United States Court of Appeals Fifth Circuit F I L E D REVISED JUNE 2, 2006 April 24, 2006 IN THE UNITED STATES COURT OF APPEALS Charles R. Fulbruge III FOR THE FIFTH CIRCUIT Clerk
____________________
No. 05-60032 ____________________
MUSHTAQ AHMED,
Petitioner
v.
ALBERTO R. GONZALES, United States Attorney General,
Respondent
_________________________________________________________________
Petition for Review of an Order of the Board of Immigration Appeals No. 79-008-192 _________________________________________________________________
Before JONES, Chief Judge, and KING and DENNIS, Circuit Judges.
KING, Circuit Judge:
Petitioner Mushtaq Ahmed petitions this court for review of
a final order of removal by the Board of Immigration Appeals. In
its order, the Board of Immigration Appeals also affirmed an
immigration judge’s refusal to continue Ahmed’s removal
proceedings. Ahmed now argues that the Board erred in affirming
both the immigration judge’s refusal to continue his removal
proceedings and the order of removal. For the following reasons,
we DENY the petition for review. I. BACKGROUND
Petitioner Mushtaq Ahmed (“Ahmed”), is a fifty-two-year-old
citizen and native of Pakistan, who was admitted to the United
States on August 21, 2000, as a nonimmigrant crewman. Ahmed’s
visa allowed him to remain in the United States for a period not
to exceed twenty-nine days. Ahmed did not seek an extension of
this period. Instead, he remained in the United States without
authorization after his visa expired.
On April 26, 2001, American Rags, Inc. (“American Rags”),
filed an application for labor certification with the Department
of Labor on Ahmed’s behalf. Subsequently, Ahmed registered in
the special registration program of the National Security
Entry/Exit Registration System (“NSEERS”), as required by law for
male nonimmigrants from certain countries, including Pakistan.1
On April 24, 2003, the Department of Homeland Security (“DHS”)
initiated removal proceedings against Ahmed. Ahmed asserts that
these removal charges were the direct result of his registration
in NSEERS.
The amended removal charges filed against Ahmed alleged that
he was removable, pursuant to 8 U.S.C. § 1227(a)(1)(B), as a
nonimmigrant who remained in the United States for a time longer
1 NSEERS is a program that tracks foreign nationals from various countries, including Pakistan, who reside in the United States, pursuant to the direction of 8 U.S.C. §§ 1303, 1305.
2 than permitted.2 On December 12, 2003, Ahmed appeared with
counsel before the immigration judge, admitted to DHS’s factual
allegations, and conceded removability. He also requested a
continuance in order to permit adjudication of his pending labor
certification. In the course of this hearing, the immigration
judge denied Ahmed’s request for a continuance for lack of good
cause, after noting that Ahmed lacked an approved labor
certification, a valid visa, or even a pending visa application
with DHS. The same day, the immigration judge ordered Ahmed’s
removal.
Ahmed appealed the immigration judge’s decision to the Board
of Immigration Appeals (“BIA”), arguing, inter alia, that the
immigration judge’s decision to deny Ahmed’s request for a
continuance, in combination with the required NSEERS registration
process, violated Ahmed’s constitutional rights in various ways
and also violated Ahmed’s rights protected by 8 U.S.C. § 1255(i).
On December 22, 2004, the BIA affirmed the immigration judge’s
decision. Citing its own precedent, the BIA noted that “there is
no certainty that [Ahmed] would receive certification” and
observed that the decision to grant or deny continuances rests
within the “sound discretion” of an immigration judge.
Therefore, the BIA concluded that the immigration judge was
2 DHS originally charged Ahmed with removability under 8 U.S.C. § 1182(a)(6)(A)(i), as an alien present in the United States without being admitted, but subsequently amended the charge of removability and some of the factual allegations.
3 justified in refusing to grant a continuance “because an
Immigration Judge may neither terminate nor indefinitely adjourn
the proceedings in order to delay an alien’s deportation.” Ahmed
filed his petition for review with this court on January 14,
2005.
II. DISCUSSION
The issues raised by Ahmed before this court all relate to
the immigration judge’s refusal to grant a continuance pending
the adjudication of his labor certification. First, citing the
recent decision of the Seventh Circuit in Subhan v. Ashcroft, 383
F.3d 591 (7th Cir. 2004), Ahmed argues that the immigration
judge’s refusal to grant a continuance violated relief rights
established by 8 U.S.C. § 1255(i). Second, Ahmed argues that the
immigration judge’s refusal to grant a continuance, in
combination with the government’s registration requirements in
the NSEERS program and the immigration judge’s order of removal,
violated his equal protection and due process rights protected by
the Fifth Amendment. Ahmed concludes that this court should
grant his petition for review and return his case to the relevant
immigration officials for further proceedings after the
adjudication of his pending labor certification.
In response, the government briefly questions our
jurisdiction to review Ahmed’s statutory arguments and argues
that both the statutory and the constitutional arguments are
4 groundless. On the merits, the government argues that the
immigration judge’s decision was correct: the slim prospect of
relief from removal based on the mere possibility that Ahmed
might, at some later date, be granted a labor certification that
would, in turn, only enable an employment-based visa petition is
too speculative to establish the requisite “good cause” for the
granting of a continuance. More specifically, the government
argues that Subhan’s reasoning and conclusion should be rejected
and asserts that Ahmed has wholly failed to state a cognizable
constitutional violation.
We will address the government’s jurisdictional point first,
the issues raised by Ahmed’s statutory arguments second, and the
issues raised by Ahmed’s constitutional arguments last.
A. Jurisdiction
In its brief before this court, the government suggests that
an appellate court’s jurisdiction to review an immigration
judge’s discretionary decision to deny an alien’s motion for a
continuance is an “open question” for this court. Other
circuits, notably the Eighth Circuit in Onyinkwa v. Ashcroft, 376
F.3d 797 (8th Cir. 2004), and the Tenth Circuit in Yerkovich v.
Ashcroft, 381 F.3d 990 (10th Cir. 2004), have analyzed this issue
and reached a holding contrary to the conclusion we reach today.
As the government correctly acknowledged in its briefs, however,
this court recently noted its disagreement with these decisions
5 from the Eighth and Tenth Circuits in Zhao v. Gonzales, 404 F.3d
295 (5th Cir. 2005). And as the government correctly conceded at
oral argument, Zhao’s jurisdictional reasoning has been
reaffirmed by this court. See Manzano-Garcia v. Gonzales, 413
F.3d 462, 467 (5th Cir. 2005) (per curiam) (quoting Zhao).
This jurisdictional point revolves around the language of
§ 1252(a)(2)(B)(ii). As we noted in Zhao, “[o]ne might
mistakenly read § 1252(a)(2)(B)(ii) as stripping us of the
authority to review any discretionary immigration decision.” 404
F.3d at 303. Such a reading is mistaken, however, “because
§ 1252(a)(2)(B)(ii) strips us only of jurisdiction to review” the
discretionary authority that is “specified in the statute.” Id.
As we have repeatedly noted, we observe again that the language
of § 1252(a)(2)(B)(ii) is thoroughly “pellucid on this score; it
does not allude generally to ‘discretionary authority’ or to
‘discretionary authority exercised under this statute,’ but
specifically to ‘authority for which is specified under this
subchapter to be in the discretion of the Attorney General.’”
Id. (quoting § 1252(a)(2)(B)(ii)) (emphasis in Zhao); see also
Manzano-Garcia, 413 F.3d at 467 (quoting same).
This court concluded in Zhao that it had authority to review
the BIA’s discretionary denial of an alien’s motion for
reconsideration, despite an awareness of “caselaw from other
circuits to the contrary,” specifically Onyinkwa and Yerkovich.
404 F.3d at 303. In Onyinkwa, the Eighth Circuit held that it
6 lacked jurisdiction to review an immigration judge’s denial of a
continuance, stating that because the “power to grant
continuances is within the discretion of immigration judges . . .
courts generally have no jurisdiction to review the exercise of
that discretion.” 376 F.3d at 799. We rejected Onyinkwa’s
reasoning in Zhao because we refused to endorse Onyinkwa’s
interpretation of § 1252(a)(2)(B)(ii) “whereby any statutorily
authorized regulation conferring discretion necessarily
forecloses judicial review.” 404 F.3d at 303 n.6. We held that
such a reading was both “contrary to Congress’s language and has
clear policy consequences.” Id. In Yerkovich, the Tenth Circuit
held that it lacked jurisdiction to review an immigration judge’s
denial of a continuance, citing, inter alia, the Eighth Circuit’s
decision in Onyinkwa. 381 F.3d at 994. Again, we rejected this
reasoning in Zhao, pointing out that Yerkovich’s holding depended
on a misstatement of the statutory text of § 1252(a)(2)(B)(ii)
itself. 404 F.3d at 303 n.6. More specifically, we pointed out
that Yerkovich omitted the phrase “the authority for which is
specified” in its discussion of § 1252(a)(2)(B)(ii). Id. We
concluded in Zhao that this misstatement caused the Tenth Circuit
to “analyze statutory language that Congress did not adopt,” a
mistake we declined and continue to decline to follow. Id.
Even if a panel of this court had the authority to revisit
our holdings in Manzano-Garcia and Zhao and our interpretation of
§ 1252(a)(2)(B)(ii), Onyinkwa, and Yerkovich, which it does not,
7 the government has provided us with no new reasons to do so.
Therefore, we apply our previous reasoning to the matter at hand
and conclude that we have jurisdiction to review the immigration
judge’s decision to deny Ahmed’s motion for a continuance. Cf.
Zafar v. United States Attorney General, 426 F.3d 1330, 1334
(11th Cir. 2005) (holding that § 1252(a)(2)(B)(ii) “precludes
. . . review of discretionary decisions . . . in only the
specific circumstances” specified in the statute itself); Medina-
Morales v. Ashcroft, 371 F.3d 520, 528 (9th Cir. 2004) (stating
that § 1252(a)(2)(B)(ii) “‘refers not to discretionary
decisions,’ . . . but to acts the authority for which is
specified under the INA to be discretionary”) (quoting Spencer
Enters., Inc. v. United States, 345 F.3d 683, 689 (9th Cir.
2003)).
When, as here, the BIA affirms the immigration judge and
relies on the reasons set forth in the immigration judge’s
decision, this court reviews the decision of the immigration
judge as well as the decision of the BIA. Moin v. Ashcroft, 335
F.3d 415, 418 (5th Cir. 2003).
B. Ahmed’s Statutory Claims
We now turn to Ahmed’s statutory claims. Under the
provisions of 8 U.S.C. § 1255(i), certain aliens such as Ahmed
who were physically but unlawfully present in the United States
were given the opportunity to apply for an “adjustment of status
8 . . . to that of an alien lawfully admitted for permanent
residence.” Ahmed argues, citing the Seventh Circuit’s recent
decision in Subhan, that the immigration judge’s refusal to
continue his removal proceedings violated § 1255(i) because the
immigration judge failed to give a reason consistent with
§ 1255(i) for his refusal.
In Subhan, the Seventh Circuit granted an alien’s petition
for review taken from decisions very similar to the decisions we
review in this matter. The immigration judge in Subhan granted
two requests by an alien petitioner for a continuance pending the
adjudication of a timely filed labor certification but denied a
third request, stating that although the petitioner might “‘be
able to eventually acquire lawful permanent resident status by
virtue of employment,’ not having done so as yet he was ‘not
eligible for this form of relief at this time.’” Subhan, 383
F.3d at 593. The Seventh Circuit held that the immigration
judge’s reason for denying the continuance was no reason at all,
“but merely a statement of the obvious: that the labor
departments hadn’t yet acted.” Id. Therefore, the Seventh
Circuit granted the alien’s petition for review, concluding “that
the immigration judge, seconded by the Board of Immigration
Appeals . . . violated [8 U.S.C. §] 1255(i) when he denied Subhan
a continuance without giving a reason consistent with the statute
(indeed without giving any reason).” Id. at 595.
9 The Eleventh Circuit has also considered this issue and
reached the opposite conclusion. In Zafar, decided over a year
after Subhan, the Eleventh Circuit considered a petition for
review from aliens who claimed that their immigration judges had
abused their discretion by refusing to continue the alien
petitioners’ removal proceedings pending the resolution of labor
certifications. 426 F.3d at 1332-33. Like Ahmed, the Zafar
petitioners argued that the immigration judges’ orders of removal
and refusals to continue the proceedings violated their
constitutional equal protection and due process rights as well as
rights created by § 1255(i). Id. Because the alien petitioners
in Zafar offered only “the ‘speculative’ possibility that at some
point in the future they may receive . . . [a] labor
certification,” the Eleventh Circuit held that they had “failed
to demonstrate that they had a visa petition ‘immediately
available’ to them . . . .” Id. at 1336. Therefore, at the time
the Zafar immigration judges denied the alien petitioners’
“motions to continue their removal proceedings, it [was] clear
that the petitioners were ineligible for adjustments to permanent
resident status under [8 U.S.C.] § 1255(i) . . . .” Id. The
Eleventh Circuit concluded that the immigration judges could not
have abused their discretion by refusing to continue the
petitioners’ proceedings for relief from removal because the
10 petitioners were ineligible for the adjustment relief requested.
Id.
But for § 1255(i), Ahmed, like the Zafar petitioners, would
have no grounds for an adjustment of status, because 8 U.S.C.
§ 1255(c) specifically bars “an alien crewman” who overstays his
visa from receiving an adjustment of status. Section 1255(i)
creates a specific exception from § 1255(c) by stating that
[n]otwithstanding the provisions of [§ 1255(c)], an alien [such as Ahmed] . . . . [with] a labor certification . . . that was filed pursuant to the regulations of the Secretary of Labor . . . . may apply to the Attorney General for the adjustment of his or her status to that of an alien lawfully admitted for permanent residence.
8 U.S.C. § 1255(i)(1). Section 1255(i) does not, however, create
an automatic or a mandatory exception to § 1255(c). To receive
such an adjustment of status, a removable alien’s § 1255(i)
application must be accompanied by an available immigrant visa,
and the entire application for adjustment of status must meet
with the discretionary approval of the Attorney General or his
designee. See 8 U.S.C. § 1255(i)(2) (stating that “[u]pon
receipt of such an application and the sum hereby required, the
Attorney General may adjust the status of the alien to that of an
alien lawfully admitted for permanent residence if (A) the alien
is eligible to receive an immigrant visa and is admissible to the
United States for permanent residence; and (B) an immigrant visa
is immediately available to the alien at the time the application
is filed”) (emphasis added). Ahmed concedes that an immigrant
11 visa was not otherwise available to him. Therefore, at the time
of his removal hearing, Ahmed had begun only the first
preliminary step toward completing a § 1255(i) application for
removal relief, and nothing in § 1255(i) vested any right to
relief from removal when he filed his labor certification.3
We agree with our sister circuit that in some situations,
“the wheels of bureaucracy grind slow,” Subhan, 383 F.3d at 593,
but the most important wheels in this matter have already turned.
The relevant immigration authorities have decided both that Ahmed
is removable and that he should be removed. Ahmed’s pending
labor certification would not have made him any less removable
even if it had been processed at the time of his hearing before
the immigration judge. In order to receive relief from removal
on the undisputed facts, Ahmed needed to receive an adjustment of
status, and the receipt of his pending labor certification was
only the first step in this long and discretionary process. See
8 U.S.C. § 1255(i)(2), discussed supra. Various immigration
officials could have properly exercised their discretion, denied
Ahmed’s application for an adjustment of status, and ensured his
removal at any of these subsequent discretionary points. In this
3 In other words, had Ahmed received his labor certification and completed the very first step in this process, he would still have needed an employer, presumably American Rags, to file an employment-based visa petition on his behalf with DHS, and he would have needed that visa petition to have been approved. See 8 U.S.C. § 1255(i)(2)(A), discussed supra. Only then would he have been eligible for the discretionary removal relief contemplated by § 1255(i).
12 matter, the immigration judge simply exercised his discretion at
the first stage of this lengthy and discretionary process when he
refused to grant Ahmed a continuance for lack of good cause. The
immigration judge’s reasons for this refusal were correct; Ahmed
lacked good cause for a continuance because he was ineligible for
removal relief under the relevant statutes. Therefore, we
decline to hold that the decision to end this lengthy and
discretionary adjustment of status process was itself an abuse of
discretion. Cf. Zafar, 426 F.3d at 1336 (citing, inter alia,
Onyeme v. INS, 146 F.3d 227, 234 (4th Cir. 1998) (finding no
abuse of discretion in BIA’s affirmance of immigration judge’s
refusal to continue proceedings when an alien petitioner failed
to meet all statutory requirements for adjustment of status), and
Oluyemi v. INS, 902 F.2d 1032, 1034 (1st Cir. 1990) (same)).
C. Ahmed’s Constitutional Claims
We now address Ahmed’s claims that his equal protection and
due process rights have been violated.
Ahmed argues that by registering for NSEERS, he alerted the
government to the fact that he had overstayed his original
crewman’s visa. Therefore, he suggests that his registration for
NSEERS was the ultimate cause of both DHS’s decision to initiate
removal proceedings against him and the immigration judge’s
decision to order his removal. Because other aliens of other
nationalities were not necessarily required to register for
13 NSEERS, Ahmed argues that his equal protection rights were
violated.
This court has long held that “[a]liens enjoy some
constitutional protections, regardless of their status,” but it
has also long held that “this protection is limited by Congress’s
broad powers to control immigration.” Rodriguez-Silva v. INS,
242 F.3d 243, 247, 246 (5th Cir. 2001). More specifically, this
court has held “that the equal protection principles that are
implicit in the . . . Fifth Amendment do not in any way restrict
Congress’s power to use nationality or place of origin as
criteria for the naturalization of aliens or for their admission
to or exclusion or removal from the United States.” Id. at 248.
In their efforts to carry out Congress’s criteria for
naturalization, admission, and removal, the Attorney General and
his designees have broad discretion to initiate removal
proceedings against aliens like Ahmed who violate immigration
laws. See, e.g., Reno v. American-Arab Anti-Discrimination
Comm., 525 U.S. 471, 489-91 (1999) (stating that the
“particularly demanding” standard applied to accusations of
breached prosecutorial discretion is “greatly magnified in the
deporation context”); Cardoso v. Reno, 216 F.3d 512, 517 (5th
Cir. 2000) (discussing the clear congressional intent to protect
the Attorney General’s long-established discretion to decide
whether and when to prosecute, adjudicate, and execute removal
proceedings and removal orders).
14 At most, Ahmed’s allegations describe only one influence
upon DHS’s exercise of its discretion. The immigration judge
refused to grant Ahmed a continuance because Ahmed failed to
provide good cause for a continuance, and the immigration judge
ruled that Ahmed was removable because Ahmed violated 8 U.S.C.
§ 1227(a)(1)(B). Ahmed’s registration in NSEERS had nothing to
do with either decision of the immigration judge. In keeping
with Congress’s clear intent and the well-established precedent
of this court, we hold that the alleged impact of NSEERS on DHS’s
decision to initiate removal proceedings against Ahmed does not
constitute a violation of Ahmed’s equal protection rights. Cf.
Zafar, 426 F.3d at 1336 (finding that a removal proceeding
initiated after an alien’s registration in NSEERS was a valid
exercise of discretion and not an infringement of equal
protection rights).
Ahmed’s due process arguments are similarly unpersuasive.
Ahmed argues that the district court’s refusal to continue the
removal proceedings, a refusal that prevented him from pursuing
his application for an adjustment of status, violated his
substantive due process rights. In so doing, Ahmed has
incorrectly “presuppose[d] . . . [that he has] a constitutionally
protected right to actual discretionary relief from removal or to
be eligible for such discretionary relief . . . .” Manzano-
Garcia, 413 F.3d at 471. This circuit has repeatedly held that
discretionary relief from removal, including an application for
15 an adjustment of status, is not a liberty or property right that
requires due process protection. See, e.g., Assaad v. Ashcroft,
378 F.3d 471, 475 (5th Cir. 2004) (stating, in a removal context,
that due process claims revolving around an alleged failure to
receive discretionary relief are not based upon a
constitutionally protected liberty interest); Mireles-Valdez v.
Ashcroft, 349 F.3d 213, 219 (5th Cir. 2003) (holding that
eligibility for discretionary relief from a removal order is not
a liberty or property interest warranting due process
protection). In keeping with the well-established precedent of
this court, we hold that Ahmed has failed to raise a violation of
his due process rights.
III. CONCLUSION
For the reasons given above, we DENY Ahmed’s petition for
review.