United States Court of Appeals

Fifth Circuit



## FILED

December 21, 2005

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 04-61139

Summary Calendar

ANIL KUMAR RAMCHANDANI,

Petitioner,

versus

ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,

Respondent.

____________________

On Petition for Review from an Order of

the Board of Immigration Appeals

_____________________

Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.

BENAVIDES, Circuit Judge:

Anil Kumar Ramchandani petitions for review from the Board of

Immi gration Appeals’s dismissal of his appeal and denial of his

motion to reopen. For the reasons below, we deny the petition.

I. Background

Ramc handani is a citizen of India. On May 11, 1997, he was

admitted to the United States as a nonimmigrant “alien in transit,”

with authorization to remain only until June 10, 1997. Ramchandani

overstayed. On October 24, 2002, he was served with a Notice to

Appear, and the Immigration and Naturalization Service commenced

removal proceedings against him.2

After obtaining three continuances, Ramchandani appeared

before an Immigration Judge (“IJ”) on June 30, 2003. He sought

another continuance, hoping to adjust his status to that of lawful

permanent resident. Ramchandani argued that a continuance was

necessary (1) to allow him to obtain a labor certificate and (2) so

that Lisa O’Hanlon, a United States citizen whom he claimed to have

married three days earlier, could complete an I-130, marriage-based

visa petition on his behalf. The IJ denied the request and entered

an order of removal. Ramchandani timely appealed to the Board of

Immigration Appeals (“BIA”).

While the case was pending on appeal, Ramchandani filed a

motion to reopen the removal proceedin gs. He attached an

application to adjust status to his motion to reopen, which was

based on an unapproved visa petition that his wife had filed

subsequent to the IJ’s order of removal. Ramchandani’s motion

admitted, and a marriage certificate he attached as evidence

showed, that he had actually married O’Hanlon after the IJ’s order

of removal, on July 8, 2003. The BIA affirmed the IJ’s denial of

a continuance and denied Ra mchandani’s motion to reopen.

Ramchandani appeals these two rulings.

II. Discussion

A. D ENIAL OF C ONTINUANCE

The BIA affirmed the IJ’s denial of a continuance, citing 8

C.F.R. § 1003.29. Under section 1003.29, an IJ “may grant a motion3

for continua nce for good cause shown.” The alien seeking

continuance bears the burden of showing good cause. S ee Bright v.

I.N.S.

, 837 F.2d 133 0, 1332 (5th Cir. 1988). The grant of a

continuan ce “lies within the sound discretion of the immigration

judge.” S ee Witter v. I.N.S.

, 113 F.3d 5 49, 555—56 (5th Cir.

1997). We find no abuse of that discretion here.

1. C ONTINUANCE FOR L ABOR C ERTIFICATION

Aliens who are the beneficiary of an application for labor

certification filed on or before April 30, 2001 may apply to the

Attorney Ge neral for the adjustment of their status. 8 U.S.C. §

1255(i). Upon approval of the labor certification, the Attorney

General may adjust the alien’s status to that of lawful permanent

resident.

Ramchandani argues, citing Subhan v. Ashcroft , 383 F.3d 591,

594 (7th Cir. 2004), that his removal proceedings should have been

continued to permit the processing of a labor certification he

claims was pending with the Texas Workforce Commission. In S ubhan

,

the Seventh Circuit granted a petition for review where the IJ,

without explanati on, denied an alien’s request for a continuance

for processing of a pending labor certification. 383 F.3d at

594–96.

Ramchandani’s reliance on Subhan ignores a critical

distinction between that case and the case at bar. In S ubhan

, the

record reflected that applications for labor certificates had been1 Ramchandani attached a copy of a document to his reply

brief on appeal, purporting to show that an application was

timely filed. This document, however, was not produced to the IJ

or the BIA and is not in the record. We “may not consider new

evidence furnished for the first time on appeal and may not

consider facts which were not before the [court below] at the

time of the challenged ruling.” Theriot v. Parish of Jefferson

, 185 F.3d 447, 491 n.26 (5th Cir. 1999).

4 filed within the April 30, 2001 sunset deadline and, moreover, that

the petitioner had “endeavored

. . . with all due di ligence” to

obtain approved certificates. Id. at 593. By contrast,

Ramchandani produced no evidence below that an application for

labor certification had been filed on his behalf prior to April 30,

2001. 1

In Ali v. Gonzales

, a panel of this Court held that an alien’s

responsibility to show “good cause” for a continuance required at

least “a showing that the labor certification application was filed

on or before April 30, 2001.” 2005 WL 3150723, *1 (5th Cir. Nov.

28, 2005) (unpublished). Although A li is not binding precedent, it

is persuasive authority. See United States v. Rueda-Rivera , 396

F.3d 678, 681 (5th Cir. 2005). Without making some showing before

the IJ that a labor certification was filed prior to Apri l 30,

2001, the alien cannot show that he would meet the statutory

requirements of Section 1255(i) even if the case were continued.

Cf. Manzano-Garcia v. Gonzales , 413 F.3d 462, 464 (5th Cir. 2005)

(noting that the petitioner obtained a continuance a fter he

“presented the immigration judge

. . . with a receipt for the labor2 Even if Ramchandani had produced evidence that an

application for labor certification was timely filed, it is far

from clear that the denial of a continuance would have been an

abuse of discretion. In Zafar v. U.S. Attorney General , the

Eleventh Circuit held that the denial of a continuance to await

decisions on aliens’ pending labor certificate applications was

not an abuse of discretion. 426 F.3d 1330, 1335 (11th Cir.

2005). The “speculative possibility that at some point in the

future they may

receive . . . labor certification” was not

sufficient for a showing of good cause. Id. (internal quotation

marks omitted, emphasis in original)

.

3 The BIA affirmed the IJ’s denial of a continuance on abuse

of discretion, rather than de novo , review. We assume without

deciding that this gives us authority to consider the IJ’s

decision in conjunction with the BIA’s ruling. See

Carbajal-Gonzalez v. I.N.S. , 78 F.3d 194, 197 (stating that the

actions of the IJ may be reviewed “when they have some impact on

the Board’s decision”).

4 Printz’s representations before the IJ were contradictory.

He initially argued:

This man would be eligible to adjust under 245(i) because a

—well I’ll take that back. Maybe, maybe, he has an

5 certifica tion application, which had been filed on November 17,

1997”). Absent such a showing, the alien “has shown no cause, much

less good cause, for continuance

. . . .” Ali

, 2005 WL 3150723, at

*1. 2

Ramchandani argues that the showing required in Ali should not

apply to him because the IJ appeared to credit the representation

of his counsel, Richard L. Printz, that Ramchand ani’s labor

certification was filed prior to the sunset date. 3 But the record

reflects that the IJ credited just the opposite re presentation.

After Printz was informed of t he April 30, 2001 sunset date, he

responded, “That’ll make him a little late, judge.” 4 The IJapplication for a labor certification filed on 4-24-01.

Printz presented no evi dence that such an application was filed

and, as explained above, immed iately thereafter represented that

the application would be “late.”

5 The Department of Homeland Security did not dispute the

fact of his marriage before the IJ.

6 accepted this concession. Printz then proceeded to argue for a

continuance “in the face of authority that’s clearly against

[Ramchandani].” Under the circumstances, we hold that it was not

an abuse of discretion for the IJ to deny Ramchandani’s fourth

request for a cont inuance so that he could pursue labor

certification.

2. C ONTINUANCE TO P URSUE M ARRIAGE -B ASED V ISA

Ramchandani briefly argues that removal proceedings should

have been continued so that he could obtain a marriage-based visa.

Althoug h Ramchandani was not in fact married when he appeared

before the IJ on June 30, 2003, he testified that he had been

married “a couple of days” earlier. Assuming, a rguendo

, that

Ramchandani had married O’Hanlon prior to the hearing, 5 the denial

of a continuance would not have been an abuse of discretion.

First, O’Hanlon had not filed a visa petition on Ramchandani’s

behalf, and Ramchandani had not filed an application to adjust

status with the Attorney General. S ee E youm v. I.N.S. , 125 F.3d

889, 892 (5th Cir. 1997) (finding n o error in BIA’s failure to

postpone deportation proceedings to permit decision on adjustment6 The BIA’s opinion below used the terms “motion to reopen”

and “motion to remand” interchangeably. Whether Ramchandani’s

motion was formally one for remand or for reopening did not

change the substance of the BIA’s inquiry below, and it does not

change our standard of review. Ramchandani’s motion sought to

submit a new application for adjustment of status and to present

additional evidence not available at his initial hearing, for

7 where petitioner “never submitted an application for adjustment of

status”). Furthermore, Ramchandani married O’Hanlon during the

pendency of his exc lusion proceedings. “Congress rather clearly

created a presumption that marriages contract ed after the

institution of exclusion or deportation proceedings are

fraudulent.” I n re Arthur , 20 I. & N. Dec. 475, 479 (BIA 1992).

This presumption may only be rebutted by “clear and convincing

evidence

. . . that the marriage was entered into in good faith and

. . . was not entered into for the purpose of procuring the alien’s

admission as an immigrant

. . . .” 8 U.S.C. § 1255(e). We cannot

conclude that Ramchandani’s bare testimony that he married a U.S.

citizen a few days before his hearing—unsupported by a visa

petition, an adjustment application, or by any evidence indicating

he had married in good faith—amounted to a showing of good cause so

as to warrant a continuance.

B. D ENIAL OF M OTION TO R EOPEN

Lastly, Ramchandani argues that the BIA erred in denying his

motion to reopen. We review the denial of a motion to reopen

“under a highly deferential abuse-of-discretion standard.” Z hao v.

Gonzales , 404 F.3d 295, 304 (5th Cir. 2005). 6example, his July 8, 2003 marriage certificate. Under such

circumstances, a motion to remand is subject to the same

standards and regulations governing motions to reopen. See In re

Coehlo , 20 I. & N. Dec. 464, 471 (BIA 1992).

7 The BIA may grant an otherwise meritorious motion to

reopen despite DHS opposition if the sole basis for its

opposition is that the alien married after the commencement of a

deportation or exclusion proceeding. See Velarde-Pacheco , 23 I.

& N. Dec. at 256. Since DHS opposed Ramchandani’s motion because

it failed to include an Affidavit of Support and income

documentation, its opposition was determinative.

8 Ramchandani sought reopening to apply for adjustment of status

through a concurrently filed visa petition from his wife. “A

m otion to reopen proceedings for the purpose of submitting an

application for relief must be accompanied by the appropriate

application for relief and all supporting documentation.” 8 C.F.R.

§ 1003.2(c)(1). Under 8 C.F.R. § 213a.2, Ramchandani was required

to file both an “Affidavit of Support” (Form I-864) and three years

of income tax ret urns from O’Hanlon. He did not do so. Thus,

Ramchandani’s motion to reopen failed to comply with applicable

regulations.

Furthermore, the Department of Homeland Security (“DHS”)

opposed Ramch andani’s motion to reopen. Subject to an exception

not applicable here, the BIA may not grant motions to reopen based

on marriages entered into after the commencement of deportation or

exclusion proceedings when they are opposed by DHS. I n re VelardePacheco

, 23 I. & N. Dec. 253, 256 (BIA 2002). 7 Thus, the BIA did

not abuse its discretion.9 III. Conclusion

The BIA did not abuse its discretion in finding no good cause

for a continuance. It did not abuse its discretion in denying

Ramchandani’s motion to reopen. Accordingly, the petition for

review is DENIED.