Zhong Wei Sun v. Mukasey

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 29, 2008
No. 07-60873
Summary Calendar Charles R. Fulbruge III
Clerk
ZHONG WEI SUN
Petitioner
v.
MICHAEL B MUKASEY, U S ATTORNEY GENERAL
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A95 607 161
Before WIENER, CLEMENT, and PRADO, Circuit Judges.
PER CURIAM:*
Petitioner Zhong Wei Sun, a native and citizen of the People’s Republic of
China, petitions this court to review the Board of Immigration’s (BIA) order
affirming the Immigration Judge’s (IJ) decision denying his motion for
continuance, finding him removable, and granting voluntary departure.
Sun argues that the IJ abused his discretion in denying a continuance for
adjudication of his pending labor certification. He also argues that he was
deprived of due process based on the IJ’s denial of a continuance after his labor
*
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should not be published and is not precedent except under the limited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. 07-60873
certification was approved and his visa petition was denied but was still pending
final consideration on appeal.
“The grant of a continuance lies within the sound discretion of the IJ, who
may grant a continuance for good cause shown.” Masih v. Mukasey, 536 F.3d
370, 373 (5th Cir. 2008); see also 8 C.F.R. § 1003.29. Although the decision is
discretionary, we have jurisdiction to review the denial of a motion for a
continuance. Ahmed v. Gonzales, 447 F.3d 433, 437 (5th Cir. 2006). We review
a decision to grant or deny a continuance for an abuse of discretion. Masih, 536
F.3d at 373. Because the BIA affirmed the IJ without opinion, we review the IJ’s
decision. See Ali v. Gonzales, 440 F.3d 678, 680 (5th Cir. 2006).
Sun’s labor certification was approved, but his visa petition was denied.
At the time of his last hearing when he sought his tenth continuance, Sun was
not eligible for the discretionary relief of adjustment of status under 8 U.S.C.
§ 1255(i). See Ahmed, 447 F.3d at 438 & n.3 (visa petition must be approved to
be eligible for relief under § 1255(i)); see also Masih, 536 F.3d at 374 (To be
eligible for adjustment of status, alien needs labor certification and visa petition
approved and a visa must be immediately available.). The IJ granted nine
continuances and allowed Sun nearly three years to pursue his adjustment of
status until Sun’s visa petition was ultimately denied. When Sun’s visa petition
was denied, the IJ concluded that proceedings needed to go forward and that
good cause was no longer present to justify yet another continuance. The IJ did
not abuse his discretion in denying a continuance because Sun lacked good
cause, given his ineligibility for removal relief. See Ahmed, 447 F.3d at 439.
Sun also contends that he was “deprived of due process when the
Immigration Judge declined a short continuance.” Sun did not make this due
process argument before the BIA in his Notice of Appeal, asserting only that the
immigration judge abused his discretion. Sun has not exhausted his
administrative remedies regarding this due process argument, and we lack
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No. 07-60873
jurisdiction to consider the issue on appeal. See Wang v. Ashcroft, 260 F.3d 448,
452-53 (5th Cir. 2001).
The petition for review is DENIED.
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