Ramchandani v. Gonzales, No. 04-61139 Summary Calendar.

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: Benavides
• Citation: 434 F.3d 337
• Parties: Anil Kumar RAMCHANDANI, Petitioner, v. Alberto R. GONZALES, U.S. Attorney General, Respondent.
• Docket Number: No. 04-61139 Summary Calendar.
• Decision Date: 21 December 2005

434 F.3d 337 Anil Kumar RAMCHANDANI, Petitioner,
v.
Alberto R. GONZALES, U.S. Attorney General, Respondent. No. 04-61139 Summary Calendar. United States Court of Appeals, Fifth Circuit. December 21, 2005.

Page 338

William F. Harmeyer, William F. Harmeyer & Associates, Houston, TX, for Petitioner.

Nancy E. Friedman, Civ. Div., Richard M. Evans, Asst. Dir., Thomas Ward Hussey, Dir., U.S. Dept. of Justice, Imm. Lit., Washington, DC, Caryl G. Thompson, U.S. INS, Attn: Joe A. Aguilar, New Orleans, LA, Sharon A. Hudson, U.S Citizenship & Imm. Services, Houston, TX, for Respondent.

On Petition for Review from an Order of the Board of Immigration Appeals.

Before HIGGINBOTHAM, BENAVIDES and DENNIS, Circuit Judges.

BENAVIDES, Circuit Judge:

Anil Kumar Ramchandani petitions for review from the Board of Immigration Appeals's dismissal of his appeal and denial of his motion to reopen. For the reasons below, we deny the petition.

I. Background

Ramchandani is a citizen of India. On May 11, 1997, he was admitted to the United States as a nonimmigrant "alien in transit," with authorization to remain only until June 10, 1997. Ramchandani overstayed. On October 24, 2002, he was served with a Notice to Appear, and the Immigration and Naturalization Service commenced removal proceedings against him.

After obtaining three continuances, Ramchandani appeared before an Immigration Judge ("IJ") on June 30, 2003. He sought another continuance, hoping to adjust his status to that of lawful permanent resident. Ramchandani argued that a continuance was necessary (1) to allow him to obtain a labor certificate and (2) so that Lisa O'Hanlon, a United States citizen whom he claimed to have married three days earlier, could complete an I-130, marriage-based visa petition on his behalf. The IJ denied the request and entered an order of removal. Ramchandani timely appealed to the Board of Immigration Appeals ("BIA").

While the case was pending on appeal, Ramchandani filed a motion to reopen the removal proceedings. He attached an application to adjust status to his motion to reopen, which was based on an unapproved visa petition that his wife had filed subsequent to the IJ's order of removal. Ramchandani's motion admitted, and a marriage certificate he attached as evidence showed, that he had actually married O'Hanlon after the IJ's order of removal, on July 8, 2003. The BIA affirmed the IJ's denial of a continuance and denied Ramchandani's motion to reopen. Ramchandani appeals these two rulings.

II. Discussion

A. DENIAL OF CONTINUANCE

The BIA affirmed the IJ's denial of a continuance, citing 8 C.F.R. § 1003.29. Under section 1003.29, an IJ "may grant a motion for continuance for good cause shown." The alien seeking continuance bears the burden of showing good cause. See Bright v. I.N.S., 837 F.2d 1330, 1332 (5th Cir.1988). The grant of a continuance "lies within the sound discretion of the immigration judge." See Witter v. I.N.S., 113 F.3d 549, 555-56 (5th Cir.1997). We find no abuse of that discretion here.

1. CONTINUANCE FOR LABOR CERTIFICATION

Aliens who are the beneficiary of an application for labor certification filed on or before April 30, 2001 may apply to the Attorney General for the adjustment of

Page 339

their status. 8 U.S.C. § 1255(i). Upon approval of the labor certification, the Attorney General may adjust the alien's status to that of lawful permanent resident.

Ramchandani argues, citing Subhan v. Ashcroft, 383 F.3d 591, 594 (7th Cir.2004), that his removal proceedings should have been continued to permit the processing of a labor certification he claims was pending with the Texas Workforce Commission. In Subhan, the Seventh Circuit granted a petition for review where the IJ, without explanation, denied an alien's request for a continuance for processing of a pending labor certification. 383 F.3d at 594-96.

Ramchandani's reliance on Subhan ignores a critical distinction between that case and the case at bar. In Subhan, the record reflected that applications for labor certificates had been filed within the April 30, 2001 sunset deadline and, moreover, that the petitioner had "endeavored ... with all due diligence" to obtain approved certificates. Id. at 593. By contrast, Ramchandani produced no evidence below that an application for labor certification had been filed on his behalf prior to April 30, 2001.¹

In Ali v. Gonzales, a panel of this Court held that an alien's responsibility to show "good cause" for a continuance required at least "a showing that the labor certification application was filed on or before April 30, 2001." 2005 WL 3150723, *1 (5th Cir. Nov.28, 2005) (unpublished). Although Ali is not binding precedent, it is persuasive authority. See United States v. Rueda-Rivera, 396 F.3d 678, 681 (5th Cir.2005). Without making some showing before the IJ that a labor certification was filed prior to April 30, 2001, the alien cannot show that he would meet the statutory requirements of Section 1255(i) even if the case were continued. Cf. Manzano-Garcia v. Gonzales, 413 F.3d 462, 464 (5th Cir.2005) (noting that the petitioner obtained a continuance after he "presented the immigration judge ... with a receipt for the labor certification application, which had been filed on November...