Subhan, Mohammed v. Ashcroft, John D. ( 2004 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 03-3869
MOHAMMED SUBHAN,
Petitioner,
v.
JOHN D. ASHCROFT, Attorney General
of the United States,
Respondent.
____________
Petition to Review Order of the Board of Immigration Appeals.
No. A76–774–293
____________
ARGUED AUGUST 3, 2004—DECIDED SEPTEMBER 7, 2004
____________
Before POSNER, ROVNER, and DIANE P. WOOD, Circuit
Judges.
POSNER, Circuit Judge. This challenge to a removal
(deportation) order requires us to mesh two immigration
statutes. One of them, 8 U.S.C. § 1252(a)(2)(B), captioned
“denials of discretionary relief,” is a door-closing statute. It
provides, so far as bears on this case, that “notwithstanding
any other provision of law, no court shall have jurisdiction
to review—(i) any judgment regarding the granting of relief
under section . . . 1255 of this title, or (ii) 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
2 No. 03-3869
Attorney General.” The other statute, which happens to be
referred to in section 1252(a)(2) (B)(i), quoted above, is 8
U.S.C. § 1255, which in its subsection (i) authorizes a
removable alien to adjust his status to that of a permanent
legal resident if he is certified to be entitled to be employed
in the United States. This subsection, which is section 245(i)
of the Immigration and Nationality Act and known as the
LIFE Act, sunseted in 2001, but certain aliens, including
Mohammed Subhan, a Pakistani who had become remov-
able after his tourist visa expired, were grandfathered. 8
C.F.R. § 245.10(a)(1)(i)(B); Lasprilla v. Ashcroft, 365 F.3d 98,
100 (1st Cir. 2004).
Subhan sought to adjust his status under the LIFE Act,
and this required him to obtain certificates from both the
Illinois and federal departments of labor. At an initial hearing
in the removal proceedings, Subhan asked the immigration
judge for, and the judge granted him, a six-month continu-
ance to enable him to obtain the necessary certificates. He
endeavored—with all due diligence, so far as appears—to
obtain them; but the wheels of bureaucracy grind slow, and
at the end of the six months he had not succeeded in ob-
taining them and so he sought and was granted a further
six-month continuance. Again through no laxity or other
fault on his part, the labor departments did not act on his
application within the further six-month period. But when,
therefore, he applied for a third continuance, the immigra-
tion judge turned him down with no explanation beyond
saying that while Subhan “may be able to eventually acquire
lawful permanent resident status by virtue of employment,”
not having done so as yet he was “not eligible for this form
of relief at this time.”
This was not a reason for denying the motion for a third
continuance, but merely a statement of the obvious: that the
labor departments hadn’t yet acted. If the immigration
No. 03-3869 3
judge had said that Subhan had dragged his feet or that it
was obvious from the nature of his employment skills that
he would not be granted the necessary certificates, or that he
should have filed his application for adjustment of status
before his tourist visa expired, or that he was a danger to
the security of the United States, or that he was engaging in
criminal activity or otherwise misbehaving, or even that an
illegal alien should not be allowed to delay his removal
beyond a year, the denial of the third continuance would
have been reasoned, and we may assume would have been
consistent with the adjustment-of-status statute. Hassan v.
INS, 110 F.3d 490, 492-93 (7th Cir. 1997); Onyeme v. INS, 146
F.3d 227, 233 (4th Cir. 1998); Castaneda-Suarez v. INS, 993
F.2d 142, 146 (7th Cir. 1993); Al Khouri v. Ashcroft, 362 F.3d
461, 464 (8th Cir. 2004). But to deny the request for a
continuance with no stated reason was, Subhan argues,
inconsistent with that statute.
The government responds that the door-closing statute
that we quoted at the outset of this opinion prevents us
from addressing the merits of Subhan’s complaint about the
arbitrariness of the immigration judge’s denial of a con-
tinuance. We quoted two subsections of the door-closing
statute. The first precludes judicial review of “any judgment
regarding the granting of relief under section . . . 1255.” We
take this to mean a judgment denying a request for adjust-
ment of status, Iddir v. INS, 301 F.3d 492, 497 (7th Cir. 2002);
Medina-Morales v. Ashcroft, 371 F.3d 520, 528-29 (9th Cir.
2004); Prado v. Reno, 198 F.3d 286, 290 (1st Cir. 1999); cf.
Mireles-Valdez v. Ashcroft, 349 F.3d 213, 215-17 (5th Cir.
2003); Mendez-Moranchel v. Ashcroft, 338 F.3d 176, 177-78 (3d
Cir. 2003); Montero-Martinez v. Ashcroft, 277 F.3d 1137, 1140-
44 (9th Cir. 2002), and, so interpreted, the statute is inappli-
cable to Subhan’s case. His request for adjustment of status
has not been denied; and while the effect of the immigration
judge’s refusal to grant a continuance, and the order of
4 No. 03-3869
removal that ensued, is the same as that of a denial, the
purpose behind the door-closing provision is presumably to
shield from judicial review judgments regarding the propriety
of adjusting an alien’s status, and no such judgment has
ever been made with regard to Subhan. See Prado v. Reno,
supra, 198 F.3d at 291-92; Medina-Morales v. Ashcroft, supra,
371 F.3d at 527. When a request for an adjustment of status
is denied there is no judicial review because the denial is one
of the discretionary orders expressly made nonreviewable by
section 1252(a)(2)(B). But no discretion was exercised here
to deny a requested adjustment of status; instead, the denial
of the continuance prevented the alien from obtaining action
on his request.
The second subsection of the door-closing statute, we
recall, denies judicial review of “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.” There are two ways to take this. One, suggested
by our decision in Pilch v. Ashcroft, 353 F.3d 585, 587 (7th
Cir. 2003), is that the reference is to final decisions: “The
thing under review is the agency’s final decision, not the
language of its opinion; and if the decision is to withhold
certain discretionary remedies, that’s the end.” 8 U.S.C. §
1252(a)(1) limits judicial review of immigration orders to
final decisions, which in this case is the order removing
Subhan. As that is not a discretionary decision, see 8 U.S.C.
§ 1229a(e)(2)(A); Olowo v. Ashcroft, 368 F.3d 692, 699 (7th
Cir. 2004); Nakamoto v. Ashcroft, 363 F.3d 874, 880-81 (9th Cir.
2004), review is not precluded.
A second possibility, however, one not foreclosed by Pilch,
which refers to “the language” of the agency’s decision
rather than to interim rulings, is that “any other decision or
action” includes interim orders, and if the interim order in
question is discretionary then we cannot review it. It is
No. 03-3869 5
routine for appellate courts to review interim rulings by trial
courts, including denials of continuances, in appeals from
final decisions. United States v. Pearson, 340 F.3d 459, 467-68
(7th Cir. 2003); LeBlang Motors v. Subaru of America, Inc., 148
F.3d 680, 689 (7th Cir. 1998). It is likewise routine for courts
reviewing final decisions of deportation or removal to
review denials of continuances in the proceedings leading
up to that decision. Castaneda-Suarez v. INS, 993 F.2d 142,
146 (7th Cir. 1993); Oluyemi v. INS, 902 F.2d 1032, 1033-34
(1st Cir. 1990). And since orders denying motions for
continuances, like other orders governing the management
of trials, are traditionally and indeed inevitably discretion-
ary in character. Hassan v. INS, supra, 110 F.3d at 492; Ponce-
Leiva v. Ashcroft, 331 F.3d 369, 377 (3d Cir. 2003); Onyeme v.
INS, supra, 146 F.3d at 231; Baires v. INS, 856 F.2d 89, 91 (9th
Cir. 1988), it is apparent that section 1252(a)(2) (B)(ii) with-
draws from the courts the power to review such rulings when
made by an immigration judge. Yerkovich v. Ashcroft, No. 02-
9562, 2004 WL 1859928 (10th Cir. Aug. 20, 2004); Onyinkwa
v. Ashcroft, No. 03-2160, 2004 WL 1574514, at *2 (8th Cir. July
15, 2004); cf. Avendano-Ramirez v. Ashcroft, 365 F.3d 813, 819
(9th Cir. 2004); Castellano-Chacon v. INS, 341 F.3d 533, 544
(6th Cir. 2003). One “action” that the Attorney General is
authorized to take in immigration matters is to conduct
removal proceedings, § 1229a(a)(2), which implies acting on
requests for continuances; and so we are not surprised that
an implementing regulation provides that “an immigration
judge may grant a continuance for good cause shown.” 8
C.F.R. § 1002.39.
Supposing, therefore, though without having to decide,
that section 1252(a)(2)(B)(ii) generally bars judicial review of
a continuance granted by an immigration judge in a re-
moval proceeding, we nevertheless think it unlikely that
Congress, intending, as it clearly did, to entitle illegal aliens
to seek an adjustment of status upon the receipt of certifi-
6 No. 03-3869
cates from the state and federal labor departments, at the
same time also intended section 1252(a)(2)(B)(ii) to place
beyond judicial review decisions by the immigration
authorities that nullified the statute. If that section is appli-
cable to cases such as this—cases, that is, in which rulings
on requests for adjustment of status are precluded by pro-
cedural rulings—immigration judges can with impunity
refuse to grant one-week continuances to persons in Subhan’s
position. And that would sound the death knell for the re-
quest, since unlike most grounds for adjustment of status,
adjustments based on employment, like those based on
marriage to a U.S. citizen, cannot be pursued once the alien
has been removed from the United States. 8 U.S.C. § 1255(i);
Padilla v. Ashcroft, 334 F.3d 921, 925 (9th Cir. 2003);
Valderrama v. INS, 260 F.3d 1083, 1089 n. 7 (9th Cir. 2001).
We conclude that the immigration judge, seconded by the
Board of Immigration Appeals, which affirmed him without
discussing his denial of the continuance, violated
section 1255(i) when he denied Subhan a continuance with-
out giving a reason consistent with the statute (indeed
without giving any reason). So the order of removal cannot
stand and there is no need for us to consider Subhan’s
alternative ground—that the denial of the third request for
a continuance was arbitrary and therefore a denial of due
process (the government concedes that the door-closing
statute is inapplicable to orders that violate the Constitution,
Robledo-Gonzales v. Ashcroft, 342 F.3d 667, 679 (7th Cir. 2003);
Torres-Aguilar v. INS, 246 F.3d 1267, 1271 (9th Cir. 2001);
Mendes v. INS, 197 F.3d 6, 11 (1st Cir. 1999))—beyond noting
our reluctance to emasculate the door-closing statute by
equating arbitrary rulings to denials of due process. Dave v.
Ashcroft, 363 F.3d 649, 652-53 (7th Cir. 2004); Gonzalez-
Oropeza v. U.S. Attorney General, 321 F.3d 1331, 1333 (11th
Cir. 2003).
No. 03-3869 7
The petition for review is granted and the case returned to
the immigration authorities for further proceedings con-
sistent with this opinion.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—9-7-04
8 No. 03-3869