a continuance. The only provision in the Subchapter which might be construed to confer such discretion is 8 U.S.C. § 1229a(a), which grants authority to "[a]n immigration judge [to] conduct proceedings for deciding the inadmissibility or deportability of an alien." 8 U.S.C. § 1229a(a)(1). Arguably, a tribunal authorized to hear a matter has inherent authority to continue the hearing to another time. In any event, a federal regulation explicitly confers discretion upon the IJ to grant a continuance: "The Immigration Judge may grant a motion for continuance for good cause shown." 8 C.F.R. § 1003.29 (2006).

Significant for present purposes is the issue whether the IJ's decision on such a motion can be reviewed by this court. The Courts of Appeals are divided on the question whether an express grant of discretionary authority in a federal regulation implemented pursuant to the Subchapter amounts to authority "specified under this subchapter."

We look first to whether this court has spoken on this issue. In Bakhtriger v. Elwood, 360 F.3d 414 (3d Cir.2004), we engaged in an extensive examination of the authority of the Courts of Appeals to review discretionary decisions in asylum cases prior to enactment of the REAL ID Act of 2005. We examined the "kinds of challenges [that] are cognizable in criminal alien removal habeas petitions," id. at 420, and concluded that 28 U.S.C. § 2241 habeas review does not incorporate an examination of the exercise of discretion but "must be confined to questions of constitutional and statutory law." Id. at 424. That decision is inapplicable here because the present case does not involve a "criminal alien" and therefore our review is not restricted to "constitutional challenges or errors of law." Id. at 425. In Bakhtriger, we did not have occasion to consider the applicability of the "specified under this subchapter" language of 8 U.S.C. § 1252(a)(2)(B)(ii).

Thereafter, we did consider this language in Soltane v. U.S. Dep't of Justice, 381 F.3d 143 (3d Cir.2004). In that case the issue before us was whether jurisdiction to review the IJ's denial of a preference visa to certain special immigrants under 8 U.S.C. § 1153(b)(4) was barred by § 1252(a)(2)(B)(ii). Id. at 146. Because the language of § 1153(b)(4) stated that a "visa `shall' issue if [certain] requirements are met," we could "not read § 1153(b)(4) as having `specified' that the granting of the visas in question `be in the discretion of the Attorney General.'" Id. at 147.

Page 231

We also considered the language of § 1252(a)(2)(B)(ii) in Urena-Tavarez, 367 F.3d 154. In Urena-Tavarez, we held that 8 U.S.C. § 1186a(c)(4), which governs the grant of conditional permanent resident status based on marriage to a United States citizen, by its terms explicitly assigns discretion to the Attorney General and therefore § 1252(a)(2)(B)(ii) precluded review by this court of the denial of a waiver under § 1186a(c)(4). Id. at 161.

The only other precedential opinion in which we have considered § 1252(a)(2)(B)(ii) is our recent decision in Jilin Pharmaceutical USA, Inc. v. Chertoff, 447 F.3d 196 (3d Cir.2006). In Jilin, we held that 8 U.S.C. § 1155 explicitly provides the Attorney General with discretion to revoke the prior approval of a visa petition and therefore such revocation is shielded from court review pursuant to 8 U.S.C. § 1252(a)(2)(B)(ii). Jilin, Slip Op. at 8-21, 24, ___-___, ___.

In none of the cases referred to above, Soltane, Urena-Tavarez, and...

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131 practice notes
  • Leslie v. Attorney Gen. Of The United States, No. 08-3180.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • July 8, 2010
    ...allegations of due process violations must ordinarily be accompanied by “an initial showing of substantial prejudice,” Khan v. Att'y Gen., 448 F.3d 226, 236 (3d Cir.2006) (citation and quotation marks omitted), Leslie contends that these procedural rights are protected by the Fifth Amendmen......
  • In re Castro-Tum, Interim Decision #3926
    • United States
    • U.S. DOJ Board of Immigration Appeals
    • May 17, 2018
    ...liberty interest in administrative closure, as it is a matter of 'administrative convenience.'"); cf. Khan v. Att'y Gen. of the U.S., 448 F.3d 226, 236 (3d Cir. 2006) ("The Government correctly argues that Khan 'has no constitutional right to have his proceedings held in abeyance ......
  • In re Castro-Tum, Interim Decision #3926
    • United States
    • U.S. DOJ Board of Immigration Appeals
    • May 17, 2018
    ...liberty interest in administrative closure, as it is a matter of 'administrative convenience.'"); cf. Khan v. Att'y Gen. of the U.S., 448 F.3d 226, 236 (3d Cir. 2006) ("The Government correctly argues that Khan 'has no constitutional right to have his proceedings held in abeyance ......
  • Darby v. Attorney Gen. of the U.S., No. 20-2107
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • June 17, 2021
    ...260 (emphasis in original).Further, we distinguished the circumstances in Hashmi to those faced by the petitioner in Khan v. Att'y Gen. , 448 F.3d 226 (3d Cir. 2006), who had been awaiting the approval of his wife's Labor Certification application pursuant to 8 U.S.C. § 1255(i). If the appl......
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130 cases
  • Leslie v. Attorney Gen. Of The United States, No. 08-3180.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • July 8, 2010
    ...allegations of due process violations must ordinarily be accompanied by “an initial showing of substantial prejudice,” Khan v. Att'y Gen., 448 F.3d 226, 236 (3d Cir.2006) (citation and quotation marks omitted), Leslie contends that these procedural rights are protected by the Fifth Amendmen......
  • In re Castro-Tum, Interim Decision #3926
    • United States
    • U.S. DOJ Board of Immigration Appeals
    • May 17, 2018
    ...liberty interest in administrative closure, as it is a matter of 'administrative convenience.'"); cf. Khan v. Att'y Gen. of the U.S., 448 F.3d 226, 236 (3d Cir. 2006) ("The Government correctly argues that Khan 'has no constitutional right to have his proceedings held in abeyance while he a......
  • In re Castro-Tum, Interim Decision #3926
    • United States
    • U.S. DOJ Board of Immigration Appeals
    • May 17, 2018
    ...liberty interest in administrative closure, as it is a matter of 'administrative convenience.'"); cf. Khan v. Att'y Gen. of the U.S., 448 F.3d 226, 236 (3d Cir. 2006) ("The Government correctly argues that Khan 'has no constitutional right to have his proceedings held in abeyance while he a......
  • Darby v. Attorney Gen. of the U.S., No. 20-2107
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • June 17, 2021
    ...260 (emphasis in original).Further, we distinguished the circumstances in Hashmi to those faced by the petitioner in Khan v. Att'y Gen. , 448 F.3d 226 (3d Cir. 2006), who had been awaiting the approval of his wife's Labor Certification application pursuant to 8 U.S.C. § 1255(i). If the appl......
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