Opposition Brief — Tariq v. Gonzales (No. 06-952)

No. 06-952 | ec oe THE CLERK

oS as

=F

® .

P

In the Supceme Court of the Ginited States —

MUHAMMAD TARIQ, PETITIONER |

Vv.

ALBERTO R. GONZALES, ATTORNEY GENERAL

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

PAUL D. CLEMENT

Solicitor General

Counsel of Record

PETER D. KEISLER

Assistant Attorney General

DONALD E. KEENER

BARRY J. PETTINATO

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

BEST AVAILABLE COPY

QUESTION PRESENTED

Whether, in the absence of an approved labor certifi-

cation application, an alien can establish prima facie

eligibility for adjustment of status under 8 U.S.C.

1255(i) for purposes of seeking reopening of his removal

proceedings.

TABLE OF CONTENTS

Page

CON INE sé 66 civ cdeus odes euvowes ee eae 1

UO eee 0% 444854500 ctke en eseunteeee 1

IS, os w ca KeWanes:0e 0000006c bien ck cee 1

IE 6i.ic evinced died cddeneeions tote 6

CRIOD © 5055 covet xa ce eee een 9

TABLE OF AUTHORITIES

Cases:

Ahmed v. Gonzales, 447 F.3d 433 (5th Cir.

DEE cuvuciucotcake dade npastahecieieaes 3, 4, 5, 7,9

Gutierrez-Lopez, In re, 21 I. & N. Dee. 479 (BIA 1996) ... 2

Khan v. Attorney Gen. of the U_S., 448 F.3d 226 (3d

COE. coh be wadoncivaces euseancisaerereaes 3, 7

INS v. Abudu, 485 U.S. 94 (1988) .......... eee eee 2, 5,6

INS v. Doherty, 302 U.S. 314 (1992) ....... eee eee cece 8

Ordonez v. INS, 345 F.3d 777 (9th Cir. 2008) ............ 2

S-V-, In re, 22 I. & N. Dec. 1306 (BIA 2000) ............ 2

Sevoian v. Ashcroft, 290 F.3d 166 (3d Cir. 2002) ....... 2,8

Subhan v. Ashcroft, 383 F.3d 591 (7th Cir. 2004) ...... 4,8

Wisniewski v. United States, 353 U.S. 901 (1957) ........ 9

Zafar v. United States Att’y Gen. 461 F.3d 1357

SR EN a Dicccthamiacdcndusne dane kbeewisead 7

Statutes and Regulations:

Immigration and Nationality Act, 8 U.S.C. 1101 et seg. ... 1

REE s SOE co Vkicndvandeteuseavecheases 1

(IIT)

IV

Statutes and regulations—Continued: Page

Pees ME Avast aleddy se hooessvenveses passim

STA AA SMAPS Se ccesewerccerepaasenaes 3

as POE chic kasnsbad eres er reaeseueeds 7

es EEE ik ewer ccinsensdewreeeantses 7

8 U.S.C. 1255(i)(2)(A)-(B) ............. ceuenas x3 3

8 C.F.R.:

I i ie a ee gee eb wy |

tes Per eer err rr rT eT Pre 6, 8

I OD fl oe cin sus eemaveeemenee aes the 8

UNE SE IEP oS co Wdenad nceceeescebas tes 2, 4,6

es SI Sooo a eens bo nhs c ee ee cae nes 3

section 1ZAG.IMAMININE) 6.0 ccccwccesccceecsances 3

In the Supreme Court of the Anited States

No. 06-952

MUHAMMAD TARIQ, PETITIONER

Vv.

ALBERTO R. GONZALES, ATTORNEY GENERAL

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1-3) is

not published in the Federal Reporter, but is reprinted

in 202 Fed. Appx. 698. The decisions of the Board of

Immigration Appeals (Pet. App. 4-5, 6-7) and the immi-

gration judge (Pet. App. 8-17) are unreported.

JURISDICTION

The judgment of the court of appeals was entered on

October 13, 2006. The petition for a writ of certiorari

was filed on January 9, 2007. The jurisdiction of this

Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. a. The Immigration and Nationality Act (INA), 8

U.S.C. 1101 et seq., provides that an alien “may file one

motion to reopen [his removal] proceedings.” 8 U.S.C.

(1)

2

1229a(c)(6). Under the regulations governing motions to

reopen, a motion to reopen “shall state the new facts

that will be proven at a hearing to be held if the motion

is granted and shall be supported by affidavits or other

evidentiary material.” 8 C.F.R. 1003.2(¢)(1). In addi-

tion, a “motion to reopen proceedings for the purpose of

submitting an application for relief must be accompanied

by the appropriate application for relief and all support-

ing documentation.” /bid. The “decision to grant or

deny a motion to reopen * * * is within the discretion

of the Board [of Immigration Appeals].” 8 C.F-.R.

1003.2(a).

An alien seeking to reopen his removal proceedings

to enable him to apply for new relief must establish

prima facie eligibility for that relief. See /NS v. Abudu,

485 U.S. 94, 104 (1988) (a motion to reopen may be de-

nied if “the movant has not established a prima facie

case for the underlying substantive relief sought”); In re

Gutierrez-Lopez, 21 1. & N. Dec. 479, 482 (BIA 1996) (an

alien must establish prima facie eligibility for the relief

sought before a motion to reopen will be granted). Es-

tablishing a prima facie case of eligibility “requires the

applicant to produce objective evidence showing a ‘rea-

sonable likelihood’ that he can establish” that he is enti-

tled to relief. Sevoian v. Ashcroft, 290 F.3d 166, 175 (3d

Cir. 2002) (citation omitted); accord Ordonez v. INS, 345

F.3d 777, 785 (9th Cir. 2003); In re S-V-, 22 I. & N. Dee.

1306, 1308 (BIA 2000) (en bane) (a prima facie case of

eligibility must “reveal | a reasonable likelihood that the

* * * requirements for relief have been satisfied”).

b. Under 8 U.S.C. 1255(i), certain aliens who other-

wise would be ineligible to adjust their status to that of

an alien lawfully admitted for permanent residence, in-

cluding aliens who entered the United States without

3

inspection, may seek to adjust their status upon pay-

ment of a fee. Section 1255(i) applies to an alien

who entered the United States without inspection if,

inter alia, the alien is the beneficiary of an application

for a labor certification filed on his behalf on or

before April 30, 2001. 8 U.S.C. 1255(i)(1)(B)Gi); 8 C.F.R.

1245.10(a)(1)(i)(B). An applicant for adjustment of sta-

tus under Section 1255(i) must also meet other statutory

eligibility requirements, including that the alien be eligi-

ble to receive an immigrant visa and be admissible to

the United States for permanent residence, and that

an immigrant visa be immediately available to the

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

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

Applying for adjustment of status under Section

1255(i) based on an employer’s application for labor cer-

tification involves a “long and discretionary process.”

Ahmed v. Gonzales, 447 F.3d 433, 439 (5th Cir. 2006).

The potential employer must first file an application for

a labor certification and establish, inter alia, that there

is no United States citizen available to fill the job. The

filing of an application for a labor certification by an

alien’s prospective employer is “only the first prelimi-

nary step toward completing a § 1255(i)” adjustment-of-

status application. /d. at 438. If the labor certification

is approved, the prospective employer must then file the

approved labor certificate along with an employment-

based visa petition (Form I-140). See 8 C.F.R. 204.5(a).

Finally, if the employment-based visa petition is ap-

proved, the alien’s application for adjustment of status

will be considered for adjudication. See 8 C.F.R.

1245.2(a)(2); Khan v. Attorney Gen. of the U.S., 448 F.3d

226, 228 n.2 (3d Cir. 2006) (explaining the “three-step

process” required for an alien to adjust status under

4

Section 1255(i) by means of an employment-based visa

petition); Ahmed, 447 F.3d at 438 n.3 (same).

2. Petitioner is a native and citizen of Pakistan. Pet.

App. 8. He entered the United States in 1998 as a

nonimmigrant visitor and remained beyond his autho-

rized stay. /bid. In March 2003, the government initi-

ated removal proceedings against petitioner. Jbid. On

April 12, 2004, the immigration judge (IJ) found peti-

tioner removable as charged. /d. at 8-9. The IJ also

denied petitioner’s application for withholding of re-

moval, and ordered him removed from the United

States. Jd. at 16.

On July 14, 2005, the Board of Immigration Appeals

(Board) affirmed the IJ’s decision. Pet. App. 6-7. Peti-

tioner then filed a petition for review with the court of

appeals. See 2d. at 1-2.

3. While his petition for review was pending, peti-

tioner filed a motion with the Board to reopen his re-

moval proceedings. Pet. App. 4. He sought reopening

to permit him to apply for adjustment of status based on

a pending—but as yet unapproved—application for labor

certification that had been filed on his behalf by a pro-

spective employer. Petitioner relied on Subhan v. Ash-

croft, 383 F.3d 591, 595 (7th Cir. 2004), which held that

an IJ had abused his discretion by denying a continu-

ance of removal proceedings where an application for

labor certification had been filed on the alien’s behalf.

On November 28, 2005, the Board denied petitioner’s

motion to reopen. Pet. App. 4-5. The Board noted that,

pursuant to 8 C.F.R. 1003.2(c)(1), a motion to reopen for

the purpose of seeking new relief (such as adjustment of

status) “must be accompanied by the appropriate appli-

cation and by all the supporting documentation.” Pet.

App. 4. The Board held that petitioner had failed to sat-

5

isfy that requirement because he had submitted no evi-

dence showing that he was the beneficiary of an ap-

proved labor certification. Jbid. The Board explained

that, “[iJn the absence of an approved labor certification,

[petitioner] is unable to establish prima facie eligibility

for [adjustment of status under Section 1255(i)] so as to

warrant reopening.” Jd. at 4 (citing Abudu, 485 U.S.

94). The Board also held that Subhan was not binding

precedent because petitioner’s case did not arise in the

Seventh Circuit. /bid.

4. The court of appeals denied the petition for re-

view in an unpublished, per curiam opinion. Pet. App. 1-

3.' The court observed that a successful motion to re-

open must establish a prima facie case of eligibility for

the underlying relief sought. Jd. at 2 (citing Abudu, 485

U.S. at 104). The court ruled that the Board did not

abuse its discretion in finding that petitioner had failed

to show his eligibility for adjustment of status under

Section 1255(i). 7d. at 3. The court explained that eligi-

bility for adjustment of status under Section 1255(i) re-

quires that (i) the alien be eligible to receive an immi-

grant visa and admissible to the United States for per-

manent residence; and (ii) an immigrant visa be immedi-

ately available to the alien at the time the application is

filed. 7d. at 2. Here, the court reasoned, the filing of a

labor certification does not itself “vest an alien with any

right to relief from removal but is merely one step in the

‘long and discretionary process’ of obtaining an adjust-

ment of status under § 1255(i).” /bid. (quoting Ahmed,

447 F.3d at 438-439).

' On appeal, petitioner abandoned his first petition for review and

sought review only of the Board’s denial of his motion to reopen. See

Pet. App. 1-2.

ARGUMENT

Petitioner argues (Pet. 13-16) that the Board was

required to reopen his removal proceedings in light of

the pending labor certification application that had been

filed on his behalf. That contention lacks merit and does

not warrant review.

1. The court of appeals correctly held that the Board

did not abuse its discretion by determining that peti-

tioner failed to meet his burden of establishing prima

facie eligibility for adjustment of status under Section

1255(i). Pet. App. 3. Pursuant to 8 C.F.R. 1003.2(¢)(1),

“la] motion to reopen proceedings [before the Board] for

the purpose of submitting an application for relief must

be accompanied by the appropriate application for relief

and all supporting documentation.” Furthermore, to

warrant reopening for that purpose, an alien must estab-

lish prima facie eligibility for that relief. See /NS v.

Abudu, 485 U.S. 94, 104 (1988) (holding that a motion to

reopen may be denied if “the movant has not established

a prima facie case for the underlying substantive relief

sought”). Even then, the decision whether to grant or

deny a motion to reopen is “within the discretion of the

Board,” and “[{t]he Board has discretion to deny a mo-

tion to reopen even if the party moving has made out a

prima facie case for relief.” 8 C.F.R. 1003.2(a).

It is undisputed that petitioner did not submit any

evidence in connection with his motion to reopen show-

ing that he was the beneficiary of an approved labor cer-

tification. Citing Abudu, the Board correctly ruled that,

“fiJn the absence of an approved labor certification, [pe-

titioner] is unable to establish prima facie eligibility for

[adjustment of status under 8 U.S.C. 1255(i)] so as to

warrant reopening.” Pet. App. 4-5.

7

Petitioner contends (Pet. 14-15) that he established

prima facie eligibility for adjustment of status by provid-

ing proof of a pending labor certification application.

That argument lacks merit. The court of appeals recog-

nized that, under the terms of Section 1255(i)(2), the

Attorney General “may adjust” the status of an alien

applying under Section 1255(i) only 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.” Pet. App. 2. At the

time that he filed his motion to reopen with the Board,

petitioner had no approved labor certification, his pro-

spective employer had not filed an employment-based

visa petition on his behalf, and he had no approved visa

petition. See Zafar v. United States Att’y Gen., 461

F.3d 1357, 1363-1364 (11th Cir. 2006) (“The mere filing

of a labor certificate application * * * does not make

an alien eligible for adjustment of status under

§ 1255(i).”); Ahmed v. Gonzales, 447 F.3d 433, 438 (5th

Cir. 2006) (“[N]othing in § 1255(i) vested any right to

relief from removal when [the alien] filed his labor certif-

ication.”). Indeed, without an approved labor certifica-

tion, his potential employer could not file a visa petition

on his behalf. 8 C.F.R. 204.5(a) (requiring that the

Form I-140 be accompanied by an approved labor certif-

ication). Petitioner thus could not satisfy Section

1255(i)(2)(A)’s requirement that he be “eligible to re-

ceive an immigrant visa.”

In short, without an approved visa petition in hand,

petitioner could not demonstrate statutory eligibility for

adjustment of status under Section 1255(i). See Ahmed,

447 F.3d at 438 n.3; Khan v. Attorney Gen. of the U.S.,

448 F.3d 226, 235 (3d Cir. 2006) (noting that an approved

8

immigrant visa “is a prerequisite to an adjustment of

status under § 1255(i)”). Therefore, petitioner could not

make out a case of prima facie eligibility, which “re-

quires the applicant to produce objective evidence show-

ing ‘a reasonable likelihood’ that he can establish” that

he is entitled to relief. Sevoian v. Ashcroft, 290 F.3d

166, 175 (3d Cir. 2002) (citation omitted).

2. Contrary to petitioner’s argument (Pet. 16-19),

the court of appeals’ unpublished decision does not con-

flict with the decision of any other court of appeals. No

court, in the context of a motion to reopen before the

Board, has held that an alien can establish prima facie

eligibility for adjustment of status under Section 1255(i)

by showing the mere pendency of a labor certification

application.

Petitioner argues (Pet. 12-13, 16-17) that the decision

below conflicts with Subhan v. Ashcroft, 383 F.3d 591

(7th Cir. 2004). Subhan, however, arose in the distinct

context of a request for a continuance of a pending hear-

ing before an IJ, not a motion to the Board to reopen a

removal order that has become final. See INS v.

Doherty, 502 U.S. 314, 323 (1992) (noting that the Attor-

ney General has broad discretion to grant or deny mo-

tions to reopen, and that they are “disfavored” because

“every delay works to the advantage of the deportable

alien who wishes to remain in the United States.”). Mo-

tions before the Board to reopen a final removal order

are governed by distinct requirements not applicable to

motions for a continuance before an IJ, see generally 8

C.F.R. 1003.2(a) & (¢), including the requirement to es-

tablish prima facie eligibility for any form of newly re-

quested relief. Petitioner did not satisfy that threshold

requirement. Subhan necessarily did not address that

requirement because it dealt with the separate issue of

9

an IJ’s authority to grant or deny a request for a contin-

uance in an ongoing proceeding.”

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

PAUL D. CLEMENT

Solicitor General

PETER D. KEISLER

Assistani Attorney General

DONALD E. KEENER

BARRY J. PETTINATO

Attorneys

MARCH 2007

* Insofar as petitioner suggests (Pet. 17-18) that the court of appeals’

decision conflicts with prior decisions of that court, there is no occasion

for this Court to review that suggested intra-cireuit conflict. See

Wisniewski v. United States, 353 U.S. 901 (1957) (per curiam). In any

event, petitioner errs in asserting an intra-circuit conflict. In both of

the Fifth Circuit decisions he cites, as in this case, the court sustained

the denial of the requested relief—either a request for a continuance or

a motion to reopen. See Pet. 17-18.

Petitioner also errs in suggesting (Pet. 15-16) that the denial of his

motion to reopen infringed his due process rights. The grant of a

mation to reopen, and the grant of adjustment of status, are discretion-

ary, such that their denial works no due process violation. See Ahmed,

447 F.3d at 440.