Nwanwa v. Holder

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-1080
ALEXIUS IKECHUKWU NWANWA,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: July 30, 2009 Decided: September 14, 2009
Before WILKINSON, MICHAEL, and DUNCAN, Circuit Judges.
Petition denied in part and dismissed in part by unpublished per
curiam opinion.
Lori B. Schoenberg, LAW OFFICES OF JOHN R. PERRY, P.C., Encino,
California, for Petitioner. Tony West, Assistant Attorney
General, Daniel E. Goldman, Senior Litigation Counsel, Theo
Nickerson, Office of Immigration Litigation, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Alexius Ikechukwu Nwanwa, a native of Cameroon and a
citizen of Nigeria, petitions for review of an order of the
Board of Immigration Appeals sustaining in part and dismissing
in part his appeal from the immigration judge’s order denying a
motion for a continuance and his application for cancellation of
removal. We deny the petition for review from that part of the
order affirming the immigration judge’s denial of the motion for
continuance and we dismiss the petition for review from that
part of the order affirming the denial of cancellation of
removal.
The decision to grant or deny a continuance is within
the discretion of the immigration judge, who may grant a
continuance “for good cause shown.” 8 C.F.R. § 1003.29 (2009);
see Jean v. Gonzales, 435 F.3d 475, 483 (4th Cir. 2006). The
refusal to grant a continuance is thus subject to review for
abuse of discretion. Onyeme v. INS, 146 F.3d 227, 231 (4th Cir.
1998). The denial of a continuance will be upheld “‘unless it
was made without a rational explanation, it inexplicably
departed from established policies, or it rested on an
impermissible basis, e.g., invidious discrimination against a
particular race or group.’” Lendo v. Gonzales, 493 F.3d 439,
441 (4th Cir. 2007) (quoting Onyeme, 146 F.3d at 231). Where
the Board adopts and supplements the immigration judge’s
2
decision, “the factual findings and reasoning contained in both
decisions are subject to judicial review.” Anim v. Mukasey, 535
F.3d 243, 252 (4th Cir. 2008) (internal quotation marks and
citation omitted).
Because Nwanwa failed to show he was statutorily
eligible to adjust his status and his employment-based visa
petition had not been approved and he was warned that the final
hearing could be on the merits of his application for
cancellation of removal, we find the immigration judge did not
abuse her discretion in finding no good cause for a continuance. *
With respect to the denial of the application for
cancellation of removal, we find, after reviewing the record,
that Nwanwa’s argument that he was entitled to notice of the
need for corroboration and an opportunity to present such
corroboration is without merit. In any event, the Board found
Nwanwa’s testimony was not specific or detailed enough to show
that his removal would be an exceptional and extremely unusual
hardship to his family. We also find we are without
jurisdiction to review the denial of an application for
cancellation of removal on discretionary grounds. See 8 U.S.C.
§ 1252(a)(2)(B)(i) (2006) (“[N]o court shall have jurisdiction
*
We reject Nwanwa’s claim that he was statutorily eligible
for adjustment of status and we find his due process argument to
be without merit.
3
to review any judgment regarding the granting of relief under
section . . . 1229b,” which is the section governing
cancellation of removal.); see also Obioha v. Gonzales, 431 F.3d
400, 405 (4th Cir. 2005) (“It is quite clear that the gatekeeper
provision [of § 1252(a)(2)(B)(i)] bars our jurisdiction to
review a decision of the BIA to actually deny a petition for
cancellation of removal or the other enumerated forms of
discretionary relief.”).
Accordingly, we deny in part and dismiss in part the
petition for review. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.
PETITION DENIED IN PART
AND DISMISSED IN PART
4