In the

United States Court of Appeals

For the Seventh Circuit ____________

Nos. 06-3240 & 06-3879

SYED IQBAL ALI,

Petitioner,

v.

ALBERTO R. GONZALES,

Respondent.

____________

Petitions for Review of Orders of

the Board of Immigration Appeals.

No. A95-925-079

____________

ARGUED FEBRUARY 22, 2007—DECIDED SEPTEMBER 14, 2007

____________

Before BAUER, EVANS, and SYKES, Circuit Judges.

SYKES, Circuit Judge. Syed Ali petitions for review of

decisions of the Board of Immigration Appeals (“BIA”)

affirming an immigration judge’s (“IJ”) denial of his

request for a continuance and denying his subsequent

motion for reconsideration. Ali sought to continue his

removal hearing to await a disposition on his son

Zeeshan’s application for American citizenship; once

naturalized, Zeeshan could sponsor Ali’s petition to

adjust his status to that of a lawful permanent resident.

Ali now argues, as he did before the BIA, that the IJ

failed to provide an adequate reason for denying the

continuance. He also contends that the National Security

Entry-Exit Registration System (“NSEERS”) program,
2 Nos. 06-3240 & 06-3879

through which his illegal presence in the United States

was brought to the attention of the immigration authorities in the first place, unconstitutionally targets aliens

from Arab and Muslim countries.

This circuit has previously assumed, without deciding,

that the jurisdiction-stripping provision of § 242(a)(2)(B)(ii)

of the Immigration and Nationality Act (“INA”), 8 U.S.C.

§ 1252(a)(2)(B)(ii), generally precludes judicial review of

continuance decisions of immigration judges. Subhan v.

Ashcroft, 383 F.3d 591, 595 (7th Cir. 2004). The Attorney General now argues, in a change of position, that

§ 1252(a)(2)(B)(ii) does not apply to denials of continuances. We note the concession but disagree.

Section 1252(a)(2)(B)(ii) provides (with an exception not

relevant here) that “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.” 8 U.S.C. § 1252(a)(2)(B)(ii) (emphasis added). The

Attorney General’s current view is that this provision is

inapplicable to continuance decisions because an immigration judge’s authority to grant continuances is

conferred by regulation, not statute. While it is true that

continuances are specifically mentioned only in the

administrative regulations, see 8 C.F.R. § 1003.29, an

immigration judge’s authority to grant or deny a continuance is statutory; it derives from 8 U.S.C. § 1229a, which

confers upon immigration judges the plenary authority

to conduct removal proceedings. The regulation regarding continuances simply implements the immigration

judge’s statutory authority to control the course of removal proceedings.

Accordingly, as suggested but not decided in Subhan, an

immigration judge’s denial of a continuance motion is a

discretionary “decision or action” the “authority for which”
Nos. 06-3240 & 06-3879 3

1 This opinion has been circulated among all judges of this court

in regular active service pursuant to Circuit Rule 40(e). A

majority did not favor rehearing en banc on the question

of whether the jurisdiction-stripping provision, 8 U.S.C.

§ 1252(a)(2)(B)(ii), applies to continuance decisions of immigration judges. Judges Ripple, Rovner, Wood, and Williams voted

to rehear this case en banc.

is committed to the immigration judge by the relevant

subchapter of the INA, and the jurisdictional bar in

§ 1252(a)(2)(B)(ii) generally precludes judicial review.

Although this is the minority position among the circuits

that have considered the question, we think it the

sound one and now adopt it.1

 This position is consistent

with our recent decision in Leguizamo-Medina v. Gonzales,

493 F.3d 772, 775 (7th Cir. 2007), which interpreted the

preceding subsection of the jurisdiction-stripping statute,

§ 1252(a)(2)(B)(i). Leguizamo-Medina held that where

§ 1252(a)(2)(B)(i) removes jurisdiction to review a final

immigration decision (the statute eliminates judicial

review of agency decisions regarding certain forms of

immigration relief), review of continuance denials and

other interim orders leading up to the final decision is

also precluded.

Here, Ali conceded removability but sought a continuance so he could pursue adjustment of status if his

son’s application for citizenship was approved. He now

seeks review of the denial of the continuance, but our

review is barred by both § 1252(a)(2)(B)(ii) and the logic

of Leguizamo-Medina. Adjustment of status determinations are unreviewable under § 1252(a)(2)(B)(i); the IJ’s

continuance decision is interim to Ali’s contemplated

adjustment of status application, and interim orders

entered along the road to an unreviewable final order are

themselves unreviewable.
4 Nos. 06-3240 & 06-3879

We also hold that Ali’s case does not fall within the

exception to the jurisdictional bar recognized in Subhan.

Finally, we lack jurisdiction to consider Ali’s constitutional

challenge to the NSEERS program.

I. Background

Ali, a citizen of Pakistan, entered the United States

in 1996 on a six-month visitor’s visa. He overstayed his

visa and in 2003 was placed in removal proceedings. After

a preliminary hearing in April 2003, his case was continued, and at the next hearing in November, Ali conceded removability. Through counsel, he told the IJ that

his son Zeeshan had a pending application for citizenship and that once he was naturalized, Zeeshan intended

to file a family-based visa petition (I-130) on Ali’s behalf.

Ali also informed the IJ that although he missed the oneyear deadline for seeking asylum, he intended to apply

for withholding of removal and relief under the Convention Against Torture. (He apparently never did apply

for these forms of relief.) The IJ continued the hearing

twice more, until February 2005.

Meanwhile, Zeeshan—who had not yet been granted

citizenship—filed an I-130 petition on Ali’s behalf.

Zeeshan, a permanent resident, represented that he was

sponsoring Ali as a “parent of U.S. citizen.” Ali moved to

have his removal case continued again, or administratively closed, to await a decision on Zeeshan’s citizenship

application. The government opposed the motion.

At the February 2005 hearing, Ali argued that his son’s

naturalization application was still pending and that it

would be unjust to “tear a father from his son” if Ali could

adjust his status once Zeeshan became a citizen. To

support his request for a continuance, Ali offered into

evidence a “walk-in form” that Zeeshan had submitted to
Nos. 06-3240 & 06-3879 5

the office of United States Senator Richard Durbin requesting intervention in his citizenship application. On

that form Zeeshan stated his interview and citizenship

test had been held in January 2004, and his application

for citizenship had been denied on the ground of “poor

moral character.”

Without mentioning this form—evidence submitted by

Ali establishing that Zeeshan’s naturalization application

had already been denied—the IJ concluded that Ali had

not established the requisite “good cause” for a continuance. 8 C.F.R. § 1003.29. The IJ explained that Ali was

not immediately eligible for a visa, that a long continuance had already been granted based on Ali’s representation that his son’s application would be decided soon, and

that “everyone who appears before me has family ties in

the United States.” The IJ denied the continuance and

granted relief in the form of voluntary departure.

Ali appealed the IJ’s decision to the BIA, arguing that

the denial of a continuance was erroneous under In re

Velarde-Pacheco, 23 I. & N. Dec. 253 (BIA 2002), and

Subhan, 383 F.3d at 593-94. In Velarde-Pacheco, the

BIA determined that a properly filed motion to reopen

for adjustment of status based on a marriage-based visa

petition may be granted in the exercise of discretion as

long as certain criteria are met. 23 I. & N. Dec. at 256.

In Subhan, this court held that an IJ had erred by arbitrarily denying a continuance to an alien seeking to adjust

his status based on an employment certification, the

application for which was awaiting action by the state

and federal labor departments. 383 F.3d at 595. The BIA

rejected Ali’s argument that his case was analogous to

either Subhan or Velarde-Pacheco and concluded that

the IJ had given adequate reasons for denying the continuance. In addition, the BIA held that the continuance

was properly denied based on the evidence Ali submitted

indicating that Zeeshan’s citizenship application had

already been denied due to poor moral character.
6 Nos. 06-3240 & 06-3879

2 Although we are dismissing the petitions for review for lack

of jurisdiction, we note that the BIA’s reason for denying

reconsideration is consistent with Rehman v. Gonzales, 441 F.3d

506, 508 (7th Cir. 2006).

Ali moved for reconsideration. The BIA denied the

motion because Ali merely reiterated the arguments he

made on appeal rather than citing any legal or factual

omission or defect in the BIA’s decision.2

 Ali now petitions

for review.

II. Discussion

Ali contends the IJ improperly denied a continuance

simply because no visa was immediately available for him,

a flaw in reasoning that led to our granting the petition

for review in Subhan, which he argues is indistinguishable from his case. He also faults the BIA for relying on

the apparent denial of his son’s citizenship application,

which he asserts is still pending and which was not (he

now claims) the only basis for adjusting his status. Ali

asserts that Zeeshan’s permanent resident status provides an alternate ground to adjust status. Finally, Ali

challenges the constitutionality of the NSEERS program

that brought him to the attention of the Department of

Homeland Security (“DHS”) and led to the commencement of removal proceedings against him.

Before reaching the merits of Ali’s arguments, we

must first consider our jurisdiction to review a denial of

a continuance in a removal proceeding. In Subhan, we

assumed jurisdiction to review continuance decisions

was lacking by virtue of the jurisdiction-stripping provision

of § 1252(a)(2)(B)(ii). But we sidestepped an ultimate

decision on the question, reasoning that if the denial of

a continuance effectively nullified the statutory opportu-
Nos. 06-3240 & 06-3879 7

nity to adjust status, see 8 U.S.C. § 1255, the IJ must

provide a reason for the denial consistent with § 1255, not

just a statement of the procedural posture of the case. 383

F.3d at 593-94. The IJ in Subhan had denied a continuance

simply because the alien’s labor certification had not yet

been processed, which we viewed as “merely a statement

of the obvious,” not a reason. Id. at 593.

While the Attorney General has argued in other cases

that we lack jurisdiction to review continuance denials

(and also has sought to distinguish or limit Subhan), in

this case and others more recently, he “declined to assert”

the jurisdictional bar. We have noted the impropriety of

this position; “jurisdiction always comes ahead of the

merits.” Leguizamo-Medina, 493 F.3d at 774. When

questioned about jurisdiction at oral argument, the

agency’s attorney informed us that the Department of

Justice now takes the position that the jurisdictionstripping provision, § 1252(a)(2)(B)(ii), does not apply to

continuance decisions. We asked for supplemental briefing on the matter. We have carefully considered the

Department’s changed position and find ourselves unable

to agree with it.

The jurisdiction-stripping provision at issue here precludes judicial review of immigration decisions “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 added). By its terms, this

statute removes jurisdiction to review only those decisions the authority for which is committed to the discretion of the Attorney General by 8 U.S.C. §§ 1151-1381

(the statutes comprising subchapter II of Chapter 12 of

the INA). The Attorney General now argues that because continuances are referenced only in the immigration regulations, not the statutes, the discretionary

authority to grant or deny a continuance is not “specified under this subchapter” within the meaning of
8 Nos. 06-3240 & 06-3879

§ 1252(a)(2)(B)(ii), and the jurisdictional bar therefore

does not apply.

It is true that the relevant subchapter of the INA is

silent on the subject of continuances. As we noted in

Subhan, 383 F.3d at 595, continuances are mentioned in

the implementing administrative regulations, at 8 C.F.R.

§§ 1003.29; this regulation provides that an immigration

judge “may grant a motion for continuance for good cause

shown.” But an immigration judge’s authority to grant

or deny a continuance derives not from the regulation

but from a statute, 8 U.S.C. § 1229a, and this statute is

part of the relevant subchapter of the INA. Section

1229a(a)(1) confers on immigration judges the plenary

authority to conduct removal proceedings; § 1229a(b)(1)

describes that authority in general terms (it provides, for

example, that the immigration judge has the authority

to “administer oaths, receive evidence, and interrogate,

examine, and cross-examine the alien and any witnesses”

and “issue subpoenas”). The regulation pertaining to

continuances implements these statutes, but the immigration judge’s authority to conduct and control the

course of removal proceedings is “specified in” subchapter

II of the INA, and this necessarily encompasses the

discretion to continue the proceedings, whether on

the motion of a party or sua sponte. The jurisdictional

bar therefore applies to continuance decisions.

We suggested this interpretation in Subhan but did

not affirmatively adopt it. 383 F.3d at 595 (noting that

§ 1229a authorizes immigration judges to conduct removal proceedings and observing that “since orders

denying motions for continuances, like other orders

governing the management of trials, are traditionally and

indeed inevitably discretionary in character[,] . . . it is

apparent that section 1252(a)(2)(B)(ii) withdraws from

the courts the power to review such rulings when made

by an immigration judge”). We now do so. There is a circuit
Nos. 06-3240 & 06-3879 9

split on this question, and we recognize that we

are aligning ourselves with the minority view. The Eighth

and Tenth Circuits have adopted the same interpretation

as we do here. See Yerkovich v. Ashcroft, 381 F.3d 990,

993-95 (10th Cir. 2004); Onyinkwa v. Ashcroft, 376 F.3d

797, 799 (8th Cir. 2004). The First, Second, Third, Fifth,

Sixth, and Eleventh Circuits have accepted the interpretation now asserted by the Attorney General. See

Alsamhouri v. Gonzales, 484 F.3d 117, 122 (1st Cir. 2007);

Zafar v. Att’y Gen., 461 F.3d 1357, 1360-62 (11th Cir.

2006); Khan v. Att’y Gen., 448 F.3d 226, 232-33 (3d Cir.

2006); Ahmed v. Gonzales, 447 F.3d 433, 436-37 (5th Cir.

2006); Sanusi v. Gonzales, 445 F.3d 193, 198-99 (2d Cir.

2006); Abu-Khaliel v. Gonzales, 436 F.3d 627, 633-34 (6th

Cir. 2006). The majority position, however, cannot be

reconciled with our recent opinion in Leguizamo-Medina.

The alien in Leguizamo-Medina had sought a continuance in order to present more testimony on her claim for

cancellation of removal. Her motion was denied and she

petitioned for judicial review. The jurisdictional bar at

issue in Leguizamo-Medina was § 1252(a)(2)(B)(i), the

subsection preceding the statute at issue here. Section

1252(a)(2)(B)(i) eliminates judicial review of “any judgment regarding the granting of relief under section

1182(h), 1182(i), 1229b, 1229c, or 1255 of this title.” The

listed statutes pertain to the Attorney General’s authority to make decisions regarding waiver of inadmissibility, cancellation of removal, voluntary departure, and

adjustment of status. Because § 1252(a)(2)(B)(i) “puts

the [cancellation of removal] decision beyond review,” we

held that the statute also “insulates the choices leading

up to that decision,” including the continuance decision.

Leguizamo-Medina, 493 F.3d at 775. “When a decision is

unreviewable, any opinion one way or the other on the

propriety of the steps that led to that decision would be

an advisory opinion.” Id. (citing Powerex Corp. v. Reliant
10 Nos. 06-3240 & 06-3879

3 Final orders of removal such as the one before us are generally reviewable pursuant to 8 U.S.C. § 1252(a)(1), but this

general review authority is subject to the jurisdiction-stripping

provisions in subsection (a)(2) of that statute, two of which

we have been discussing here. The prefatory language in

§ 1252(a)(2)(B) states, in pertinent part: “Notwithstanding any

other provision of law (statutory or nonstatutory) . . . and

regardless of whether the judgment, decision, or action is made

in removal proceedings, no court shall have jurisdiction to review . . . .” (emphasis added). Subsections (i) and (ii), under

consideration here, immediately follow this language. We note

also that Ali conceded removability; his petition for review

challenges only the denial of his continuance motion and the

constitutionality of the NSEERS program.

Energy Servs., Inc., 127 S. Ct. 2411, 2419 (2007); Daniels

v. Liberty Mut. Ins. Co., 484 F.3d 884, 887-88 (7th Cir.

2007)).

Here, Ali sought a continuance in order to pursue

adjustment of status if his son naturalized. Of course

we are not reviewing a final decision denying adjustment of status (the case never got that far), but Ali’s

continuance motion was ancillary to his contemplated

petition to adjust status—that is, it was a procedural step

along the way to an unreviewable final decision—and

the denial of the motion is therefore unreviewable.3

This leaves us to consider whether Ali’s case falls within

the exception noted in Subhan. It does not. The BIA

affirmed the IJ’s denial of a continuance based on evidence in the record indicating that Zeeshan’s citizenship

application had already been denied; this is a reason

consistent with the adjustment statute, not merely a

“statement of the obvious.” The “walk-in” form Zeeshan

submitted to Senator Durbin’s office stated that he had

been denied citizenship “on poor moral character.” The BIA

was entitled to rely on this evidence—which was introduced, after all, by Ali himself.
Nos. 06-3240 & 06-3879 11

4 The Attorney General, however, represented that Zeeshan’s

application was dismissed for lack of prosecution after he failed

to file documents pertaining to his criminal history (which,

according the Attorney General, includes more than one criminal charge). Also, Zeeshan failed to prosecute the administrative appeal of the denial of his citizenship application, and

the appeal was dismissed.

Ali protests, however, that Zeeshan’s citizenship application remains viable, despite the contrary written

evidence he submitted to the IJ. At oral argument, Ali’s

counsel confirmed that Zeeshan’s first application indeed

was denied on moral character grounds.4

 Counsel represented, however, that Zeeshan was able to reapply within

five years and has done so. At the time of oral argument,

no action had been taken on the second application. Ali’s

counsel also told us that all three of Ali’s sons have

pending citizenship applications. And after oral argument Ali’s attorney sent us a copy of a Notice of Action

on the citizenship application for Haris Ali, one of Ali’s

sons, scheduling an appointment for March 23, 2007. This

form was unaccompanied by any explanation as to its

significance for the case before us, although we assume

that Ali would like to try to adjust his status based on

Haris’s citizenship if it is granted.

These developments are beside the point, however. At

the time the BIA reviewed the denial of the continuance,

the only record evidence concerning Zeeshan’s citizenship

application indicated that it was denied. To the best of the

BIA’s knowledge, it would have been futile to grant a

continuance. See Pede v. Gonzales, 442 F.3d 570, 571 (7th

Cir. 2006) (holding that “ultimate hopelessness” of application for adjustment of status is “perfectly acceptable

basis” for denying continuance). Because the denial of a

continuance did not have the effect of nullifying the
12 Nos. 06-3240 & 06-3879

5 Insofar as Ali contends that he could also adjust his status

because Zeeshan (and apparently his other sons) had a green

card, he is simply incorrect. A legal permanent resident may

sponsor a spouse or an unmarried child but not a parent. See

8 U.S.C. § 1153(a)(2).

statutory opportunity to adjust status, the Subhan exception to the jurisdictional bar does not apply.5

Finally, Ali raises a constitutional challenge to the

NSEERS program that caused him to come to the attention

of the DHS. Ali contends that he was unconstitutionally

targeted for registration and removal based on his religion

and ethnicity. But we have held that under 8 U.S.C.

§ 1252(g), we lack jurisdiction to review a challenge to the

constitutionality of the NSEERS program. See Hadayat v.

Gonzales, 458 F.3d 659, 665 (7th Cir. 2006). Section

1252(g) bars federal courts from hearing claims “by or on

behalf of any alien arising from the decision or action by

the Attorney General to commence proceedings.” Accordingly, selective prosecution claims by aliens are largely

barred. See Reno v. Am.-Arab Anti-Discrimination Comm.,

525 U.S. 471, 491 (1999); Hadayat, 458 F.3d at 665;

Ahmed, 447 F.3d at 439-40. Although a narrow exception

remains for certain “outrageous” cases, see Am.-Arab AntiDiscrimination Comm., 525 U.S. at 491, Ali’s bare allegations of discrimination are insufficient to invoke that

exception. See Hadayat, 458 F.3d at 665.

For the foregoing reasons, Ali’s petitions for review are

DISMISSED for lack of jurisdiction.
Nos. 06-3240 & 06-3879 13

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—9-14-07