No. 07-1005
In the Supreme Court of the United States
INDU GULATI, PETITIONER
v.
MICHAEL B. MUKASEY, ATTORNEY GENERAL
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
BRIEF FOR THE RESPONDENT IN OPPOSITION
PAUL D. CLEMENT
Solicitor General
Counsel of Record
JEFFREY S. BUCHOLTZ
Acting Assistant Attorney
General
DONALD E. KEENER
KEITH I. MCMANUS
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
QUESTION PRESENTED
Whether a federal court of appeals lacks jurisdiction under 8 U.S.C. 1252(a)(2)(B)(ii) (Supp. V 2005) to review an immigration judge's denial of an alien's request to continue removal proceedings.
In the Supreme Court of the United States
No. 07-1005
INDU GULATI, PETITIONER
v.
MICHAEL B. MUKASEY, ATTORNEY GENERAL
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
BRIEF FOR THE RESPONDENT IN OPPOSITION
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 1a-7a) is not published in the Federal Reporter but is available at 2007 WL 2988632. The decisions of the Board of Im migration Appeals (Pet. App. 8a-10a) and the immigra tion judge (Pet. App. 11a-15a) are unreported.
JURISDICTION
The judgment of the court of appeals was entered on October 15, 2007. A petition for rehearing was denied on December 27, 2007 (Pet. App. 25a-26a). The petition for a writ of certiorari was filed on January 17, 2008. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).
STATEMENT
1. a. In 1996, Congress amended the Immigration and Nationality Act (INA), 8 U.S.C. 1101 et seq., to ex pedite the removal of criminal and other illegal aliens from the United States. See Illegal Immigration Re form and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208, Div. C, 110 Stat. 3009- 546. As relevant here, Congress amended the INA to limit judicial review of certain discretionary decisions of the Attorney General. As amended, the relevant section of the INA now provides that no court shall have juris diction to review any
decision or action of the Attorney General or the Sec retary of Homeland Security the authority for which is specified under this subchapter to be in the discre tion of the Attorney General or the Secretary of Homeland Security, other than the granting of relief under section 1158(a) of this title.
8 U.S.C. 1252(a)(2)(B)(ii) (Supp. V 2005). The phrase "this subchapter" refers to Title 8 of the United States Code, Chapter 12, Subchapter II, which is codified at 8 U.S.C. 1151-1381 and pertains broadly to immigration matters. See Van Dinh v. Reno, 197 F.3d 427, 433 (10th Cir. 1999).
b. The Attorney General has promulgated regula tions that provide rules of procedure for administrative removal proceedings, in order to "assist in the expedi tious, fair, and proper resolution of matters coming be fore Immigration Judges." 8 C.F.R. 1003.12. Under those rules of procedure, if an alien seeks a continuance of proceedings, "[t]he Immigration Judge may grant a motion for continuance for good cause shown." 8 C.F.R. 1003.29; see 8 C.F.R. 1240.6 ("After the commencement of the hearing, the immigration judge may grant a rea sonable adjournment either at his or her own instance or, for good cause shown, upon application by the re spondent or the Service.").
"The grant of a continuance is within the [immigra tion judge's] broad discretion." Zafar v. United States Attorney Gen., 461 F.3d 1357, 1362 (11th Cir. 2006). To obtain reversal by the Board of Immigration Appeals (BIA) of the denial of a continuance by an immigration judge (IJ), an alien must show "that the denial caused [her] actual prejudice and harm and materially affected the outcome of [her] case." In re Villarreal-Zuniga, 23 I. & N. Dec. 886, 891 (B.I.A. 2006) (quotation marks omitted).
c. The Attorney General has discretion to adjust an alien's status to that of a lawful permanent resident un der certain circumstances. 8 U.S.C. 1255 (2000 & Supp. V 2005). Most directly relevant here is Section 1255(i), which permits the Attorney General to grant adjustment of status to certain "grandfathered" aliens who are un lawfully present in the United States, but were "the ben eficiary * * * of * * * an application for a labor cer tification under [8 U.S.C.] 1182(a)(5)(A) * * * that was filed pursuant to * * * regulations [issued by] the Sec retary of Labor on or before" April 30, 2001. 8 U.S.C. 1255(i)(1)(B)(ii); see 8 C.F.R. 1245.10.
Adjustment of status through labor certification is a "long and discretionary process." Ahmed v. Gonzales, 447 F.3d 433, 439 (5th Cir. 2006). First, a potential em ployer must file a labor certification application on an alien's behalf, which must establish, inter alia, that there is no United States citizen available to fill the job. Khan v. Attorney Gen. of the United States, 448 F.3d 226, 228 n.2 (3d Cir. 2006). Second, if the labor certifica tion application is approved by the Department of La bor, the prospective employer must submit the approved labor certification, along with an employment-based visa petition (Form I-140), to the Department of Homeland Security (DHS). See 8 C.F.R. 204.5(a) and (a)(2). Third, if the employment-based visa petition is approved, the alien must apply for adjustment of status. See 8 C.F.R. 1245.2(a)(2); Khan, 448 F.3d at 228 n.2 (describing the "three-step process" required for an alien to attain employment-based permanent residency under Section 1255(i)). In this third and final phase, the alien must demonstrate that he satisfies the basic statutory eligibil ity requirements for adjustment of status under 8 U.S.C. 1255(a)-i.e., that he "is eligible to receive an immigrant visa and is admissible to the United States for perma nent residence," and that "an immigrant visa is immedi ately available to [him] at the time the application is filed." 8 U.S.C. 1255(i)(2).
d. The INA provides that the Attorney General "may permit" certain removable aliens "voluntarily to depart the United States at the alien's own expense" in lieu of being removed. 8 U.S.C. 1229c(a)(1) and (b)(1). Aliens who are granted voluntary departure and comply with its terms avoid the period of inadmissibility that would otherwise result from departure following entry of an order of removal under 8 U.S.C. 1182(a)(9)(A). See 8 C.F.R. 1241.7 (providing that "an alien who departed before the expiration of [a] voluntary departure period * * * shall not be considered to [have been] deported or removed"). Voluntary departure also permits aliens "to choose their own destination points, to put their af fairs in order without fear of being taken into custody at any time, [and] to avoid the stigma * * * associated with forced removals." Lopez-Chavez v. Ashcroft, 383 F.3d 650, 651 (7th Cir. 2004).
To qualify for permission to depart voluntarily at the close of removal proceedings, an alien must satisfy cer tain statutory conditions, including "establish[ing] by clear and convincing evidence that he has the means to depart the United States and intends to do so." 8 U.S.C. 1229c(b)(1)(D). Even if those conditions are satisfied, the decision whether to permit an alien to depart volun tarily is discretionary with the Attorney General. See e.g., Garcia-Mateo v. Keisler, 503 F.3d 698, 700 (8th Cir. 2007); see generally 8 U.S.C. 1229c (2000 & Supp. V 2005).
The INA and the Attorney General's regulations con tain a number of provisions designed to ensure that aliens who have been granted the privilege of voluntary departure actually depart in a timely fashion. The INA strictly limits the period for which a grant of voluntary departure may last. For aliens who are granted that privilege at the conclusion of removal proceedings: "Permission to depart voluntarily * * * shall not be valid for a period exceeding 60 days." 8 U.S.C. 1229c(b)(2). An IJ who grants voluntary departure must "also enter an alternate order [of] removal." 8 C.F.R. 1240.26(d). If the alien does not depart within the time specified in the order granting voluntary departure, the alternate order of removal becomes final and the alien becomes "ineligible, for a period of 10 years," to receive certain forms of discretionary relief, including adjust ment of status under 8 U.S.C. 1255 (2000 & Supp. V 2005). See 8 U.S.C. 1229c(d)(1)(B) (Supp. V 2005); 8 C.F.R. 1240.26(a).
Finally, the INA contains a number of provisions addressing judicial review of voluntary departure orders and the alternate orders of removal that accompany them. Congress has provided that, "[n]otwithstanding any other provision of law * * * no court shall have jurisdiction to review * * * any judgment regarding the granting of relief under [the voluntary departure provision]." 8 U.S.C. 1252(a)(2)(B)(i) (2000 & Supp. V 2005). Another provision states that "[n]o court shall have jurisdiction over an appeal from denial of a request for an order of voluntary departure, * * * nor shall any court order a stay of an alien's removal pending con sideration of any claim with respect to voluntary depar ture." 8 U.S.C. 1229c(f). Compare 8 U.S.C. 1252(b)(3) (authorizing reviewing court to "stay * * * removal" pending its decision on petition for judicial review of order of removal).
2. Petitioner, a native and citizen of India, was ad mitted to the United States in 1997 as a non-immigrant visitor with authorization to remain in the United States until May 7, 1998. Pet. App. 11a. Petitioner failed to depart the United States as required, and has remained in this country ever since. Ibid.
3. a. On August 24, 2004, DHS charged petitioner with being removable for remaining in the United States longer than permitted by her visa. Pet. App. 11a-12a.
On October 27, 2004, petitioner appeared for a re moval hearing before an IJ. Pet. App. 12a. At that hearing, petitioner's counsel informed the IJ that peti tioner believed that she was eligible for adjustment of status under the grandfathering provision in 8 U.S.C. 1255(i) "based upon a prior labor certification" applica tion, and that petitioner was attempting to get a differ ent employer to file a new labor certification application on her behalf. A.R. 51-52; Pet. App. 12a-13a. The IJ granted a continuance "for attorney prep[aration]," A.R. 51, specifically instructing petitioner to be pre pared at the next hearing to demonstrate not only that she had been the beneficiary of a pre-April 30, 2001 la bor certification application, but also that the application was approvable when filed. A.R. 52.
Because of scheduling delays, petitioner's next hear ing was not held until June 16, 2005, more than seven months after the initial hearing. Pet. App. 12a, 16a-24a. At that hearing, petitioner conceded removability, id. at 12a, 18a, but asked the IJ to grant a further continu ance, id. at 20a. Petitioner submitted an "ACKNOWL EDGMENT LETTER" from the State of California sta ting that it had "received [an] APPLICATION FOR AL IEN EMPLOYMENT CERTIFICATION" filed on peti tioner's behalf, and that the application had a "[p]riority date [of] 4/30/2001." A.R. 71; see Pet. App. 18a. Peti tioner informed the IJ, however, that the employer who had filed that application was no longer in business and that she no longer had a pending job offer from that em ployer. Id. at 19a. Petitioner stated that she was "in the process of" arranging for a new labor certification appli cation based on a job offer in Illinois, but she acknowl edged that the application had been neither filed nor approved. Id. at 20a. Petitioner also informed the IJ that her son had applied to become a lawful permanent resident based on his marriage to a United States citi zen. Id. at 18a.
The IJ denied petitioner's request for a continuance. Pet. App. 13a-15a, 21a. "[O]n the basic facts presented," the IJ stated, "this Court does not find * * * that [petitioner] is even * * * eligible" for grandfathering under Section 1255(i). Id. at 14a.1 The IJ further re marked that, "[e]ven if [petitioner] is * * * eligible" for grandfathering, there was no currently pending la bor certification and "no evidence" that such an ap plication would be "prima facie approvable." Ibid. The IJ also stated that it was "speculative to conclude that [petitioner] will be eligible for permanent resident sta tus through her son in the near future." Id. at 13a. Finally, the IJ stated that, even if he otherwise had the power to grant a continuance, he "would deny a continu ance of this case solely in the exercise of discretion," id. at 14a, because of petitioner's "flagrant[] violat[ion of] the immigration laws of the United States," id. at 13a. The IJ did, however, grant petitioner's request for vol untary departure. Id. at 15a.
b. Petitioner filed an administrative appeal to the BIA, which had the effect of rendering the IJ's order non-final and thus suspending both the voluntary depar ture period and the alternate order of removal pending appeal. 8 U.S.C. 1101(a)(47)(B)(i) and (ii) (order "be come[s] final" upon affirmance by the BIA or expiration of time for seeking BIA review); 8 U.S.C. 1229c(b)(1) (authorizing the Attorney General to permit voluntary departure "at the conclusion of a [removal] proceeding under section 1229a").
On July 21, 2006, the BIA entered an order "adopt [ing] and affirm[ing]" the IJ's decision in relevant part. Pet. App. 8a-10a. The Board granted petitioner "60 days from the date of this order," that is, until Septem ber 19, 2006, to depart voluntarily from the United States. Id. at 9a.
4. a. On August 17, 2006, petitioner filed a petition for review with the United States Court of Appeals for the Seventh Circuit. On September 5, 2006, petitioner filed with the court of appeals a motion for a stay of vol untary departure. Pet. App. 27a. On September 6, 2006-13 days before the voluntary departure period granted by the BIA was to expire-the court of appeals entered a minute order granting petitioner's motion "to the extent that [petitioner's] period of voluntary depar ture is temporarily STAYED pending resolution of the motion." On September 19, 2006, the government filed a statement of non-opposition to petitioner's request for a stay of voluntary departure, stating that it "will not oppose [petitioner's] request for a stay of voluntary de parture at this time," but noting that this action did "not constitute * * * a concession that [petitioner] has met her burden of proof for a stay of voluntary departure." See generally Alimi v. Ashcroft, 391 F.3d 888, 892-893 (7th Cir. 2004) (setting forth requirements for seeking a stay of voluntary departure from that court). On Octo ber 2, 2006, the court of appeals granted petitioner's September 5 motion, ordering that her "period of volun tary departure is STAYED pending resolution of all matters in this court." Pet. App. 27a-28a.
b. On October 15, 2007, the court of appeals issued an unpublished order that dismissed petitioner's petition for review in relevant part. Pet. App. 1a-7a. Relying on its recent decision in Ali v. Gonzales, 502 F.3d 659 (7th Cir. 2007), petition for cert. pending, No. 07-798 (filed Dec. 12, 2007), and application for stay denied, No. 07A583 (Jan. 15, 2008), the court of appeals concluded that 8 U.S.C. 1252(a)(2)(B)(ii) (Supp. V 2005) "generally precludes judicial review of continuance decisions of im migration judges." Pet. App. 4a (quoting Ali, 502 F.3d at 660). The court further determined that petitioner's case did not fall "within the limited jurisdictional excep tion" that its cases had recognized for situations in which, absent a continuance, the government's own fail ure to act on a pending labor certification application would "effectively strip[] [an alien of her] eligibility to adjust status." Id. at 5a-6a. The court of appeals ex plained that because petitioner's "labor certification application was not pending when she sought a continu ance," "it was not government inaction that cut off [peti tioner's] eligibility to adjust status, but her lack of a via ble labor certification application." Id. at 6a.
The court of appeals also viewed the IJ's decision as concluding that petitioner had not demonstrated that she was eligible for grandfathering under Section 1255(i). Pet. App. 6a-7a. Petitioner's "failure to mention that finding-let alone challenge it-either before the BIA or in her petition [for review]," the court deter mined, "waives any challenge to that aspect of the IJ's ruling." Ibid. And because of that "unchallenged find ing," the court of appeals determined that "the denial of her request for a continuance does not arbitrarily strip [petitioner] of a Congressionally-conferred benefit," and thus "does not fall within [any] exception to the general bar against jurisdiction" to review an IJ's denial of a continuance. Id. at 7a.
c. On November 21, 2007, petitioner filed a petition for rehearing with a suggestion of rehearing en banc. See Pet. App. 25a. On December 27, 2007, the court of appeals denied rehearing. Id. at 25a-26a.
d. According to the court of appeals' clerk's office, the court's mandate issued on January 4, 2008, the day on which the court issued an agency closing letter.2 That same day, petitioner filed with the court of appeals an application for a stay of voluntary departure pending resolution of a petition for a writ of certiorari. On Janu ary 7, 2008, the court of appeals denied that application.
5. On January 9, 2008, petitioner filed with this Court an application for a stay of voluntary departure (No. 07A576) pending the filing and disposition of a peti tion for a writ of certiorari. On January 14, 2008, the government filed its response in opposition to the stay application. Pet. App. 43a-67a. On January 15, 2008, Justice Stevens granted petitioner's stay application, ordering that her "period of voluntary departure will be stayed pending the timely filing and disposition of her petition for writ of certiorari" as well as during any pro ceedings on the merits. 07A576 Docket entry (Jan. 15, 2008).
ARGUMENT
Petitioner seeks review of the court of appeals' deter mination that 8 U.S.C. 1252(a)(2)(B)(ii) (Supp. V 2005) precluded it from reviewing the IJ's denial of her re quest for a continuance of her removal proceedings. Pet. i, 1, 9-21. The courts of appeals have divided on that question, but review would be premature at this time. In any event, this case would not be a suitable vehicle for addressing the existing tensions in lower court authority. Petitioner has conceded removability, has no viable claim for adjustment of status under 8 U.S.C. 1255(i), and cannot show that the IJ abused his discretion in denying a continuance. In addition, peti tioner's eligibility for adjustment of status-the only form of relief she requested a continuance to permit her to pursue-is contingent on the resolution of a threshold question that is not addressed in the petition for a writ of certiorari. The petition should thus be denied.
1. a. The federal courts of appeals are in conflict regarding whether they have jurisdiction under the INA to review an IJ's denial of a continuance. In the decision below, the Seventh Circuit adhered to its earlier deci sion in Ali v. Gonzales, 502 F.3d 659 (2007), petition for cert. pending, No. 07-798 (filed Dec. 12, 2007), and appli cation for stay denied, No. 07A583 (Jan. 15, 2008), which held that 8 U.S.C. 1252(a)(2)(B)(ii) (Supp. V 2005) "gen erally precludes judicial review" of an IJ's discretionary decision to deny a request for a continuance in removal proceedings. Pet. App. 4a (quoting Ali, 502 F.3d at 660). The Eighth and Tenth Circuits have reached the same conclusion. See Onyinkwa v. Ashcroft, 376 F.3d 797, 799 (8th Cir. 2004); Yerkovich v. Ashcroft, 381 F.3d 990, 995 (10th Cir. 2004). Those courts have reasoned that an IJ's decision to grant or deny a request for a continu ance is a "decision or action * * * the authority for which is specified under" the relevant subchapter of the INA (8 U.S.C. 1151-1381) to be in the discretion of the Attorney General, 8 U.S.C. 1252(a)(2)(B)(ii) (Supp. V 2005), because it is based on regulations that the At torney General promulgated to implement 8 U.S.C. 1229a(a) and (b), the statutory provisions authorizing IJs to conduct removal proceedings, and that in turn specify that the power to grant continuances is within the discretion of IJs. Yerkovich, 381 F.3d at 992-993; Onyinkwa, 376 F.3d at 799.
The majority of circuit courts have reached a con trary conclusion. The First, Second, Third, Fourth, Fifth, and Eleventh Circuits have all concluded that a decision by an IJ to grant or deny a continuance is not a decision "the authority for which is specified" under the relevant subchapter of the INA "to be in the discre tion of the Attorney General," 8 U.S.C. 1252(a)(2)(B)(ii) (Supp. V 2005), because an IJ's discretionary authority to act on a motion for a continuance is specified in a reg ulation, not a statutory provision within the relevant subchapter itself. See Lendo v. Gonzales, 493 F.3d 439, 441 n.1 (4th Cir. 2007); Alsamhouri v. Gonzales, 484 F.3d 117, 122 (1st Cir. 2007); Zafar v. United States At torney Gen., 461 F.3d 1357, 1360 (11th Cir. 2006); Khan v. Attorney Gen. of the United States, 448 F.3d 226, 232-233 (3d Cir. 2006); Ahmed v. Gonzales, 447 F.3d 433, 436-437 (5th Cir. 2006); Sanusi v. Gonzales, 445 F.3d 193, 198-199 & n.8 (2d Cir. 2006) (per curiam).3 The Sixth Circuit has reached the same result through a different analysis, concluding that "Section 1252(a)(2)(B)(ii) only applies to the portions of sub chapter II left to the Attorney General's discretion, not the portions of subchapter II that leave discretion with IJs in matters where IJs are merit decision-makers that are subject to [the courts of appeals'] review." Abu- Khaliel v. Gonzales, 436 F.3d 627, 632, 634 (2006).
b. As the government concluded over a year ago, af ter reexamining its prior position on the issue, the ma jority position represents the better reading of the stat ute. See generally Gov't C.A. Br., Alsamhouri, supra (No. 05-2800), discussed at p. 15, infra. The relevant statutory text requires that the "authority" for the "de cision or action" at issue-here, the denial of a continu ance-be "specified under this subchapter [Subchapter II of Chapter 12 of Title 8] to be in the discretion of the Attorney General." 8 U.S.C. 1252(a)(2)(B)(ii) (Supp. V 2005). Nothing in the relevant statutory "subchapter," however, mentions continuances, or "specifie[s]" that they may be granted "in the discretion of the Attorney General." Ibid. Rather, an IJ's authority to continue a case derives from regulations promulgated to implement statutory provisions that broadly authorize IJs to con duct removal hearings, but do not specifically authorize them to grant or deny continuances. See, e.g., 8 U.S.C. 1229a(a)(1). Given the general presumption in favor of judicial review, INS v. St. Cyr, 533 U.S. 289, 298 (2001), and the terms of Section 1252(a)(2)(B)(ii) (Supp. V 2005), the government agrees with the majority of circuit courts that an IJ's discretionary decision to deny a con tinuance is not covered by the jurisdictional bar in 8 U.S.C. 1252(a)(2)(B)(ii) (Supp. V 2005). The government did not argue otherwise to the court below. See Gov't C.A. Br. 9 n.1.
2. As discussed above, the courts of appeals are divi ded with respect to the underlying question upon which petitioner seeks review. Despite petitioner's contrary assertions (Pet. 9, 12 n.6, 19-21), however, this Court's plenary consideration is not warranted at this time, be cause the conflict in lower-court authority may well re solve itself without this Court's intervention and because the issue concerns a narrow issue of reviewability that is unlikely to affect the outcome of many cases.
Prior to December 2006, the government had taken the position that 8 U.S.C. 1252(a)(2)(B)(ii) (Supp. V 2005) precludes federal-court review of an IJ's denial of a continuance. In December 2006, in response to a peti tion for rehearing in Alsamhouri v. Gonzales, 484 F.3d 117 (1st Cir. 2007), the government reconsidered its po sition and concluded that the view of the majority of the courts of appeals is correct. See Gov't C.A. Br. at 7-13, Alsamhouri, supra (No. 05-2800). In Alsamhouri, the First Circuit initially had held that it "ha[d] no jurisdic tion over whether the denial of a continuance was an ab use of discretion." Alsamhouri v. Gonzales, 458 F.3d 15, 16, withdrawn on petition for reh'g, 471 F.3d 209 (2006). In response to the government's change in position, the First Circuit reversed course, "adopt[ed] the majority rule," and held that it "ha[d] jurisdiction to review a de nial of a continuance." Alsamhouri, 484 F.3d at 122. The Eighth Circuit, which has also adopted the minority position, has suggested that it may well reconsider its holding in light of the government's recent change in position. See Ikenokwalu-White v. Gonzales, 495 F.3d 919, 924 n.2 (2007) (suggesting that "it may be appropri ate for our court to revisit this issue en banc" but noting that the "present case is [not] the most appropriate vehi cle for doing so").
In Ali, which was decided less than a month before the Seventh Circuit's unpublished decision in this case, that court acknowledged the Attorney General's recent change in position, but stated that it "disagree[d]" with the Attorney General's view. 502 F.3d at 660. The opin ion further stated that it had "been circulated among all judges of [that] Court in regular active service" and that "[a] majority did not favor rehearing en banc on the question of whether the jurisdiction-stripping provision, 8 U.S.C. §_1252(a)(2)(B)(ii), applies to continuance deci sions of immigration judges"; the opinion also noted, however, that four judges had voted to rehear the case en banc. Id. at 661 n.1.
Other developments in the Seventh Circuit since the issuance of the decision below suggest that the court may be willing to revisit the question presented en banc. On December 10, 2007, the Seventh Circuit issued an order directing the government to respond to a petition for rehearing en banc in Potdar v. Keisler, 505 F.3d 680 (2007). The threshold question raised by that petition is whether the panel erred in concluding that "it lacked jurisdiction under * * * [8 U.S.C.] 1252(a)(2)(B)(ii) to review a denial of a continuance requested by [the alien] to enable him to pursue an application for adjustment of status." Pet. on Reh'g at 1, Potdar, supra (No. 06-2441). On February 11, 2008, the government filed a response, in which it urged en banc rehearing on the issue of its jurisdiction over continuance denials. Resp. to Pet. on Reh'g at 8-13, Potdar (No. 06-2441) (Response).4 There accordingly is some prospect that the Seventh Circuit may reconsider its ruling on the question presented. It would thus be prudent for this Court to decline to re solve the disagreement in the circuit courts at this time.
There is, moreover, no pressing need for review by this Court because the issue concerns a narrow aspect of judicial review in the courts of appeals affecting only one procedural aspect of the conduct of removal proceed ings. An IJ's denial of a motion for a continuance is reviewable by the Board only for abuse of discretion and requires a showing of substantial prejudice. In re Vil larreal-Zuniga, 23 I. & N. Dec. 886, 891 (B.I.A. 2006). The scope of any judicial review would be at least as deferential. The question whether such judicial review is available therefore is likely to affect the outcome of very few cases, as this case amply demonstrates: The IJ manifestly did not abuse his discretion here in denying a motion for a continuance. See p. 18, infra. Nor is this case unusual in that respect: In fact, all of the previous ly cited decisions that found judicial review authorized, see pp. 13-14 & note 3, supra, also concluded that the denial of the alien's request for a continuance did not constitute grounds for overturning the IJ's decision. See Lendo, 493 F.3d at 442; Alsamhouri, 484 F.3d at 122; Zafar, 461 F.3d at 1362; Khan, 448 F.3d at 235; Ahmed, 447 F.3d at 438; Sanusi, 445 F.3d at 200; Abu- Khaliel, 436 F.3d at 634; Lim, 2007 WL 4562133 at *1; Martinez, 166 Fed. Appx. at 300. Review therefore is not warranted at this time.
3. Even if the issue were presently ripe for and war ranted this Court's review, this case would be an unsuit able vehicle for resolving it, for at least three separate reasons.
a. The claim upon which petitioner sought to obtain review in the court of appeals-that the IJ abused his discretion in denying petitioner's request for a continu ance-is meritless. Petitioner has conceded removabili ty, Pet. App. 18a, and she has no entitlement to stay in this country illegally. E.g., Elkins v. Moreno, 435 U.S. 647, 667 (1978). In addition, as the BIA explained, the IJ cited two independently sufficient bases for denying a further continuance. First, at the time she made her request, petitioner, despite already having had her re moval hearing continued for more than seven months, was still unable to establish prima facie eligibility for adjustment of status or any non-speculative prospect of being able to do so. Pet. App. 8a-9a, 13a-14a. Second, the IJ also determined that petitioner would not merit a favorable exercise of discretion in any event because she had flagrantly violated the immigration laws by re maining in the United States illegally for nearly three years before even attempting to acquire some form of legal status. Id. at 9a, 13a, 14a. Because the IJ gave "a rational explanation" for his refusal to grant a continu ance, and because that decision did not constitute an "inexplicabl[e] depart[ure] from established policies, or * * * rest[] on an impermissible basis," no abuse of discretion could be established here. Castaneda-Suarez v. INS, 993 F.2d 142, 146 (7th Cir. 1993) (quoting Cor doba-Chaves v. INS, 946 F.2d 1244, 1246 (7th Cir. 1991)).
b. Moreover, any possible error in denying a contin uance would have been harmless. In order to be prop erly "grandfathered" under Section 1255(i), petitioner would have needed to show that the initial labor certifi cation application filed on her behalf was "approvable when filed." 8 C.F.R. 1245.10(a)(1)(i)(B); see 8 U.S.C. 1255(i)(1)(B)(ii). "[O]n the basic facts presented," which involved nothing more than a one-page acknowledgment letter stating that an application had been filed, the IJ stated that he was unable to "find that [applicant] is even * * * eligible" for grandfathering under Section 1255(i). Pet. App. 14a.; see id. at 20a-21a (stating that, as of the date of her final removal hearing, it would re quire "speculation" to conclude that petitioner was eligi ble for Section 1255(i) relief). As the court of appeals correctly determined, id. at 6a-7a, petitioner forfeited the ability to challenge the correctness of that determi nation by failing to challenge it before the BIA or the court of appeals.5 Thus, because petitioner has no legiti mate claim that would permit her to remain in the Uni ted States, this Court's plenary review is unwarranted.
c. Regardless of whether petitioner would have been eligible for grandfathering under Section 1255(i), more over, her eligibility for adjustment of status is also con tingent on the resolution of another threshold issue that the petition for a writ of certiorari does not meaningfully address: whether a federal court has the authority to stay the expiration of a period of voluntary departure granted by the BIA. If the answer to that question is "no," petitioner's voluntary departure period has long since expired, and she is now statutorily ineligible for adjustment of status under Section 1255. See 8 U.S.C. 1229c(d)(1)(B) (Supp. V 2005).
The government's position is that reviewing courts lack the authority to stay the expiration of a voluntary departure period, much less to extend such a period be yond the outer time limits that Congress has expressly provided for such grants of discretionary relief.6 With respect to aliens, such as petitioner, who are granted voluntary departure at the conclusion of removal pro ceedings, Congress has directed that "[p]ermission to depart voluntarily * * * shall not be valid for a period exceeding 60 days." 8 U.S.C. 1229c(b)(2). That strict time limitation on grants of voluntary departure reflects Congress's "intention to offer an alien a specific bene fit-exemption from the ordinary bars on subsequent relief-in return for a quick departure at no cost to the government." Ngarurih v. Ashcroft, 371 F.3d 182, 194 (4th Cir. 2004). Because the BIA already granted peti tioner 60 days in which to depart voluntarily, see Pet. App. 9a-10a, any further extension of that period would exceed Congress's clear mandate.7
In addition, the INA and its accompanying regula tions make clear that, like the power to grant voluntary departure in the first place, see 8 U.S.C. 1229c(a)(1) and (b)(1), the ability to extend an initial period of voluntary departure is vested exclusively in the Executive Branch. Whereas Congress has expressly authorized courts to order a stay of an alien's physical removal pending con sideration of a petition for judicial review, see 8 U.S.C. 1252(b)(3)(B), it conferred no comparable authority to grant stays of a period of voluntary departure. To the contrary, the INA has provided since 1996 that "[n]o court shall have jurisdiction over an appeal from denial of a request for an order of voluntary departure * * * nor shall any court order a stay of an alien's removal pending consideration of any claim with respect to vol untary departure." 8 U.S.C. 1229c(f). The INA further expressly provides, in its judicial review section, that "[n]otwitstanding any other provision of law (statutory or nonstatutory), including * * * sections 1361 and 1651 of [Title 28], * * * no court shall have jurisdiction to review * * * any judgment regarding the granting of relief under" the provisions authorizing voluntary departure. 8 U.S.C. 1252(a)(2)(B)(i) (2000 & Supp. V 2005). A stay of a grant of voluntary departure would necessarily entail prohibited "review" of that relief.
Moreover, a stay is granted by a court only in aid of its jurisdiction to review the merits of whatever it has stayed. See, e.g., 28 U.S.C. 1651(a) ("The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law."). For that reason as well, because a court may not review an administrative determination concerning the granting of voluntary departure, it may not stay the running of a voluntary departure period. Section 1252(a)(2)(B)(i) thus further refutes any sugges tion that Congress intended for courts to be able to ex tend a voluntary departure period, which was permitted by the Attorney General in the first place only as a mat ter of discretion, simply by issuing a stay. Ngarurih, 371 F.3d at 193. In addition, regulations issued under the INA provide that "[a]uthority to extend the time within which to depart voluntarily specified initially by an immigration judge or the Board is only within the jurisdiction of" certain specified DHS officials. 8 C.F.R. 1240.26(f); see ibid. (providing that "[i]n no event can the total period of time, including any extension, exceed 120 days or 60 days as set forth in [8 U.S.C. 1229c (2000 & Supp. V 2005)]").8
As the government noted in its memorandum in op position to petitioner's application for a stay of voluntary departure (Pet. App. 54a), the courts of appeals are di vided with respect to whether they have the authority to stay the running of a voluntary departure period gran ted by the BIA. A majority of the courts of appeals have concluded that they do have such authority, at least in situations in which the request to do so is made before the voluntary departure period expires.9 In contrast, the Fourth Circuit has held that a court of appeals lacks the power to stay or otherwise extend the period during which an alien's permission to depart voluntarily re mains valid. Ngarurih, 371 F.3d at 194. That conflict in lower-court authority may itself warrant this Court's plenary review in an appropriate case, though a recently proposed rule may limit the issue's importance going forward.10 It should not, however, be resolved in the absence of full briefing by both parties, and in the con text of a petition for a writ of certiorari that seeks to obtain plenary review solely with respect to an entirely unrelated question of immigration procedure that does not warrant review for the various reasons set out ab ove.
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
PAUL D. CLEMENT
Solicitor General
JEFFREY S. BUCHOLTZ
Acting Assistant Attorney
General
DONALD E. KEENER
KEITH I. MCMANUS
Attorneys
MARCH 2008
1 At the hearing before he rendered his oral decision, the IJ had stated:
I'm not deciding whether [petitioner] has [Section 1255(i)] eligibil ity or not. You would have to show that this is an approvable filing. And I don't know if this is a valid company connection to [petition er], [because] thousands of people went out and filed applications on April 30, 2001 to be grandfathered in without any real plans to accept those job offers. So, at this time, I'm not even deciding the [Section 1255(i)] eligibility issue. * * * But I'm not going to grant a continuance based upon speculation.
Pet. App. 20a-21a.
2 Under Federal Rule of Appellate Procedure 41(b), a court of ap peals' mandate "must issue * * * 7 calendar days after entry of an or der denying a timely petition for panel rehearing," but "[t]he court may shorten or extend the time." Under the normal application of Rule 41(b), therefore, the court of appeals' mandate would have issued on January 3, 2008.
3 Although the Ninth Circuit has not issued a published decision ad dressing whether the INA bars judicial review of an IJ's discretionary denial of a continuance, it has agreed with the majority position in unpublished, nonprecedential opinions. See Lim v. Mukasey, No. 05-74594, 2007 WL 4562133 at *1 (Dec. 28, 2007); Martinez v. Gonzales, 166 Fed. App'x 300 (2006); see also Medina-Morales v. Ashcroft, 371 F.3d 520, 528 (2004) (holding that Section 1252(a)(2)(B)(ii) does not pre clude federal-court review of an IJ's denial of a motion to reopen).
4 The government's response did note, however, that there is a fact ual question in Potdar about whether the motion the IJ denied was act ually a motion for a continuance. The panel in Potdar had held that the petitioner's motion to the IJ, which was styled a motion to terminate exclusion proceedings, "amounted to a request for a continuance" be cause it "requested only an opportunity to pursue [adjustment of sta tus] through appropriate administrative channels." 505 F.3d at 684-685. The government argued in its response to the rehearing petition that the panel erred in deeming the motion to terminate a motion for a con tinuance, Response at 6-8, but that if the court of appeals declines to re visit that issue, then the court should grant rehearing en banc on the question whether it has jurisdiction to review a continuance denial, id. at 8-13.
5 As she did below, petitioner presupposes (Pet. 4-5) that, contrary to the IJ's determination, she was "grandfathered within the terms of Section [1255](i)" and was therefore eligible to adjust her status "on the basis of a new Labor Certification." But it was petitioner's burden to establish her prima facie eligibility for Section 1255(i) relief, and, as noted above, the IJ expressly found in his oral ruling that petitioner had failed to do so, Pet. App. 14a, and that is how the court of appeals viewed the IJ's decision, id. at 6a. Petitioner does not challenge the court of appeals' reading of the IJ's decision, or its waiver holding, in her petition for a writ of certiorari, and, in any event, those sorts of case-specific determinations would not merit this Court's review.
6 Although the government did not contest the court of appeals' pow er to grant a stay of voluntary departure in this case, the Seventh Cir cuit had previously issued a precedential decision holding that it has the authority to do so. See Lopez-Chavez v. Ashcroft, 383 F.3d 650, 654 (2004). As a result, the issue is properly before this Court. Cf. United States v. Williams, 504 U.S. 36, 44-45 (1992). In addition, to the extent that the issue of whether a court of appeals may stay the expiration of a voluntary departure period implicates a question of "adjudicatory au thority," Kontrick v. Ryan, 540 U.S. 443, 455 (2004), the Court would be required to consider it sua sponte in any event.
7 The INA makes clear that an alien's decision to seek judicial relief by way of a petition for review does not by itself stay or otherwise ex tend the period during which a grant of permission to depart voluntarily remains valid. Whereas the filing of an administrative appeal to the BIA prevents an IJ's decision from becoming final and thus prevents the commencement of a voluntary departure period, see 8 U.S.C. 1101(a)(47)(B)(i), 1229c(b)(1), an order by the BIA is final when issued, see 8 U.S.C. 1101(a)(47)(B)(i), even where (unlike here) a motion to reopen was filed, see Stone v. INS, 514 U.S. 386 (1995). In addition, Congress has declared that the filing of a petition for review with a court does not, by itself, stay even an alien's physical removal from the United States. See 8 U.S.C. 1252(b)(3)(B) ("Service of the petition [for review] on the officer or employee does not stay the removal of an alien pending the court's decision on the petition, unless the court orders otherwise.").
8 The fact that courts may not stay the running of a voluntary de parture period does not prevent aliens such as petitioner from obtaining judicial review of any substantive challenge that they may have to the underlying removal order. In 1996, Congress repealed a provision that had barred courts from reviewing final deportation orders of aliens who had already departed or been removed from the United States. IIRIRA § 306(b), 110 Stat. 3009-612 (repealing 8 U.S.C. 1105a(c) (1994)). As a result, under current practice, an alien may comply with the terms of a voluntary departure order without forfeiting his ability to obtain judicial review of the underlying alternate removal order, see Ngarurih, 371 F.3d at 192-193, and this would remain true under the regulations recently proposed by the Attorney General, see note 10, infra (discussing proposed regulations).
9 See Bocova v. Gonzales, 412 F.3d 257, 266 (1st Cir. 2005); Thapa v. Gonzales, 460 F.3d 323, 325 (2d Cir. 2006); Obale v. Attorney Gen., 453 F.3d 151, 157 (3d Cir. 2006); Vidal v. Gonzales, 491 F.3d 250, 252 (5th Cir. 2007); Nwakanma v. Ashcroft, 352 F.3d 325, 327 (6th Cir. 2003); Lopez-Chavez, 383 F.3d at 654; Rife v. Ashcroft, 374 F.3d 606, 615-616 (8th Cir. 2004); El Himri v. Ashcroft, 344 F.3d 1261, 1262 (9th Cir. 2003).
10 On November 30, 2007, the Attorney General issued a proposed regluation addressing a number of issues related to voluntary depar ture. 72 Fed. Reg. 67,674. The proposed rule would expressly provide that an alien's filing of a petition for judicial review "prior to the ex piration of the voluntary departure period will have the effect of auto matically terminating the grant of voluntary departure." Ibid.; Gov't Br. 47, Dada v. Mukasey, No. 06-1181 (argued Jan. 8, 2008). Under this proposed rule, therefore, issues regarding judicial stays of voluntary departure periods would not arise.
The comment period for the proposed rule closed on January 29, 2008, and the Department of Justice is currently considering the com ments. The proposed rule would "app[ly] prospectively only, that is, on ly with respect to immigration judge orders issued on or after the effec tive date of the final rule that grant a period of voluntary departure." 72 Fed. Reg. at 67,682. But the rule, if it becomes final, would eliminate the need for this Court to resolve whether, in the absence of a such a rule, the courts of appeals possess the authority to stay the running of a voluntary departure period.
