All of the circuit courts have considered whether they have jurisdiction to review an IJs denial of a continuance. The courts are divided about whether INA 242(a)(2)(B)(ii), the discretionary decision bar to judicial review, precludes review of this question:



First Circuit (Court of appeal has jurisdiction): Alsamhouri v. Gonzales, 484 F.3d 117 (1st Cir. 2007).



Cases Upholding Denial of Continuance:
Alsamhouri v. Gonzales, 484 F.3d 117 (1st Cir. 2007) (sought continuance to file asylum application after disregarding deadline).



Second Circuit (court of appeal has jurisdiction): Sanusi v. Gonzales, 445 F.3d 193 (2d Cir. 2006).



Cases Overturning Denial of Continuance:
Rajah v. Mukasey, 544 F.3d 449 (2d Cir. 2008) (labor cert. pending).



Cases Upholding Denial of Continuance:
Pedreros v. Keisler, 503 F.3d 162 (2d Cir. 2007) (I-130 denial on appeal).



Note: The Second Circuit has requested guidance from the BIA on the issue of continuances. In Rajah v. Mukasey, 544 F.3d 449 (2d Cir. 2008), the court stated that it could not adequately assess whether the agency abused its discretion in denying a continuance due to the "absence of standards that reflect the various situations of those seeking continuances."



Third Circuit (Court of Appeal has jurisdiction): Khan v. Atty Gen., 448 F.3d 226 (3d Cir. 2006).



Cases Overturning Denial of Continuance:
Hashmi v. U.S. Atty Gen., 531 F.3d 256 (3d Cir. 2008) (I-130 pending).



Cases Upholding Denial of Continuance:
Khan v. U.S. Atty Gen., 448 F.3d 226 (3d Cir. 2006) (labor cert. pending).



Fourth Circuit (Court of Appeal has jurisdiction): Lendo v. Gonzales, 493 F.3d 439 (4th Cir. 2007).



Cases Overturning Denial of Continuance:



Cases Upholding Denial of Continuance:
Lendo v. Gonzales, 493 F.3d 439 (4th Cir. 2007) (labor cert. pending).



Fifth Circuit (Court of Appeal has jurisdiction): Ahmed v. Gonzales, 447 F.3d 433 (5th Cir. 2006).



Cases Overturning Denial of Continuance:
Masih v. Mukasey, 536 F.3d 370 (5th Cir. 2008) (labor cert. and I-140 approved and visa priority date current when I-485 filed)



Cases Upholding Denial of Continuance:



Sixth Circuit (Court of Appeal has jurisdiction): Abu-Khaliel v. Gonzales, 436 F.3d 627 (6th Cir. 2006).



Cases Overturning Denial of Continuance:
Badwan v. Gonzales, 494 F.3d 566 (6th Cir. 2007) (IJ failed to explain denial of continuance for petitioner to supplement adjustment application); Ahmed v. Mukasey, 519 F.3d 579 (6th Cir. 2008) (I-130 pending)



Cases Upholding Denial of Continuance:
Ukpabi v. Mukasey, 525 F.3d 403 (6th Cir. 2008) (Notice of Intent to Deny issued); Abu-Khaliel v. Gonzales, 436 F.3d 627 (6th Cir. 2006) (I-130 pending).



Seventh Circuit (Court of Appeal has jurisdiction): Subhan v. Ashcroft, 383 F.3d 591 (7th Cir. 2004).



Cases Overturning Denial of Continuance:
Subhan v. Ashcroft, 383 F.3d 591 (7th Cir. 2004) (labor cert. pending)



Cases Upholding Denial of Continuance:
Ali v. Gonzales, 502 F.3d 659 (7th Cir. 2007) (sons application for naturalization, upon which an I-130 would be based, had been denied).



Seventh Circuit (Court of Appeal lacks jurisdiction): Malik v. Mukasey, 546 F.3d 890 (7th Cir. 2008).



NOTE: The Seventh Circuit generally has said that it lacks jurisdiction over continuance denials, but it will review the denial where it results in the denial of a benefit. This is the only circuit to reach different results depending upon the context.



Eighth Circuit (Court of Appeal lacks jurisdiction): Onyinkwa v. Ashcroft, 376 F.3d 797 (8th Cir. 2004).



Ninth Circuit (Court of Appeal has jurisdiction): Sandoval-Luna v. Mukasey, 526 F.3d 1243 (9th Cir. 2008).



Cases Overturning Denial of Continuance:
Vasquez v. Mukasey, No. 05-70618, 2008 U.S. App. LEXIS 16360 (9th Cir. July 30, 2008) (sought continuance to file an expedited FOIA request).



Cases Upholding Denial of Continuance:
Sandoval-Luna v. Mukasey, 526F.3d 1243 (9th Cir. 2008) (labor cert. pending)



Tenth Circuit (Court of Appeal lacks jurisdiction): Yerkovich v. Ashcroft, 381 F. 3d 990 (10th Cir. 2004).



Eleventh Circuit (Court of Appeal has jurisdiction): Zafar v. Atty Gen., 461 F.3d 1357 (11th Cir. 2006).



Cases Overturning Denial of Continuance:
Merchant v. Atty Gen., 461 F.3d 1375 (11th Cir. 2006) (approved labor cert., I-140 pending).



Cases Upholding Denial of Continuance:
Zafar v. Attorney General, 461 F.3d 1357 (11th Cir. 2006) (labor cert. pending).