We have retained these names from the captions on the 1

briefs, but as our opinion explains, the last names of the petitioners are inaccurate.

In the

United States Court of Appeals

For the Seventh Circuit

No. 07-3821

IMAD MALIK, SAAD MALIK, and FAHAD MALIK,

1

Petitioners,

v.

MICHAEL B. MUKASEY,

Respondent.

Petition for Review of an Order of

the Board of Immigration Appeals.

Nos. A95-583-352, A95-583-360, and A95-583-361

ARGUED SEPTEMBER 3, 2008—DECIDED OCTOBER 23, 2008

Before POSNER, RIPPLE, and EVANS, Circuit Judges.

EVANS, Circuit Judge. Three brothers, Imad, Fahad, and

Saad Shoukat, moved to continue their removal proceedings so that they could apply to become lawful permanent

residents based on their marriages to United States citi-
2 No. 07-3821

zens. The immigration judge denied the motion after

concluding that a continuance would be futile since their

applications were destined to be denied. The Board of

Immigration Appeals affirmed, leading to this petition

for review. The pivotal issue for us is whether we have

jurisdiction to consider the petition.

Imad and his twin brothers Fahad and Saad are citizens

of Pakistan (although the twins were apparently born

in the United Arab Emirates) who entered the United

States in 2001. Their parents came to the United States as

well, and their father filed an asylum application, claiming

that he and the boys were Indian citizens of Islamic faith,

facing religious discrimination in India. Fahad and Saad,

17 years old at the time, were listed as derivatives on

their father’s application, but with a slight twist on their

names. Pakistan follows a patronymic system, where

children take the father’s first name as their last name.

Perhaps to distance them from this Pakistani tradition,

Fahad and Saad were listed on the application with the

last name of “Malik,” the same last name as their father.

Imad, who apparently arrived here a few months before

his father and brothers, was 22 years old at the time so

he filed a separate asylum application, also claiming that

he was an Indian citizen with a last name of Malik. The

father’s first name, as it turned out, was “Shoukat” and

that, not Malik, was the brothers’ correct last name.

Both Imad and his father were interviewed by an

asylum officer, but their applications were not granted.

Instead, the family was placed in removal proceedings,

where they maintained the guise of Indian citizenship.
No. 07-3821 3

The IJ states that Imad was in “his late teens” when he made 2

this statement. However, according to the birthday listed in his

Pakistani passport, he was 24 years old. What’s more, Imad

stated during a preliminary hearing that took place two

years before he gave this statement that he was 22 years old.

Notices to appear initiating the proceedings were issued,

and at a preliminary hearing all three of the brothers

asserted, through their attorney, that their allegations of

Indian citizenship were true. By this time, Fahad and Saad

were 18 and Imad was 23 years old. Throughout the

preliminary hearings, the Shoukats continued to pursue

their bogus asylum claims; Imad even filed an updated

asylum application, reiterating that he was an Indian

citizen facing religious discrimination there because he

is a Muslim.

The Shoukats did not fess up until they got caught.

Apparently, the initial asylum applications were filled

out with the help of an individual who became the focus

of a Joint Terrorism Task Force investigation. The

Shoukats’ home was searched during this investigation, and it was then, two years after their removal proceedings got underway, that the brothers admitted they

were actually citizens of Pakistan and that their given

last name was Shoukat, not Malik. At that time Saad and

Fahad were 20 years old and Imad was 24 years old. Once 2

their attorney learned about their true citizenship, the

asylum applications were withdrawn.

After giving their sworn statements, each brother

allegedly got married to a United States citizen, who
4 No. 07-3821

filed I-130 visa petitions shortly before the final removal

hearing got started. Because the petitions remained

pending by the time the hearing rolled around, the brothers asked for a continuance so their petitions could be

adjudicated and that they could apply to adjust their status

to that of a lawful permanent resident. The IJ (Jenni L.

Giambastiani) denied the request and ordered the

brothers removed, explaining that there was no sense

waiting because the brothers’ asylum applications would

surely be denied. She began by noting the dearth of

evidence presented by the brothers. Although their

“wives” were present in court, the brothers offered no

documentary evidence—not even a copy of a marriage

certificate—to show that they had in fact married, that

the nuptials were entered into in good faith (i.e., not for

the purpose of procuring immigration benefits), or that

they would be eligible to adjust their status if the petitions were granted. Based on this lack of evidence, the

IJ was not satisfied that the brothers were statutorily

eligible to adjust their status. See 8 U.S.C. § 1255(e). The

IJ went on to conclude that even if the brothers were

eligible to adjust their status, she would deny their applications as a matter of discretion because they had all

lied to her, and Imad lied to the asylum officer during

his interview. She acknowledged that the brothers were

young (and probably under the thumb of their father)

when the fraud first occurred, but she noted that each

helped to perpetuate the fraud throughout the removal

proceedings by claiming that they were Indian citizens

and that their last name was Malik. And “young,” of

course, is a relative term. Being over 16—and eligible for

a driver’s license—is quite different than being 10.
No. 07-3821 5

The brothers appealed the IJ’s decision and the BIA

affirmed. Like the IJ, the BIA acknowledged that the

brothers were young when the fraud occurred but concluded that they were old enough to know better and to

be held accountable for their actions. Compare Singh v.

Gonzales, 451 F.3d 400, 403, 409 (6th Cir. 2006) (refusing

to impute fraud of parents to their 5-year-old child).

The brothers now appeal, again arguing that the IJ erred

in denying their motion for a continuance. But before

we can reach the merits of this argument, the brothers

must overcome two jurisdictional hurdles. First, the

denial of the continuance was an ancillary “procedural

step along the way to an unreviewable final decision”—the denial of their adjustment applications—and we

generally lack jurisdiction to review such interim rulings. Ali v. Gonzales, 502 F.3d 659, 664, (7th Cir. 2007);

Leguizamo-Medina v. Gonzales, 493 F.3d 772, 775 (7th Cir.

2007); 8 U.S.C. § 1252(a)(2)(B)(i). Secondly, 8 U.S.C.

§ 1252(a)(2)(B)(ii) prohibits our review of an IJ’s discretionary rulings, such as the denial of a continuance

during removal proceedings. Ali, 502 F.3d at 663. There

is, however, an exception to these jurisdictional bars. We

retain jurisdiction where the decision to deny a motion

for a continuance has the “effect of nullifying the

statutory opportunity to adjust status.” Ceta v. Mukasey, 535

F.3d 639 (7th Cir. 2008); Ali, 502 F.3d at 665; Subhan v.

Ashcroft, 383 F.3d 591, 593-94 (7th Cir. 2004). In other

words, motions for a continuance cannot be denied for

arbitrary reasons or reasons inconsistent with the

adjustment-of-status statute, 8 U.S.C. § 1255. See Subhan,

383 F.3d at 595 (exercising jurisdiction where a continu-
6 No. 07-3821

ance was denied only because the government had yet

to act on the alien’s request for a certificate necessary

to adjust status).

But denying a continuance because the alien’s past

conduct disqualifies him to adjust his status, as the IJ did

here, is consistent with § 1255, Pede v. Gonzales, 442

F.3d 570, 571 (7th Cir. 2006), and we lack jurisdiction to

review the denial. Ali, 502 F.3d at 663. The IJ concluded

that the brothers’ applications were ultimately hopeless.

An alien is only entitled to adjust his status if he meets

all the statutory eligibility requirements and he merits

a favorable exercise of discretion. 8 U.S.C. § 1255(a), (e);

8 C.F.R. § 1245.1. If an alien seeks to adjust his status

based on a marriage entered into while removal proceedings are pending, as is the case here, the alien must

show by clear and convincing evidence that he was

married in good faith, not simply to forestall removal.

8 U.S.C. § 1255(e). The IJ found that the brothers, who

provided no documentary evidence, failed to demonstrate that they could meet that burden. And in any

event, the IJ concluded that even if the I-130 petitions

were granted (after the IJ’s ruling, two of the petitions

were apparently approved) and the brothers met all the

eligibility requirements, she would deny the applications

as a matter of discretion because they lied to her, and

Imad, in addition, had also lied to an asylum officer.

Thus, the brothers’ right to adjust their status was not

nullified, they just didn’t qualify for relief. See Pede, 442

F.3d at 571 (holding that the denial of a continuance

based on the ultimate hopelessness of an adjustment

application is “perfectly acceptable”).
No. 07-3821 7

Of course, even though our ability to review the IJ’s

discretionary decisions is limited, our jurisdiction to

review questions of law and constitutional claims

remains intact. 8 U.S.C. § 1252(a)(2)(D). The Shoukats

attempt to invoke this jurisdictional provision by

arguing that the IJ erred as a matter of law by attributing

their father’s fraud to them. But this argument misses

the mark. The IJ held that each brother, given their ages

at the time, was accountable for his own actions and

misrepresentations.

Accordingly, the petition for review is DISMISSED for

lack of jurisdiction.

10-23-08