Rajah v. Mukasey, 2^nd Cir. (9/24/08, case nos. 06-3493-ag)

CALABRESI, Winter, Walker

Petitioner with pending labor cert challenged denial of continuance by IJ, affirmed by the BIA.  Petitioner, who is also a petitioner in the court’s other 9/24/08 decision regarding the  legality of the NSEERS program, was placed into proceedings in April 2003, following his registration with INS as part of the NSEERS program.  An application for labor certification had been filed on his behalf by his employer with the DOL in April 2001.  This certification was finally approved shortly before oral argument in this case, on July 11, 2007. 

The court considered whether the denial of a continuance constituted an abuse of discretion and ultimately concluded that this was a case where remand to the Board was abuse or lack of abuse of discretion was unclear and where clear standards, set by the BIA, would be extremely helpful.  The court thus vacated the Board’s order and remanded to the BIA to come up with such standards.  

MORE AFTER THE JUMP

Read opinion here:  

Following petitioner’s placement in proceedings in April 2003, the IJ in the case continued the case to allow petitioner to obtain counsel and then to give counsel preparation time.  In November 2003, petitioner’s attorney requested a continuance based on petitioner’s pending labor cert.  The IJ stated that she did not continue cases for labor certs but continued the case to allow petitioner to apply for any relief for which he might be eligible.  Subsequently, petitioner’s atty filed motions to terminate proceedings and suppress evidence and an individual hearing was then set for June 25, 2004.  On that date, the IJ agreed to continue the case one last time to November 2004 but then continued it once more to December 2004 to provide petitioner with an interpreter.  On December 16, 2004, the IJ found petitioner removable and ordered him removed.  Petitioner filed a timely appeal based on both the arguments against the NSEERS program (addressed separately) and the IJ’s denial of a continuance based on the pending labor cert.  The Board rejected petitioners’ arguments. 

On appeal, the 2nd circuit considered whether the denial of a continuance constituted an abuse of discretion.” It noted recent cases in which it had found it clear that the IJ had not abused his discretion in denying a continuance, including Morgan v. Gonzales, 445 F.3d 549 (2d Cir. 2006) (IJ did not abuse discretion in denying continuance for 2nd petition on basis of marriage could be adjudicated, where marriage had already been determined to not be bona fide) and Sanusi v. Gonzales, 445 F.3d 193 (2d Cir. 2006) (where petitioner was seeking to supplement the record with medical evidence in support of a claim under the Convention Against Torture, and where petitioner had been found incredible on his other claims for relief). 

The court also looked at Elbahja v. Keisler, 505 F.3d 125 (2d Cir. 2007), involving an individual who had twice been denied in his attempts to adjust his status based on his marriage to a U.S. citizen, next sought cancellation of removal based on his marriage, and then finally sought adjustment based on what his counsel represented as an approved labor certification and an approved I-140 employment-based visa but which turned out to still be a pending labor cert. 

The court, however, stated:

In Elbahja, we stated that “it does not constitute an abuse of discretion for an IJ to decline to continue a removal proceeding in order to permit adjudication of a removable alien’s pending labor certification.” Id. at 129. And, certainly, in the circumstances presented in Elbahja, it did not. We further noted that other circuits, namely the Third, Fifth and Eleventh, had determined that, because any eventual adjustment of status would be “speculative” in the absence of an approved labor certification, as the “mere filing of a labor certificate does not make an alien eligible for adjustment of status under § 1255(i).” Zafar v. U.S. Attorney Gen., 461 F.3d 1357, 1363 (11th Cir. 2006). This statement, too, is undoubtedly correct, as the adjustment of status regulation, 8 C.F.R. § 245.1(a), requires that an immigrant visa be “immediately available at the time of filing. . . .” Nonetheless, the reasoning of the Eleventh Circuit, and our own positive description of it in Elbahja, leave open the fundamental question, raised by this Court in Thapa v. Gonzales, 460 F.3d 323, 335 (2d Cir. 2006): “whether a system that specifically provides for cancellation of removal [or adjustment of status] on the basis of employment certification can escape being arbitrary and capricious where it does not afford adequate time for a petitioner to obtain such labor certification, or where there is no reasoned standard for what length of time would be adequate.” Id. at 336 n.5.

The court went on to cite the Seventh Circuit’s opinion in Subhan finding that the IJ had erred in not granting a continuance to allow labor cert adjudication:

"In Subhan v. Ashcroft, 383 F.3d 591 (7th Cir. 2004), the Seventh Circuit, likewise concerned with this express issue, found that the IJ had erred in not granting petitioner a third continuance where the ground for the application was adjustment of status based on employment entitlement. The Seventh Circuit noted that the IJ’s denial was “based simply on the fact that the labor authorities had not acted yet . . . instead of anything more particularized to the alien.” Id. at 593-94. In doing so, the Circuit noted the absence of agency standards and reasoning going beyond the mere fact that the labor certification had yet to be issued."

The court reasoned:

"In view of the divergence of views both among the circuits and within our own circuit, it seems especially important to get, from the agency charged with this area of law, a reasoned set of standards explicating when continuances for labor certification are within the “range of  permissible decisions” available to an IJ, and when they are not.”

The court declined to decide itself whether petitioner had received enough time, noting that IJs cannot grant endless continuances but also noting the practicalities and delays of the labor cert process:

“But still, it cannot be that the open-ended labor certification processes can give rise to endless continuances and delays. And after all, the IJ denied the continuance only after the labor certificate had been pending for three and half years and after multiple continuances during the eighteen months it was pending before the IJ—including an additional one month continuance after counsel had already been granted “one last” continuance for five months. But it also seems doubtful that an IJ can properly decide never to grant such continuances (as the IJ suggested in the case before us—but perhaps did not do). Given the delays endemic in almost every stage of acquiring any visa, it is imperative that the agency connect the notion of “sufficient time” with the practicalities of the labor certification and immigration process as well as with the intentions of Congress (1) in creating the labor certification and adjustment of status provisions in § 1255(i), and (2) in extending the sunset clause for filing for labor certification. It would also be important for the BIA to specify what significance, if any, should attach to the issuance of a labor certification after the agency that denied the continuance has acted, but while the case is still pending in the courts, or before the agency on remand, a motion to reopen, or for other reasons.”

Therefore:

It is for the BIA in the first instance thus to identify the boundaries of the discretion that its judges may exercise. See, e.g., Ventura, 537 U.S. at 16; Yuanliang Liu, 455 F.3d at 116. And a case such as this one, where the petitioner was granted six continuances for various reasons, and in which the labor certification was approved not long after the BIA affirmed the IJ’s denial of a continuance, is an especially apt one for the BIA to consider these boundaries.”

PFR granted, remanded to BIA for proceedings consistent with the opinion.

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