Armando Bajacan v. Eric Holder, Jr.

FILED
NOT FOR PUBLICATION DEC 01 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ARMANDO DIONAMPO BAJACAN, No. 10-73577
Petitioner, Agency No. A079-367-207
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted November 19, 2014
San Francisco, California
Before: GOULD, WATFORD, and FRIEDLAND, Circuit Judges.
1. We lack jurisdiction over Armando Bajacan’s petition for review of the
Board of Immigration Appeals’ (BIA) decision denying the I-130 visa petition that
his wife had filed on his behalf. That petition does not challenge a final order of
removal directly. See 8 U.S.C. § 1252(a); Alcala v. Holder, 563 F.3d 1009, 1013
(9th Cir. 2009) (“The carefully crafted congressional scheme governing review of
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Page 2 of 3
decisions of the BIA limits this court’s jurisdiction to the review of final orders of
removal.”). Nor is the challenge “inextricably linked” to his removal order. See
Morales-Izquierdo v. Dep’t of Homeland Sec., 600 F.3d 1076, 1082–83 (9th Cir.
2010). Were Bajacan to succeed on the merits of his visa petition challenge, his
removal order would still stand. See Singh v. Holder, --- F.3d ---, 2014 WL
5861965, at *1 (9th Cir. Nov. 13, 2014) (noting that, without reopening, petitioner
was still subject to a final order of removal, even though he had received an
immediate relative visa).
2. The BIA did not abuse its discretion in affirming the Immigration Judge’s
denial of Bajacan’s motion for a sixth continuance. See Cui v. Mukasey, 538 F.3d
1289, 1290 (9th Cir. 2008). Bajacan had already been granted five continuances;
the Department of Homeland Security, which had not opposed the previous
continuances, had objected to the sixth; and Bajacan had not established prima
facie eligibility for adjustment of status. See id. at 1292 (discussing
non-exhaustive factors in evaluating a denial of a motion for a continuance);
Ahmed v. Holder, 569 F.3d 1009, 1013, 1015 (9th Cir. 2009) (considering lack of
government opposition to a continuance, inconvenience to the immigration judge,
and prima facie eligibility for adjustment of status in evaluating whether denying a
continuance was an abuse of discretion). It is true that other factors weighed in
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Bajacan’s favor—a successful visa appeal would likely have been important to his
removal proceedings, and Bajacan’s conduct in pursuing a continuance to await his
visa petition appeal seemed reasonable. See Ahmed, 569 F.3d at 1012–13. But
these factors are insufficient for us to find a “clear abuse” of discretion. See
Sandoval-Luna v. Mukasey, 526 F.3d 1243, 1247 (9th Cir. 2008) (internal
quotation marks omitted). Nor are these factors sufficient to find that the
proceedings were “so fundamentally unfair” that the denial of the continuance
constituted a due process violation. See Colmenar v. INS, 210 F.3d 967, 971 (9th
Cir. 2000) (internal quotation marks omitted).
3. Bajacan also challenged the denial of his motion to remand to await the
outcome of his visa petition appeal before the BIA. Because that appeal was
denied, his challenge is moot.
DISMISSED IN PART; DENIED IN PART.