Ciro Pesantez v. Attorney General of the United States

The Honorable Gustave Diamond, Senior District Judge for the Western District*
of Pennsylvania, sitting by designation.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Case No: 04-4431
CIRO PESANTEZ,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
On Petition for Review of a Decision
of the Board of Immigration Appeals
Agency No. 78-435-344
Immigration Judge: Annie S. Garcy
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
February 15, 2008
Before: SLOVITER AND SMITH, Circuit Judges,
and DIAMOND, District Judge*
(Filed: February 25, 2008 )
OPINION
DIAMOND, District Judge.

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Pursuant to 8 U.S.C. § 1255(i), the Attorney General is authorized to grant an1
alien present in the United States an adjustment of status if he “is eligible to receive an
immigrant visa and is admissible” and “an immigrant visa is immediately available to the
alien at the time the application is filed.”
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Ciro Pesantez seeks review of an order of the Board of Immigration Appeals
(“BIA”) dismissing his appeal from the decision of the Immigration Judge (“IJ”) denying
Pesantez’s motion for a continuance and ordering his removal. The Government
responded with a motion to dismiss for lack of subject matter jurisdiction, or,
alternatively, for summary affirmance of the removal order. For the reasons set forth
below, we will deny both the Government’s motion to dismiss for lack of subject matter
jurisdiction and Pesantez’s petition for review.
I.
In January of 2001, removal proceedings were instituted against Pesantez, an
Ecuadoran national who had arrived in the United States in 1991. Pesantez appeared pro
se at a hearing in March of 2001 at which time his case was rescheduled so he could
obtain counsel. On November 27, 2001, Pesantez, with counsel, appeared before an IJ
and conceded that he was removable. However, he requested a continuance of removal
proceedings until March 19, 2002, pending a determination from the Department of Labor
(“DOL”) on his application for labor certification which he filed on April 27, 2001, and
which, if granted, would permit him to apply for adjustment of status to lawful permanent
resident under 8 U.S.C. § 1255(i).1

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“Notwithstanding any other provision of law ... no court shall have jurisdiction2
to review ... any other decision or action of the Attorney General ... the authority for
which is specified under this subchapter to be in the discretion of the Attorney General ...
other than the granting of [asylum] ....” (emphasis added). 8 U.S.C. §1252(a)(2)(B)(ii).
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In February of 2003, Pesantez was granted another two-month extension of
removal proceedings because his application still was pending before the DOL. When
Pesantez and his counsel failed to appear at a hearing on April 2, 2003, the IJ found him
removable in absentia. Pesantez’s motion to reopen his proceedings was granted and,
after another series of postponements, Pesantez appeared with counsel at a hearing on
December 19, 2003, at which time he moved for an indefinite continuance pending a
determination from the DOL on his then already 32-month-old application for labor
certification. The IJ denied any further continuance and ordered Pesantez’s removal. By
per curiam order dated October 28, 2004, the BIA declined to disturb the IJ’s
discretionary decision to deny any further continuance and dismissed Pesantez’s appeal.
II.
As an initial matter, we must determine whether we have subject-matter
jurisdiction. Generally, 8 U.S.C. § 1252(a)(1) confers jurisdiction upon this Court to
review a final order of removal. However, the Government has moved to dismiss for lack
of subject matter jurisdiction on the ground that the denial of Pesantez’s motion for
continuance was a discretionary decision not subject to review pursuant to 8 U.S.C. §
1252(a)(2)(B)(ii). The Government argues that this section divests this Court of2

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jurisdiction to review the denial of Pesantez’s continuance motion because the IJ’s
decision was discretionary under 8 C.F.R. § 1003.29 (2006), which provides that an IJ
“may grant a motion for continuance for good cause shown.”
After the Government filed its motion to dismiss in this case, we had occasion to
address this exact jurisdictional issue in Khan v. Attorney General of the United States,
448 F.3d 226 (3d Cir. 2006). Presented with the identical argument raised by the
Government in the case sub judice, we expressly found in Khan that § 1252(a)(2)(B)(ii)
does not bar jurisdiction where, as here, there is no statute expressly granting discretion to
the Attorney General, but discretionary authority instead is extant under a federal
regulation. Id. at 233. Khan is dispositive of the jurisdictional issue raised by the
Government. Thus, in light of Khan’s holding that § 1252(a)(2)(B)(ii) does not deprive
this court of jurisdiction over a decision to deny a motion for continuance, the
Government’s motion to dismiss for lack of subject matter jurisdiction must be denied.
III.
Turning to the merits, Pesantez raises two arguments on appeal. First, he contends
that the BIA erred in affirming the IJ’s discretionary decision to deny his motion for a
continuance pending a determination on his application for labor certification. Upon
review, we find no abuse of discretion in the denial of Pesantez’s motion.
As already noted, 8 C.F.R. § 1003.29 (2006) provides that an IJ “may grant a
motion for continuance for good cause shown.” We review a denial of a continuance

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On appeal, Pesantez relies on the BIA’s ruling in In Re Mario Eduardo Velarde-3
Pacheco, 21 I. & N. Dec. 253 (BIA 2002), in which it was held that an alien awaiting
approval of a marriage-based visa petition could pursue adjustment of status upon clear
and convincing evidence that the alien’s marriage was bona fide and genuine. However,
unlike in Velarde, Pesantez cannot show that he is “otherwise prima facie eligible for
adjustment.” Thus, there was no error in the BIA’s finding that Velarde is inapplicable.
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motion for abuse of discretion, Ponce-Leiva v. Ashcroft, 331 F.3d 369, 377 (3d Cir.
2003), and a discretionary determination should not be disturbed unless it is “found to be
arbitrary, irrational, or contrary to the law.” Santana-Gonzalez v. Attorney General of the
United States, 506 F.3d 274, 276 (3d Cir. 2007) (citation omitted). Where an alien has
failed to submit a visa petition, the IJ’s decision to deny that alien’s continuance request
“is squarely within the IJ’s broad discretion” absent “extraordinary circumstances.”
Khan, 448 F.3d at 234.
Here, Pesantez did not submit a visa petition and he presently is ineligible for an
adjustment of status under § 1255(i) because he is neither eligible to receive an immigrant
visa nor can he show that such a visa is “immediately available” to him, or will be
available to him at some estimable time, because it is speculative as to whether the DOL
will grant his labor certification application. And, as we noted in Khan, there is no3
authority for the proposition that government delay in the processing of an application for
labor certification constitutes “extraordinary circumstances” warranting an open-ended
continuance. Id. at 235. Accordingly, we find no abuse of discretion in the denial of
Pesantez’s motion for an indefinite continuance under the circumstances of this case.

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Second, Pesantez contends that the denial of his motion for a continuance pending
the adjudication of his application for labor certification violated his right to due process
of law as guaranteed by the Fifth Amendment to the United States Constitution. We
review constitutional claims and questions of law de novo. Debeato v. Attorney General
of the United States, 505 F.3d 231, 235 (3d Cir. 2007). We find no due process violation
on the record before us because Pesantez has shown neither that he was prevented from
reasonably presenting his case nor that he was substantially prejudiced by the denial of his
continuance motion, as there is no evidence as to when, if ever, his labor certification
might be granted. Khan, 448 F.3d at 236.
IV.
Accordingly, for the foregoing reasons, we will deny the Government’s motion to
dismiss for lack of subject matter jurisdiction and will deny on the merits Pesantez’s
petition for review.

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