Sabirali Gulam Ali Momin v. U.S. Attorney General, (11th Cir. 2007)
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[D O NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
F O R THE ELEVENTH CIRCUIT FILED
U .S . COURT OF APPEALS
E L E V E N T H CIRCUIT
February 20, 2007
N o . 06-13471 T H O M A S K. KAHN
N o n - A r g u m e n t Calendar CLERK
B IA No. A95-916-250
S A B IR A L I GULAM ALI MOMIN,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
P etitio n for Review of a Decision of the
B o ard of Immigration Appeals
(F eb ru a ry 20, 2007)
B efo re DUBINA, CARNES and BARKETT, Circuit Judges.
P E R CURIAM:
S ab irali Gulam Ali Momin, a native and citizen of India, through counsel,
ap p eals the Board of Immigration Appeals' (BIA) order, affirming the Immigration
Ju d g e's (IJ) denial of his motion to continue his removal proceedings based on his p e n d in g labor certification. At Momin's removal proceedings, he moved for a co n tin u an ce pending the approval of a labor certification that had been filed nine m o n th s earlier with the Department of Labor. He asserted that he anticipated receiv in g approval of his labor certification within 90 days, and, at that time, would b e able to file a petition for an immigration visa. The IJ denied his motion, finding th at a pending labor certification was not an appropriate basis for granting a co n tin u an ce. The BIA affirmed without opinion.
On appeal, Momin argues that we erred by incorrectly reading and in terp retin g 8U.S.C. § 1255(i) in Zafar v. United States Att'y Gen., 461 F.3d 1357 ( 1 1 th Cir. 2006) (finding alien statutorily ineligible for adjustment of status where h e had not yet received approved labor certification because, to be eligible, an alien m u st have approved labor certification and have filed a petition for an immigration v isa). Momin contends that, pursuant to the statutes and regulations, eligibility for ad ju stm en t of status, as well as whether an immigration visa is immediately a v a ila b le , do not hinge on approved labor certification, and thus, our imposed req u irem en ts are mistaken.
Momin further asserts that his constitutional rights have been violated.
Specifically, he argues that Merchant v. U.S. Att'y Gen., 461 F.3d 1375 (11th Cir. 2 0 0 6 ), created an equal protection claim because he potentially could have filed his a p p lic atio n and had removal proceedings initiated on the same date as another in d iv id u al, but could receive different treatment depending on whose application w a s processed faster, which results in a discriminatory application of a neutral p o licy. In addition, he contends that he suffered a due process violation because he seek s relief that is constitutionally protected.
"[W e] review[] only the decision of the BIA, except to the extent that it ex p ressly adopts the IJ's opinion." Nreka v. United States Att'y Gen., 408 F.3d 1 3 6 1 , 1368 (11th Cir. 2005) (internal quotations and citations omitted). Where, as h er e, the BIA summarily affirms the IJ's decision without an opinion, the IJ's d e c is io n becomes the final agency determination subject to review. See Mendoza v . U.S. Att'y Gen., 327 F.3d 1283, 1284 n.1 (11th Cir. 2003). We review the IJ's leg al determinations de novo. D-Muhumed v. U.S. Att'y Gen., 388 F.3d 814, 817 (1 1 th Cir. 2004).
I.
A n IJ has the discretion to grant a motion to continue removal proceedings u p o n "good cause shown."
However, we generally lack jurisdiction to consider claims not raised before the B I A . Fernandez-Bernal v. U.S. Att'y Gen., 257 F.3d 1304, 1317 n.13 (11th Cir. 2 0 0 1 ). Furthermore, where an appellant fails to raise arguments regarding an issue o n appeal, that issue is deemed abandoned. Sepulveda v. U.S. Att'y Gen., 401 F .3 d 1226, 1228 n.2 (11th Cir. 2005).
Section 245(i) of the Immigration and Nationality Act (INA), 8U.S.C.
§ 1255(i)(1), provides that an alien who: (1) entered the United States without in s p e c tio n ; (2) is the "beneficiary" of a labor certification petition that was filed b efo re April 30, 2001, and was "approvable when filed;" and (3) was present in the U n ited States on December 21, 2000, may apply to the Attorney General and pay a p en alty fee for the adjustment of his status to that of an alien lawfully admitted for p erm an en t residence. INA § 245(i)(1), 8U.S.C. § 1255(i)(1);
In Zafar, we explained that, when aliens do not meet the above requirements "[a]t the time of their removal hearings," and have not yet filed for adjustment of statu s, it is not an abuse of discretion for an IJ to deny a motion for a continuance.
Zafar, 461 F.3d at 1363-64. To be "eligible" to receive an employment-based im m ig r a tio n visa, an alien must file an I-140 petition, along with "an approved lab o r certificate" from the Department of Labor. Id. at 1363; 8 C.F.R. § § 204.5(a)(2), (3). Thus, if an alien has not received an approved labor certificate, h e is not statutorily eligible for adjustment of status. Zafar, 461 F.3d at 1363.
Speculation that, "at some point in the future," an alien will receive an approved la b o r certificate, and then be able to file the I-140 petition for an em p lo ym en t-b ased immigration visa and eventually the I-485 application for a d ju s tm e n t of status, is not sufficient to establish an abuse of discretion. Id. at 1 3 6 3 - 6 4 . Accordingly, we concluded that, where the petitioner has only filed for a lab o r certificate, and completed no other steps, it is not an abuse of discretion to d en y a motion for continuance. Id. at 1365-66.
W e need not test the reach of Zafar here, because we find as an initial matter th at Momin abandoned any argument based on the approval of his labor certificatio n subsequent to his hearing before the IJ. See Fernandez-Bernal, 257 F .3 d at 1317 n.13; Sepulveda, 401 F.3d at 1228 n.2. Momin did not specifically or clearly raise this issue before the BIA, and we do not generally have jurisdiction o v er such claims. See Fernandez-Bernal, 257 F.3d at 1317 n.13. He failed to p resen t any argument in his memorandum concerning the potential impact, if any, o f approved labor certification, but rather, continued to argue that an approved lab o r certification should not have been required.
Moreover, even if Momin had preserved that issue below, he fails to argue it o n appeal. See Sepulveda, 401 F.3d at 1228 n.2. He instead maintains that the fact th a t his labor certification was pending at the time of his hearing should have been s u f fic ie n t to require the IJ to grant a motion for continuance. However, that arg u m en t necessarily fails in light of our decision in Zafar, 461 F.3d at 1363-66.
We already have rejected the position that Momin takes, finding that the petitioners in Zafar were not statutorily eligible for relief because, at the time of their hearings, th ey had only pending labor certifications, and had not filed I-140 petitions for e m p lo y m e n t- b a se d visas, nor I-485 applications for adjustment-of-status. Id. at 1 3 6 2 -6 3 . Momin may disagree with our decision in Zafar, but only the Supreme C o u rt or a panel of this Court sitting en banc may overrule it. See Walker v. S o u th ern Co. Serv., Inc., 279 F.3d 1289, 1293-94 (11th Cir. 2002). Accordingly, h is petition is denied as to this issue.
II W e have jurisdiction to review substantial constitutional claims. Moore v. A sh cro ft, 251 F.3d 919, 923-24 (11th Cir. 2001). Although aliens receive "the g u aran tees of equal protection[,] . . . classifications that distinguish among groups o f aliens are subject to relaxed scrutiny under the rational basis standard of review, a n d are valid unless arbitrary or unreasonable." Fernandez-Bernal, 257 F.3d at 1 3 1 2 (quotations and citations omitted). In Zafar, we rejected an equal protection arg u m en t based on the allegation that IJs in different jurisdictions treated aliens w ith pending labor certifications differently, because the petitioners failed to cite, an d we could not find, any authority supporting their contention. Zafar, 461 F.3d a t 1367. We recently used the same reasoning to reject a petitioner's similar equal p ro tectio n argument, noting that the petitioner had provided "no support in the reco rd or case law tending to show an equal protection violation." Haswanee v. U n ite d States Att'y Gen., No. 06-12636, manuscript op. at 14-15 (11th Cir. D ecem b er 8, 2006).
Although Momin argues that our analysis in Merchant created an equal p r o te ctio n claim, he cites no authority to support his contention that an equal p r o te ctio n violation has occurred. See Zafar, 461 F.3d at 1367; Haswanee, m a n u s c rip t op. at 14-15. Indeed, Momin does not even articulate the equal p r o te ctio n framework, let alone how his claim would fit within it. See F ern an d ez-B ern al, 257 F.3d at 1312. Thus, we reject his asserted equal protection claim . Moreover, Momin makes the same due process argument that we p rev io u sly rejected in Zafar. See Zafar, 461 F.3d at 1367. Accordingly, we deny h is petition as to this issue as well.
PETITION DENIED.
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This document cites
- U.S. Court of Appeals for the Eleventh Circuit - Lorna Karen Marcella Moore, Petitioner, v. John Ashcroft, Attorney General of the United States, Office of Immigration and Naturalization Service, Respondents., 251 F.3d 919 (11th Cir. 2001)
- U.S. Court of Appeals for the Eleventh Circuit - Luis Ernesto Fernandez-Bernal, Petitioner, v. Attorney General of the United States, Office of Immigration and Naturalization, Respondents., 257 F.3d 1304 (11th Cir. 2001)
- U.S. Court of Appeals for the Eleventh Circuit - Johnny E. Walker, Plaintiff-Appellee, v. Southern Company Services, Inc., Unumprovident Corporation, Defendants, Provident Life & Accident Insurance Co., Defendant-Appellant.
- U.S. Court of Appeals for the Eleventh Circuit - Ismail Abdilahi D-Muhumed, Petitioner-Appellant, v. U.S. Attorney General, Respondent-Appellee., 388 F.3d 814 (11th Cir. 2004)
- U.S. Court of Appeals for the First Circuit - Otis Elevator Company, Plaintiff-Appellant/Cross-Appellee, v. International Union of Elevator Constructors, Local 4; Michael Langer, Individually and as Business Manager; Kevin Mcgettigan, Individually and as Business Representative; and Steve Morse, Individually and as Business Representative, Defendants-Appellees/Cross-Appellants., 408 F.3d 1 (1st Cir. 2005)
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