Matter of Rajah
| Decision Date | 12 November 2009 |
| Docket Number | Interim Decision No. 3662.,File A095 956 512. |
| Citation | 25 I&N Dec. 127 |
| Parties | Matter of Mohamed RAJAH, Respondent. |
| Court | U.S. DOJ Board of Immigration Appeals |
In Rajah v. Mukasey, 544 F.3d 449 (2d Cir. 2008), the United States Court of Appeals for the Second Circuit granted the respondent's petition for review of our June 27, 2006, decision; vacated our order insofar as we affirmed the Immigration Judge's denial of the respondent's motion to continue; and remanded the case to us for further proceedings.1 The court directed the Board to set "standards that reflect various situations of those seeking such continuances." Id. at 450.
We now articulate the factors that an Immigration Judge and the Board should consider in determining whether a respondent has established good cause for a continuance to apply for adjustment of status based on a pending labor certification or employment-based immigrant visa petition. On further review of the respondent's case, we will again dismiss his appeal.
The respondent, a native and citizen of Morocco, was admitted to the United States on December 13, 1994, as a nonimmigrant visitor with an authorized stay of 6 months. The respondent's employer filed a labor certification on his behalf on April 30, 2001. On April 22, 2003, he was personally served with a Notice to Appear (Form I-862) charging him with removability under section 237(a)(1)(B) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(1)(B) (2006), for having remained beyond his authorized stay in the United States. The respondent's first hearing before the Immigration Judge was held on May 30, 2003.
The respondent appeared before the Immigration Judge 13 times during an 18-month period. The proceedings were continued for a variety of reasons. The respondent was granted five continuances over a 6-month period to obtain counsel and prepare his case. The Department of Homeland Security ("DHS") was granted two continuances over a 2-month period to respond to the respondent's motion to terminate. The respondent and the DHS were each granted a continuance to address the issues raised in the respondent's motion to suppress evidence. The respondent obtained two additional continuances for a 6-month period to determine the status of his Application for Alien Employment Certification (ETA Form 750) (labor certification), which was pending with the United States Department of Labor ("DOL").2 T h e proceedings were continued twice to arrange for the presence of an Arabic translator.
When the parties reconvened on December 16, 2004, the respondent sought another continuance based on his pending labor certification. Without elaborating, the Immigration Judge concluded that the respondent had had "sufficient time" to obtain an approved labor certification and denied his request. We affirmed the Immigration Judge's decision, observing that the respondent had failed to provide any information as to the status of his labor certification and the DOL's estimated processing times. While this matter was pending before the Second Circuit, the respondent's labor certification was approved on July 16, 2007, and later expired when the respondent's employer did not file a visa petition for the respondent.
On remand the court charged us with providing "a reasoned set of standards explicating when continuances for labor certifications are within the `range of permissible decisions' available to an [Immigration Judge], and when they are not." Rajah v. Mukasey, 544 F.3d at 455. The court instructed us to develop standards that would take into account:
(a) the intent of Congress in creating a mechanism for adjusting status based on labor certification and visa eligibility, as expressed in 8 U.S.C. § 1255(i), (b) the lengthy delays and uncertainties caused by the implementation of this mechanism, and (c) the effect, if any, in a given case, of a labor certification being approved after the agency has acted, but while the case is still sub judice.3
Immigration Judges derive their broad discretionary authority over continuances from the regulations, which state that "[t]he Immigration Judge may grant a motion for continuance for good cause shown." 8 C.F.R. § 1003.29 (2009); see also Matter of Hashmi, 24 I&N Dec. 785, 788 (BIA 2009); 8 C.F.R. § 1240.6 (2009) ().
In our recent precedent decision in Matter of Hashmi, 24 I&N Dec. 785, we examined factors that may be considered in determining whether to continue proceedings to afford the DHS's United States Citizenship and Immigration Services ("USCIS") the opportunity to adjudicate a Petition for Alien Relative (Form I-130), a family-based visa petition which, if approved, would render the respondent prima facie eligible for adjustment of status.4 We held that the Immigration Judge and the Board may consider a variety of factors in evaluating the propriety of a continuance, including but not limited to:
(1) the DHS response to the motion; (2) whether the underlying visa petition is prima facie approvable; (3) the respondent's statutory eligibility for adjustment of status; (4) whether the respondent's application for adjustment merits a favorable exercise of discretion; and (5) the reason for the continuance and other procedural factors.
Id. at 790. We explained that these factors are illustrative, not exhaustive. Id.
Matter of Hashmi provides a framework to analyze whether good cause exists to continue proceedings to await adjudication by the USCIS or the DOL. In determining whether good cause exists for a continuance, the Immigration Judge should first determine the respondent's place in the employment-based adjustment of status process and then consider and balance the Hashmi factors, if applicable, and any other relevant considerations. While all these factors may be relevant in a given case, the focus of the inquiry is the likelihood of success on the adjustment application.
Section 203(b) of the Act, 8 U.S.C. § 1153(b) (2006), authorizes five employment-based immigrant visa classifications, each with its own statutory and regulatory requirements. In general, the adjustment of status process under sections 203(b)(1), (4), and (5) of the Act is similar to the two-step family-based adjustment of status process described in Hashmi, while a three-step adjustment process underlies the employment-based classifications described at sections 203(b)(2) and (3) of the Act.5 The respondent's case involves the three-step process, which begins with the filing of a labor certification with the DOL. See Lendo v. Gonzales, 493 F.3d 439, 441-42 (4th Cir. 2007) ().
First, an alien's employer or prospective employer in the United States files a labor certification with the DOL on the alien's behalf. The DOL approves a labor certification only if it is established that there are not sufficient United States workers "able, willing, qualified . . . and available" to perform the job and that the employment of the alien will not adversely affect similarly situated United States workers. Section 212(a)(5)(A)(i)(I) of the Act, 8 U.S.C. § 1182(a)(5)(A)(i)(I) (2006). Generally, before filing the labor certification, an employer is required to conduct a recruitment campaign to test the affected local labor market to determine whether there are minimally qualified United States workers for the position. See 20 C.F.R. § 656.17(e) (2009). Once the required recruitment process is complete, the employer files the labor certification declaring, inter alia, that "[t]he job opportunity has been and is clearly open to any" United States worker and that United States "workers who applied for the job opportunity were rejected for lawful job-related reasons." 20 C.F.R. §§ 656.10(c)(8)-(9) (2009). The labor certification is valid for 180 days from the date the DOL certifies the application. See 20 C.F.R. § 656.30(b)(1) (2009).
Second, if the labor certification is approved, the employer files a Form I-140 (Immigrant Petition for Alien Worker) with the USCIS pursuant to sections 203(b)(2) and (3) and 204(a)(1)(F) of the Act, 8 U.S.C. § 1154(a)(1)(F) (2006). The I-140 must be filed with the USCIS within the labor certification's 180-day validity period. See 20 C.F.R. § 656.30(b). Along with the labor certification, the employer must provide evidence showing that at the time the labor certification was filed, the employer had the ability to pay the offered wage and the alien possessed the required education and experience for the job offered. See 8 C.F.R. §§ 204.5(a), (c), (g...
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