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Khan v. Attorney General of the United States

May 22, 2006

MOHAMMED NASIR KHAN, PETITIONER
v.
*ATTORNEY GENERAL OF THE UNITED STATES, RESPONDENT *PURSUANT TO F.R.A.P. 43(C)



Petition for Review of the Order of the Board of Immigration Appeals (A79 708 104). Immigration Judge: Daniel A. Meisner.

The opinion of the court was delivered by: Sloviter, Circuit Judge

PRECEDENTIAL

Argued December 15, 2005

Before: SLOVITER, SMITH, and VAN ANTWERPEN, Circuit Judges

OPINION OF THE COURT

Petitioner Mohammed Nasir Khan seeks review of the decision of the Board of Immigration Appeals ("BIA") affirming the decision of the Immigration Judge ("IJ") who denied Khan's request for a continuance of his removal proceeding. We must decide at the outset whether we have jurisdiction.

I. Background

Khan is a forty-seven-year-old native and citizen of Bangladesh. He entered the United States as a non-immigrant business visitor on September 20, 1996, with permission to remain for a period not to exceed one month. On March 25, 2003, Khan voluntarily reported to the offices of the Department of Homeland Security ("DHS") to register in compliance with DHS's "special registration" program.*fn1 DHS placed Khan into removal proceedings that same day by serving him with a Notice to Appear in which it charged him with removability under INA § 237(a)(1)(B) for overstaying his visa.

On October 2, 2003, Khan appeared pro se for a hearing before an IJ who adjourned the proceeding so that Khan could seek counsel. On November 20, 2003, Khan again appeared before the IJ, this time with counsel. Khan conceded his removability as charged and did not apply for asylum or other substantive relief. Instead, he applied for voluntary departure and submitted a written motion seeking a continuance of the removal proceeding or, in the alternative, a termination of the proceeding on the ground that his wife (also an alien from Bangladesh) had a pending application for an Alien Employment Certification ("Labor Certification") with the United States Department of Labor ("DOL").*fn2

Khan and his wife, Rehana Begum, were married in Bangladesh in 1982; they have a United States citizen minor child. On April 30, 2001, a prospective employer in Pennsylvania filed a Labor Certification for permission to employ Begum as a "Household Cook" at a private residence. Khan's wife timely applied for the Labor Certification under INA § 245(i), 8 U.S.C. § 1255(i) ("LIFE Act"), which had a sunset date of April 30, 2001.*fn3 As relevant to the instant case, the LIFE Act provides that a legal permanent resident alien's spouse and minor children are eligible, by virtue of their relation to the alien, to apply for adjustment of status if otherwise qualified. See 8 U.S.C. § 1255(i)(1)(B); 8 U.S.C. § 1153(d).

At the November 20, 2003 hearing, Khan's counsel represented to the IJ that it "usually takes about 45 days to get a response from the regional" on an application for a Labor Certification. App. at 49. The IJ denied the requested continuance, reasoning that Begum's application for a Labor Certification was merely pending, no visa petition had yet been filed, and therefore Khan was not prima facie eligible to adjust his status. The IJ also denied Khan's alternative request to terminate the removal proceedings altogether, rejecting Khan's suggestion that termination was warranted because DHS had failed to follow its own regulations in requiring Khan to register under the special registration program. The IJ noted that Khan, through counsel, had conceded his removability as charged and declined to rule on Khan's due process challenge to the registration program. The IJ ordered Khan's removal to Bangladesh but granted him a sixty-day window to depart voluntarily.

Khan timely appealed to the BIA, raising two arguments: (1) the special registration procedure "is repugnant to the US constitution;" and (2) the IJ erred in refusing to grant a continuance on the ground that Begum's application for a Labor Certification was pending. App. at 5. Khan noted that Begum's Labor Certification already had been approved at the state level and was pending only before the federal Regional Office of the DOL. Khan argued that he should not be faulted for the government's delay in processing Labor Certifications. On October 27, 2004, the BIA summarily affirmed the IJ's order without opinion and permitted Khan thirty days to depart voluntarily.

Khan timely filed this petition for review. The Government filed a motion to dismiss on the ground that this court lacks jurisdiction and, alternatively, for summary affirmance.

II.

As we noted above, this case presents at the threshold the question whether this court has jurisdiction over the petition for review. The BIA issued a final order summarily affirming the IJ's removal order, which the IJ entered after denying Khan's motion for a continuance. Thus, the BIA order falls within ...


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