Rajah v. Mukasey

United States Court of Appeals for the Second Circuit · 2008 · Administrative Law

Administrative LawImmigrationContinuancesAdjustment of Statusabuse of discretioncontinuancegood causelabor certification

Facts

Rajah overstayed a tourist visa, and his employer had timely filed a labor certification application on his behalf in April 2001. During removal proceedings, Rajah repeatedly sought a continuance so the Department of Labor could adjudicate that application, because approval would be a prerequisite to pursuing employment-based adjustment of status. The IJ stated that she did not adjourn cases for labor certifications, later concluded that roughly a year and a half of adjournments was sufficient time, and denied further continuance requests. The BIA affirmed on the ground that the prior adjournments were sufficient and noted that Rajah had not provided specific information showing when the application would be adjudicated; while the petition for review was pending, the labor certification was approved.

Issue

Whether the agency abused its discretion in denying Rajah's request for a continuance while his labor certification application was pending, where the BIA had not articulated standards governing such continuance requests. More specifically, the court asked whether it could meaningfully assess the denial without agency guidance reflecting the realities of the labor-certification-based adjustment process.

Rule

An IJ may grant a continuance for good cause shown, and denial of a continuance is reviewed for abuse of discretion. An abuse occurs if the decision rests on legal error, a clearly erroneous factual finding, or falls outside the range of permissible decisions; where the BIA has not provided standards for evaluating continuance requests tied to pending labor certifications, the proper course is to remand for the BIA to articulate those standards in the first instance.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In removal proceedings in Chicago, Elena Markovic asks for a continuance because her employer in Illinois timely filed a labor-certification application years earlier, but the Department of Labor has not yet acted due to documented backlog. The immigration judge denies the request with a single statement: Elena has already had "enough time," and the BIA affirms without articulating any governing standard for labor-certification-based continuances.

If Elena petitions for review in the Second Circuit, what is the best disposition under the majority's approach?

Explanation. An IJ may grant a continuance for good cause shown, and denials are reviewed for abuse of discretion. But where the BIA has not supplied standards for evaluating continuance requests based on pending labor certification, and the case is not an obvious one at either extreme, the court cannot meaningfully assess whether the denial falls within the range of permissible decisions. The proper course is to vacate and remand so the BIA can articulate those standards in the first instance. (Derived from Rajah v. Mukasey (n.d.).)