Mohammed Samad v. U.S. Attorney General

USCA11 Case: 21-10157 Document: 45-1 Date Filed: 02/06/2023 Page: 1 of 8
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10157
Non-Argument Calendar
____________________
MOHAMMED SAMAD,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A096-650-265
____________________
USCA11 Case: 21-10157 Document: 45-1 Date Filed: 02/06/2023 Page: 2 of 8
2 Opinion of the Court 21-10157
Before JORDAN, BRANCH, and EDMONDSON, Circuit Judges.
PER CURIAM:
Mohammed Samad (“Petitioner”), a native of the United
Arab Emirates and a citizen of Bangladesh, petitions for review of
a final order of the Board of Immigration Appeals (“BIA”) affirming
the decision of the Immigration Judge (“IJ”). The IJ’s decision de-
nied Petitioner’s motion for a continuance of his removal proceed-
ings. 1 No reversible error has been shown; we deny the petition.
I.
Petitioner entered the United States on a visitor’s visa in
2001. Petitioner later adjusted his status to a nonimmigrant stu-
dent in May 2004.
In May 2005, Petitioner married his first wife (S.B.), a United
States citizen. Based on this marriage, S.B. filed an I-130 visa peti-
tion on Petitioner’s behalf in October 2005. In August 2006, Peti-
tioner contacted the United States Department of Homeland Secu-
rity (“DHS”) and reported that S.B. was trying to extort him for
money in exchange for pursuing the I-130 visa petition. Petitioner
said S.B. moved out of their marital home and had been living with
her boyfriend since September 2005: an event that occurred before
1 The IJ also denied Petitioner’s application for cancellation of removal. Peti-
tioner raised no challenge to that denial either in his administrative appeal to
the BIA or in this appeal. That ruling is not before us.
USCA11 Case: 21-10157 Document: 45-1 Date Filed: 02/06/2023 Page: 3 of 8
21-10157 Opinion of the Court 3
S.B. filed the I-130 visa petition on Petitioner’s behalf. S.B. later
withdrew her visa petition.
In April 2010, DHS first initiated removal proceedings
against Petitioner by issuing Petitioner a Notice to Appear. The
following month, Petitioner married his second wife (R.M.). In
July 2010, R.M. filed an I-130 visa petition on Petitioner’s behalf.
R.M. later withdrew the visa petition in February 2012. In a written
statement, R.M. said Petitioner married her only to obtain perma-
nent residency. R.M. also said that she was offered -- and declined
to accept -- money in exchange for staying married to Petitioner.
Petitioner and R.M. divorced in August 2012.
Less than three weeks after his divorce from R.M., Petitioner
married his current wife (A.B.), also a United States citizen. A.B.
filed an I-130 visa petition on Petitioner’s behalf in October 2012.
In March 2014, DHS -- pursuant to 8 U.S.C. § 1154(c) -- denied
A.B.’s visa petition for failure to demonstrate the legal validity and
bona fides of the claimed marriage.
Never did A.B. appeal that denial. Instead, in July 2015 --
over a year after A.B.’s first I-130 visa petition was denied and days
after DHS issued Petitioner a second Notice to Appear -- A.B. filed
a second I-130 visa petition on Petitioner’s behalf.
In April 2016, DHS denied A.B.’s second visa petition. Based
on a review of the record -- including the timing and circumstances
of Petitioner’s previous marriages and the resulting I-130 visa pro-
ceedings -- DHS determined that A.B.’s visa petition was prohibited
USCA11 Case: 21-10157 Document: 45-1 Date Filed: 02/06/2023 Page: 4 of 8
4 Opinion of the Court 21-10157
under 8 U.S.C. § 1154(c). 2 In addition, DHS determined that A.B.
had failed to meet her burden of showing -- by clear and convincing
evidence -- the legal validity and bona fides of her claimed marriage
to Petitioner. A.B. appealed that decision to the BIA in May 2016.
Meanwhile, in March 2016 -- as part of Petitioner’s separate
removal proceedings -- Petitioner conceded removability for fail-
ure to maintain his student status. Petitioner also informed the IJ
about A.B.’s then-pending I-130 visa petition and said that -- if the
visa petition was granted -- he intended to pursue an adjustment of
status with a waiver of inadmissibility. The IJ granted Petitioner’s
request for a continuance to allow additional time for adjudication
of A.B.’s visa petition.
At a July 2016 hearing, Petitioner notified the IJ that A.B.’s
visa petition had been denied on grounds that Petitioner’s previous
marriage was a sham. Petitioner requested another continuance of
his removal proceedings pending the outcome of A.B.’s adminis-
trative appeal to the BIA. The IJ granted Petitioner’s request.
Petitioner’s next hearing was held over two years later, in
October 2018. At the hearing, Petitioner updated the IJ on the sta-
tus of the I-130 appeal, noting that no progress had been made since
2016 and that Petitioner was unsure whether the BIA had in fact
received the appeal. The IJ asked whether Petitioner had filed a
2 In pertinent part, section 1154(c) prohibits the granting of an immigrant visa
petition if a noncitizen “has attempted or conspired to enter into a marriage
for the purpose of evading the immigration laws.” 8 U.S.C. § 1154(c).
USCA11 Case: 21-10157 Document: 45-1 Date Filed: 02/06/2023 Page: 5 of 8
21-10157 Opinion of the Court 5
writ of mandamus to compel a ruling on the appeal, to which Peti-
tioner responded “no.” Petitioner then moved for another contin-
uance of his removal proceedings to await the outcome of the I-130
appeal. The government opposed the motion.
The IJ denied Petitioner’s request for another continuance.
The IJ noted that Petitioner had been denied an I-130 visa on
grounds that Petitioner had entered previously into a fraudulent
marriage: a determination that prohibited Petitioner from obtain-
ing an I-130 visa irrespective of the validity of his current marriage.
Given the denial of A.B.’s I-130 visa petition and that an appeal had
already been pending for over two years, the IJ determined that it
was “too speculative to continue this matter further.” The IJ or-
dered Petitioner removed.
Petitioner appealed the IJ’s decision to the BIA, arguing that
the IJ erred in denying his request for a continuance. The BIA af-
firmed the IJ’s ruling and dismissed Petitioner’s appeal. In doing
so, the BIA agreed with the IJ’s determinations that relief was too
speculative and that Petitioner had failed to demonstrate good
cause for a continuance. This appeal followed.
II.
We review only the decision of the BIA, except to the extent
the BIA adopts expressly the IJ’s decision or agrees with the IJ’s rea-
soning. See Gonzalez v. U.S. Att’y Gen., 820 F.3d 399, 403 (11th
Cir. 2016).
USCA11 Case: 21-10157 Document: 45-1 Date Filed: 02/06/2023 Page: 6 of 8
6 Opinion of the Court 21-10157
We review the denial of a continuance request for abuse of
discretion. See Chacku v. U.S. Att’y Gen., 555 F.3d 1281, 1285 (11th
Cir. 2008). In this context, abuse of discretion review is limited to
determining whether the exercise of administrative discretion was
arbitrary or capricious. See Lapaix v. U.S. Att’y Gen., 605 F.3d
1138, 1145 (11th Cir. 2010).
An IJ has discretion to grant a motion to continue removal
proceedings “for good cause shown.” 8 C.F.R. § 1003.29. In ruling
on a motion to continue pending the resolution of a collateral mat-
ter, the IJ is to focus chiefly on two factors: (1) the likelihood that
collateral relief will be granted, and (2) whether that collateral relief
would have a material effect on the outcome of the removal pro-
ceedings. Matter of L-A-B-R-, 27 I. & N. Dec. 405, 413-15 (A.G.
2018). The IJ also is to consider other pertinent factors, including
(but not limited to) the movant’s diligence in seeking collateral re-
lief, the government’s position on the continuance motion, the
procedural history of the case, the number and length of continu-
ances already granted, and administrative efficiency. Id. at 413,
415. The movant “bears the burden of establishing good cause for
a continuance.” Id. at 415.
As an initial matter, the BIA’s written decision offered suffi-
cient explanation to show that the BIA had considered the perti-
nent factors and gave reasoned consideration to Petitioner’s mo-
tion. See Ali v. U.S. Att’y Gen., 931 F.3d 1327, 1333-34 (11th Cir.
2019) (explaining that the BIA need not discuss expressly each piece
of evidence presented; a BIA decision is reviewable so long as we
USCA11 Case: 21-10157 Document: 45-1 Date Filed: 02/06/2023 Page: 7 of 8
21-10157 Opinion of the Court 7
are “left with the conviction that the [BIA] has ‘heard and thought
about the case and not merely reacted’” (brackets omitted)); Lin v.
U.S. Att’y Gen., 881 F.3d 860, 874-75 (11th Cir. 2018) (concluding
that the BIA’s order was sufficient to show reasonable considera-
tion when it listed the basic facts of the case, cited to pertinent stat-
utory and regulatory authority, and accepted the IJ’s reasoning).
The BIA abused no discretion in affirming the IJ’s denial of
Petitioner’s motion for a third continuance. The BIA agreed with
the IJ’s express finding that the likelihood of collateral relief was
“too speculative” to warrant a continuance. See id. at 414 (noting
that “continuances should not be granted when a respondent’s col-
lateral pursuits are merely speculative”). In making that determi-
nation, the IJ observed that the most recent I-130 visa petition filed
on Petitioner’s behalf had been denied on grounds that Petitioner
had entered previously into a fraudulent marriage. As a result, the
IJ noted that Petitioner would be precluded from obtaining a I-130
visa irrespective of the validity of his current marriage.
In addition, the record demonstrates that the IJ twice
granted Petitioner a continuance to await the outcome of A.B.’s I-
130 visa petition. And -- in the two years since the last continuance
-- Petitioner had taken no affirmative steps to pursue or to inquire
about the pending BIA appeal. Against this background, the BIA’s
and the IJ’s determination that Petitioner failed to establish good
cause warranting another continuance was neither arbitrary nor
capricious.
USCA11 Case: 21-10157 Document: 45-1 Date Filed: 02/06/2023 Page: 8 of 8
8 Opinion of the Court 21-10157
Petitioner also contends -- for the first time -- that DHS’s fail-
ure to keep him, the IJ, and the BIA apprised about the status of
A.B.’s I-130 appeal violated Petitioner’s procedural due process
rights. Petitioner never raised this claim before the BIA; we lack
jurisdiction to consider this argument on appeal. See Amaya-
Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1251 (11th Cir. 2006)
(concluding that we lack jurisdiction to consider procedural due
process claims not raised before the BIA).
PETITION DENIED.