FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

September 27, 2005

THOMAS K. KAHN

CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 04-16613

________________________

Agency No. A96-114-075

MOHAMMED ZEESHAN ZAFAR, 

Petitioner,

versus

U. S. ATTORNEY GENERAL, 

Respondent.

________________________

No. 04-16689

________________________

Agency No. A96-114-077

AMIRMOHAMMED HABIB LAKHANI,

Petitioner,

versus

U. S. ATTORNEY GENERAL,

Respondent.
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________________________

No. 04-16750

________________________

Agency No. A96-114-175

NIZAR GHULAMANI,

Petitioner,

versus

U. S. ATTORNEY GENERAL,

Respondent.

________________________

Petitions for Review of Decisions of the

Board of Immigration Appeals

_________________________

(September 27, 2005)

Before ANDERSON, HULL and RONEY, Circuit Judges.

RONEY, Circuit Judge:

Petitioners are living in the United States on expired visas. Separate

removal proceedings were initiated against all three in March and April, 2003. 

Each moved for continuances while awaiting labor certifications. They filed

petitions seeking review of the Board of Immigration Affairs’ (BIA) summary

affirmances of the immigration judges’ denials of their motions to continue their

removal proceedings. The government contends that this Court is without
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jurisdiction to hear this case pursuant to 8 U.S.C. § 1252(a)(2)(B)(ii). We hold that

we have jurisdiction under this statute to review the denials of motions to continue

removal proceedings, but there was nonetheless no abuse of discretion in the

immigration judges’ decisions do so. We thus deny the petitions.

Petitioners Amirmohammed Habib Lakhani, Mohammed Zeeshan Zafar, and 

Nizar Ghulamani are natives and citizens of Pakistan. The facts and procedural

histories of their individualized cases are set forth below.

Amirmohammed Habib Lakhani 

Lakhani entered the United States on or about July 9, 1995 as a

nonimmigrant visitor authorized to remain in the country until August 10, 1995. 

On March 27, 2001, Lakhani filed an application for labor certification. On April

14, 2003, the Department of Homeland Security (“DHS”) initiated removal

proceedings against Lakhani, charging him as a nonimmigrant who remained in the

United States longer than permitted pursuant to 8 U.S.C. § 1227(a)(1)(B). On July

16, 2003, Lakhani appeared in immigration court, where he admitted the factual

allegations and conceded removability. Immigration Judge G. Mackenzie Rast,

however, adjourned the matter until August 6, 2003 to ascertain what relief, if any,

Lakhani would be seeking. At the August 6 hearing, Lakhani’s counsel advised

Judge Rast that Lakhani had a pending labor certification and requested that his

removal be continued on that basis. Judge Rast denied that continuance ruling, “no

statute [or] regulation [or] case authority which provides that it is appropriate for
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the Court to continue cases under such circumstances. Consequently the request

for [a] continuance under such circumstances will be denied.” Judge Rast then

ordered Lakhani removed from the United States. The BIA summarily affirmed

Judge Rast’s decision.

Mohammed Zeeshan Zafar

Zafar entered the United States on or about September 29, 2000, as a

nonimmigrant visitor authorized to remain in the country until March 29, 2001. 

On April 27, 2001, Zafar’s father filed an application for labor certification. On

March 12, 2003, the DHS initiated removal proceedings against Zafar, charging

him, like Lakhani, as a nonimmigrant who remained in the United States longer

than permitted pursuant to 8 U.S.C. § 1227(a)(1)(B). On July 16, 2003, Zafar

appeared before the same immigration judge (Judge Rast) as Lakhani. Zafar also

admitted the factual allegations and conceded removability. Similarly, Judge Rast

adjourned the matter until August 6, 2003. At that August 6 hearing, Zafar’s

counsel advised Judge Rast that Zafar’s father was in removal proceedings and had

a pending labor certification. Counsel requested that Zafar’s case be consolidated

with his father’s case. Zafar argued that because he was then under the age of

twenty-one, he might qualify as a derivative beneficiary of his father’s

employment-based visa petition if it was ultimately approved. As such, Zafar

moved the immigration court for a continuance until the disposition of his father’s

labor certification. Judge Rast found that there was:
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no case authority or statutory [or] regulatory authority

which authorizes or suggests the appropriateness of a

continuance where labor certification has not yet been

approved by the labor authorities. In this particular case,

the situation is twice removed from that process. Under

the circumstances, the Court does not view it as

appropriate that the matter be continued for such

purposes. 

Judge Rast then ordered Zafar removed from the United States to Pakistan. Zafar

appealed that decision to the BIA, which summarily affirmed the IJ’s decision.

Nizar Ghulamani

Ghulamani entered the United States as a nonimmigrant visitor on June 7,

1997, with a visa authorizing him to stay in the country for no longer than six

months. On April 30, 2001, Ghulamani filed an application for labor certification.

On March 21, 2003, the DHS initiated removal proceedings pursuant to

§ 1227(a)(1)(B). On January 8, 2004, Ghulamani appeared before Immigration

Judge Paul L. Johnson and also conceded removability. His counsel advised Judge

Johnson that he had a pending labor certification and requested that his removal

proceeding be continued on that basis as well. In a written decision, which was

drafted and dated months prior to that hearing on September 25, 2003, the

immigration judge denied Ghulamani’s request for a continuance, finding, after

oral arguments on the motion, that there was not the requisite good cause for

continuance as provided in 8 C.F.R. § 1003.29. Judge Johnson found that the

approval of a pending labor certification was “speculative” and did not entitle
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Ghulamani to a continuance. The BIA affirmed the immigration judge’s decision

without opinion.

Jurisdiction to Review Denial of Motions to Continue Removal Proceedings

The government contends that this Court lacks jurisdiction to review these

petitions, which challenge the immigration judges’ decisions to not continue the

petitioners’ removal proceedings. It directs us to the plain language of INA §

242(a)(2)(B)(ii), 8 U.S.C. § 1252(a)(2)(B)(ii) (2000), which states in relevant part,

“Notwithstanding any other provision of law, no court shall have jurisdiction to

review . . . any . . . decision or action of the Attorney General for which is specified

under this subchapter to be in the discretion of the Attorney General.” That is, it

contends that because the granting of continuances are discretionary, this “door

closing” statute strips this Court of jurisdiction to review them.

Petitioners contend, however, that an immigration judge’s authority to grant

a continuance is not directly found “under this subchapter,” which is “SUBCHAPTER

II” of chapter 12, Title 8, entitled “Aliens and Nationality,” but instead is found in

8 C.F.R. § 1003.29, a federal regulation implemented by the Attorney General. 

Therefore, they argue, § 1252(a)(2)(B)(ii) does not prevent this Court from having

jurisdiction to review their petitions.

We have jurisdiction to review an immigration judge’s decision to deny a

motion to continue a removal hearing. Section 1252(a)(2)(B)(ii) precludes our

review of discretionary decisions of the Attorney General in only the specific
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circumstances where the “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 . . ..” 8 U.S.C. § 1252(a)(2)(B)(ii) (emphasis supplied). The expressed

authority of an immigration judge to grant or deny a motion to continue a hearing

is not found under the particular “subchapter” where § 1252(a)(2)(B)(ii) is

contained, which is “SUBCHAPTER II” of chapter 12, Title 8, entitled “Aliens and

Nationality.” See generally, 8 U.S.C., ch. 12 (entitled, “Immigration and

Nationality”). Instead, the authority of an immigration judge to grant a motion for

continuance is derived solely from regulations promulgated by the INS. See

8 C.F.R. § 1003.29 (stating that “[t]he immigration judge may grant a motion for

continuance for good cause shown”).

The phrase “specified under this subchapter” refers to subchapter II of

Chapter 12, 8 U.S.C. §§ 1151–1378. See Yerkovich v. Ashcroft, 381 F.3d 990, 992

(10th Cir. 2004). Congress has precisely carved-out the statutorily-provided

discretionary powers of the Attorney General within 8 U.S.C. sections 1151

through 1378 and, in turn, has expressly prohibited “any court” from reviewing

them. There are myriad Congressionally-defined, discretionary statutory powers

of the Attorney General articulated within sections 1151 through 1378. For

example, the “Attorney General in his discretion” may waive particular visa or

passport requirements. See, e.g., 8 U.S.C. § 1184(d) (2000) (noting that the

“Attorney General in his discretion may waive the requirement that the parties
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have previously met in person”) (emphasis supplied); 8 U.S.C. § 1181(b) (2000)

(noting that the “Attorney General in his discretion” may readmit individual

“without being required to obtain a passport . . .”) (emphasis supplied). The

Attorney General also “may authorize immigration officers” to record, among

other things, the names, age and sex of “every resident person leaving the United

States by way of the Canadian or Mexican borders for permanent residence in a

foreign country.” 8 U.S.C. § 1221(c). Although not before us, these discretionary

decisions – statutory authority for which Congress “specified under” subchapter II

– of the Attorney General would presumably not be reviewable by “any court”

under the jurisdictional-stripping provisions of § 1252(a)(2)(b)(ii).

The discretionary decisions exercised here by the immigration judges to not

continue the removal hearings were not “specified” under subchapter II of chapter

12, title 8, by Congress. The government does not cite, nor have we so identified,

any expressed authority stating the immigration judge’s authority to continue a

removal proceeding is “specified under” subchapter II. Instead, the parties seem to

be in agreement that this “discretion” is administratively-determined and proscribed

to the immigration judges via 8 C.F.R. § 1003.29, a federal regulation implemented

by the Attorney General. Since only the particular discretionary authorities of the

Attorney General expressly “specified” in sections 1151 through 1378 are barred

from our review under § 1252(a)(2)(b)(ii), and the discretionary authority to grant

or deny a continuance in removal proceedings is not expressly contained within
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sections 1151 through 1378, we have jurisdiction to review those discretionary

decisions. See Zhao v. Gonzales, 404 F.3d 295, 303 (5th Cir. 2005) (jurisdiction

under § 1252(a)(2)(B)(ii) to review denial of BIA’s discretionary motion to reopen

because the BIA had not exercised any statutorily provided discretion under the

subchapter of title 8 governing immigration proceedings, but instead had exercised

discretion as “delineated” by a regulation of the Attorney General); MedinaMorales v. Ashcroft, 371 F.3d 520, 528–29 (9th Cir. 2004) (same); see also Subhan

v. Ashcroft, 383 F.3d 591, 595 (7th Cir. 2004) (finding jurisdiction to review denial

of motion to continue removal proceedings under § 1252(a)(2)(B), but also finding

an abuse of discretion in denying continuance); but see Yerkovich v. Ashcroft, 381

F.3d 990, 995 (10th Cir. 2004) (dismissing petition, and holding that “8 U.S.C. §

1252(a)(2)(B)(ii) bars review of the [immigration judge’s] discretionary decision

denying petitioner’s motion for a continuance”); Onyinkwa v. Ashcroft, 376 F.3d

797, 799 (8th Cir. 2004) (same); Koenig v. INS, 64 Fed. Appx. 996, 998 (6th Cir. 

2003) (unpublished) (holding that “this court lacks jurisdiction to review what was

a purely discretionary decision of the immigration judge”).

Our decision is further supported by the “strong presumption in favor of

judicial review of administrative action.” INS v. St. Cyr, 533 U.S. 289, 298 (2001). 

Because denials of motions to continue are not statutorily-proscribed discretionary

acts “specified under this subsection” to the Attorney General, as enumerated in

§ 1252(a)(2)(B)(ii), we have jurisdiction to review them.
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The Immigration Judges Did Not Abuse Their Discretion

Although we have jurisdiction under § 1252(a)(2)(B)(ii), the immigration

judges nonetheless did not abuse their discretion by denying petitioners’ motions

for continuances to await decisions on their pending requests for labor

certifications. The grant of a continuance is within the immigration judges’ broad

discretion. See Olvera v. INS, 504 F.2d 1372, 1374 (5th Cir. 1974); see also Witter

v. INS, 113 F.3d 549, 555 (5th Cir. 1997) (“The grant of a continuance of a

deportation hearing lies within the sound discretion of the immigration judge, who

may grant a continuance upon a showing of good cause.”). Section 245(i) of the

INA, 8 U.S.C. § 1255(i)(1), permits a certain class of aliens who were otherwise

ineligible to adjust their temporary resident status in the United States to pay a

penalty fee for adjusting their status to that of a “permanent resident” and be

considered “grandfathered” into the United States, if he is the “beneficiary” of an

application for labor certification that was properly filed by April 30, 2001, and was

“approvable when filed.” INA § 245(i)(1), 8 C.F.R. § 245.10(a)(1)(i)(B). 

“Approvable when filed means that, as of the date of the filing,” the application for

labor certification was “properly filed, meritorious in fact, and non-frivolous . . ..” 

8 C.F.R. § 245.10(a)(3). Once the Attorney General receives the application for

adjustment of status and the appropriate fee, he “may” adjust the status if the alien

“is eligible to receive an immigrant visa and is admissible,” and “an immigrant visa
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is immediately available to the alien at the time the application is filed.” 

INA 245(i)(2), 8 U.S.C. § 1255(i)(2). An immigrant visa cannot, however, be

issued to the alien until the labor certification is approved. INA § 203(b)(3)(C), 8

U.S.C. § 1182(a)(5); see generally In re H-A, 22 I & N Dec. 728, 741 (BIA 1999)

(explaining that “applications for adjustment of status that could not be

simultaneously filed because to file for third-preference status required prior

approval by the United States Department of Labor of labor certification”).

Here, since 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). See, e.g., Oluyemi v. INS, 902 F.2d 1032,

1034 (1st Cir. 1990). 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. See

Onyeme v. INS, 146 F.3d 227, 234 (4th Cir. 1998) (finding no abuse of discretion in

BIA’s affirmance of immigration judge’s denial of motion to continue deportation
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proceedings where petitioner had not met all statutory requirements for adjustment

of status); Oluyemi, 902 F.2d at 1034 (same); see generally United States v.

McCutcheon, 86 F.3d 187, 190 (11th Cir. 1996) (noting that trial judge’s

discretionary decision to deny motion to sever trial was to be reviewed by this

Court on appeal by viewing the case as it appeared to the trial judge “at that time”)

(emphasis supplied). Based on this record, there was no abuse of discretion in

denying their motions to continue their removal proceedings.

No Due Process or Equal Protection Violations

Even if we did not have jurisdiction, we would still have jurisdiction to

review substantial constitutional claims. See Moore v. Ashcroft, 251 F.3d 919,

923–94 (11th Cir. 2001). Petitioners assert violations of both their due process and

equal protection rights.

Petitioners argue that their due process rights were violated when the

immigration judges did not continue their removal proceedings long enough for

them to meet all the necessary requirements for adjustment of status. There is no

constitutionally protected right to discretionary relief, which is the relief requested

here. See Tefel v. Reno, 180 F.3d 1286, 1300 (11th Cir. 1999).

Petitioners’ equal protection rights were not violated by being required to be

registered in the National Security Entry-Exit Registration System, which they

argue precipitated them being placed in these discretionary removal proceedings by
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the Attorney General, where other non-Pakistani citizens were not so required to

register. See Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471,

489–92 (1999) (finding that the INS retains inherent prosecutorial discretion as to

whether to bring removal proceedings). There is no support in the record for this

argument. Petitioners neither cite, nor have we identified, any case supporting their

second equal protection argument that “in other jurisdictions” immigration judges

“routinely administratively close proceedings where the beneficiary has a pending

section 245(i) labor certifications, however in Atlanta they did not.” We reject this

equal protection argument as well.

The petitions are therefore

DENIED.