2.17.2006

Fifth Circuit Notes Split Re Whether Pending Labor Certification Application Amounts To Good Cause For A Continuance before Immigration Judge

Per Ali v. Gonzales, --- F.3d ----, 2006 WL 337456 (5th Cir. Feb 15, 2006):

Ali failed to make a showing before the IJ that his labor certification application was filed on or before April 30, 2001. At his hearing before the IJ on December 2, 2003, Ali claimed that he had a labor certification pending. The IJ granted a seventh continuance until January 6, 2004 and specifically informed Ali that he would need to produce evidence or written applications relating to labor certification before meriting any further relief on that ground. Ali did not do so. Accordingly, the IJ's decision to deny a further continuance was not an abuse of discretion. [FN2]

Footnote 2: Because there was no showing that Ali's application was timely filed, we again "decline to further address the persuasiveness of the reasoning in Subhan." (Nizar) Ali, 2006 WL 73613, at *3. We note, however, that there is a Circuit split as to whether evidence of a timely filed, pending labor certification application amounts to good cause for a continuance. The Eleventh Circuit has rejected the Seventh Circuit's position that it does. See Zafar v. United States Atty. Gen., 426 F.3d 1330, 1135-36 (11th Cir.2005); Pirzada v. U.S. Atty. Gen., 2006 WL 167454 (11th Cir. Jan.24, 2006) (unpublished).

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