Fifth Circuit Notes Split re Whether Evidence of a Pending Labor Certification Application Is Good Cause for a Continuance

Per Ali v. Gonzales, 440 F.3d 678 (5th Cir. Feb. 15, 2006):

Ali failed to make a showing before the IJ [Immigration Judge] 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, --- F.3d at ----. 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, 1335-36 (11th Cir.2005); Pirzada v. U.S. Atty. Gen., 2006 WL 167454 (11th Cir. Jan.24, 2006) (unpublished).