How Long Can An Immigration Judge Continue A Removal Proceeding For A Labor Certification To Get Approved?
When a noncitizen who is in violation of status, by overstaying a visa or entering without inspection, is placed in removal proceedings, at issue is whether an Immigration Judge (IJ) can grant adjournments until such time that he or she is eligible for adjustment of status through the approval of a visa petition or labor certification application.Even though this individual is in violation of status, he or she may still have a future claim to remain in the US permanently. Many noncitizens are subject to §245(i) of the Immigration and Nationality Act (INA), which allows an individual who has violated status to still ultimately adjust status to permanent residence in the US. Under §245(i), if a noncitizen was the subject of a labor certification or immigrant visa petition filed on or before April 30, 2001, such an individual will be permitted to adjust status in the US upon payment of a $1,000 penalty provided the immigrant visa is approved and this individual's priority date is current.1 The Ability to Ultimately Adjust Status Under §245(i) For instance, an out of status individual may have been the subject of a labor certification that was filed by an employer on or before April 30, 2001. Sometime in 2002, this employer went out of business and did not pursue the labor certification. Fortunately, in 2006, a new employer filed a labor certification under the PERM (Program Electronic Review Management) system on behalf of this person.2 Thus, this individual can still claim to be "grandfathered" under §245(i) by virtue of the filing of the initial labor certification on or before April 30, 2001 so long as it was "approvable when filed."3 When the new labor certification is approved, this individual can hope to adjust status in the U.S. under §245(i) provided the I-140 petition following the labor certification is approved and a visa number is currently available. Similarly, an individual could be the subject of a family-based I-130 petition that was filed on or before April 30, 2001, and even though the I-130 petition is approved, this individual's priority date, which is established at the time of filing the I-130 petition (or the labor certification) has not yet become current. I-130 petitions filed under the Family 4th preference can take longer then a decade for the date to become current.4 It is not common for individuals waiting for a visa number under a family preference to also be sponsored by an employer for labor certification post April 30, 2001. If the visa number availability under the employment based preference is likely to be quicker, then this individual can nevertheless adjust under §245(i) since the earlier I-130 petition "grandfathered" him or her under this provision. Under these circumstances, the individual who is waiting for either an approval of the petition or visa date to become current continues to remain in violation of status.5 If this person is apprehended by ICE enforcement, he or she is likely to be placed in removal proceedings and will have to either challenge the charges before an Immigration Judge (IJ) - but success is unlikely if it is clear that the respondent has overstayed a visa - or apply for relief against removal before the IJ, such as an application for adjustment of status. When noncitizens in such situations have requested a continuance to wait for their eligibility for adjustment, the IJs have adopted varying standards for granting or rejecting continuance. Essentially, pursuant to 8 C.F.R. §1003.29, the IJ may grant a continuance for good cause shown. Under this provision, it is evident that the grant or denial of continuance remains solely within the broad discretion of the IJ. In cases where an IJ has not continued the proceeding, and deported the noncitizen, many respondents have taken appeals to the Board of Immigration Affairs (BIA), which has mostly affirmed the IJ's denial of the continuance,6 and a few have also filed petitions for review in Courts of Appeals. Rajah v. Mukasey A recent decision from the US Court of Appeals for the Second Circuit, Rajah v. Mukasey,7 illustrates how even the federal courts are struggling to determine the standards for whether an IJ's denial of continuance was an abuse of discretion or not. In Rajah v. Mukasey, Mohamed Rajah was the subject of a labor certification that had not been approved after he had been apprehended by ICE while he reported for registration under the NSEERS program.8 This labor certification was filed on or before April 30, 2001, and thus he was "grandfathered" under §245(i). After he was placed in removal proceedings as a result of registering with the National Security Entry-Exit Registration System (NSEERS), Mr. Rajah's request for continuances to await the approval of his labor certification was ultimately denied by an IJ in New York. The BIA found that the IJ properly denied Mr. Rajah's motion for a continuance based on the ground that "having adjourned the case for a year and a half was sufficient time." The Second Circuit in Rajah v. Mukasey, acknowledged the inconsistencies in the decisions of the federal court in ruling whether an IJ abused his or discretion under the continuance. In a previous case, Morgan v. Gonzales,9 the Second Circuit held that an IJ's refusal to grant a continuance would constitute an abuse of discretion under the following two scenarios: the IJ's decision rests on an error of law (such as application of the wrong legal principle) or a clearly erroneous factual finding; or (2) the IJ's decision - though not necessarily the product of a legal error or a clearly erroneous factual finding - cannot be located within the range of permissible decisions.10 Indeed, in Morgan v. Gonzales, the Court found that the IJ did not abuse his discretion in denying a continuance so that a second petition to adjust status on the basis of a marriage could be adjudicated, where the marriage in question had already been determined not to be bona fide. Thus, if a respondent in a removal proceeding did not demonstrate that there was a bona fide petition, it would be within the discretion of the IJ to deny a continuance. In another Second Circuit decision, Elbahja v. Keisler,11 also discussed in Rajah v. Mukasey, the respondent resorted to multiple grounds of relief and seeking continuances as a result. He had been twice denied adjustment of status based on his marriage to a US citizen and then also applied for cancellation of removal based on that marriage. While the proceedings were still ongoing, the respondent divorced his wife and his counsel represented that the respondent sought to adjust status through an approved labor certification and I-140 employment visa petition. When counsel was unable to submit this evidence or confirm the status of the labor certification application, the IJ denied further continuances. Morgan and Elbahja were cited as instances when the respondents were not seeking continuances in good faith. Yet, the Second Circuit remained conflicted and cited another of its decisions, Thapa v. Gonzales,12 stating "whether a system that specifically provides for cancellation of removal [or adjustment of status] on the basis of employment certification can escape being arbitrary and capricious where it does not afford adequate time for a petition to obtain such labor certification, or where there is no reasoned standard for what length of time would be adequate."13 In a similar case in the Seventh Circuit Court of Appeals, Subhan v. Ashcroft,14 the court found that an IJ had abused his discretion when the ground for the continuance was a pending labor certification. The Seventh Circuit noted that the IJ's denial was based simply on the fact that the labor authorities had not acted yet rather than issues particularized to the petitioner's circumstances such as the lack of bona fides of the labor certification or due to other grounds pertaining to national security or criminal issues. In another Seventh Circuit decision following this case, Ahmed v. Gonzales,15 the court went even further than Subhan in holding that the IJ's denial of a continuance ignored the fact that the petitioner was the "grandfathered" beneficiary of an I-130 petition even though the petitioner had yet to have a labor certification filed on his behalf. Yet, other Circuits have upheld an IJ's refusal to continue a hearing on the ground that the respondents were in the initial stages of the labor certification process, and this only provided a speculative basis for the respondent to ultimately adjust status.16 Thus, if the IJ provides a cogent reason for denying the continuance on the ground that the pending labor certification only provides a speculative basis for the respondent to be able to ultimately adjust status, Subhan may well be easily distinguished. But in reality, the factual basis in Zafar in the Eleventh Circuit or Ahmed in the Fifth Circuit were identical to Subhan in the Seventh, and these two Circuits simply took a different view. Yet Rajah v. Mukasey is significant in comparison to the decisions on continuances in the sister circuits. After surveying various decisions, the Second Circuit in Rajah v. Mukasey chose not to adopt a standard and decided to instead ask the BIA to adopt one. In this regard, the Second Circuit noted:
Rajah's labor certification having not been approved, IJ Nelson summarily denied Rajah's request for a continuance, as she earlier had indicated was her practice. Yet Rajah had provided the IJ with letter evidence that processing of labor certifications was extremely backlogged, and that the New York Department of Labor was that "working to the limits of [its] abilities to process these applications as quickly as possible." The IJ, and the BIA, determined that the roughly eighteen month time span of Rajah's removal proceedings was "sufficient time" - but did not elaborate. Since most of the previous delays were not particularly linked to the labor certification, one might ask, sufficient for what? But still, it cannot be that the open-ended labor certification processes can give rise to endless continuances and delays. And after all, the IJ denied the continuance only after the labor certificate had been pending for three and half years and after multiple continuances during the eighteen months it was pending before the IJ - including an additional one month continuance after counsel had already been granted "one last" continuance for five months.17Even though the Second Circuit did not establish a standard for IJs, it nevertheless expressed concerns regarding an IJ denying a continuance based on a pending labor certification. Based on the "range of permissible decision" criterion fashioned by the Second Circuit in Morgan, it is hoped that the BIA will develop a generous standard for IJs to grant continuances especially when a noncitizen is subject to the benevolent impact of §245(i). After all, Congress enacted §245(i) to provide benefits to those who are out of status but were subject to labor certification or immigrant visa petitions filed on or before April 30, 2001. Yet, §245(i) presents a contradiction insofar that its beneficiary remains out of status until such time that the visa petition is approved and a visa number becomes available. It is thus hoped that the BIA fashions a fair standard for IJs to grant continuances as directed by the Second Circuit in Rajah v. Mukasey. A Proposed Framework For Continuance Based On Pending Labor Certification To alleviate concerns that the grant of a continuance on a pending labor certification is speculative as the application may well be denied ultimately, the BIA has already fashioned a remedy in the context of un-adjudicated Form I-130 marriage-based petitions. In Matter of Velarde-Pacheco,18 in relation to a motion to reopen within the 90-day statutory period, the BIA held that an un-adjudicated I-130 petition based on marriage to a US citizen could nevertheless serve as the basis for a motion to reopen if inter alia the motion presented clear and convincing evidence indicating a strong likelihood that the respondent's marriage was bona fide. Similarly, even though an IJ lacks the expertise of the DOL, he or she can make a prima facie finding that there is a bona fide application for labor certification that has been filed with the DOL. For instance, an IJ can ascertain whether there is a genuine employer supporting the application and may also examine correspondence from the Department of Labor (DOL) to establish that the application is being vigorously pursued by the employer and is also being processed by the agency. Even if a labor certification is ultimately denied, the same type of "prima facie determination" can be made by the IJ to assess whether a timely appeal to the Board of Alien Labor Certification Appeals (BALCA) is bona fide. The length of time for the labor certification approval should not be relevant, since § 245(i) does not have such a time limitation for adjustment eligibility; rather the continuance should be based on a determination of the bona fides of the application and a likelihood of its success. It thus behooves counsel, who is moving for a continuance on behalf of the client, to educate the IJ about the intricacies of the labor certification process, and the progress that his or her client and the employer have made in that labyrinthine process. Counsel should also educate the IJ about the latest updates with respect to delays in the audit process, in the event that the labor certification's approval has been delayed due to an audit, or apprise the IJ that a labor certification can only be filed after the mandatory recruitment steps have been completed.19 Most important of all, counsel should establish that the employer has prepared and filed a PERM application in complete compliance of the DOL regulations, and thus the DOL would be more likely to approve this application rather than an application that has not been in compliance. Suppose the job requirements are in excess of the Standard Vocational Preparation level, counsel must establish to the IJ that the employer has already justified this excessive requirement through business necessity, and that this justification has already been prepared in advance of any potential audit of the application.20 If after creating a thorough record, the IJ still denies the continuance, at least counsel will have a solid record to appeal the denial of the continuance as an abuse of discretion. If the noncitizen has a bona fide labor certification application or I-140 immigrant visa petition that is pending, but has not been approved solely due to bureaucratic delays either at the DOL or at the USCIS, it would be inequitable to remove such a person just because he or she was unlucky to have been picked up by ICE before being able to file an application to adjust status to permanent residence. The inequities would be further compounded if an application or petition is approved, and the noncitizen is merely waiting for the visa number to become available. This article was originally published on (www.cyrusmehta.com) on October 28, 2008.
End Notes1To further clarify, under INA §245(i), a noncitizen who was the subject of a labor certification or immigrant visa petition filed prior to April 30, 2001 can still adjust status in the US even if he or she entered without inspection or is not in status. If the labor certification or petition was filed after January 14, 1998, the individual must have been physically present in the US on December 21, 2000. The requirement of being physically present on December 21, 2000, does not apply to a noncitizen who was the beneficiary of a labor certification or immigrant visa petition filed on or before January 14, 1998. 269 Fed. Reg. 77325 (Dec. 27, 2004). 3"Approvable when filed" means as of the date of the filing the application for labor certification was "proper filed and meritorious when filed and nonfrivolous…" 8 C.F.R. §245.10(a)(3). For a good treatment of what constitutes an "approvable as filed" labor certification, see Jung Y. Pak aka Jung Ye Lee, 2008 WL 4146747 (BIA). In doubtful cases, counsel must take pains to establish that the client is "grandfathered" under § 245(i) based on an "approvable when filed" labor certification. 4The worldwide cut-off date for the Family 4th preference, according to the December 2008 State Department Visa Bulletin, is January 1, 1998. The cut-off date for those born in The Philippines is April 15, 1986. 5The labor certification is not a petition. An approval of a labor certification is required before an employer can file an I-140 petition under INA §203(b)(2), the Employment-based second preference, or under INA §203(b)(3)(i)(ii) or (iii), the Employment-based third preference. Pursuant to 8 C.F.R. §245.2(a)(2)(i)(B), the I-140 petition can be filed concurrently with an I-485 application to adjust status. However, if a noncitizen is in removal proceedings, the IJ may require that the I-140 petition be approved by United States Citizenship & Immigration Services (USCIS) before he or she can file the I-485 application in Immigration Court. 6There are several recent unpublished decisions. See e.g. Carol Doreen Lewis, 2007 WL 4707398 (BIA); No First Name Safyar, 2007 WL 2299615 (BIA). 7 ___ F.3d ___, 2008 WL 4350028 (C.A.2). 8As stated in footnote 4 of Rajah v Mukasey, "the NSEERS program required all nonimmigrant males, aged 16 or older, from twenty-five designated countries, to register with DHS, to submit various documents and information, and to be fingerprinted and photographed. See 8 C.F.R. sections 214.1(f), 264.1(f)(4). These aliens were required to report to DHS "upon arrival, approximately 30 days after arrival; every twelve months after arrival; upon certain events, such as a change of address, employment or school; and at the time they leave the United States." 67 Fed. Reg. 52,584 (Aug. 12, 2002). (The requirements of 30-day and one year residency reports were suspended by DHS in December 2003. See DHS, Fact Sheet: Changes to NSEERS, Dec. 1, 2003, available at http://www.dhs..gov/xnews/releases/press_release_0305.shtm). Morocco was one of the countries whose citizens were subject to NSEERS. See 67 Fed. Reg. 70,526 (Nov. 22, 2002)." In a separate decision, Rajah v. Mukasey, 2008 WL 435002 (C.A.2), the Second Circuit upheld the NSEERS program as being constitutional as it did not, inter alia, violate the aliens' Equal Protection guarantees and there was a national security basis for the program following the terrorist attacks of September 11, 2001. 9445 F.3d 549 (2d Cir. 2006). 10Rajah v. Mukasey, 2008 WL 4350028 at *4. 11505 F.3d 125 (2d Cir. 2007). 12460 F.3d 323, 335 (2d Cir. 2006). 13Id. at 336 n. 5. 14383 F.3d 591 (7th Cir. 2004). 15465 F.3d 806 (7th Cir. 2006). 16See E.g. Zafar v. U.S. Attorney General; 426 F.3d 1330 (11th Cir. 2005) (upholding denial of continuance because § 245(i) grandfathered noncitizen did not yet prove immigrant visa was available as prospect of labor certification approval was speculative); Ahmed v. Gonzales, 447 F.3d 433 (5th Cir. 2006)(same), Khan v. Att'y Gen. of the U.S., 448 F.3d 433 (3d Cir. 2006)(same). 17Rajah v. Mukasey, 2008 WL 4350028 at *6. 1823 I&N Dec. 253 (BIA 2002). 19Under the DOL regulations, an application cannot be filed immediately as there has to be a 30-day interval between the placement of a mandatory advertisement or the job order and the filing of the application. See 20 C.F.R. §656.17(c). During the incipient stage, counsel can still submit evidence to the IJ of the various recruitment steps that have been undertaken prior to the filing of the application, along with the prevailing wage determination from the State Workforce Agency to establish that the employer has taken steps to commence the labor certification process. 2020 C.F.R. § 656.17(h).
Cyrus D. Mehta, a graduate of Cambridge University and Columbia Law School, is the Managing Member of Cyrus D. Mehta & Associates, PLLC in New York City. He is also an Adjunct Associate Professor of Law at Brooklyn Law School where he will teach a course on Immigration and Work. Mr. Mehta has received an AV rating from Martindale-Hubbell and is listed in Chambers USA, International Who's Who of Corporate Immigration Lawyers, Best Lawyers and New York Super Lawyers. Mr. Mehta is a former Chairman of the Board of Trustees of the American Immigration Law Foundation (2004-2006). He was also the Secretary and member of the Executive Committee (2003-2007) and the Chair of the Committee on Immigration and Nationality Law (2000-2003) of the New York City Bar. He is a frequent speaker and writer on various immigration related topics.
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