Zafar Mahmood v. Eric Holder, Jr.

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: A072-167-464 Copies to all parties and the district court/agency. [998614185]. [10-2383]

Appeal: 10-2383

Document: 27

Date Filed: 06/17/2011

Page: 1 of 4

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-2383

ZAFAR MAHMOOD,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.

On Petition for Review of an Order of the Board of Immigration
Appeals.

Submitted:

June 7, 2011

Decided:

June 17, 2011

Before GREGORY, DAVIS, and DIAZ, Circuit Judges.

Petition denied by unpublished per curiam opinion.

Anser
Ahmad,
ADVANCED IMMIGRATION
LAW
GROUP,
Harrisburg,
Pennsylvania, for Petitioner.
Tony West, Assistant Attorney
General, Lyle D. Jentzer, Senior Litigation Counsel, Aaron R.
Petty,
Office
of
Immigration
Litigation,
UNITED
STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Zafar

Mahmood,

a

native

and

citizen

of

Pakistan,

petitions for review of an order of the Board of Immigration
Appeals

(“Board”)

dismissing

his

appeal

from

the

immigration

judge’s order denying his application for adjustment of status
and ordering him removed to Pakistan.
Before this court, Mahmood first argues that the Board
abused

its

discretion

in

upholding

the

denial of his request for a continuance.

immigration

judge’s

We review the denial

of a motion for a continuance for abuse of discretion.

See

Lendo v. Gonzales, 493 F.3d 439, 441 (4th Cir. 2007); Onyeme v.
INS, 146 F.3d 227, 231 (4th Cir. 1998).

The court “must uphold

the IJ’s denial of a continuance ‘unless it was made without a
rational explanation, it inexplicably departed from established
policies,

or

it

rested

on

an

impermissible

basis,

e.g.,

invidious discrimination against a particular race or group.’”
Lendo, 493 F.3d at 441 (quoting Onyeme, 146 F.3d at 231).
Here,

the

immigration

judge

noted

that

Mahmood

had

more than ample time to present any and all applications for
relief.

Mahmood’s removal proceedings remained pending before

the immigration judge for more than five years, and yet he did
not seek to file an application for asylum until after it became

2

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clear

that

he

Date Filed: 06/17/2011

was

ineligible

Page: 3 of 4

for

adjustment

status. 1

of

Moreover, the Board noted that Mahmood arguably waived such an
application by stating before the immigration court that he did
not wish to pursue “any other forms of relief,” and further
noted that any asylum application would appear to be barred by
the

one-year

time

limitation.

Because

the

agency

offered

a

rational explanation for its denial of a continuance and did not
rest its decision on an impermissible basis, we find that no
abuse of discretion occurred.
We further find that Mahmood has failed to demonstrate
that

the

process.

denial

of

a

continuance

violated

his

right

to

due

To succeed on a procedural due process claim, Mahmood

must demonstrate “(1) that a defect in the proceeding rendered
it fundamentally unfair and (2) that the defect prejudiced the
outcome of the case.”

Anim v. Mukasey, 535 F.3d 243, 256 (4th

Cir. 2008); accord Rusu v. INS, 296 F.3d 316, 320-22 (4th Cir.
2002).
evidence

Because Mahmood fails to give any indication of what
he

would

have

presented

in

support

of

an

asylum

application, he cannot show that the denial of a continuance
affected

the

outcome

of

his

1

case

and

therefore

cannot

Although Mahmood faults the Department of Homeland
Security for failing to put him on notice that it intended to
argue that he was ineligible for adjustment of status, Mahmood
had the burden of demonstrating his eligibility for such relief.
See 8 C.F.R. § 1240.8(d) (2011).

3

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Date Filed: 06/17/2011

demonstrate the requisite prejudice.

Page: 4 of 4

See Amouri v. Holder, 572

F.3d 29, 36 (1st Cir. 2009).
Finally, although Mahmood appears to concede that he
is ineligible for adjustment of status, he argues that 8 C.F.R.
§ 1245.10(j) (2011) 2 violates the language and intent of 8 U.S.C.
§ 1255(i) (2006) and is therefore ultra vires.
however,

is

Holder,

609

squarely
F.3d

foreclosed

314,

320

by

(4th

our

Cir.

This argument,

decision
2010).

in
In

Suisa

v.

Suisa,

we

considered an identical challenge to 8 C.F.R. § 1245.10(j) and
concluded that the regulation is “a permissible construction of
§

1255(i)”

and

“a

valid

rulemaking authority.”
the

denial

of

his

exercise

Id.

of

the

Attorney

General’s

Because Mahmood’s sole challenge to

application

for

adjustment

of

status

is

clearly without merit, we uphold the agency’s denial of relief.
We
dispense

therefore

with

oral

deny

argument

the

petition

because

the

for

review.

facts

and

We
legal

contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.

PETITION DENIED

2

Section 1245.10(j) (2011) provides that “[a]n alien who
was substituted for the previous beneficiary of the application
for the labor certification after April 30, 2001, will not be
considered to be a grandfathered alien.”

4