Rajah v. Mukasey

Decision Date24 September 2008
Docket NumberDocket No. 06-3493-ag.
Citation544 F.3d 449
CourtU.S. Court of Appeals — Second Circuit
PartiesMohamed RAJAH, Petitioner, v. Michael B. MUKASEY,<SMALL><SUP>1</SUP></SMALL> as Attorney General of the United States; Michael Chertoff, as Secretary of the U.S. Department of Homeland Security; and Martin Ficke, as Special Agent-in-Charge of the New York District of the U.S. Immigration and Customs Enforcement, Respondents.

Ann C. Pottratz, (Wanyong Austin, on the brief), Lutheran Social Services of N.Y., New York, N.Y., for Petitioner.

Song E. Park, (Peter D. Keisler, Assistant Attorney General, M. Jocelyn Lopez Wright, Assistant Director, on the brief), Office of Immigration Litigation, Washington, D.C., for Respondents.

Before: WINTER, WALKER, and CALABRESI, Circuit Judges.

CALABRESI, Circuit Judge:

This case presents us with the thorny task of reviewing a discretionary determination of the Immigration courts — whether or not to grant a continuance — a determination that must lie, as we have said, "within the range of permissible decisions." Morgan v. Gonzales, 445 F.3d 549, 552 (2d Cir.2006) (quoting Zervos v. Verizon New York, Inc., 252 F.3d 163, 169 (2d Cir.2001)). We lack guidance from the BIA, however, as to the contours of this range, and although we have found certain decisions denying continuances clearly within the metes and bounds of permissibility, the case before us does not neatly fall into such a category. Here, petitioner requested a continuance where an application for labor certification, which, in conjunction with an I-140 employment-based visa, would allow petitioner to adjust to legal status, had been timely filed on petitioner's behalf. Through no fault of petitioner's, however, and due to unexpected and lengthy delays, the certification had not yet been adjudicated by the Department of Labor. The Immigration Judge ("IJ"), affirmed by the BIA, denied the continuance, finding, without discussion, that petitioner had "sufficient time." During the pendency of his appeal before this Court, petitioner's labor certification was approved.

We cannot adequately consider whether the agency abused its discretion in denying petitioner's request for a continuance in the case before us in the absence of standards that reflect the various situations of those seeking such continuances. These standards must 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. In remanding to the BIA, we seek a quantum by which better to measure the reasonableness of a petitioner's request for a continuance, and a clearer demarcation of the range of permissibility to be exercised by the IJ. It is the BIA's responsibility and opportunity to provide these standards in the first instance. See Poole v. Mukasey, 527 F.3d 257, 259 (2d Cir.2008) (observing with approval that "[n]ormally, the Government urges us to insist that the BIA have the initial opportunity to construe the statutes it administers"); cf. Mei Juan Zheng v. Mukasey, 514 F.3d 176, 184 (2d Cir.2008) (remanding to the BIA for further consideration of a frivolousness finding for the reasons set forth in Yuanliang Liu v. U.S. Dep't of Justice, 455 F.3d 106 (2d Cir.2006)); Yuanliang Liu, 455 F.3d at 116 (remanding to the BIA for explication of standards regarding frivolousness determinations).2

BACKGROUND

Petitioner Mohamed Rajah ("Petitioner" or "Rajah"), a native and citizen of Morocco, entered the United States in December 1994 on a six-month nonimmigrant (tourist) visa. He remained in the country after his visa expired on May 12, 1995. In April 2001, an application for labor certification was filed with the Department of Labor on Rajah's behalf by Rajah's employer, Crosslands Transportation, Inc. This certification was approved shortly before oral argument in this case, on July 11, 2007. On January 9, 2003, Rajah went to the offices of the Immigration and Nationality Service ("INS") in New York City,3 in order to register with the United States government pursuant to the National Security Entry-Exit Registration System ("NSEERS"), which had been created in the aftermath of the terrorist attacks on September 11, 2001.4 At that time, Rajah was given a notice requiring him to return on April 22, 2003, in order to be served with a Notice to Appear.

On April 25, 2003, immigration officials, now part of the Department of Homeland Security ("DHS"), began removal proceedings against Rajah, charging him as subject to removal for overstaying his six-month nonimmigrant visa. See 8 U.S.C. § 1227(a)(1)(B). Rajah was ordered to appear before an Immigration Judge ("IJ") on May 30, 2003. The hearing was postponed to August 1, 2003 by IJ Barbara Nelson to give Rajah an opportunity to get an attorney. At the August 1 hearing, Rajah submitted a letter from the Arabic American Family Support Center, which stated that the Center was "actively making efforts to find [Rajah] legal counsel," but that due to the "overwhelming number of special registrants [under NSEERS]" the Center had thus far been unable to secure Rajah legal representation. IJ Nelson agreed to adjourn the hearing until September 26.

In a letter dated September 24, the City Bar Fund, an Association of the Bar of the City of New York Fund, Inc., requested that IJ Nelson adjourn Rajah's proceedings for two months, during which time the City Bar Fund would prepare a lawyer to undertake Rajah's representation. This letter detailed the creation of a "Special Registration Project," designed to provide legal assistance to those aliens, like Rajah, who had been subjected to the NSEERS program. This Project sought to provide pro-bono attorneys to those aliens placed in removal proceedings as a consequence of having registered pursuant to the NSEERS program, and, to that end, had prepared an October 16, 2003 training session on the legal issues raised by NSEERS for attorneys willing to serve. In response to this letter, at Rajah's hearing on September 26, IJ Nelson agreed to an adjournment—albeit shorter than that requested by the City Bar Fund — of one month.

On October 31, 2003, Rajah and his lawyer, Justine Foreman, arrived at the scheduled hearing. Ms. Foreman requested an additional brief adjournment as she had "just received [Rajah's] case this week," and had not yet had time to review his file. IJ Nelson agreed to postpone the case until November 21, 2003.

On November 21, 2003, Rajah, now represented by Jocelyn Normand, requested a continuance, as Rajah's employer had filed a labor certification on his behalf on April 27, 2001. IJ Nelson responded that "Mr. Rajah has had four adjournments. I don't adjourn cases for labor certs." She continued, "I'll give you one adjournment to apply for any other relief he may be eligible for, which might be voluntary departure, it might be asylum, I don't know what it would be. But at the next hearing he either has to file an application for some relief or apply for voluntary departure. Or if the labor cert has been approved then, if there's an I-140 pending I adjourn for that."5 Ms. Foreman clarified to IJ Nelson that should Rajah be unable to file an I-140 by the date of the next adjournment—his ability to do so contingent on the Department of Labor's having approved his labor certification—she, as his lawyer, intended to file a motion to terminate the proceedings. Given that information, IJ Nelson adjusted the schedule, requiring the termination motion to be filed on December 19, 2003.

At the hearing on December 19, IJ Nelson gave DHS a month to respond to Rajah's motion to terminate proceedings, and scheduled the next hearing for January 16, 2004. As of that date, IJ Nelson had not received any submission from DHS in response to Rajah's motion to terminate on various constitutional grounds. Eventually, the hearing resumed on March 19, 2004, at which time IJ Nelson denied Rajah's motion to terminate. At that hearing, Rajah did not admit removability, and IJ Nelson requested evidence from DHS to establish Rajah's removability, as charged in the initial Notice to Appear. DHS offered a copy of Rajah's passport and his I-94 form, the admission of which was objected to by Rajah's counsel. Rajah's counsel then filed a motion to suppress these documents. After the government responded to that motion, IJ Nelson set an individual hearing for Rajah on June 25, 2004.

On June 25, Rajah's lawyer again raised the labor certification question. She noted that Rajah's case had already gone through many of the required stages6 and that she had discussed the situation with Rajah's attorney in charge of the certification. IJ Nelson agreed to adjourn the case "one last time," saying "[t]he next time you come in I'm going to need more than just what you talked to the attorney about. I'm going to need something, a letter from the attorney or something from the Department of Labor showing what cases they're up to." The case was adjourned to November 19, 2004.

In November, IJ Nelson asked "is the labor cert approved?" Rajah's lawyer responded, "No, Judge. The last hearing you asked us to get a letter." IJ Nelson then responded, "well, I also told you at the last hearing that it was a final adjournment for the labor certification to be adjudicated and if nothing had been finalized on that he would simply have to apply for whatever relief he was entitled to, whether it be asylum, voluntary departure, whatever." 7

She adjourned the hearing until December 16, 2004, in order to provide Rajah with an interpreter at his final hearing.

At the December 16, 2004 hearing, IJ Nelson found Rajah removable. In an effort to...

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22 cases
  • Rajah v. Mukasey
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • September 24, 2008
    ...Rajah's case to the BIA on the grounds discussed by Judge Calabresi, in an opinion filed concurrently with this. See Rajah v. Mukasey, 544 F.3d 449 (2d Cir. 2008). I. After the terrorist attacks of September 11, 2001, the Attorney General instituted the National Security Entry-Exit Registra......
  • Matter of Rajah, Interim Decision No. 3662.
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    ...Chief Counsel. BEFORE: Board Panel: NEAL, Acting Chairman; GREER and MALPHRUS, Board Members. GREER, Board Member. 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, d......
  • Flores v. Holder
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • February 26, 2015
    ...abused its discretion by denying Flores's motion to continue without considering the factors articulated in Hashmi. See Rajah v. Mukasey, 544 F.3d 449, 453 (2d Cir.2008) (observing that agency abuses its discretion in denying motion to continue where its decision “rests on an error of law” ......
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    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • February 26, 2015
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