Thursday, May 01, 2008

Atia (not precedential): No Right To Continuance Where Labor Certification Pending, But Commentary On Unconscionable Delays

Atia v. Mukasey, No. 07-2282 (3d Cir. Apr. 30, 2008) (not precedential)
276 Fed. Appx. 226, 2008 WL 1891479

Judges Scirica, Fuentes, and Garth in a per curiam opinion.

The Third Circuit approved of IJ Daniel Meisner's decision not to grant a continuance in the case to wait for a labor certification application to be approved (which could lead to giving legal status under the immigration laws). It seems that an IJ has discretion either to grant a continuance or not to and either way, the Third Circuit would permit it under this type of circumstance.

The Third Circuit, though, did comment that it seems unconscionable for an application to be pending for around 8 years with no decision and stayed the mandate on the case by 90 days to let the Labor Department act on the certification application. Sounds like the Third Circuit is losing its patience with the unconscionably slow immigration agency's process.
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, 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.
Good to see the Third Circuit judges are seeing what it is like to be a frustrated immigrant trying hard to obtain legal status as permitted under the laws, but facing administrative government delays.

For Atia was Raymond P. D'Uva of Newark, NJ.  For the government, John D. Williams of OIL.


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