Zafar v. U.S. Atty. Gen., No. 04-16613.
| Decision Date | 27 September 2005 |
| Docket Number | No. 04-16689.,No. 04-16613.,No. 04-16750. |
| Citation | 426 F.3d 1330 |
| Parties | MOHAMMED ZEESHAN ZAFAR, Petitioner, v. U.S. ATTORNEY GENERAL, Respondent. Amirmohammed Habib Lakhani, Petitioner, v. U.S. Attorney General, Respondent. Nizar Ghulamani, Petitioner, v. U.S. Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Karen Weinstock, Siskind, Susser, Haas & Devine, P.C., Atlanta, GA, for Petitioners.
Barry J. Pettinato, David V. Bernal, Russell J.E. Verby, Margaret K. Taylor, U.S. Dept. of Justice, OIL, Washington, DC, for Respondent.
Petitions for Review of Decisions of the Board of Immigration Appeals.
Before ANDERSON, HULL and RONEY, Circuit Judges.
Petitioners are living in the United States on expired visas. Separate removal proceedings were initiated against all three in March and April, 2003. Each moved for continuances while awaiting labor certifications. They filed petitions seeking review of the Board of Immigration Affairs' (BIA) summary affirmances of the immigration judges' denials of their motions to continue their removal proceedings. The government contends that this Court is without jurisdiction to hear this case pursuant to 8 U.S.C. § 1252(a)(2)(B)(ii). We hold that we have jurisdiction under this statute to review the denials of motions to continue removal proceedings, but there was nonetheless no abuse of discretion in the immigration judges' decisions do so. We thus deny the petitions.
Petitioners Amirmohammed Habib Lakhani, Mohammed Zeeshan Zafar, and Nizar Ghulamani are natives and citizens of Pakistan. The facts and procedural histories of their individualized cases are set forth below.
Lakhani entered the United States on or about July 9, 1995 as a nonimmigrant visitor authorized to remain in the country until August 10, 1995. On March 27, 2001, Lakhani filed an application for labor certification. On April 14, 2003, the Department of Homeland Security ("DHS") initiated removal proceedings against Lakhani, charging him as a nonimmigrant who remained in the United States longer than permitted pursuant to 8 U.S.C. § 1227(a)(1)(B). On July 16, 2003, Lakhani appeared in immigration court, where he admitted the factual allegations and conceded removability. Immigration Judge G. Mackenzie Rast, however, adjourned the matter until August 6, 2003 to ascertain what relief, if any, Lakhani would be seeking. At the August 6 hearing, Lakhani's counsel advised Judge Rast that Lakhani had a pending labor certification and requested that his removal be continued on that basis. Judge Rast denied that continuance ruling, Judge Rast then ordered Lakhani removed from the United States. The BIA summarily affirmed Judge Rast's decision.
Zafar entered the United States on or about September 29, 2000, as a nonimmigrant visitor authorized to remain in the country until March 29, 2001. On April 27, 2001, Zafar's father filed an application for labor certification. On March 12, 2003, the DHS initiated removal proceedings against Zafar, charging him, like Lakhani, as a nonimmigrant who remained in the United States longer than permitted pursuant to 8 U.S.C. § 1227(a)(1)(B). On July 16, 2003, Zafar appeared before the same immigration judge (Judge Rast) as Lakhani. Zafar also admitted the factual allegations and conceded removability. Similarly, Judge Rast adjourned the matter until August 6, 2003. At that August 6 hearing, Zafar's counsel advised Judge Rast that Zafar's father was in removal proceedings and had a pending labor certification. Counsel requested that Zafar's case be consolidated with his father's case. Zafar argued that because he was then under the age of twenty-one, he might qualify as a derivative beneficiary of his father's employment-based visa petition if it was ultimately approved. As such, Zafar moved the immigration court for a continuance until the disposition of his father's labor certification. Judge Rast found that there was:
no case authority or statutory [or] regulatory authority which authorizes or suggests the appropriateness of a continuance where labor certification has not yet been approved by the labor authorities. In this particular case, the situation is twice removed from that process. Under the circumstances, the Court does not view it as appropriate that the matter be continued for such purposes.
Judge Rast then ordered Zafar removed from the United States to Pakistan. Zafar appealed that decision to the BIA, which summarily affirmed the IJ's decision.
Ghulamani entered the United States as a nonimmigrant visitor on June 7, 1997, with a visa authorizing him to stay in the country for no longer than six months. On April 30, 2001, Ghulamani filed an application for labor certification. On March 21, 2003, the DHS initiated removal proceedings pursuant to § 1227(a)(1)(B). On January 8, 2004, Ghulamani appeared before Immigration Judge Paul L. Johnson and also conceded removability. His counsel advised Judge Johnson that he had a pending labor certification and requested that his removal proceeding be continued on that basis as well. In a written decision, which was drafted and dated months prior to that hearing on September 25, 2003, the immigration judge denied Ghulamani's request for a continuance, finding, after oral arguments on the motion, that there was not the requisite good cause for continuance as provided in 8 C.F.R. § 1003.29. Judge Johnson found that the approval of a pending labor certification was "speculative" and did not entitle Ghulamani to a continuance. The BIA affirmed the immigration judge's decision without opinion.
The government contends that this Court lacks jurisdiction to review these petitions, which challenge the immigration judges' decisions to not continue the petitioners' removal proceedings. It directs us to the plain language of INA § 242(a)(2)(B)(ii), 8 U.S.C. § 1252(a)(2)(B)(ii) (2000), which states in relevant part, "Notwithstanding any other provision of law, no court shall have jurisdiction to review. . . any . . . decision or action of the Attorney General for which is specified under this subchapter to be in the discretion of the Attorney General." That is, it contends that because the granting of continuances are discretionary, this "door closing" statute strips this Court of jurisdiction to review them.
Petitioners contend, however, that an immigration judge's authority to grant a continuance is not directly found "under this subchapter," which is "SUBCHAPTER II" of chapter 12, Title 8, entitled "Aliens and Nationality," but instead is found in 8 C.F.R. § 1003.29, a federal regulation implemented by the Attorney General. Therefore, they argue, § 1252(a)(2)(B)(ii) does not prevent this Court from having jurisdiction to review their petitions.
We have jurisdiction to review an immigration judge's decision to deny a motion to continue a removal hearing. Section 1252(a)(2)(B)(ii) precludes our review of discretionary decisions of the Attorney General in only the specific circumstances where the "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 supplied). The expressed authority of an immigration judge to grant or deny a motion to continue a hearing is not found under the particular "subchapter" where § 1252(a)(2)(B)(ii) is contained, which is "SUBCHAPTER II" of chapter 12, Title 8, entitled "Aliens and Nationality." See generally, 8 U.S.C., ch. 12 (entitled, "Immigration and Nationality"). Instead, the authority of an immigration judge to grant a motion for continuance is derived solely from regulations promulgated by the INS. See 8 C.F.R. § 1003.29 ().
The phrase "specified under this subchapter" refers to subchapter II of Chapter 12, 8 U.S.C. §§ 1151-1378. See Yerkovich v. Ashcroft, 381 F.3d 990, 992 (10th Cir.2004). Congress has precisely carved-out the statutorily-provided discretionary powers of the Attorney General within 8 U.S.C. sections 1151 through 1378 and, in turn, has expressly prohibited "any court" from reviewing them. There are myriad Congressionally-defined, discretionary statutory powers of the Attorney General articulated within sections 1151 through 1378. For example, the may waive particular visa or passport requirements. See, e.g., 8 U.S.C. § 1184(d) (2000) ( that the ) (emphasis supplied); 8 U.S.C. § 1181(b) (2000) ( that the may readmit individual "without being required to obtain a passport . . .") (emphasis supplied). The Attorney General also "may authorize immigration officers" to record, among other things, the names, age and sex of "every resident person leaving the United States by way of the Canadian or Mexican borders for permanent residence in a foreign country." 8 U.S.C. § 1221(c). Although not before us, these discretionary decisions — statutory authority for which Congress "specified under" subchapter II — of the Attorney General would presumably not be reviewable by "any court" under the jurisdictional-stripping provisions of § 1252(a)(2)(b)(ii).
The discretionary decisions exercised here by the immigration judges to not continue the removal hearings were not "specified" under subchapter II of chapter 12, title 8, by Congress. The...
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