FILED 

U.S. COURT OF APPEALS

 ELEVENTH CIRCUIT 

 March 15, 2006 

 THOMAS K. KAHN 

 CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 05-13947

Non-Argument Calendar

________________________

Agency No. A96-437-573

ARIF TANVEER HAQUE, 

Petitioner, 

versus 

U.S. ATTORNEY GENERAL, 

Respondent. 

________________________

Petition for Review of a Decision of the

Board of Immigration Appeals

_________________________

(March 15, 2006)

Before DUBINA, HULL and MARCUS, Circuit Judges.

PER CURIAM:

Arif Tanveer Haque, a native and citizen of Pakistan, petitions this Court to

review the final order of the Board of Immigration (“BIA”), affirming and

adopting the decision of the Immigration Judge (“IJ”) not to grant a continuance of
Haque asks us to reinstate his period for voluntary departure, which expired on July 24, 1

2005, pursuant to the BIA’s decision granting a 30-day extension running from the date of its

decision. We cannot grant his request because we lack jurisdiction to do so. Haque did not file a

motion to stay prior to expiration of his time for voluntary departure. See Bocova v. Gonzales, 412

F.3d 257, 267-68 (1st Cir. 2005) (holding that “petitioners must file a motion for a stay before the

expiration of the period of voluntary departure allotted by the BIA” (emphasis added)). And we

have held that we lack jurisdictional authority to grant an extension of the voluntary-departure

period. See Nkacoang v. I.N.S., 83 F.3d 353, 357 (11th Cir. 1996). Nkacoang was decided prior to

the effective date of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996

(“IIRIRA”), but the amendments did not provide us with appellate authority to grant or extend

voluntary departure. See generally, INA §§ 240B(f), 242(a)(2)(B)(i), 8 U.S.C. §§ 1229c(f),

1252(a)(2)(B)(i); see also Bocova, 412 F.3d 266 (post-IIRIRA) (“Reinstating an expired voluntary

departure period is functionally equivalent to fashioning a new voluntary departure period; doing

so would require the court to dictate both the length of the period and the time when it would begin

to run (thus effectively overriding the Attorney General’s decision). That would be an

impermissible circumvention of Congress’s will.” (citations omitted)).

2

his removal proceedings pending his request for a labor certification from the

Department of Labor (“DOL”). On appeal, Haque argues that the district court

erred by denying his motion for continuance after he filed a labor certification with

the DOL, which was pending at the time of the removal proceedings. Haque urges 1

us to re-examine our decision in Zafar v. U.S. Att’y Gen., 426 F. 3d 1330 (11th

Cir. 2005), which he recognizes is identical in all material respects to his case.

More specifically, he suggests error in our Zafar opinion because we did not

address Subhan v. Ashcroft, 383 F.3d 591 (7th Cir. 2004), in which the Seventh

Circuit reversed the IJ’s removal order after the IJ denied the petitioners’ motion

for a third continuance. We decline his invitation since, pursuant to our priorprecedent rule, we must follow Zafar and deny his petition for review
3

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

discretion,” and, therefore, we review denials of continuance for an abuse of

discretion. See Zafar, 426 F.3d at 1335. As we explained in Zafar:

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 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).

Id. at 1335-36 (emphasis in the original). We further held that because the

petitioners were not certain to receive a labor certification, they could not

demonstrate “that they had a visa petition immediately available to them,” and,

therefore, the IJ did not abuse his discretion in denying their motions to continue

their removal proceedings. Id. at 1336. 

Here, like the petitioner in Zafar, Haque was not certain to receive a labor

certificate at the time of his request for a continuance. According to our
Moreover, even if we could reconsider Zafar, which it is plain we cannot, Haque’s reliance 2

on the Subhan decision is misplaced as that case is readily distinguishable. In Subhan, the IJ granted

the petitioners two continuances in an attempt to allow the pending certification to be processed by

the Department of Labor, but after the second continuance expired, the IJ summarily denied a third.

Subhan, 383 F.3d at 593. The Seventh Circuit held that because the IJ gave absolutely no reason

for his denial, it was erroneous. Id. at 595. We observe that in Haque’s case, the IJ did explain his

reasoning for the denial, choosing to follow the “general rule . . . that you do not continue cases to

allow forms of relief which are not presently mature to become so.” The IJ’s ruling was entirely

consistent with our Zafar decision, which we are bound to follow.

4

well-established prior-precedent rule, “[o]nly the Supreme Court or this Court

sitting en banc can judicially override a prior panel decision.” United States v.

Wright, 392 F.3d 1269, 1280 (11th Cir. 2004) (internal quotations and citations

omitted), cert. denied, 125 S. Ct. 1751 (2005); Walker v. Southern Co. Serv., Inc.,

279 F.3d 1289, 1293-94 (11th Cir. 2002) (stating “the law of this circuit is

‘emphatic’ that only the Supreme Court or this court sitting en banc can judicially

overrule a prior panel decision.” (citation omitted)). Thus, pursuant to Zafar, we

find no abuse of discretion in the IJ’s denial of Haque’s motion for a continuance,

pending the issuance of a labor certification. Accordingly, we deny the petition 2

for review.

PETITION DENIED.