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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-10001
Non-Argument Calendar
____________________
IBRAHIM OMOTAYO RAJI,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A214-947-556
____________________
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2 Opinion of the Court 22-10001
Before TJOFLAT, ROSENBAUM, and GRANT, Circuit Judges.
PER CURIAM:
Ibrahim Raji petitions for review of the order of the Board
of Immigration Appeals (“BIA”) denying his motion to reconsider
its affirmance of the Immigration Judge’s (“IJ”) denial of his motion
to continue his removal proceedings. Raji argues that the BIA
should have reconsidered its decision because he was entitled to a
continuance of his proceedings pending the adjudication of his
wife’s second application for visa status on Raji’s behalf, and the IJ
had previously allowed Raji to continue his proceedings while his
wife’s first application for visa status was pending. We reject Raji’s
arguments and accordingly deny his petition for review.
I.
Raji—a native and citizen of Nigeria— entered the United
States on December 26, 2016, pursuant to a work visa. Based on
the terms of the visa, Raji was authorized to stay in the United
States until June 25, 2017. On September 20, 2018—over a year
after Raji’s visa expired—the Department of Homeland Security
(“DHS”) issued a Notice to Appear (“NTA”) charging Raji with
overstaying his visa without authorization.1 Raji admitted the al-
legations in the NTA and conceded the charges, but he requested
1 The DHS explained that Raji was deportable because he violated Section
237(a)(1)(B) of the Immigration and Nationality Act by remaining in the
United States longer than permitted. See
8 U.S.C. § 1227(a)(1)(B).
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22-10001 Opinion of the Court 3
that his status be adjusted due to the pending I-130 petition that his
wife, Chebreka Smith, filed on his behalf on July 16, 2018. 2 Based
on Smith’s pending I-130 petition, Raji had filed an I-485 Applica-
tion to Register Permanent Residence3 on July 27, 2018. The I-485
application was pending at the time the NTA was issued. 4 At his
2 A U.S. citizen or lawful permanent resident can file an I-130 petition with
United States Citizenship and Immigration Services (“USCIS”) to request per-
manent resident status for an alien relative or spouse. See
8 U.S.C.
§ 1154(a)(1)(A)(i) (“[A]ny citizen of the United States claiming that an alien is
entitled to . . . an immediate relative status . . . may file a petition with the
Attorney General for such classification.”);
8 C.F.R. § 204.2(a)(1) (“A United
States citizen or alien admitted for lawful permanent residence may file a [visa]
petition on behalf of a spouse.”).
3 An alien seeking permanent resident status may file an I-485 petition while
the I-130 petition of which he is the beneficiary is pending, so long as he is the
immediate relative of a United States citizen. U.S. Citizenship & Immigr.
Servs., Instructions for Application to Register Permanent Residence or Adjust
Status 21 (2022); see
8 U.S.C. § 1255(a) (stating that the Attorney General can
adjust the status of an alien to that of a lawful permanent resident “if (1) the
alien makes an application for such adjustment, (2) the alien is eligible to re-
ceive an immigrant visa and is admissible to the United States for permanent
residence, and (3) an immigrant visa is immediately available to him at the
time his application is filed.”). Immediate relatives of citizens include their
spouses, unmarried children under 21, and parents 21 or older.
8 U.S.C.
§ 1151(b)(2)(A)(i).
4 Raji’s I-485 petition was administratively closed by USCIS on January 14,
2020. The USCIS can administratively close an I-485 petition if the petitioner
fails to timely respond to a request for evidence or a notice of intent to deny,
or if the petitioner fails to appear for his naturalization exam and does not
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4 Opinion of the Court 22-10001
first hearing before the IJ on October 16, 2018, Raji asked for a con-
tinuance as Smith’s first I-130 was being processed, which the IJ
granted.
The IJ granted Raji 15 continuances between February 28,
2019, and September 29, 2020—each one pending adjudication of
Smith’s I-130 application. United States Citizenship and Immigra-
tion Services (“USCIS”) denied Smith’s I-130 petition on September
30, 2020. During his hearing on October 30, 2020, Raji informed
the IJ that Smith’s I-130 application had been denied but that he had
filed an appeal of the denial on October 8.5 The IJ declined to con-
tinue the proceedings pending Raji’s I-130 appeal, but she agreed
to continue the case until November 20 while Raji explored alter-
native forms of relief. At his November 20 hearing, Raji informed
the IJ that Smith had filed a second I-130 application. Raji again
moved for a continuance based on his appeal of the first I-130 denial
and Smith’s second I-130 petition. The IJ refused to continue the
case based on Raji’s I-130 appeal and Smith’s new I-130 petition,
but she continued Raji’s case “one last time” so Raji’s new attorney
would have a chance to pursue alternative avenues of relief.
notify the USCIS in writing within 30 days of the examination date.
8 C.F.R.
§ 103.2(b)(13)(ii);
id. § 335.6(a).
5 Because Raji rather than Smith appealed the denial of Smith’s first I-130,
the BIA dismissed Raji’s appeal on December 9, 2021. Smith, not Raji, was
the one who was authorized to file a I-130 petition and appeal USCIS’s denial
of the petition.
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22-10001 Opinion of the Court 5
At Raji’s hearing on December 18, 2020, the IJ denied Raji’s
motion for continuance and issued an order of removal. The IJ
stated that there was not good cause to grant Raji’s motion for con-
tinuance because: (1) his proceedings had been going on for two
years; (2) the DHS opposed the continuance and had denied the
previous I-130 application; and (3) Raji had received the benefit of
15 previous continuances. The IJ also detailed the issues in Smith’s
first I-130 petition, noting that Smith failed to “show by a prepon-
derance of the evidence that [her marriage to Raji] was legally valid
and bona fide at its inception.” Administrative Record at 80. Based
on her review of Smith’s first I-130 petition, the IJ concluded that
Raji had not shown that Smith’s second I-130 petition was prima
facie approvable.
Raji subsequently appealed the IJ’s decision before the BIA,
arguing that the IJ had abused her discretion in finding him remov-
able and denying his motion for a continuance. Raji asserted that,
under Matter of Garcia, an IJ should, “as a general rule,” grant mo-
tions for continuance “where a prima facie approvable visa petition
and adjustment application have been submitted.”
16 I. & N. Dec.
653, 656 (BIA 1978). He also explained that, under Matter of L-A-
B-R-, when considering whether to grant a motion for a continu-
ance, an IJ should focus on the likelihood that the alien will receive
collateral relief and whether that relief will materially affect the
outcome of the removal proceedings.
27 I. & N. Dec. 405 (U.S.
Att’y Gen. 2018). Applying L-A-B-R- to his own case, Raji argued
that Smith’s second I-130 application was likely to be approved
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6 Opinion of the Court 22-10001
because he had been married to an American citizen for more than
three years, and the first I-130 application had been rejected be-
cause Smith’s attorney failed to file a Notice of Intent to Deny. Raji
also argued that the outcome of his removal proceedings would
necessarily be affected if Smith’s second I-130 petition was granted.
On May 12, 2021, the BIA dismissed Raji’s appeal and
adopted the IJ’s decision. The BIA explained that Garcia had been
significantly modified by the BIA,6 and L-A-B-R- sets out the appro-
priate standard for when a petitioner has established good cause for
a continuance. The BIA concluded that the IJ was within her dis-
cretion to deny Raji’s request for a continuance because he did not
show that Smith’s I-130 petition would be approved within a rea-
sonable amount of time. 7
Raji moved for the BIA to reconsider the dismissal, but the
BIA denied Raji’s motion to reconsider on December 7, 2021. Raji
6 See Lemus v. Sessions,
900 F.3d 15, 19 (1st Cir. 2018) (“[T]he BIA has on
several occasions modified Garcia.”).
7 The BIA also noted that Raji did not adequately allege ineffective assistance
of counsel with regard to Smith’s first visa application; “he ha[d] not acknowl-
edged, much less fulfilled, the procedural and substantive steps for such a
claim. See generally Matter of Lozada,
19 I. & N. Dec. 637, 638–40 (BIA 1988),
pet. for rev. denied, Lozada v, INS,
857 F.2d 10 (1st Cir. 1988). See also Mailer
of Melgar,
28 I. & N. Dec. 169, 170–72 (BIA 2020).”
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22-10001 Opinion of the Court 7
timely petitioned for review of the denial of the motion to recon-
sider on January 3, 2022. 8
II.
We review a denial of a motion for reconsideration by the
BIA for abuse of discretion. Assa’ad v. U.S. Att’y Gen.,
332 F.3d
1321, 1341 (11th Cir. 2003). This review is limited to determining
whether the BIA exercised its discretion in an arbitrary or capri-
cious manner. Zhang v. U.S. Att’y Gen.,
572 F.3d 1316, 1319 (11th
Cir. 2009). “The BIA abuses its discretion when it misapplies the
law in reaching its decision,” or when it fails to follow its own prec-
edents “without providing a reasoned explanation for doing so.”
Ferreira v. U.S. Att’y Gen.,
714 F.3d 1240, 1243 (11th Cir. 2013).
The BIA’s denial of Raji’s Motion to Reconsider reiterated
the merits of its May 12 decision affirming the IJ’s continuance de-
nial. To determine whether the BIA abused its discretion in deny-
ing Raji’s Motion to Reconsider, we must therefore consider
whether the BIA properly applied the law in its May 12 decision
affirming the IJ’s denial of Raji’s motion for a continuance. When
the BIA issues an order expressly affirming and adopting the IJ’s
decision, we also review the merits of the IJ’s order when
8 A motion to reconsider does not toll the time to petition for review of the
underlying order. Dakane v. U.S. Att’y Gen.,
399 F.3d 1269, 1272 n.3 (11th
Cir. 2005) (per curiam). Therefore, when a petitioner files a timely petition
to review the BIA’s denial of a motion to reconsider but does not petition to
review the underlying order, this Court reviews only the arguments as they
relate to the motion.
Id.
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8 Opinion of the Court 22-10001
reviewing the BIA’s order. Al Najjar v. Ashcroft,
257 F.3d 1262,
1284 (11th Cir. 2001), overruled on other grounds by Patel v. U.S.
Atty. Gen.,
971 F.3d 1258 (11th Cir. 2020). In this case, the BIA
affirmed and adopted the IJ’s continuance denial in its May 12 or-
der, so to the extent that we are reviewing the BIA’s May 12 order
we are also reviewing the IJ’s denial of Raji’s motion for a continu-
ance.
An IJ may grant a motion for a continuance of removal pro-
ceedings only “for good cause shown.”
8 C.F.R. § 1003.29. “As a
general rule,” an IJ should grant a motion for a continuance “where
a prima facie approvable visa petition and adjustment application
have been submitted.” Matter of Garcia, 16 I. & N. Dec. at 657.
Garcia’s rule is not, however, meant to be an “inflexible rule re-
quiring immigration judges in all cases” to grant continuances. Id.
It “clearly would not be an abuse of discretion” to deny a continu-
ance because, for example, the pending visa application is frivolous,
or the adjustment application is likely to be denied on either statu-
tory or discretionary grounds. Id.
L-A-B-R- sets out a number of factors that an IJ must con-
sider when deciding whether to grant an alien’s motion for a con-
tinuance to pursue collateral relief, but it highlights two factors as
particularly important. One of these factors is the likelihood that
the collateral relief will be granted. Matter of L-A-B-R-, 27 I. & N.
Dec. at 412. The Attorney General has emphasized that “the over-
use of continuances in the immigration courts is a significant and
recurring problem” and that overuse of continuances
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22-10001 Opinion of the Court 9
“undermine[s] the detailed statutory and regulatory scheme estab-
lished under the [Immigration and Nationality Act].” Id. at 411.
Respondents seeking a continuance to pursue collateral relief must
therefore show that the likelihood of obtaining relief is more than
“merely speculative.” Id. at 414.
The other important factor that an IJ must consider under
L-A-B-R- is whether collateral relief would materially affect the out-
come of a respondent’s removal proceedings. L-A-B-R-, 27 I. & N.
Dec. at 419. A respondent cannot make such a showing when the
“visa priority date is too remote to raise the prospect of adjustment
of status above the speculative level,” even if the visa application
itself has been approved. Id. at 418. Moreover, a respondent typi-
cally cannot prevail in showing that his approved visa application
will materially affect the outcome of removal proceedings without
documentary proof that adjustment of status is likely. Id.
Although an IJ must consider a respondent’s likelihood of
success and the effect collateral relief would have on the respond-
ent’s proceedings when ruling on a motion for a continuance, L-A-
B-R- does not permit IJs to limit their analysis to those two factors.
Under L-A-B-R-, IJs must also consider factors such as the timing of
the continuance motion, the DHS’s position on the motion, inter-
ests in administrative efficiency, and the number of previously
granted continuances and hearings. See id at 413, 415.
Here, the BIA did not abuse its discretion because in both
the December 7 order and the May 12 order, the BIA properly con-
sidered the relevant L-A-B-R- factors. In the May 12 order, the BIA
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10 Opinion of the Court 22-10001
concluded that Raji failed to show that Smith’s second I-130 appli-
cation was prima facie approvable—and that he had thus failed to
demonstrate a high likelihood of success. The BIA based its con-
clusion on the IJ’s holding that Smith’s second I-130 petition did not
constitute good cause for a continuance because the USCIS denied
Smith’s previous I-130 petition because she failed to show by a pre-
ponderance of the evidence that her marriage to Raji was legiti-
mate. In the December 7 order, the BIA noted that Raji had not
presented any evidence on the statuses of his appeal of Smith’s first
I-130 petition or Smith’s second I-130 petition since the IJ’s original
decision denying the continuance.
The BIA also concluded that Raji failed to prove that the sec-
ond I-130 application would materially affect his removal proceed-
ings. Raji explained why Smith’s first I-130 application was denied
and described his efforts to rectify the alleged errors of Smith’s
counsel—both by appealing the denial of Smith’s first I-130 petition
and by having Smith filing a second I-130 application. 9 He did not,
however, provide documentary evidence to support his assertion
that the appeal or the second I-130 application would be successful.
Raji also had not provided any documentary evidence for the BIA
to look at in ruling on Raji’s Motion to Reconsider; in the Decem-
ber 7 order, the BIA stated that Raji had not presented any evidence
9 It is worth noting that although Raji mentioned his appeal of Smith’s first I-
130 petition in his brief appealing the IJ’s original decision, he did not mention
the appeal in his Motion to Reconsider.
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22-10001 Opinion of the Court 11
on the status of either Smith’s first or second I-130 petition since
the IJ’s initial decision. Absent such evidence, the prospect that
Raji’s visa would be approved was “remote” and “speculative,” so
Raji failed to demonstrate that his visa application would materially
affect the removal proceedings. See L-A-B-R-, 27 I. & N. Dec. at
418.
The BIA also considered other L-A-B-R- factors in its orders.
In its May 12 order, the BIA provided the following reasons for
adopting the IJ’s decision to deny Raji’s motion for a continuance:
(1) Raji’s proceedings had been going on for two years; (2) DHS
opposed the continuance; (3) the USCIS had denied Smith’s previ-
ous I-130 application; and (4) Raji had already received 15 prior con-
tinuances from the IJ. The BIA subsequently denied Raji’s Motion
to Reconsider because it had “considered the appropriate factors
and law with regard to continuances” in its May 12 order. Under
L-A-B-R-, the factors the BIA considered were all permissible rea-
sons for denying Raji’s motion for a continuance. L-A-B-R- pro-
vides that the DHS’s position on respondent’s motion for a contin-
uance and the number of previously granted continuances are im-
portant factors to consider. 27 I. & N. Dec. at 413. Furthermore,
the length of Raji’s proceedings speaks to concerns about adminis-
trative efficiency. See id.
III.
Raji’s claim that the BIA did not consider the requisite fac-
tors in denying his motion for continuance lacks merit. Contrary
to Raji’s assertion that his motion was denied solely because
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12 Opinion of the Court 22-10001
Smith’s I-130 petition was still pending, the IJ denied his motion for
several reasons, all of which were adopted by the BIA. Raji con-
tends that the IJ and BIA impermissibly ignored L-A-B-R-, but his
contention does not hold weight because all the reasons the BIA
provided for its denial track the L-A-B-R- factors. See L-A-B-R-, 27
I. &. N. Dec. at 405, 416.
Raji further claims that having a pending prima facie approv-
able spousal I-130 petition renders an individual eligible for a con-
tinuance, even if he has not shown that the petition will be ap-
proved in a reasonable amount of time. This claim also lacks merit.
Under L-A-B-R-, IJs can consider the timeline of relief in determin-
ing whether to grant a continuance. Id. at 418. An individual is not
entitled to a continuance, for example, if the date when he will re-
ceive his visa is “too remote to raise the prospect of adjustment of
status above the speculative level.” Id. Here, Raji did not provide
the BIA with any documentary evidence to support his assertion
that Smith’s second I-130 petition ha[d] a more than speculative
chance of being granted.
Raji correctly notes that according to this Court’s decision in
Bull v. INS, “discretion should . . . be favorably exercised where a
prima facie approvable visa application and adjustment application
have been submitted in the course of a deportation hearing.”
790
F.2d 869, 872 (11th Cir. 1986) (internal quotation marks omitted).
In this case, however, the BIA adopted the IJ’s finding that Raji did
not show that Smith’s I-130 petition was prima facie approvable.
As both the IJ and the BIA pointed out, the USCIS’s denial of
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22-10001 Opinion of the Court 13
Smith’s first I-130 petition weighed against finding that Smith’s sec-
ond I-130 petition was prima facie approvable—and Raji had not
provided any documentary evidence to the contrary. Even if IJs
generally should grant continuances to individuals when their
spouses’ I-130 petitions are pending, they are not required to do so
when other factors described in L-A-B-R- weigh against granting a
continuance. That is the case here.
Raji’s assertion that the BIA erred by ignoring his arguments
under Garcia fails for the same reasons. Before both the BIA and
this Court, Raji relied solely on Garcia’s general statement that mo-
tions for a continuance should, “as a general rule,” be granted
where a prima facie visa petition has been submitted. Garcia does
not, however, require an IJ to grant a continuance where other fac-
tors weigh against doing so—for example, if the I-130 visa petition
is frivolous or the adjustment of status application is likely to be
denied. See Garcia, 16 I. & N. Dec. at 657 (holding that there is no
“inflexible rule” requiring continuances whenever there is a pend-
ing visa application). Raji is not entitled to relief under Garcia be-
cause he did not show that Smith’s I-130 petition was prima facie
approvable.
IV.
The BIA’s denial of the motion for reconsideration was nei-
ther arbitrary nor capricious, given that Raji’s removal proceedings
had lasted two years, DHS opposed the continuance, Smith’s prior
I-130 petition had been denied, he had already received 15 contin-
uances, and he had not shown that Smith’s second I-130 petition
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14 Opinion of the Court 22-10001
was prima facie approvable. Therefore, his petition for review is
denied.
PETITION DENIED.
