Khan v. Atty Gen USA

Opinions of the United

2006 Decisions States Court of Appeals

for the Third Circuit

5-22-2006

Khan v. Atty Gen USA

Precedential or Non-Precedential: Precedential

Docket No. 04-4336

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 04-4336

MOHAMMED NASIR KHAN,

Petitioner

v.

*ATTORNEY GENERAL OF THE UNITED STATES,

Respondent

*Pursuant to F.R.A.P. 43(c)

Petition for Review of the Order

of the Board of Immigration Appeals

(A79 708 104)

Immigration Judge: Daniel A. Meisner

Argued December 15, 2005

Before: SLOVITER, SMITH, and VAN ANTWERPEN,

Circuit Judges

(Filed May 22, 2006)

Jeffrey C. Bloom

Flushing, NY 11354

Francois-Ihor Mazur (Argued)

Philadelphia, PA l9l03

Attorneys for Petitioner

Michael P. Lindemann

Douglas E. Ginsburg (Argued)

Lyle D. Jentzer

United States Department of Justice

Office of Immigration Litigation

Washington, DC 20044

Attorneys for Respondent

OPINION OF THE COURT

SLOVITER, Circuit Judge.

Petitioner Mohammed Nasir Khan seeks review of the

decision of the Board of Immigration Appeals (“BIA”) affirming

the decision of the Immigration Judge (“IJ”) who denied Khan’s

request for a continuance of his removal proceeding. We must

decide at the outset whether we have jurisdiction.

I.

Background

Khan is a forty-seven-year-old native and citizen of

Bangladesh. He entered the United States as a non-immigrant

business visitor on September 20, 1996, with permission to

remain for a period not to exceed one month. On March 25,

2003, Khan voluntarily reported to the offices of the Department

of Homeland Security (“DHS”) to register in compliance with

DHS’s “special registration” program.1 DHS placed Khan into

1

The special registration program, which DHS enlarged

post-9/11, requires non-citizens from specified countries to

register with the National Security Entry-Exit Registration System.

See Ali v. Gonzales, 440 F.3d 678, 679 (5th Cir. 2006) (per

curiam); Murtuza v. Gonzales, 427 F.3d 508, 509 (7th Cir. 2005);

2

removal proceedings that same day by serving him with a Notice

to Appear in which it charged him with removability under INA

§ 237(a)(1)(B) for overstaying his visa.

On October 2, 2003, Khan appeared pro se for a hearing

before an IJ who adjourned the proceeding so that Khan could

seek counsel. On November 20, 2003, Khan again appeared

before the IJ, this time with counsel. Khan conceded his

removability as charged and did not apply for asylum or other

substantive relief. Instead, he applied for voluntary departure

and submitted a written motion seeking a continuance of the

removal proceeding or, in the alternative, a termination of the

proceeding on the ground that his wife (also an alien from

Bangladesh) had a pending application for an Alien Employment

Certification (“Labor Certification”) with the United States

Department of Labor (“DOL”).2

Registration and Monitoring of Certain Nonimmigrants, 67 Fed.

Reg. 52,584 (Aug. 12, 2002); 8 C.F.R. § 264.1(f) (2002).

2

Employment-based permanent residency (a “green card”)

is available to aliens through a three-step process. First, the alien’s

prospective employer must file an application for Labor

Certification (Form ETA-750) with the DOL, which refers the

petition to the appropriate state-level authority, such as the

Pennsylvania Department of Labor. If the application satisfies

certain requirements (e.g., sufficient United States workers are

unwilling or unable to perform the job in question), the state labor

office and, thereafter, the DOL will “certify” the labor request.

Second, the alien’s prospective employer must file with DHS the

approved Labor Certification along with a Visa Petition for

Prospective Immigrant Employee (Form I-140):

A Visa Petition constitutes a request to [DHS] that the alien

named in the Labor Certification be classified as eligible to

apply for designation within a specified visa preference

employment category. If [DHS] approves the Visa Petition

and classifies the certified alien as so eligible, the alien is

assigned an immigrant visa number by the Department of

State.

3

Khan and his wife, Rehana Begum, were married in

Bangladesh in 1982; they have a United States citizen minor

child. On April 30, 2001, a prospective employer in

Pennsylvania filed a Labor Certification for permission to

employ Begum as a “Household Cook” at a private residence.

Khan’s wife timely applied for the Labor Certification under

INA § 245(i), 8 U.S.C. § 1255(i) (“LIFE Act”), which had a

sunset date of April 30, 2001.3 As relevant to the instant case,

the LIFE Act provides that a legal permanent resident alien’s

spouse and minor children are eligible, by virtue of their relation

to the alien, to apply for adjustment of status if otherwise

qualified. See 8 U.S.C. § 1255(i)(1)(B); 8 U.S.C. § 1153(d).

At the November 20, 2003 hearing, Khan’s counsel

represented to the IJ that it “usually takes about 45 days to get a

response from the regional” on an application for a Labor

Certification. App. at 49. The IJ denied the requested

continuance, reasoning that Begum’s application for a Labor

Certification was merely pending, no visa petition had yet been

filed, and therefore Khan was not prima facie eligible to adjust

his status. The IJ also denied Khan’s alternative request to

terminate the removal proceedings altogether, rejecting Khan’s

suggestion that termination was warranted because DHS had

United States v. Ryan-Webster, 353 F.3d 353, 356 (4th Cir. 2003)

(citing 8 U.S.C. § 1153(b)). Third, and finally, after the alien

receives a visa number under Form I-140, and if the alien presently

resides in the United States (as does Khan’s wife), then the alien

must file with DHS an Application to Adjust Status (Form I-485).

DHS then considers Forms I-140 and I-485 to determine whether

to adjust the alien’s status to lawful permanent resident. Such

adjustment permits the alien to live and work in the United States.

If the alien is granted lawful permanent resident status, DHS will

issue a “green card” to the alien.

3

The LIFE Act enabled certain aliens unlawfully present in

the United States to pay an application fee and remain here while

seeking to adjust their status based on employment. 8 U.S.C. §

1255(i)(1).

4

failed to follow its own regulations in requiring Khan to register

under the special registration program. The IJ noted that Khan,

through counsel, had conceded his removability as charged and

declined to rule on Khan’s due process challenge to the

registration program. The IJ ordered Khan’s removal to

Bangladesh but granted him a sixty-day window to depart

voluntarily.

Khan timely appealed to the BIA, raising two arguments:

(1) the special registration procedure “is repugnant to the US

constitution;” and (2) the IJ erred in refusing to grant a

continuance on the ground that Begum’s application for a Labor

Certification was pending. App. at 5. Khan noted that Begum’s

Labor Certification already had been approved at the state level

and was pending only before the federal Regional Office of the

DOL. Khan argued that he should not be faulted for the

government’s delay in processing Labor Certifications. On

October 27, 2004, the BIA summarily affirmed the IJ’s order

without opinion and permitted Khan thirty days to depart

voluntarily.

Khan timely filed this petition for review. The

Government filed a motion to dismiss on the ground that this

court lacks jurisdiction and, alternatively, for summary

affirmance.

II.

As we noted above, this case presents at the threshold the

question whether this court has jurisdiction over the petition for

review. The BIA issued a final order summarily affirming the

IJ’s removal order, which the IJ entered after denying Khan’s

motion for a continuance. Thus, the BIA order falls within our

jurisdiction to review a “final order of removal,” 8 U.S.C. §

1252(a)(1).

The Government argues we lack jurisdiction to review the

IJ’s denial of Khan’s request for a continuance because such

denial constitutes a “discretionary determination.” Motion to

Dismiss at 4. The Government relies upon the language of INA

5

§ 242(a)(2)(B)(ii), 8 U.S.C. § 1252(a)(2)(B)(ii), which provides

in pertinent part:

Notwithstanding any other provision of law . . . , no court

shall have jurisdiction to review . . . any other 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 . . . , other than the granting of

[asylum] relief under section 1158(a) of this title.

Id. (emphasis added).

As the Government suggests, the question whether we

have jurisdiction in the present case turns on whether the IJ’s

authority to grant Khan a continuance of the removal proceeding

is “specified under this subchapter,” and therefore precluded

from review. Id. We have previously explained that, “[t]he

language ‘this subchapter’ in the foregoing provision refers to

Subchapter II in Chapter 12 of Title 8 of the United States

Code,” which consists of 8 U.S.C. §§ 1151-1378 (“Subchapter”).

Urena-Tavarez v. Ashcroft 367 F.3d 154, 158 (3d Cir. 2004).

There is no statutory provision within the Subchapter that

explicitly confers discretion on an IJ to grant a continuance. The

only provision in the Subchapter which might be construed to

confer such discretion is 8 U.S.C. § 1229a(a), which grants

authority to “[a]n immigration judge [to] conduct proceedings

for deciding the inadmissibility or deportability of an alien.” 8

U.S.C. § 1229a(a)(1). Arguably, a tribunal authorized to hear a

matter has inherent authority to continue the hearing to another

time. In any event, a federal regulation explicitly confers

discretion upon the IJ to grant a continuance: “The Immigration

Judge may grant a motion for continuance for good cause

shown.” 8 C.F.R. § 1003.29 (2006).

Significant for present purposes is the issue whether the

IJ’s decision on such a motion can be reviewed by this court.

The Courts of Appeals are divided on the question whether an

express grant of discretionary authority in a federal regulation

implemented pursuant to the Subchapter amounts to authority

6

“specified under this subchapter.”

We look first to whether this court has spoken on this

issue. In Bakhtriger v. Elwood, 360 F.3d 414 (3d Cir. 2004), we

engaged in an extensive examination of the authority of the

Courts of Appeals to review discretionary decisions in asylum

cases prior to enactment of the REAL ID Act of 2005. We

examined the “kinds of challenges [that] are cognizable in

criminal alien removal habeas petitions,” id. at 420, and

concluded that 28 U.S.C. § 2241 habeas review does not

incorporate an examination of the exercise of discretion but

“must be confined to questions of constitutional and statutory

law.” Id. at 424. That decision is inapplicable here because the

present case does not involve a “criminal alien” and therefore

our review is not restricted to “constitutional challenges or errors

of law.” Id. at 425. In Bakhtriger, we did not have occasion to

consider the applicability of the “specified under this

subchapter” language of 8 U.S.C. § 1252(a)(2)(B)(ii).

Thereafter, we did consider this language in Soltane v.

U.S. Dep’t of Justice, 381 F.3d 143 (3d Cir. 2004). In that case

the issue before us was whether jurisdiction to review the IJ’s

denial of a preference visa to certain special immigrants under 8

U.S.C. § 1153(b)(4) was barred by § 1252(a)(2)(B)(ii). Id. at

146. Because the language of § 1153(b)(4) stated that a “visa

‘shall’ issue if [certain] requirements are met,” we could “not

read § 1153(b)(4) as having ‘specified’ that the granting of the

visas in question ‘be in the discretion of the Attorney General.’”

Id. at 147.

We also considered the language of § 1252(a)(2)(B)(ii) in

Urena-Tavarez, 367 F.3d 154. In Urena-Tavarez, we held that 8

U.S.C. § 1186a(c)(4), which governs the grant of conditional

permanent resident status based on marriage to a United States

citizen, by its terms explicitly assigns discretion to the Attorney

General and therefore § 1252(a)(2)(B)(ii) precluded review by

this court of the denial of a waiver under § 1186a(c)(4). Id. at

161.

The only other precedential opinion in which we have

7

considered § 1252(a)(2)(B)(ii) is our recent decision in Jilin

Pharmaceutical USA, Inc. v. Chertoff, No. 05-2788, __ F.3d __

(3d Cir. May 10, 2006). In Jilin, we held that 8 U.S.C. § 1155

explicitly provides the Attorney General with discretion to

revoke the prior approval of a visa petition and therefore such

revocation is shielded from court review pursuant to 8 U.S.C. §

1252(a)(2)(B)(ii). Jilin, Slip Op. at 8-21, 24.

In none of the cases referred to above, Soltane,

Urena-Tavarez , and Jilin, did we address the issue before this

court in the instant case–namely, whether § 1252(a)(2)(B)(ii)

bars jurisdiction when there is no statute expressly granting

discretion to the Attorney General but discretionary authority is

extant under a federal regulation. Accordingly, the issue before

us is one of first impression for this court.

The Eighth and Tenth Circuit Courts of Appeals have

interpreted § 1252(a)(2)(B)(ii) to mean that a Court of Appeals

has no jurisdiction to review the denial of a petitioner’s motion

for a continuance of a removal proceeding. Yerkovich v.

Ashcroft, 381 F.3d 990, 995 (10th Cir. 2004); Onyinkwa v.

Ashcroft, 376 F.3d 797 (8th Cir. 2004). In Yerkovich, the court

felt itself bound by its earlier decision in Van Dinh v. Reno, 197

F.3d 427, 433 (10th Cir. 1999), which had broadly construed the

preclusive effect of § 1252(a)(2)(B)(ii). See 990 F.3d at 994.

Both Yerkovich and Onyinkwa based their decisions that review

of the denial of a motion for a continuance is barred on the

ground that 8 C.F.R. § 1003.29, which implements an IJ’s

statutory authority under § 1229a(a)(1) to “conduct

proceedings,” confers discretion upon the IJ to grant a

continuance. Therefore, they reasoned, “‘the plain meaning of §

1252(a)(2)(B)’s text’ bar[ring] courts from reviewing relief

‘specified under this subchapter’” encompasses orders of the IJ

denying continuances. Yerkovich, 381 F.3d at 994 (quoting

Samirah v. O’Connell, 335 F.3d 545, 549 (7th Cir. 2003));

accord Onyinkwa, 376 F.3d at 799.4

4

In Subhan v. Ashcroft, 383 F.3d 591 (7th Cir. 2004), the

Seventh Circuit addressed this jurisdictional issue, but only in

8

Courts that have held to the contrary have ruled that

discretionary authority to grant a continuance cannot be

considered “specified under this subchapter” where the language

that expressly provides for such authority appears only in a

regulation. See Ahmed v. Gonzales, No. 05-60032, 2006 WL

1064196, at *3 (5th Cir. Apr. 24, 2006); Sanusi v. Gonzales, No.

01-4047-ag, 2006 U.S. App. LEXIS 9640, at *10-*14 (2d Cir.

Apr. 18, 2006) (per curiam); Zafar v. U.S. Att’y Gen., 426 F.3d

1330, 1335 (11th Cir. 2005). As the court stated in Zafar,

“Because denials of motions to continue are not

statutorily-proscribed discretionary acts ‘specified under this

sub[chapter]’ to the Attorney General, as enumerated in §

1252(a)(2)(B)(ii), we have jurisdiction to review them.” 426

F.3d at 1335; accord Ahmed, 2006 WL 1064196, at *3; Sanusi,

2006 U.S. App. LEXIS 9640, at *10-*14; see also Abu-Khaliel

v. Gonzales, 436 F.3d 627 (6th Cir. 2006) (agreeing with the

result, but not the reasoning, of Zafar).

The Courts of Appeals for the Fifth and Ninth Circuits

have adopted similar reasoning in concluding that the language

of § 1252(a)(2)(B)(ii) does not bar review of the denial of a

motion to reopen removal proceedings, a proceeding comparable

to a motion to continue in its invocation of the IJ’s discretion. In

Zhao v. Gonzales, 404 F.3d 295 (5th Cir. 2005), the court stated,

One might mistakenly read § 1252(a)(2)(B)(ii) as

stripping us of the authority to review any discretionary

immigration decision. That reading, however, is

incorrect, because § 1252(a)(2)(B)(ii) strips us only of

jurisdiction to review discretionary authority specified in

the statute. The statutory language is uncharacteristically

pellucid on this score; it does not allude generally to

“discretionary authority” or to “discretionary authority

dicta. The Subhan court ““[s]uppos[ed,] . . . without having to

decide, that section 1252(a)(2)(B)(ii) generally bars judicial review

of a continuance granted by an immigration judge in a removal

proceeding.” Id. at 595.

9

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. at 303 (quoting § 1252(a)(2)(B)(ii)); see also

Medina-Morales v. Ashcroft, 371 F.3d 520, 528 (9th Cir. 2004)

(“Because 8 U.S.C. § 1229a(c) neither grants nor limits the

Attorney General’s discretion to deny motions to reopen, [it] can

perhaps be said to have left such authority to the Attorney

General by default. But default authority does not constitute the

specification required by § 1252(a)(2)(B)(ii).”).

In its recent opinion in Sanusi, 2006 U.S. App. LEXIS

9640, the Second Circuit reviewed the conflicting opinions and

weighed in on the side of those courts that hold the Courts of

Appeals have jurisdiction to review for abuse of discretion a

claim that an IJ wrongly denied a motion for a continuance in an

immigration proceeding. Id. at *11-*14. The court surveyed the

statutory landscape and noted its agreement with those circuits

that have held “that the decision by an IJ or the BIA to grant or

to deny a continuance in an immigration proceeding is not a

decision ‘specified under [the relevant] subchapter to be in the

discretion of the Attorney General.’” Id. at *13 (alteration in

original) (citations omitted); accord Ahmed, 2006 WL 1064196,

at *3. The court then stated:

Although the presiding officer at a hearing traditionally

has discretion to grant or to deny continuances requested

by the parties appearing before him, we cannot conclude

that the decision to grant or to deny a continuance in

immigration proceedings is “specified under [the

relevant] subchapter to be in the discretion of the

Attorney General.” Indeed, continuances are not even

mentioned in the subchapter. We therefore hold that 8

U.S.C. § 1252(a)(2)(B)(ii) does not deprive us of

jurisdiction to review decisions by IJs to grant or to deny

continuances, which accords with our general

presumption in favor of judicial review. See INS v. St.

Cyr, 533 U.S. 289, 298, 121 S. Ct. 2271, 150 L. Ed. 2d

347 (2001) (stating that despite specific jurisdiction-

10

denying provisions, in immigration cases there still exists

a “strong presumption in favor of judicial review of

administrative action”).

Sanusi, 2006 U.S. App. LEXIS 9640, at *14 (alteration in

original) (footnotes omitted).

In our view, the Second, Fifth, Ninth and Eleventh Circuit

Courts of Appeals have adopted the correct reading of §

1252(a)(2)(B)(ii). As we have previously observed, “[t]he key to

§ 125[2](a)(2)(B)(ii) lies in its requirement that the discretion

giving rise to the jurisdictional bar must be ‘specified’ by statute.

In other words, ‘the language of the statute in question must

provide the discretionary authority’ before the bar can have any

effect.” Soltane, 381 F.3d at 146 (quoting Spencer Enterprises,

Inc. v. United States, 345 F.3d 683, 689 (9th Cir. 2003)).

Indeed, “to specify” means “[t]o state explicitly or in detail,”

American Heritage College Dictionary 1307 (3d ed. 1993), and §

1229a(a) states nothing at all about an IJ’s power to grant or

deny a continuance.

In Abu-Khaliel, the Sixth Circuit agreed with the

Eleventh Circuit that “we have jurisdiction to review the IJ’s

denial of a continuance” but reached this conclusion through

different reasoning. Abu-Khaliel, 436 F.3d at 633. In contrast

to the Eleventh Circuit, the Sixth Circuit interpreted the power to

“conduct proceedings” conferred by § 1229a(a)(1) to include the

power to deny a continuance. Id. at 634 (noting that “a

necessary component of” the power to conduct proceedings is

“the ability to decide . . . when it is appropriate to delay a

proceeding until a later time”). Therefore, unlike the Eleventh

Circuit, the Sixth Circuit concluded that the power to deny

continuances is indeed “specified under this subchapter” within

the meaning of § 1252(a)(2)(B)(ii). Id. However, the Sixth

Circuit agreed with the ultimate holding of the Eleventh Circuit

on the ground that § 1252(a)(2)(B)(ii) “only stripped this court

of jurisdiction for decisions within subchapter II it left to the

discretion of the Attorney General.” Id. (emphasis added). The

Abu Khaliel court held that because § 1229a(a)(1) leaves

discretion to the IJ rather than the Attorney General, “we have

11

jurisdiction to review the IJ’s decision to deny a continuance.”

Id.5

Although we agree with the Sixth Circuit that we have

jurisdiction to review an IJ’s denial of a continuance, we do not

adopt its conclusion that an IJ’s discretionary power to grant or

deny a continuance is “specified” in § 1229a(a)(1). Because the

IJ’s authority to rule on a continuance motion is not “specified

under [8 U.S.C. §§ 1151-1378] to be in the discretion of the

Attorney General,” we hold that § 1252(a)(2)(B)(ii) does not

deprive this court of jurisdiction.

III.

Merits

Because the BIA summarily affirmed without opinion, we

review the IJ’s decision. Dia v. Ashcroft, 353 F.3d 228, 247 (3d

Cir. 2003) (en banc). An IJ “may grant a motion for continuance

for good cause shown.” 8 C.F.R. § 1003.29 (2006). We review

the denial of a continuance for abuse of discretion. Ponce-Leiva

v. Ashcroft, 331 F.3d 369, 377 (3d Cir. 2003). The IJ’s decision

should be reversed only if it is arbitrary, irrational or contrary to

law. Tipu v. INS, 20 F.3d 580, 582 (3d Cir. 1994) (citations

omitted). In Ponce-Leiva, we explained that “‘[t]he question

whether denial of a continuance in an immigration proceeding

constitutes an abuse of discretion cannot be decided through the

application of bright-line rules; it must be resolved on a case by

case basis according to the facts and circumstances of each

5

Under Abu-Khaliel, if § 1229a(a)(1) had granted the power

to “conduct proceedings” to the Attorney General rather than to IJs,

the Attorney General could then delegate that power to IJs and

thereby strip federal courts of jurisdiction to review the denial of

a continuance under § 1252(a)(2)(B)(ii). See Abu-Khaliel, 436

F.3d at 634 (noting that “we do not believe that an IJ and the

Attorney General are the same when the IJ is carrying out duties

conferred by statute as opposed to when the IJ is performing duties

delegated by the Attorney General”).

12

case.’” Ponce-Leiva, 331 F.3d at 377 (quoting Baires v. INS,

856 F.2d 89, 91 (9th Cir. 1988)).

Khan argues that the denial of his continuance request

amounted to an abuse of discretion and deprived him of due

process of law because it effectively denied him the benefit of

seeking to adjust his status under the LIFE Act. Khan contends

that a continuance was warranted because he had done

everything in his power to comply with the law and should not

have been faulted for the government’s delay in processing his

wife’s Labor Certification.

Khan cites Subhan v. Ashcroft, 383 F.3d 591 (7th Cir.

2004), for the proposition that the IJ abused his discretion in

refusing to grant a continuance. The court in Subhan assumed,

without deciding, that § 1252(a)(2)(B)(ii) “generally” bars

jurisdiction over the denial of a motion for a continuance. Id. at

595.6 The court held, however, that the jurisdictional bar cannot

extend to a case in which an alien seeks a continuance pending a

Labor Certification if the IJ denies the continuance without a

reasoned explanation for the denial. Id. In Subhan, the IJ had

denied the petitioner’s third request for a continuance by

explaining that although the petitioner eventually might have

acquired lawful permanent residence by virtue of his labor

petition, his failure to have done so rendered him “not eligible

for this form of relief at this time.” Id. at 593. The Seventh

Circuit rejected this explanation, concluding that “[t]his was not

a reason for denying the motion for a [] continuance, but merely

a statement of the obvious: that the labor departments hadn’t yet

acted.” Id. The Subhan court concluded that the IJ’s denial of

the continuance without stating a reasoned basis for the decision

constituted an abuse of discretion because such denial nullified

the terms of § 1255(i), which authorizes the Attorney General to

grant an alien present in the United States an adjustment of

status if s/he “is eligible to receive an immigrant visa and is

admissible” and “an immigrant visa is immediately available to

the alien at the time the application is filed.” 8 U.S.C. §

6

See supra note 4.

13

1255(i)(2)(A)-(B).

In the instant case, as in Subhan, the IJ’s explanation for

refusing Khan a continuance amounted to a determination that

Khan was “not eligible for this form of relief at this time.”

Subhan, 383 F.3d at 593. The IJ found that “[t]here is no

underlying visa petition (I-140) filed [in Khan’s name] because

[his wife’s] labor certification is pending.” App. at 36. Based

on this finding, the IJ ruled “that it would be inappropriate to

grant an . . . adjournment of these proceedings” because Khan

could not establish prima facie eligibility for adjustment of

status. Id.

Where, as here, an alien has failed to submit a visa

petition, an IJ’s decision to deny the alien’s continuance request

is squarely within the IJ’s broad discretion, at least absent

extraordinary circumstances not extant in the present case.7 See

Onyeme v. INS, 146 F.3d 227, 234 (4th Cir. 1998) (“Because he

had not established a prima facie case for an adjustment of

status, the BIA did not abuse its discretion in declining to

remand this case for a continuance pending resolution of the

third visa petition filed on Onyeme's behalf.”). Khan cites no

authority for the proposition that government “delay” in

processing his wife’s Labor Certification constitutes an

extraordinary circumstance that would warrant an open-ended

7

In Matter of Garcia, the BIA held that while “an alien does

not have an absolute right” to a continuance of removal

proceedings, an IJ generally should grant such a continuance where

an alien has submitted “a prima facie approvable visa petition.”

Matter of Garcia, 16 I. & N. Dec. 653, 656-57 (BIA 1978)

modified on other grounds by In re Arthur, 20 I & N Dec. 475

(BIA 1992). However, the BIA suggested that, even where an

alien has submitted a visa petition, “[i]t clearly would not be an

abuse of discretion for the immigration judge to summarily deny a

request for a continuance . . . upon his determination that the visa

petition is frivolous or that the Adjustment Application would be

denied on statutory grounds or in the exercise of discretion

notwithstanding the approval of the petition.” Id. at 657.

14

continuance of removal proceedings.

It is undisputed that Khan is presently ineligible for an

immigrant visa, which is a prerequisite to an adjustment of status

under § 1255(i). Moreover, Khan cannot show that a visa is

“immediately available” to him or even that one will be available

to him at some estimable time in the future. Khan has provided

no estimate, beyond the 45 days he suggested to the IJ on

November 20, 2003, of how long it would take for his wife’s

Labor Certification to be approved; therefore, any continuance

would be indefinite. As the Eleventh Circuit explained on similar

facts in Zafar:

[S]ince all that the petitioners offered the immigration

judges was the “speculative” possibility that at some point

in the future they may receive, or in Zafar’s case, his

father may receive, labor certification, petitioners have

failed to demonstrate that they had a visa petition

“immediately available” to them because they could not

have filed an “approvable” visa petition without the labor

certification in the first place, which is a prerequisite for

relief under 8 U.S.C. § 1255(i) and 8 C.F.R. §

245.10(a)(3). At the time of the immigration judges’

denials of the petitioners’ motions to continue their

removal proceedings, it is clear that the petitioners were

ineligible for adjustments to permanent resident status

under § 1255(i) and there thus were no visas

“immediately available” to them.

Zafar, 426 F.3d at 1336 (citations omitted); accord Ahmed, 2006

WL 1064196, at *5.

It is true, as Khan complains, that DOL’s apparent delay

in processing his wife’s Labor Certification is beyond his

control, and that if the DOL had acted more promptly he might

be adjusting his status rather than facing removal. However, on

the present facts that delay does not restrict the IJ’s scope of

discretion to the sole option of granting continuance. Cf.

Ahmed, 2006 WL 1064196, at *5 (“In this matter, the

immigration judge simply exercised his discretion at the first

15

stage of this lengthy and discretionary process when he refused

to grant Ahmed a continuance for good cause shown.”). Khan

has conceded that he is removable as charged and makes no

claim for asylum, withholding of removal, or relief under the

Convention Against Torture. Moreover, he has failed to file a

visa petition and is presently ineligible for an adjustment of

status. See id. (ruling that an alien in Khan’s position “lacked

good cause for a continuance because he was ineligible for relief

under the relevant statutes”).

As with the petitioners in Ahmed and Zafar, Khan has

offered only “the ‘speculative’ possibility that at some point in

the future . . . his [wife] may receive, labor certification.” Zafar,

426 F.3d at 1336. Ultimately, the decision to adjust Khan’s

status lies within the discretion of the Attorney General, and we

cannot say that on the present facts the refusal of a continuance

was an abuse of discretion. Cf. id. (“Based on this record, there

was no abuse of discretion in denying [the] motions to continue

[the] removal proceedings.”); Ahmed, 2006 WL 1064196, at *5.

In addition to his abuse-of-discretion claims, Khan claims

that the rejection of his continuance request worked a denial of

his right to due process of law under the Fifth Amendment.8 To

8

On appeal before the BIA, Khan claimed that the IJ

improperly denied him a continuance but did not put this claim in

terms of constitutional due process. See App. at 5. Therefore, we

consider briefly whether Khan has exhausted his remedies with

respect to this claim.

We have jurisdiction over an alien’s claim only where the

alien has “raise[d] and exhaust[ed] his or her remedies as to [that]

claim.” Abdulrahaman v. Ashcroft, 330 F.3d 587, 594-95 (3d Cir.

2003); see Bak v. INS, 682 F.2d 441, 442-43 (3d Cir. 1982) (per

curiam) (holding exhaustion requirement is jurisdictional).

However, “exhaustion of administrative remedies is not always

required when the petitioner advances a due process claim.”

Sewak v. INS, 900 F.2d 667, 670 (3d Cir. 1990); see Bonhometre

v. Gonzales, 414 F.3d 447 n.7 (3d Cir. 2005) (citing Vargas v. INS,

16

831 F.2d 906, 908 (9th Cir. 1987) (“[D]ue process claims generally

are exempt from [the exhaustion requirement] because the BIA

does not have jurisdiction to adjudicate constitutional issues.”)).

In Bonhometre, Petitioner Bonhometre raised before this

court a claim of procedural error he had not raised before the BIA.

Although he presented his claim “in the language of procedural due

process,” we instead viewed it as an administrative claim of

procedural error that the BIA could have addressed on appeal.

Bonhometre, 414 F.3d at 448; see Sewak, 900 F.2d at 670 (noting

that where a “due process claim amounts to a procedural error

correctable through the administrative process,” we consider

whether the correctable error was raised below for exhaustion

purposes). Because Bonhometre’s claim, stripped of its “due

process” label, had not been raised before the BIA, we held that we

lacked jurisdiction to review the claim. Bonhometre, 414 F.3d at

448; see also Sewak, 900 F.2d at 670-71; Vargas, 831 F.2d at 908.

The present case is similar to Bonhometre in two respects.

First, Khan raises a procedural due process claim for the first time

in his petition for review. Second, because this claim, stripped of

its “due process” label, is a claim of procedural error that could

have been addressed by the BIA on appeal, the requirement that

Khan exhaust remedies applies. However, unlike in Bonhometre,

Khan did raise this claim (without its “due process” label) in his

appellate brief before the BIA. App. at 5 (challenging “the IJ’s

refusal to grant an adjournment”). Therefore, we have jurisdiction

over Khan’s “due process” claim, but we treat it as a claim of mere

“procedural error correctable through the administrative process.”

Sewak, 900 F.2d at 670; see Bonhometre, 414 F.3d at 447 n.8

(citing Sewak, 900 F.2d at 670); cf. Sewak, 900 F.2d at 670-71

(“Sewak's due process claim amounts to a procedural error

correctable through the administrative process. Thus, before we

can consider Sewak's petition, we must assure ourselves that he has

exhausted his administrative remedies. . . . Sewak raised before the

BIA, and the BIA considered, the same issues he raises in his

petition for review in this Court. It cannot be denied that Sewak

has exhausted his remedy of appeal to the BIA.”) (footnote

17

make this claim successfully, Khan “must show that he was

prevented from reasonably presenting his case.” Uspango v.

Ashcroft, 289 F.3d 226, 231 (3d Cir. 2002) (quotation marks and

citation omitted). He has failed to make any such showing.

Indeed, Khan’s due process argument merely recasts his abuse-

of-discretion argument in constitutional terms and can be denied

for the reasons already stated. Moreover, “[d]ue process

challenges to deportation proceedings require an initial showing

of substantial prejudice.” Anwar v. INS, 116 F.3d 140, 144 (5th

Cir. 1997). Khan cannot show that he has been prejudiced by

the IJ’s denial of his continuance motion because there is no

evidence as to when, if ever, his wife’s Labor Certification

might be granted. The Government correctly argues that Khan

“has no constitutional right to have his proceedings held in

abeyance while he attempts, belatedly, to restore his status.”

Motion to Dismiss at 11.

IV.

For the foregoing reasons, the Government’s motion to

dismiss for want of jurisdiction is denied and Khan’s petition for

review is denied on the merits.

omitted).