Elbahja v. Keisler, 06-2671.(2nd Cir 2010). Precedent Decision

Petition for Review dismissed

Represented the Petitioner only before the U.S. Court of Appeals for the Second Circuit. Petitioner appealed to the Court the BIA affirmance without opinion of the denial by an immigration judge of his request to continue removal proceedings. Petitioner needed more time to allow the US Department of Labor to adjudicate his previously filed labor certification application. The Court held that it did not constitute an abuse of discretion for an IJ to decline to grant multiple continuances in order to permit adjudication of a removable alien's pending labor certification. The Court was particularly swayed by the fact that the IJ had previously granted the petitioner many continuances in the past as well as the need to move the case along. The court found no merits in the Petitioner's argument that, he, the petitioner, did not control the Labor Department's adjudication process and timeline and could not predict when the petition would be adjudicated. The Court held that labor certification was just a beginning in a long process of legalization so that the Court could not find fault with the IJ who refused to give the Petitioner more time. It is interesting that in a similar case some time later in 2010, the Second Circuit reversed its course and remanded the case when the IJ denied continuance. It seems as if the Court was struggling to set boundaries of when IJ's refusal to continue removal hearing would interfere with the noncitizen's rights to a fair hearing in removal proceedings or otherwise constitute arbitrary and capricious act on the part of an IJ.