Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-30-2008

Atia v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2282




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"Atia v. Atty Gen USA" (2008). 2008 Decisions. Paper 1304.
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* Amended IMG–053                                             NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                     No. 07-2282
                                     ___________

                        IBRAHIM ABDEL MOHAIMEN ATIA,
                                                Petitioner

                                          v.

                  ATTORNEY GENERAL OF THE UNITED STATES
                     ____________________________________

                       On Petition for Review of an Order of the
                            Board of Immigration Appeals
                              (Agency No. A95-829-885)
                     Immigration Judge: Honorable Daniel Meisner
                      ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   APRIL 23, 2008

          Before: SCIRICA, Chief Judge, FUENTES AND GARTH, Circuit Judges

                            (Opinion filed: April 30, 2008)
                                    ___________

                                      OPINION
                                     ___________

PER CURIAM

      Ibrahim Abdel Mohaimen Atia petitions for review of an order of the Board of

Immigration Appeals (“BIA”). For the reasons below, we will deny the petition for

review.
       Atia, a citizen of Egypt, was admitted to the United States as a visitor in November

1999. In April 2001, an Application for Alien Labor Certification was filed on his behalf.

In March 2003, while the application was pending, Atia was charged as removable for

overstaying his admission period. Atia conceded removability. In October 2005, after

several adjournments, the Immigration Judge (“IJ”) denied Atia’s motion to continue the

removal proceedings. The BIA dismissed Atia’s appeal, and Atia filed a timely petition

for review.

       We review the denial of a continuance for abuse of discretion. Khan v. Attorney

General, 

, 233 (3d Cir. 2006). We resolve this question on a case by case

basis according to the facts of each case. Ponce-Leiva v. Ashcroft, 

, 377 (3d

Cir. 2003). The denial of a continuance may only be reversed if it is arbitrary, irrational,

or contrary to law. 

.

       Atia argues that a continuance should have been granted based on the BIA’s

decision in Matter of Velarde, 23 I. & N. Dec. 253 (BIA 2002). In Velarde, the BIA

addressed when a motion to reopen could be granted to provide an alien with the

opportunity to file for adjustment of status based on a marriage to a citizen. Here,

however, Atia sought a continuance based on a pending labor certification application.

Atia’s situation is more like the alien’s in Khan, in which the alien challenged the denial

of a continuance while his wife’s labor certification application was pending. We

concluded that the Department of Labor’s delay in the processing of Khan’s wife’s

application did not make the IJ’s denial of a continuance an abuse of discretion.
       Atia likewise argues that he should not be penalized for the Department of Labor’s

delay in processing his application. He argues that his case is different from Khan

because he is the principal applicant and he has two labor certification applications

pending at the Department of Labor. However, these differences do not distinguish this

case from Khan, and we conclude that the IJ in this case did not abuse his discretion in

denying Atia’s motion for a continuance.

       Accordingly, we will deny the petition for review. However, we are troubled by

Atia’s allegations that his labor certification application has been pending with the

Department of Labor since 2001. If his application has been pending that long,1 we

believe such delay to be unconscionable. Accordingly, we will stay issuance of our

mandate for ninety days to allow the Department of Labor to act on Atia’s labor

certification application should a petition be pending before it. We expect such a decision

to be forthcoming. No further stays or extensions will be granted.




   1
     While the record contains correspondence dated July 1, 2004, from the New Jersey
Department of Labor requesting additional information for Atia’s Labor Certification
Application, C.A.R. at 157-160, there is nothing in the record showing that Atia’s
application was ever received by the United States Department of Labor. Atia has not
described any efforts he has taken to ascertain the status of his application. We note that
the Employment and Training Administration of United States Department of Labor has a
website through which one can check the status of a “backlog case.” See
http://pds.pbls.doleta.gov/.