Gulati, Indu v. Mukasey, Michael B. ( 2007 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued June 13, 2007
Decided October 15, 2007
Before
Hon. JOHN L. COFFEY, Circuit Judge
Hon. JOEL M. FLAUM, Circuit Judge
Hon. ANN CLAIRE WILLIAMS, Circuit Judge
No. 06-3221
INDU GULATI, Petition for Review of an Order of the
Petitioner, Board of Immigration Appeals.
v. No. A97-331-330
PETER D. KEISLER, Acting Attorney
General of the United States,
Respondent.
ORDER
Indu Gulati—a citizen of India who overstayed her visitor’s visa—moved to
continue her removal proceedings to allow a potential employer more time to apply
for labor certification on her behalf. She argued that the labor certification, if
approved, would render her eligible for an employment-based visa and eventually to
adjust her status to that of a lawful permanent resident. The immigration judge
denied the motion to continue and granted her voluntary departure; the Board of
Immigration Appeals affirmed. Gulati appeals.
No. 06-3221 Page 2
Background
Under § 245(i) of the Immigration and Nationality Act, 8 U.S.C. § 1255(i), an
alien who overstays her visa may nonetheless apply to adjust her status if an
employer filed an application for labor certification on her behalf before April 30,
2001. See Ahmed v. Gonzales, 465 F.3d 806, 808 (7th Cir. 2006). If the application
“was approvable when filed,” meaning it was “properly filed, meritorious in fact,
and nonfrivolous,” then the alien is considered “grandfathered,” and the approval of
the labor certification application allows her to apply for adjustment of status. 8
U.S.C. § 1255(i)(2); 8 C.F.R. § 245.10(a); Hadayat v. Gonzales, 458 F.3d 659, 662
(7th Cir. 2006). Even if the labor certification application is denied or withdrawn, a
grandfathered alien may seek to adjust her status on the basis of “any other ground
. . . under the Act.” 8 C.F.R. § 245.10(i). Although a grandfathered alien must be
physically present in the United States to adjust her status, she has no legal right
to remain here until a visa becomes available; all that is “grandfathered” is the
alien’s eligibility to apply for adjustment. 8 U.S.C. § 1255(i)(1); 8 C.F.R.
§ 245.10(l); Hadayat, 458 F.3d at 662-63.
Gulati—who overstayed her non-immigrant visitor visa in 1998—considers
herself grandfathered under § 245(i) because some time before April 30, 2001, a
California company, Sapron of Fullerton, filed a labor certification application on
her behalf. Before the application was approved, however, Sapron of Fullerton went
out of business. When the Department of Homeland Security placed Gulati into
removal proceedings in 2004, the IJ continued her removal hearing to give her time
to submit evidence that the labor certification application was approvable when
filed. At the next hearing Gulati submitted a copy of the California labor
certification application but advised the IJ that the sponsoring company was no
longer in business. The IJ noted that Gulati had not shown that the labor
certification application was from a valid company. After conceding removability,
Gulati sought another continuance so a potential employer in Illinois could file a
new labor certification application on her behalf.
In his oral ruling, the IJ denied the continuance and granted Gulati
voluntary departure. Although the IJ initially balked at deciding whether Gulati
was grandfathered under § 245(i), he ultimately concluded that “this Court does not
find on the basic facts presented that she is even 245(i) eligible.” The IJ noted that
Gulati had no labor certification application pending and thus determined that the
possibility that a future labor certification application would lead to permanent
resident status was too speculative to justify a continuance. The IJ also stated that
he would deny the continuance “solely in the exercise of discretion because the
respondent simply remained in the United States despite entering as a visitor and
violat[ing] the immigration laws.” Gulati appealed the IJ’s order, and the BIA
No. 06-3221 Page 3
approved the IJ’s rationale for denying the continuance, affirmed the order granting
voluntary departure, and dismissed the appeal.
Analysis
Gulati contends that the IJ abused his discretion in denying her motion to
continue the removal proceedings to allow her to file a new labor certification
application. But we cannot reach the merits of her argument until we determine
whether we have jurisdiction to review the IJ’s discretionary denial of Gulati’s
motion to continue. See Leguizamo-Medina v. Gonzales, 493 F.3d 772, 774 (7th Cir.
2007). At the time Gulati filed her opening brief, we had only assumed, without
deciding, that we generally lack jurisdiction to review an IJ’s discretionary decision
to deny a continuance in a removal proceeding. See Subhan v. Ashcroft, 383 F.3d
591, 595 (7th Cir. 2004). She urged us to retract this assumption and “to assert
general subject matter jurisdiction” over an IJ’s denial of a continuance. Her
argument is precluded by our recent decision in Ali v. Gonzales, Nos. 06-3240, 06-
3879, 2007 WL 2684825, at *4-*5 (7th Cir. Sept. 14, 2007).
In Ali we held for the first time that “the jurisdiction-stripping provision of
§ 242(a)(2)(B)(ii) of the Immigration and Nationality Act (“INA”), 8 U.S.C.
§ 1252(a)(2)(B)(ii), generally precludes judicial review of continuance decisions of
immigration judges.” Id. at *1. Noting that section 242(a)(2)(B)(ii) precludes
judicial review of any immigration decision “the authority for which is specified
under this subchapter to be in the discretion of the Attorney General,” we ruled that
the authority to grant or deny a continuance is derived from part of the relevant
subchapter—specifically, 8 U.S.C. § 1229a. Id. at *4. We further noted that a
general jurisdictional bar is consistent with our reasoning in Leguizamo-Medina,
493 F.3d at 775, where we held that we lack jurisdiction to review interim
orders—such as continuance denials—which lead up to an unreviewable final
decision—such as the denial of adjustment of status. Id.Here, Gulati sought a continuance to file a new labor certification application
that might allow her to pursue adjustment of status. As in Ali, Gulati’s motion was
leading up to her anticipated petition to adjust status, and thus is unreviewable.
See Ali, 2007 WL 2684825, at *5. We therefore lack jurisdiction to review the IJ’s
denial of Gulati’s motion to continue unless the decision falls within the limited
jurisdictional exception carved out in Subhan v. Ashcroft, 383 F.3d 591, 595 (7th
Cir. 2004), and Benslimane v. Gonzales 430 F.3d 828, 831-32 (7th Cir. 2005), and
preserved in Ali, 20007 WL 2684825, at *6.
The petitioners in Subhan and Benslimane sought continuances to await
government action on labor certification applications that—through no fault of their
No. 06-3221 Page 4
own—were languishing before the Department of Labor. The IJs denied the
continuances, observing only that the aliens were not yet eligible for relief. We
found jurisdiction to review the denials because they prevented the government
from acting on the applications, effectively stripping the petitioners of their
eligibility to adjust status. Benslimane, 430 F.3d at 832; Subhan, 383 F.3d at 595.
We held that under those circumstances, the IJ must provide some reasoned
explanation for denying the continuance that is consistent with the statute
authorizing adjustments to status. Benslimane, 430 F.3d at 832; Subhan, 383 F.3d
at 595. The IJ must go beyond merely citing the government’s failure to act, which
is just a remark about procedural status. Benslimane, 430 F.3d at 832; Subhan,
383 F.3d 593-94.
This case parts way from Subhan and Benslimane because it does not fall
within the jurisdictional exception carved out in those cases. Unlike the petitioners
in Subhan and Benslimane, Gulati is not seeking additional time for the
government to act on a labor certification or similar application; she concedes that
her original application is no longer viable because the sponsoring employer no
longer exists. And the IJ specifically found that Gulati’s labor certification
application was not pending when she sought a continuance. Cf. Ali v. Gonzales,
440 F.3d 678, 680 (5th Cir. 2006) (approving denial of continuance where, as here,
the alien had no pending labor certification); Hassan v. I.N.S., 110 F.3d 490, 492
(7th Cir. 1997) (noting that visa applicant is only entitled to the IJ’s favorable
discretion when visa petition is pending adjudication). Thus it was not government
inaction that cut off Gulati’s eligibility to adjust status, but her lack of a viable
labor certification application.
Although Gulati assumes throughout her brief that she is grandfathered
under § 245(i)—and therefore eligible to file a new labor certification application
even though the first is no longer pending—the IJ said in his oral ruling that he did
“not find on the basic facts presented that she is even 245(i) eligible.” He said that
Gulati had not shown that the California labor certification application was
approvable when filed because she had not shown that the sponsoring company was
a valid business. Gulati’s failure to mention that finding—let alone challenge
it—either before the BIA or in her petition in this court, waives any challenge to
that aspect of the IJ’s ruling. See Huang v. Gonzales, 403 F.3d 945, 951 (7th Cir.
2005). Given the IJ’s unchallenged finding that she is not eligible to file a new
application for labor certification, the denial of her request for a continuance does
not arbitrarily strip Gulati of a Congressionally-conferred benefit. See 8 U.S.C.
§ 1255(i); 8 C.F.R. § 245.10(a)(3). Thus the denial does not fall within Subhan’s
exception to the general bar against jurisdiction.
No. 06-3221 Page 5
Gulati raises one argument that does not fall within Ali’s jurisdictional bar;
she argues that the IJ violated her constitutional right to due process by prejudging
her eligibility to adjust status. Specifically, she challenges the propriety of the IJ’s
statement that “this court would not grant permanent resident status in the future
in the exercise of discretion, solely based upon [Gulati]’s delaying her departure
from the United States by filing a frivolous appeal.” Gulati neglects to mention that
the BIA specifically disapproved of the IJ’s statements, but found the error
harmless because Gulati’s eligibility to adjust status “in the future” was not an
issue presently before the IJ. Gulati does not explain why the error was anything
other than harmless, and accordingly, her due process claim is meritless. See
Szczesny v. Ashcroft, 358 F.3d 464, 465 (7th Cir. 2004).
Accordingly, we DISMISS the petition with respect to Gulati’s challenge to
the denial of her motion for a continuance and DENY the petition with respect to
Gulati’s constitutional challenge.