Tounsadi v. Gonzales ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 4, 2006
Charles R. Fulbruge III
Clerk
No. 04-60744
Summary Calendar
MOSTAFA TOUNSADI,
Petitioner,
versus
ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,
Respondent.
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Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A76 329 401
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Before JOLLY, DAVIS, and OWEN, Circuit Judges.
PER CURIAM:*
Mostafa Tounsadi petitions this court for review of the
Board of Immigration Appeals’ (“Board”) order affirming the
immigration judge’s (IJ) denial of his request for a continuance
and the denial of his motion to reopen. He also seeks to
challenge the District Director’s denial of the I-130 visa
petition filed on his behalf. This issue we have no jurisdiction
over. See Liu v. INS, 645 F.2d 279, 284-85 (5th Cir. 1981); see
also Conti v. INS, 780 F.2d 698, 702 (7th Cir. 1985).
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 04-60744
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Tounsadi avers that the Board abused its discretion by
affirming the IJ’s denial of his request for a continuance. He
avers that the IJ’s denial of his motion for continuance so that
he could appeal the denial of his I-130 petition was
“fundamentally unfair.” The respondent asserts that we do not
have jurisdiction over this issue. This argument is foreclosed
by this court’s opinions in Zhao v. Gonzales, 404 F.3d 295, 302-
03 (5th Cir. 2005), and Manzano-Garcia v. Gonzales, 413 F.3d 462,
466 (5th Cir. 2005).
On a petition for review of a Board decision, we review
factual findings for substantial evidence and questions of law de
novo. Lopez-Gomez v. Ashcroft, 263 F.3d 442, 444 (5th Cir.
2001). We review the order of the Board and will consider the
underlying decision of the IJ only if it influenced the
determination of the Board. Ontunez-Tursios v. Ashcroft, 303
F.3d 341, 348 (5th Cir. 2002). We review the Board’s affirmance
of an IJ’s denial of a continuance for abuse of discretion.
Witter v. INS, 113 F.3d 549, 555-56 (5th Cir. 1997). An IJ may
grant a continuance upon a showing of good cause. Id.The pendency of a prima facie approvable petition for
adjustment of status is good cause for the continuance of removal
proceedings. In re Garcia, 16 I & N Dec. 653, 657 (BIA 1978).
In this case, however, the petition was not prima facie
approvable because it had been denied. The Board and the IJ,
whose reasoning was adopted by the Board, adequately explained
No. 04-60744
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the reasoning for their denial of Tounsadi’s request for a
continuance. Moreover, the IJ had previously continued
Tounsadi’s removal proceedings on 11 separate occasions, spanning
a total of almost five years. Given these circumstances, the
Board did not abuse its discretion by affirming the IJ’s denial
of Tounsadi’s request for a continuance.
Tounsadi avers that the District Director’s decision to deny
his I-130 petition without the opportunity to have a hearing and
confront his accusers was a violation of his due process rights.
He contends that the District Director’s finding of marriage
fraud was not based on substantial and probative evidence since
the Director failed to consider several missing documents which
contradicted a finding of marriage fraud. The respondent avers
that this court is without jurisdiction to review the District
Director’s finding of marriage fraud and the denial of Tounsadi’s
I-130 petition.
The respondent is correct. The merits of the I-130 petition
are not before this court because this appeal is from the Board’s
denial of Tounsadi’s motion for a continuance and the order of
deportation; the IJ had no jurisdiction over the I-130 petition.
See Liu, 645 F.2d at 284-85); see also Conti, 780 F.2d at 702(“INS District Director’s decision with regard to the disposition
of a visa application is a collateral issue outside the purview”
of an appeal of an order of deportation).
No. 04-60744
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Tounsadi avers next that the Board erred in construing his
motion to reopen as a motion for reconsideration. Tounsadi
contends that because he sought to present the Board with “new
evidence,” which was not presented to the District Director, the
motion was one to reopen, not to reconsider.
Tounsadi is incorrect that the Board erred in construing the
motion to reopen as a motion for reconsideration. In the motion,
he merely sought to introduce documents which he admits he
submitted to the Board during the appeal of the visa petition.
See 8 C.F.R. § 1003.2; Matter of Cerna, 20 I. & N. Dec. 399, 400
(BIA 1991). We also conclude that the Board did not abuse its
discretion by denying Tounsadi’s motion to reconsider because the
motion failed to “identify a change in the law, a misapplication
of the law, or an aspect of the case that the BIA overlooked.”
Zhao, 404 F.3d at 301.
Finally, Tounsadi claims that he is eligible for a waiver of
the finding by the INS that he committed marriage fraud. There
is a waiver provision at INA § 212(a)(6)(C)(iii), 8 U.S.C.
§ 1182(a)(6)(C)(iii), which provides that in certain limited
circumstances the ground of inadmissibility found at INA
§ 212(a)(6)(C) for misrepresentation, may be waived, but this
waiver provision, which relates to grounds of inadmissibility,
has nothing to do with a finding of marriage fraud that makes an
alien ineligible for an I-130 visa petition under INA § 204(c).
Tounsadi’s petition for review is DENIED.