Lakhani v. Gonzales , 162 F. App'x 350 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 11, 2006
Charles R. Fulbruge III
Clerk
No. 05-60204
Summary Calendar
RAMZAN ALI LAKHANI
Petitioner
v.
ALBERTO R GONZALES, U S ATTORNEY GENERAL
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
No. A79 008 101
Before KING, Chief Judge, and WIENER and DEMOSS, Circuit Judges.
PER CURIAM:*
Petitioner Ramzan Ali Lakhani petitions this court for
review of a final order of the Board of Immigration Appeals. For
the following reasons, we GRANT the government’s motion to
dismiss the petition for review in part for lack of jurisdiction
and DENY the equal protection challenge.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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I. FACTUAL AND PROCEDURAL BACKGROUND
On October 19, 1998, Lakhani, a native and citizen of
Pakistan, entered the United States as a non-immigrant visitor
with authorization to remain for six months. Lakhani later
received a six-month extension, authorizing him to remain in the
United States until October 18, 1999. Since then, he has
remained in the United States without authorization.
On April 19, 2001, an application of labor certification was
filed with the United States Department of Labor seeking to
sponsor Lakhani for employment. As required by law, Lakhani
subsequently registered with the National Security Entry-Exit
Registration System (“NSEERS”). On March 19, 2003, the
Department of Homeland Security (“DHS”) issued Lakhani a Notice
to Appear (“NTA”), charging him with removability under section
237(a)(1)(B) of the Immigration and Nationality Act, 8 U.S.C.
§ 1227(a)(1)(B).1
On September 8, 2003, at his initial hearing before the
Immigration Judge (“IJ”), Lakhani conceded the charges of
removability. At the hearing, after the IJ asked Lakhani’s
counsel if he wished to designate a country of removal and
received a negative reply, the following colloquy occurred:
1
The government, in its motion to dismiss, contends that
the DHS initiated removal proceedings on April 24, 2003, with the
filing of the NTA. A review of the record shows that a special
agent served Lakhani with the NTA on March 19, 2003. The copy is
stamped “RECEIVED” by the DHS on April 24, 2003. A.R. at 350-51;
see also id. at 160, 167.
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JUDGE: All right. In the absence of designation
Court corrects removal to [Lakhani’s] native
country of Pakistan. And what relief would
[Lakhani] be seeking?
COUNSEL: Your Honor, there’s a labor certification
filed in this case dated April 19th, 2001, I’m
not aware at this time of any approval of a
labor –-
JUDGE: April --
COUNSEL: 19th --
JUDGE: -- 19 of –-
COUNSEL: 2001.
JUDGE: -- 2001.
COUNSEL: Not aware of any approval of a labor
certification at this time (indiscernible).
JUDGE: All right. What relief will you be seeking?
COUNSEL: Withholding of removal and voluntary departure
in the alternative at the conclusion.
JUDGE: And is [Lakhani] declining voluntary
departure -- or at the completion of
proceedings?
COUNSEL: Yes, Your Honor.
JUDGE: When can you file applications –- any other
relief first of all?
COUNSEL: No, Your Honor.
A.R. at 174-75. After hearing Lakhani’s requests for withholding
of removal, or in the alternative, voluntary departure, and
asking Lakhani’s counsel about the relief Lakhani was seeking,
the IJ proceeded to set the case for a hearing on the merits.
On October 22, 2003, Lakhani filed his application for
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withholding of removal. At his second hearing before the IJ on
November 5, 2003, Lakhani testified before the IJ in an attempt
to prove his claim for withholding of removal. During the
hearing, neither Lakhani’s counsel nor the government asked
Lakhani questions about his application for labor certification
or requested a continuance. At the conclusion of the hearing,
the IJ denied Lakhani’s requests for withholding of removal and
voluntary departure and ordered him removed to Pakistan. The IJ
concluded that Lakhani’s testimony was not credible and that even
if Lakhani was credible, he had failed to meet his burden of
proof for the requested relief.
On November 24, 2003, Lakhani appealed the IJ’s decision to
the Board of Immigration Appeals (“BIA”). In his BIA appeal,
Lakhani challenged, inter alia, the IJ’s failure to continue the
proceedings based on Lakhani’s pending labor certification
application. Lakhani did not challenge the IJ’s failure to
continue the proceedings on due process or equal protection
grounds.
On February 14, 2005, the BIA adopted and affirmed the IJ’s
order in a per curiam opinion. The only BIA holding relevant to
Lakhani’s petition for review is the BIA’s decision declining to
consider Lakhani’s argument that the IJ erred in not granting a
continuance. Specifically, the BIA found that the issue had
neither been raised before nor ruled upon by the IJ. The BIA
concluded that the record did not reflect that Lakhani ever
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requested a continuance during the hearing and determined that it
lacked jurisdiction to consider the issue. See A.R. at 3 (citing
Matter of Jimenez, 21 I. & N. Dec. 567 (B.I.A. 1996) (issue
raised on appeal but neither raised before nor ruled upon by the
IJ not properly before the BIA)).
On March 15, 2005, Lakhani filed this timely petition for
review of the BIA’s decision. In his petition for review,
Lakhani argues that by failing to continue the proceedings to
allow him to pursue his application for adjustment of status, the
IJ violated his Legal Immigration Family Equity (“LIFE”) Act2
relief rights and his due process and equal protection rights
under the Fifth Amendment. On July 18, 2005, the government
filed a motion to dismiss in lieu of an opening brief.
II. DISCUSSION
As a preliminary matter, the government contends that this
court lacks jurisdiction to consider Lakhani’s petition for
review. According to the government, there is nothing in the
colloquy between Lakhani’s counsel and the IJ that could remotely
be construed as a request by Lakhani to continue his removal
proceedings. The government asserts that Lakhani was required to
exhaust his continuance request before the IJ because the
regulations give the IJ the discretionary authority to grant a
continuance upon a showing of good cause. See Resp’t Mot. to
2
Pub. L. No. 106-554, 114 Stat. 2763 (2000).
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Dismiss at 6 (citing 8 C.F.R. § 1003.29 (2005) (“The Immigration
Judge may grant a motion for continuance for good cause
shown.”)); 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.”). His failure
to exhaust his administrative remedies, according to the
government, precludes this court’s review of his petition for
review. See 8 U.S.C. § 1252(d)(1) (2000) (noting that a court
may review a final order of removal only if the alien has
exhausted all administrative remedies). Thus, the government
requests that this court dismiss Lakhani’s petition for review
for lack of jurisdiction.
In response to the government’s motion to dismiss, Lakhani
argues:
The identification of the pending labor certification as
a form of relief, was, in fact, a continuance request
since the only way relief could be granted on that ground
was if the removal proceedings were continued in order to
permit adjudication. The [IJ] overruled that request by
setting the hearing on the merits without allowing a
continuance.
Pet’r Resp. at 2.
We note, as an initial matter, that this court has
jurisdiction to determine the proper scope of its own
jurisdiction. See Flores-Garza v. INS, 328 F.3d 797, 802 (5th
Cir. 2003); see also Okoro v. INS, 125 F.3d 920, 925 n.10 (5th
Cir. 1997) (“When judicial review depends on a particular fact or
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legal conclusion, then a court may determine whether that
condition exists. The doctrine that a court has jurisdiction to
determine whether it has jurisdiction rests on this
understanding.”) (internal quotation marks and citation omitted).
After carefully reviewing the administrative record, we conclude
that we do not have jurisdiction over Lakhani’s LIFE Act and due
process claims because Lakhani did not request a continuance
before the IJ and thus failed to exhaust his administrative
remedies.
Based on the colloquy between Lakhani’s counsel and the IJ,
Lakhani clearly did not request a continuance before the IJ.
When asked several times by the IJ what relief Lakhani would be
seeking, Lakhani’s counsel identified only Lakhani’s claims for
withholding of removal and voluntary departure. Lakhani’s
counsel never asked the IJ for a continuance or implied that
Lakhani was seeking a continuance to pursue rights applicable to
his pending labor certification application. There is simply
nothing in the record--at either the September 8, 2003 or
November 5, 2003 hearing--that can be construed as a request for
a continuance. Lakhani’s assertion to the contrary
mischaracterizes the colloquy between his counsel and the IJ and
the administrative record as a whole. Because Lakhani did not
request a continuance before the IJ, thus giving the IJ the
discretionary authority to grant or deny the continuance pursuant
to 8 C.F.R. § 1003.29, Lakhani has not exhausted his
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administrative remedies. In light of Lakhani’s failure to
exhaust his administrative remedies, we do not have jurisdiction
to consider his argument that the IJ violated his LIFE Act relief
rights by not continuing the proceedings. See Cardoso v. Reno,
216 F.3d 512, 518 (5th Cir. 2000) (“As a matter of jurisdiction,
courts may not review the administrative decisions of the INS
unless the appellant has first exhausted ‘all administrative
remedies.’”) (quoting 8 U.S.C. § 1252(d)(1)); see also Witter,
113 F.3d at 554.
With regard to his due process challenge, Lakhani contends
that the IJ’s “arbitrary failure” to grant him a continuance to
pursue his application for adjustment of status violated his due
process rights. As this argument is inextricably intertwined
with our discussion concerning Lakhani’s failure to request a
continuance before the IJ (and corresponding failure to exhaust
his administrative remedies), it is axiomatic that this due
process challenge has no merit.3 Accordingly, we grant the
government’s motion to dismiss in part for lack of jurisdiction.
3
Even if we had jurisdiction to consider Lakhani’s due
process claim, Lakhani could not prevail because he is
challenging the IJ’s failure to continue the proceedings, which
is a form of discretionary relief. See 8 C.F.R. § 1003.29. This
court previously has determined that there is no constitutionally
protected right to discretionary relief. See Manzano-Garcia v.
Gonzales, 413 F.3d 462, 471 (5th Cir. 2005) (“[W]hat the
[petitioners] presuppose is that they have a constitutionally
protected right to actual discretionary relief from removal or to
be eligible for such discretionary relief . . . . This is
incorrect.”).
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We do have jurisdiction, however, to consider Lakhani’s
equal protection challenge. Even though Lakhani failed to raise
this claim before the BIA, we retain jurisdiction to consider
“substantial constitutional claims.” See 8 U.S.C.
§ 1252(a)(2)(D) (noting that nothing in the provisions limiting
or eliminating judicial review “shall be construed as precluding
review of constitutional claims”); see also Flores-Ledezma v.
Gonzales, 415 F.3d 375, 380 (5th Cir. 2005) (stating that the
amendments under the REAL ID Act of 2005 preserve, if not expand,
this circuit’s settled case law that we have jurisdiction to
consider “substantial constitutional claims”) (internal quotation
marks and citations omitted). We review constitutional
challenges de novo. See De Zavala v. Ashcroft, 385 F.3d 879, 883
(5th Cir. 2004); Ogbemudia v. INS, 988 F.2d 595, 598 (5th Cir.
1993).
Lakhani asserts that the requirement that he register under
NSEERS triggered the initiation of his removal proceedings.
Because NSEERS targets only non-immigrant males over age sixteen
from certain targeted countries, including Pakistan, Lakhani
contends that his registration with NSEERS alerted the government
to his expired visa. Lakhani alleges that other aliens with
pending labor certification applications who do not meet the
requirements of NSEERS are not required to register and thus are
not at risk of being placed in removal proceedings. According to
Lakhani, such “disparate treatment” violated his equal protection
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rights under the Fifth Amendment.
We find no merit in Lakhani’s equal protection argument.
This court previously has noted that the Attorney General has
broad discretion to initiate removal proceedings against aliens
who violate the immigration laws of the United States. See
Cardoso, 216 F.3d at 517 (stating that Congress has intended “to
protect from judicial intervention the Attorney General’s long-
established discretion to decide whether and when to prosecute or
adjudicate removal proceedings or to execute removal orders”)
(internal quotation marks and citation omitted). Lakhani does
not challenge the fact that he remained in the United States
beyond the expiration date of his temporary visa in violation of
§ 1227(a)(1)(B). Because the IJ found Lakhani removable on
§ 1227(a)(1)(B) grounds and not pursuant to his registration
under NSEERS, we reject Lakhani’s equal protection challenge.4
4
Moreover, in considering an equal protection challenge
against certain nationality-sensitive provisions in the
Nicaraguan Adjustment and Central American Relief Act (“NACARA”),
this court previously has stated:
The core of Congress’s power over immigration is the
ability to set the requirements an alien must meet to
qualify for admission to, or continued residence in, the
United States or for naturalization as a United States
citizen. Due process does not require Congress to grant
aliens from all nations the same chances for admission to
or remaining within the United States. Congress may
permissibly set immigration criteria that are sensitive
to an alien’s nationality or place of origin. . . . We
hold that the equal protection principles that are
implicit in the Due Process Clause of the Fifth Amendment
do not in any way restrict Congress’s power to use
nationality or place of origin as criteria for the
naturalization of aliens or for their admission to or
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III. CONCLUSION
For the foregoing reasons, we GRANT the government’s motion
to dismiss for lack of jurisdiction in part and DENY the petition
for review on Lakhani’s equal protection claim. All pending
motions are denied.
exclusion or removal from the United States.
Rodriguez-Silva v. INS, 242 F.3d 243, 248 (5th Cir. 2001); see
also Zafar v. U.S. Att’y Gen., 426 F.3d 1330, 1336 (11th Cir.
2005) (holding that the “[p]etitioners’ equal protection rights
were not violated by being required to be registered in the
[NSEERS], which they argue precipitated them being placed in
these discretionary removal proceedings by the Attorney General,
where other non-Pakistani citizens were not so required to
register”).
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