USCA11 Case: 20-13785 Date Filed: 07/08/2022 Page: 1 of 5
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-13785
Non-Argument Calendar
____________________
BASIRU GEORGE,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A216-634-062
____________________
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2 Opinion of the Court 20-13785
Before ROSENBAUM, GRANT, and BLACK, Circuit Judges.
PER CURIAM:
Basiru George, a native and citizen of Gambia, seeks review
of the Board of Immigration Appeals’ (BIA) final order affirming
the immigration judge’s (IJ) denial of his motion for a continuance
of his removal proceedings. George asserts his United States citi-
zen son filed an I-130 Petition for Alien Relative that was prima fa-
cie approvable, and the agency abused its discretion in denying his
motion for a continuance to await adjudication of that petition. Af-
ter review, 1 we deny George’s petition.
An I-130 petition establishes there is a legal relationship be-
tween the petitioner, a U.S. citizen, and the beneficiary, an alien.
Alvarez Acosta v. U.S. Att’y Gen.,
524 F.3d 1191, 1194 n.6 (11th Cir.
2008). Filing the petition is the first step in a process to adjust an
1 We review the decision to deny a motion for a continuance for abuse of
discretion. Merchant v. U.S. Att’y Gen.,
461 F.3d 1375, 1377 (11th Cir. 2006).
“When reviewing the denial of discretionary relief, we consider whether the
exercise of discretion was arbitrary and capricious.” Ferreira v. U.S. Att’y
Gen.,
714 F.3d 1240, 1243 (11th Cir. 2013) (quotations omitted). We review
only the decision of the BIA, except to the extent the BIA expressly adopts or
explicitly agrees with the IJ’s opinion. Jeune v. U.S. Att’y Gen.,
810 F.3d 792,
799 (11th Cir. 2016). Although the BIA did not expressly adopt the IJ’s reason-
ing in full, it “discern[ed] no basis on which to disturb” the IJ’s decision. Ac-
cordingly, we consider both the BIA’s decision and the findings of the IJ, to the
extent the BIA relied on them. See
id.
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20-13785 Opinion of the Court 3
alien’s status to that of a lawful permanent resident.
Id. The At-
torney General may, in his discretion, adjust the status of an alien
who was inspected and admitted or paroled into the United States
if (1) the alien applies to adjust status; (2) the alien is eligible for an
immigrant visa and is admissible for permanent residence; and
(3) an immigrant visa is immediately available when he filed his ap-
plication.
8 U.S.C. § 1255(a).
An IJ may “grant a motion for continuance for good cause
shown.”
8 C.F.R. § 1003.29. The movant bears the burden of es-
tablishing good cause for a continuance. Matter of L-A-B-R-,
27 I.
& N. Dec. 405, 413 (AG 2018). In considering a motion for a con-
tinuance, the agency must articulate or weigh: (1) the Govern-
ment’s response to the continuance motion; (2) whether the un-
derlying visa petition was prima facie approvable; (3) the alien’s
statutory eligibility for adjustment of status; (4) whether the alien’s
adjustment of status application merited a favorable exercise of dis-
cretion; and (5) the reason for the continuance and other proce-
dural factors. Ferreira v. U.S. Att’y Gen.,
714 F.3d 1240, 1243 (11th
Cir. 2013) (citing Matter of Rajah,
25 I. & N. Dec. 127 (BIA 2009)
and Matter of Hashmi,
24 I. & N. Dec. 785 (BIA 2009)). In Matter
of L-A-B-R-, the Attorney General held that, in determining there
was good cause for a continuance pending adjudication of collat-
eral relief, the IJ “must focus principally” on (1) the likelihood the
litigant will receive the collateral relief, and (2) whether the relief
will materially affect the outcome of the removal proceedings.
27 I. & N. Dec. at 413. The Attorney General specifically noted BIA
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4 Opinion of the Court 20-13785
precedent as well as the precedents in the federal courts “fore-
close[d] the argument that any filing of a collateral petition that
could conceivably provide relief from removal supplies good cause
for a continuance.” Id. at 414.
The agency did not abuse its discretion by refusing to grant
George a continuance. George’s case had been continued three
times already, and in granting George a second continuance, the IJ
informed George that if he did not file all applications for relief be-
fore the next hearing date, the IJ would “deem that they have been
abandoned.” Additionally, George did not submit a copy of his I-
130 petition into evidence and submitted no other evidence to es-
tablish his United States citizen son had filed an I-130 petition on
his behalf. See Merchant v. U.S. Att’y Gen.,
461 F.3d 1375, 1378-79
(11th Cir. 2006) (holding the denial of a continuance amounted to
an abuse of discretion because when the alien moved for a contin-
uance he had: (1) an approved labor certificate; (2) an immediately
available visa number; (3) filed an employment-based visa petition;
and (4) filed an adjustment-of-status application). And, assuming
the I-130 petition had been filed, it was not yet approved at the time
the IJ denied the continuance. See
8 U.S.C. § 1255(a). Without
more information on the merits of the petition, the BIA and IJ had
no basis to determine whether it was prima facie approvable. See
Ferreira, 714 F.3d at 1243; Matter of L-A-B-R-, 27 I. & N. Dec. at
413.
George also admitted he had not been admitted or paroled
into the United States. Although he asserted he had filed an I-102
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20-13785 Opinion of the Court 5
application for a replacement I-94 record of arrival/departure, he
did not submit the application into evidence and conceded he had
no evidence to prove he had been admitted or paroled into the
United States. See
8 U.S.C. § 1255(a). Nor had George filed an
application for adjustment of status. And in granting George a sec-
ond continuance, the IJ informed George that if he did not file all
applications for relief before the next hearing date, the IJ would
“deem that they have been abandoned.” George made no showing
he was likely to be eligible for an adjustment of status. See
8 U.S.C.
§ 1255(a). With no evidence in the record, the agency had no basis
to determine whether George was likely to be granted collateral
relief. See Ferreira, 714 F.3d at 1243; Matter of L-A-B-R-, 27 I. & N.
Dec. at 413.
Taking these facts all together, the BIA’s decision to affirm
the IJ’s denial of a continuance was not so baseless as to be arbitrary
and capricious, and thus the agency did not abuse its discretion.
PETITION DENIED.
