Matter of Mohamed RAJAH, Respondent
File A095 956 512 - New York, New York
Unitеd States Department of Justice, Executive Office for Immigration Review, Board of Immigration Appeals
Decided November 12, 2009
25 I&N Dec. 127 (BIA 2009)
Interim Decision #3662
In determining whether good cause exists to continue removal proceedings to await the adjudication of a pending employment-based visa petition or labor certification, an Immigration Judge should determine the alien’s place in the adjustment of status process and consider the applicable factors identified in Matter of Hashmi, 24 I&N Dec. 785 (BIA 2009), and any other relevant considerations. - An alien’s unopposed motion to continue ongoing removal proceedings to await the adjudication of a pending employment-based visa petition should generally be granted if approval of the visa petition would render him prima facie eligible for adjustment of status.
- The pendency of a labor certification is generally not sufficient to warrant a grant of a continuance.
FOR RESPONDENT: Ana Pottratz Acosta, Esquire, New York, New York
FOR THE DEPARTMENT OF HOMELAND SECURITY: Sari N. Maltz, Assistant Chief Counsel
BEFORE: Board Panel: NEAL, Acting Chairman; GREER and MALPHRUS, Board Members.
GREER, Board Member:
In Rajah v. Mukasey, 544 F.3d 449 (2d Cir. 2008), the United States Court of Appeals for the Second Circuit granted the respondent’s petition for review of our June 27, 2006, decision; vacated our order insofar as we affirmed the Immigration Judge’s denial of the respondent’s motion to continue; and remanded the case to us for further proceedings.1 The court directed the Board
We now articulate the factors that an Immigration Judge and the Board should consider in determining whether a respondent has established good cause for a continuance to apply for adjustment of status based on a pending labor certification or employment-based immigrant visa petition. On further review of the respondent’s case, we will again dismiss his appeal.
I. FACTS AND PROCEDURAL HISTORY
The respondent, a native and citizen of Morоcco, was admitted to the United States on December 13, 1994, as a nonimmigrant visitor with an authorized stay of 6 months. The respondent’s employer filed a labor certification on his behalf on April 30, 2001. On April 22, 2003, he was personally served with a Notice to Appear (Form I-862) charging him with removability under section 237(a)(1)(B) of the Immigration and Nationality Act,
The respondent appeared before the Immigration Judge 13 times during an 18-month period. The proceedings were continued for a vаriety of reasons. The respondent was granted five continuances over a 6-month period to obtain counsel and prepare his case. The Department of Homeland Security (“DHS”) was granted two continuances over a 2-month period to respond to the respondent’s motion to terminate. The respondent and the DHS were each granted a continuance to address the issues raised in the respondent’s motion to suppress evidence. The respondent obtained two additional continuances for a 6-month period to determine the status of his Applicаtion for Alien Employment Certification (ETA Form 750) (labor certification), which was pending with the United States Department of Labor (“DOL”).2 The proceedings were continued twice to arrange for the presence of an Arabic translator.
When the parties reconvened on December 16, 2004, the respondent sought another continuance based on his pending labor certification. Without
II. ISSUE
On remand the court charged us with providing “a reasoned set of standards explicating when continuances for labor certifications are within the ‘range of permissible decisions’ available to an [Immigratiоn Judge], and when they are not.” Rajah v. Mukasey, 544 F.3d at 455. The court instructed us to develop standards that would take into account:
(a) the intent of Congress in creating a mechanism for adjusting status based on labor certification and visa eligibility, as expressed in
8 U.S.C. § 1255(i) , (b) the lengthy delays and uncertainties caused by the implementation of this mechanism, and (c) the effect, if any, in a given case, of a labor certification being approved after the agency has acted, but while the case is still sub judice.3
III. ANALYSIS
A. Motions To Continue To Establish Eligibility for Adjustment of Status
Immigration Judges derive their broad discretionary authority over continuances from the regulations, which state that “[t]he Immigration Judge
In our recent precedent decision in Matter of Hashmi, 24 I&N Dec. 785, we examined factors that may be considered in determining whether to continue proceedings to afford the DHS’s United States Citizenship and Immigration Services (“USCIS”) the opportunity to adjudicate a Petition for Alien Relative (Form I-130), a family-based visa petition which, if approved, would render the respondent prima facie eligible for adjustment of status.4 We held that the Immigration Judge and the Board may consider a variety of factors in evaluating the propriety of a continuance, including but not limited to:
(1) the DHS response to the motion; (2) whether the underlying visa petition is prima facie approvable; (3) the respondent’s statutory eligibility for adjustment of status; (4) whether the respondent’s application for adjustment merits a favorable exercise of discretion; and (5) the reason for the continuance and other procedural factors.
Id. at 790. We explained that these factors are illustrative, not exhaustive. Id.
Matter of Hashmi provides a framework to analyze whether good cause exists to continue proceedings to await adjudication by the USCIS or the DOL. In determining whether good cause exists for a continuance, the Immigration Judge should first determine the respondent’s place in the employment-based adjustment of status process and then consider and balance the Hashmi factors, if applicable, and any other relevant considerations. While all these factors may be relevant in a given case, the focus of the inquiry is the likelihood of success on the adjustment application.
B. Employment-Based Adjustment of Status Process
Section 203(b) of the Act,
First, an alien’s employer or prospective employer in the United States files a labor certification with the DOL on the alien’s behalf. The DOL approves a labor certification only if it is established that there are not sufficient United States workers “able, willing, qualified . . . and available” to perform the job and that the employment of the alien will not adversely affect similarly situated United States workers. Section 212(a)(5)(A)(i)(I) of the Act,
Second, if the labor certification is approved, the employer files a Form I-140 (Immigrant Petition for Alien Worker) with the USCIS pursuant to sections 203(b)(2) and (3) and 204(a)(1)(F) of the Act,
Third, if the USCIS approves the I-140 and a visa is immediately available, the alien may apply for adjustment of status under section 245(a) of the Act,
At the time of adjustment of status, the alien must show the continued existence of an offer of employment, as set forth in the labor certification and I-140, and must demonstrate an intent to accept the offer of employment. See Matter of Cardoso, 13 I&N Dec. 228, 230 (BIA 1969) (holding that the respondent must have a bona fide intent to accept the certified job and agree to work for the certified employer in good faith). An alien is not required to have been employed by the certified employer prior to adjustment of status; nor is an alien required to establish an intent to remain at the certified job indefinitely. See Yui Sing Tse v. INS, 596 F.2d 831, 835 (9th Cir. 1979) (finding that an alien need not intend to remain at the certified job forever, but at the time of obtaining lаwful permanent resident status, both the employer and the alien must intend that the alien be employed in the certified job);
C. Section 245(i) Adjustment
The Second Circuit has asked us to consider the congressional intent behind the enactment of section 245(i) of the Act because of the respondent’s reliance on it in this case. See Rajah v. Mukasey, 544 F.3d at 450. In Matter of Briones, 24 I&N Dec. 355, 359-61 (BIA 2007), we examined Congress’s rationale for the 1994 enactment of section 245(i). As we discussed there, many close family members of aliens who legalized under section 245A of the Act,
Congress later enacted a grandfather clause, which allows certain aliens to continue to benefit from the provision.7 For section 245(i) eligibility purposes, a grandfathered alien is the beneficiary (including certain family members if they are eligible to receive a visa under section 203(d) of the Act) of a visa petition or labor certification that was (1) filed on or before April 30, 2001, (2) prоperly filed, and (3) approvable when filed. See section 245(i)(1) of the Act;
The fact that an alien is grandfathered for section 245(i) purposes does not entitle the alien to adjust status or to remain in the United States while seeking adjustment of status. See Zafar v. U.S. Att’y Gen., 461 F.3d 1357, 1365, 1367 (11th Cir. 2006) (finding that section 245(i) does not permit a removable alien to remain in the United States during the labor certification process). To adjust status under section 245(i) of the Act, a grandfathered alien must also be eligible to receive an immigrant visa, be admissible to the United States, and demonstrate that an immigrant visa is immеdiately available. See sections 245(i)(2)(A)–(B) of the Act. A grandfathered alien must also establish that adjustment is warranted in the exercise of discretion. See Ahmed v. Gonzales, 447 F.3d 433, 438 (5th Cir. 2006) (stating that eligibility for section 245(i) treatment does not create an automatic or mandatory exception to section 245(c) of the Act and that the adjustment application must also be granted in the exercise of discretion); see also Usmani v. U.S. Att’y Gen., 483 F.3d 1147, 1151 (11th Cir. 2007) (holding that section 245(i) adjustment is a discretionary form of relief).
Whether an alien is seeking adjustment of status under section 245(a) or (i) of the Act, there may be lengthy delays and uncertainties resulting from the multi-step adjudication process. The underlying two-step process discussed in Hashmi for family-based petitions (which also relates to certain employment-based categories) and the three-step process for employment-based categories, which require labor certifications, must be followed, irrespective of whether an alien is applying for adjustment under section 245(a) or (i) of the Act. Compare sections 245(a)(2)–(3) of the Act with sections 245(i)(2)(A)–(B) of the Act. The only difference is that grandfathered aliens are exempt from both the inspection and admission requirement for adjustment at 245(a) and the statutory bars to adjustment set forth at section 245(c) of the Act.9
D. Standards for Evaluating Continuances Premised on a Pending I-140
We have long held that the Immigration Judge may, in the exercise of discretion, grant a continuance pending the final adjudication of a visa petition.10 See Matter of Garcia, 16 I&N Dec. 653, 656-57 (BIA 1978) (clarifying Matter of Kotte, 16 I&N Dec. 449 (BIA 1978), and explaining that also in the employment context “discretion should, as a general rule, be favorably exercised where a prima facie approvable visа petition and adjustment application have been submitted”), modified on other grounds, Matter of Arthur, 20 I&N Dec. 475 (BIA 1992). We now hold that the Immigration Judge should consider the applicable factors we identified in Matter of Hashmi, 24 I&N Dec. 785, and any other relevant considerations when deciding whether to continue removal proceedings to await
As discussed in Matter of Hashmi, the focus of the inquiry is the likelihood of success on the adjustment application. A respondent who has a prima facie approvable I-140 and adjustment application may not be able to show good cause for a continuance because visa availability is too remote. See, e.g., Chacku v. U.S. Att’y Gen., 555 F.3d 1281 (11th Cir. 2008) (finding that no good cause was shown for a continuance where the alien’s priority date was years in advance of current visa availability). Nonetheless, the Immigration Judge must evaluate the individual facts and circumstances relevant to each case. See Ahmed v. Holder, 569 F.3d 1009 (9th Cir. 2009). As we found in Hashmi, the Immigration Judge needs some basis to examine the merits of the adjustment application. Therefore, the respondent may be required to submit evidеnce of his adjustment eligibility, including the adjustment application, relevant supporting documentation, and USCIS fee receipts. Matter of Hashmi, 24 I&N Dec. at 792.
E. Standards for Evaluating Continuances Premised on a Pending Labor Certification
Several circuits, including the Second Circuit in which this case arises, have followed the Eleventh Circuit’s finding in Zafar v. U.S. Att’y Gen., 461 F.3d 1357, that an alien lacks good cause for a continuance based on a pending labor certification because without a prima facie approvable visa petition, eligibility for adjustment is too remote. See Sandoval-Luna v. Mukasey, 526 F.3d 1243, 1247 (9th Cir. 2008) (finding that the Immigration Judge did not err in denying a second continuance request to apply for section 245(a) adjustment based on the alien’s father’s pending labor certification because no relief was then immediately available); Elbahja v. Keisler, 505 F.3d 125, 129 (2d Cir. 2007) (finding that a continuance request for adjudication of a section 254(i) adjustment application based on a pending labor certification was not an abuse of discretion because the alien’s eligibility was “speculative at best”); Lendo v. Gonzales, 493 F.3d at 442 (holding that the alien’s continuance request based on his wife’s pending labor certification was properly denied because he could not establish that he was eligible to receive a visa and that a visa was immediately available, as required by sections 245(i)(2)(A) and (B) of the Act); Khan v. Att’y Gen. of U.S., 448 F.3d 226, 235 (3d Cir. 2006) (finding that the alien’s continuance request for section 245(i) adjustment based on his wife’s pending labor certification was properly denied because he could not establish visa eligibility and availability); Ahmed v. Gonzales, 447 F.3d at 438-39 (stating that the alien lacked good cause for
In evaluating good cause for the continuance premised on a pending labor certification or I-140, all the factors relevant to the alien’s adjustment eligibility should be considered and articulated. Where applicable, the Immigration Judge should specifically acknowledge and cоnsider the respondent’s status as a grandfathered alien for section 245(i) eligibility purposes. See Matter of Hashmi, 24 I&N Dec. at 793.
Finally, at the direction of the court we consider the effect, if any, in a given case, of a labor certification being approved after the agency has acted, but while the case is still subject to judicial review, which occurred here. The court’s decision informed us that the respondent’s labor certification was approved on July 11, 2007, while the case was pending before the court. See Rajah v. Mukasey, 544 F.3d at 450. We have since learned from the respondent that the labor certification is no longer valid because it expired. Such new evidence might affect the case on remand or in the context of a motion to reopen and would need to be reviewed on a case-by-case basis. See, e.g., Lendo v. Gonzales, 544 F.3d at 443 n.3 (finding that an alien who was granted adjustment while the case was before the Fourth Circuit could move to reopen his removal proceedings).
IV. APPLICATION TO THE RESPONDENT’S CASE
To decide whether a continuance is warranted in this case, we employ the Hashmi analysis: first, determining the respondent’s place in the employment-based adjustment process; and, second, articulating, balancing, and explaining the Hashmi factors and any other relevant considerations. When the respondent appeared before the Immigration Judge, his labor
The governing regulations provide that a party asserting that the Board cannot properly resolve an appeal without further fact-finding must file a motion for remand. See
We conclude that a remand is not warranted in this case. The respondent’s labor certification, although once approved, is now invalid. We agree that it makes him a grandfathered alien who could potentially be eligible for section 245(i) treatment. However, the respondent does not currently have a pending labor certification. He has not yet begun the lengthy three-step process, starting with the filing of a labor certification. To adjust status, a grandfathered alien must also demonstrate that he is eligible to receive an immigrant visa, that he is admissible to the United States, and that an immigrant visa is immediately available. See sections 245(i)(2)(A)–(B) of the Act. The respondent has not established prima facie eligibility for adjustment of status. See Matter of Coelho, 20 I&N Dec. 464 (stating that a motion to reopen may be denied based upon the failure to establish a prima facie case for the relief sought). Based on this new evidence we find no reason to remand this case.
FURTHER ORDER: The motion to remand is denied.
Notes
(d) the effect, if any, of waiting for an application for an employment-based visa, as opposed to a labor certification, to be processed, and (e) the effect, if any, of an employment-based visa being denied after the agency has acted, but while the case is still pending.
Id. at 740 (footnote omitted).