Arora v. Keisler

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 11, 2007
No. 06-60891
Summary Calendar Charles R. Fulbruge III
Clerk
PUNEET ARORA
Petitioner
v.
PETER D KEISLER, ACTING U S ATTORNEY GENERAL
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A97 843 682
Before KING, DAVIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Puneet Arora petitions this court for review of the Board of Immigration
Appeals’s (BIA) order affirming the Immigration Judge’s (IJ) denial of his
request for a continuance. Arora sought a continuance of his removal
proceedings pending an appeal of the denial of an I-130 petition filed on his
behalf.
*
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should not be published and is not precedent except under the limited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. 06-60891
The grant of a motion to continue lies within the sound discretion of the
IJ, who may grant the motion for good cause shown. Witter v. INS, 113 F.3d 549,
555 (5th Cir. 1997); see 8 C.F.R. § 1003.29. An IJ’s “decision denying the motion
for continuance will not be reversed unless the alien establishes that [the] denial
caused him actual prejudice and harm and materially affected the outcome of his
case.” In re Sibrun, 18 I & N Dec. 354, 356-57 (BIA 1983). To show prejudice,
“the alien must specifically articulate the particular facts involved or evidence
which he would have presented, and otherwise fully explain how denial of his
motion fundamentally changed the result reached.” Id. at 357.
Contrary to Arora’s assertion, he failed to show good cause. Arora did not
demonstrate that the BIA’s affirmance of the IJ’s denial of a continuance
prejudiced him or that it had a material affect on the outcome of his case. See
In re Sibrun, 18 I & N Dec. at 356-57. Moreover, the petition was not “prima
facie approvable” given that the I-130 petition filed by his wife had been denied.
See In re Garcia, 16 I & N Dec. 653, 655-56 (BIA 1978), superseded by statute on
other grounds, as stated in Dielmann v. INS, 34 F.3d 851 (9th Cir. 1994).
Accordingly, Arora has not shown that the BIA abused its discretion in affirming
the IJ’s denial of his motion for continuance. See Witter, 113 F.3d at 555.
Arora also argues that the BIA erred in finding that the appeal of the I-130
petition was a collateral matter. This argument, however, is unavailing. The
merits of the I-130 petition are not before this court because this appeal is from
the BIA’s affirmance of the IJ’s order of deportation; the IJ had no jurisdiction
over the petition for alien relative. 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).
Finally, Arora argues that the denial of the continuance resulted in the
denial of a full and fair hearing. The denial of a continuance does not violate due
process where an alien fails to show good cause. Ali v. Gonzales, 440 F.3d 678,
681 (5th Cir. 2006). Arora’s full and fair hearing argument fails because he has
not shown good cause.
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No. 06-60891
PETITION FOR REVIEW DENIED.
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