NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 11a0663n.06 No. 10-3011 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

RAMESHBAB U RAMU KUPPUSAMY, aka Kuppusamy

Ramu Ramesh Ba du, Petitioner,

v. ERI C H. HOL DER, J R., Attorney Gene ral, Respondent. ) ) ) ) ) ) ) ) ) ) O N APPEAL FROM THE BO A RD O F I MMI GRATI ON APPEAL S

Before: COLE and STRANCH, Circuit Judges; Z ATKOF F , District Judge. * JANE B. STRANCH , Circuit Judge

. Petitioner, Rameshbabu Kuppusamy , has been employ ed in the United States at least since 2006. He had an approve d I -140 petition for immigra nt visa filed by his employ er listi ng his j o b as a phy sical thera pist. Citi zenship and I mmigra tion Service s (“CI S”) denied his corr esponding I -485 application for adjustment of status beca use Kuppusamy did not pass Michig an’s phy sical thera pist c ertification e x am. A series of subsequent filings failed t o rec tify

the problem a

nd Kuppusamy

was orde red r emoved to I ndia. The Boar d of I mmigra tion Appeals (“ BI A”) aff irmed.

The Honorable L awr ence P. Z atkoff, United States Di s t ri ct J udg e for the Eastern District * of Michig an, sitting by

desig nation.No. 10-3011 Kuppusamy v. Holde r Pag e 2

The BI A did not err in aff irming the immigra tion ju d ge’ s deter mination that she lacke d jurisdiction over Kuppusamy ’s new I -485 and in con cl u d i ng Kuppusamy ’s counsel did not demon s tr a

te g o od cause for a continuance

. Moreove r, equitable reme dies cannot rec tify the mistakes in this case. The ref

ore, w e DECLINE the petition for re view.

I. BACKG ROUND Ku ppusamy , a citizen of I ndia, was g rante d advanc e parole into the United States by the Depa rtment of Homeland Security (“D HS”) on Marc h 23, 2006. Hi s p en d i n g application for adjustment of status (F orm “I -485”) as a phy sical thera pist was based on a petition for an immigra nt visa (F orm “I -140”) that was filed by his employ er. Kuppusamy filed a number of I -485 applications

corr esponding to this I -140 culminating in an April 18, 2006 denial of his third I -485 (“orig inal I

485”) by CI S. On April 19, 2006, DHS issued a Not ice to Appea r char g ing Kuppusamy with

remova bility pursuant to § 212(a) (7)( A)(i) (I ) of the I mmigra tion and Nationality Ac t (“ I NA ”). 8 U.S.C. § 1182(a)(7) (A)( i)(I ). A. May 17, 2006: Initial H earing At hi s M ay 17, 2006 initial hear ing befor e the immigra tion judge (“I J ”), Kuppusamy was repr esente d by attorney Sher Akhtar. Akhtar conce ded Kuppusamy ’s remova bility , but arg

ued CI S denied Kuppusamy ’s I -485 mere ly beca use Kuppusamy failed the Eng lish portion of Michig an’s phy sical thera

pist certifica tion ex am. The I J deter mined she could not adjust Kuppusamy ’s status at this tim e bec ause Michig an had not c ertified him to pra ctice phy sical thera py . At the hear ing, Akhtar prese nted an I -140 filed by Kuppusamy ’s employ er, Wellness Care. The I J pointed out that the only I -140 visa petition she had was filed by Primecar e Phy sical Thera py I nc. Akhtar explained that the companies wer e the same employ er as one was mere ly a succe ssor-in-No. 10-3011 Kuppusamy v. Holde r Pag e 3

function. The I J conclude d she did not have jurisdiction beca use the succe ssor-in-func tion deter mination must be made by CI S; howeve r, she g rante d a continuance for co unsel to file the appropr iate documentation with CI S. The new hear ing was tentatively schedule d for October 23, 1 2006, three months afte r Kuppusamy was schedule d to take his phy sical thera pist cer tification exam y et ag ain. On October 6, 2006, Primecar e filed a second I -140, this time listi ng Kuppusamy ’s job title

as a reha bilitation coordina tor. This petition was approve d by CI S on Dec ember 15. I nstead of filing

a I -4 8 5 co rr espondi ng to the new I -140 with CI S, Akhtar filed the new I -485 direc tly with the immigra tion court. B. Dece m ber 28, 2007: Sec ond H earing Before the IJ The procee dings to adjudicate Kuppusamy ’s removability wer e continued until Dec ember 28, 2007. Akhtar did not aler t the court to the chang e of the I -140 and I -485 befor e the court. The I J stated that the hear ing was to adjudicate Kuppusamy ’s remova bility d u e t o the April 16, 2006 denial of the orig inal I -485. Kuppusamy ’s attorney arg ued that the I -485 filed direc tly with the court

was a modification of t h e old I -485 denied by CI S. The I J disag ree d and deter mined she had no jurisdiction to review the ne w I -485 bef ore he r as it had not bee n prese nted to CI S. Counsel then reque sted another continuance to allow Kuppusamy to take the cer tification

exam a ninth time. The I J denied the co n t inuance reque st as untimely , noting local opera ting p ro ce d ures require d the filing of a Motion for Continuance 14 day s prior to the hear ing. S h e explained,

There is no evidenc e in the record counsel eve r filed the documents with CI S to establish 1 succe ssor-in-func tion status.No. 10-3011 Kuppusamy v. Holde r Pag e 4

counsel had been advised by the Court of the nece ssity of submitt ing evide n ce of state cer tification, passag e of the appropr iate tests, at hear ing in May of 2006. I f the Respondent failed to pass succe ssfully the cer tification require ments in 2006 or 2007 counsel c lear ly

had ample time to file a

Motion for Continuance. Administrative Record at 71. The I J also denied Kuppusamy ’s motion to terminate the proce eding s. The I J specific ally stated that Kuppusa my ’ s counsel should have filed the application for Adjustment with CI S following the approval of t h e n ew I -140; had he done so, the new I -485 probably would have be en adjudicated by the Dec ember

28, 2007 hear ing a

nd the I J would have ha d jurisdiction. C. BIA Appeal I nstead of attempting to file the new “re habilitation coordina tor” I -485 with C I S , Akhtar appea led t he I J ’s decision to the B I A. He a rg ued that the a

pplication for a djustment of status was the same as the orig inal I -485, even though it was based on a differ ent I -140, and that the I J should have g rante d a continuanc e to pursue the I -485 fr om the initial procee ding. The BI A aff

irmed on Dec ember 31, 2009. I ts decision reje cted the arg ument that the I -485 filed with the court was a rene wal of the previously denied application. The BI A rea soned that when

an application for adjustment (I -485) relies on a new employ ment-base d visa petition (I -140), the I J lacks jurisdiction beca

use the adjustment of status application is new and must be revie wed by CI S befor e the I J may consider it. The BI A also held that the I J was rea sonable in deny ing a continuance reque sted. II. DISCUSS ION A. Standard of

Review When the BI A issues a separ ate opinion upon revie w of an I J ’s decision, this Court trea ts the BI A ruling as the final ag ency deter mination. Morgan v. Keisler , 507 F.3d 1053, 1 0 5 7 (6 t h Cir.No. 10-3011 Kuppusamy v. Holde r Pag e 5

2007). To the extent the BI A adopted the I J ’s rea soning, howeve r, this Court also revie ws the I J ’s decision. Khalil i v. Holder , 557 F.3d 429, 435 (6th Cir. 2009). L eg al deter minations are revie wed de novo , but substantial defe renc e is g rante d to the BI A’ s i n t erpr etation of the I NA and the

acc ompany ing reg ulations. Morgan , 507 F.3d at 1057. This C o u rt revie ws both the I J ’s and the BI A’s fac tual finding s under the substantial-evidenc e standard, in which fac tual deter minations are sustained if they are “supported by rea sonable, substantial, and probative ev i d en ce on the rec ord considere d as a whole.” Al-Ghorbani v. Holder , 585 F.3d 980, 991 (6th Cir. 2009) (interna l quotation marks and citation omitted); see also Khalil i , 557 F.3d at 435. This Court does not reve rse such finding s simply

beca use it would have de cided them diff ere ntly

. Khalil i , 557 F.3d a t 435. B. Issu es on Appeal 1. P etitioner ’s Argum ents Kuppusamy first arg

ues that the I J violated his due proce ss rig hts by not informing him that the I -485 was incorre ctly filed, an issue not r aised befor e the BI A. This Court lacks subject matter jurisdiction to revie w Kuppusamy ’s proce dural due proce ss claim beca use administrative reme dies

wer e not exhausted on this issue. 8 U.S.C. § 1252(d)( 1); Madrigal v. Holder , 572 F.3d 239, 243 (6th Cir. 2009). 2 Petitioner’s second arg ument rela tes to issues of trave l for advanc e parole es who previously overstay ed their visas and filed an I -131 application to trave l. This section o f Ku ppusamy ’s brief fails to develop an arg

ument discernibly rela ted to the decisions below. Howeve r, for the first time

Although there is an exception to the exhaustion require ment for constitutional challeng es 2 to the I J and BI A decisions, that exception is irrele vant here beca use it applies only to claims involving proce dural problems that are not corr ecta ble by the BI A. See Sterkaj v. Gonzales , 439 F.3d 273, 279 (6th Cir. 2006); Lin v. Holder , 565 F.3d 971, 979 ( 6th Cir. 2009).No. 10-3011 Kuppusamy v. Holde r Pag e 6

at oral arg ument, counsel fo r Petitioner arg ued that Kuppusamy was not an arr iving alien but, instead, had visa overstay status. We do not addre ss this arg ument beca use t h e cl ai m was not exhausted below as Kuppusamy never contested his status as an arr iving alien befor e the I J or BI A. Madrigal , 572 F.3d a t 243. 2. The IJ’s Jurisd iction The second issue is jurisdictional. An I J lacks jurisdiction over a I -485 that was not revie wed by CI S. See 8 C.F.R. § 1245.2(a) (1)( ii) (desc ribing the prer equisites for the I J ’s jurisdiction). When adjustment of status is based on a new employ ment-base d visa petition, the corr esponding I -485 is also n ew an d t h e ap p l icant is ineligible to apply for adjustment befor e the I J until the I -485 is revie wed by

CI S. See M

atter of Sili tonga , 25 I .&N . Dec . 89, 92 (B I A 2009). The I J had g ood rea son to conclude the I -485 befor e her in the second hear ing was new. This I -485 was signe d by Akhtar on J anuar y 30, 2007 and was filed with the immigra tion court along with the newly approve d I -140 that listed Kuppusamy ’s job title as a rehabilitation coordina tor. The I J

rea sonably conclude d she l acke d jurisdiction beca use t his new I -485, co rr es p o nding to the new I

140, was never revie wed by CI S. There fore , the BI A did not err in aff irming the I J ’s conclusion that she lac ked jurisdiction over the I -485 bef ore he r. 3. Denial of

the Re quest f

or Continuan ce On appeal t o the BI A, Akhtar also arg ued the I J er re d i n not g ranting Kuppusamy another continuance on his initial I -485. An I J has discre tion to continue immi g ration proc eeding s upon a showing of g ood ca u s e. 8 C.F.R. § 1003.29. The I J decide d not to continue the proce eding s 3

Gene rally , this Court does not have jurisdiction to revie w the I J ’s discretionar y decisions. 3 See 8 U.S.C. § 1252(a) (2)( B) ; Kucana v. Holder , 130 S.Ct

. 827, 831–32 (2010). Howeve r, in Y oung Hee Kwak v. Holder we held, even in light of Kucana , this Court has jurisdiction to revie w denialsNo. 10-3011 Kuppusamy v. Holde r Pag e 7

beca use the motion was untimely

. Kuppusamy ’s counsel requ e s te d a c o ntinuance at the hear ing even though the rules require d filing at least 14 day s in advanc e. Moreove r, Kuppusamy took the phy sical thera pist cer tification test approximately five months befor e the second hear ing and, as found by the I J , had ample time to ask befor e the hear ing for another continuance to allow Kuppusamy to reta ke the cer tification exam y et ag ain. Be cause the motion for co n t i n u an ce could have been filed well befor e 14 day s in advanc e of the hear ing, the BI A did not abuse its discre tion in affirming the I J ’s decision not to gra n t a co n t inuance

. See Ukpabi v. Mukase y , 525 F.3d 403, 407 (6th Cir. 2008) (re viewing the B I A’s af

firmanc e of the I J ’s denial of a motion for continuanc e underan abuse-ofdiscret i o n s t andard); see also Ilic-Lee v. Mukasey , 507 F.3d 1044, 1047 (6th Cir. 2007) (an abuse of discretion occur s if “the denial

. . . was made without a rational explanation, inexpl icably depar ted from established policies, or rested on an impermis sible basis such as invidious discrimination.”) (interna l quotation marks and citation omitted). C. Availabili ty of Eq uitabl e Re m edies Principles of equity g overn this Court’s ab i l i t y t o consider issues sua sponte to preve nt manifest injusti ce. And we have done so. See Brown v. Crowe , 963 F.2d 895, 898 (6th Cir. 1992) (“[A] fede ral appellate court is alway s empower ed to resolve any issue not considere d below ‘whe re the proper resolution is bey ond any doubt or wher e injusti ce . . . might otherwise result.’” ) (quoting Meador v. Cabin et for Human Res. , 902 F.2d 474, 477 (6th Cir. 1990)). This Court has held that ineffe ctive assistanc e of counsel in an im migr ation case may be appr opriate g rounds for e quitable tolling. See Mezo v. Holder , 615 F.3d 616, 620 (6th Cir. 2010). Equitable tolling or another

of a motion for a continuance beca use the I J ’s discretion over these motions derive s not from statute but from 8 C.F.R. § 1003.29. 607 F.3d 1140, 1143 ( 6th Cir. 2010).No. 10-3011 Kuppusamy v. Holde r Pag e 8

equitable reme dy , howeve r, cannot aid Kuppusamy

. Kuppusamy cannot file the new I -485 beca use his visa is no longe r curr ent. Moreove r, he has alre ady left the country and thus would not be prese nt in the United States as re quired to pursue the new I -485. III. CONCLUSION The circ umstances of this case are unfortunate

. Kuppusamy was valued by his employ er and his remova l could have been avoided by proper filing of his immigra tion forms. Howeve r, the I J did
not err in order ing Kuppusamy ’s remova l to I ndia. There fore , we DECLINE the petition for revie w.