Zaid Al-Hiyari v. Eric Holder, Jr. ( 2014 )

Case: 13-60106 Document: 00512501090 Page: 1 Date Filed: 01/15/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 13-60106 January 15, 2014
Summary Calendar
Lyle W. Cayce
Clerk
ZAID AL-HIYARI,
Petitioner
v.
ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A075 319 861
Before JONES, BARKSDALE, and HAYNES, Circuit Judges.
PER CURIAM: *
Zaid Al-Hiyari seeks review of the Board of Immigration Appeals’ (BIA)
denying his motion to continue and finding him removable.
In contending the BIA erred in affirming the Immigration Judge’s denial
of his motion to continue, he claims clear and convincing evidence established
his marriage was entered into in good faith and in accordance with the laws of
the place where the marriage took place and, as a result, his pending I-130
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 13-60106
petition (petition for alien relative) was prima facie approvable. We have
jurisdiction to review the denial of the continuance motion. Ahmed v. Gonzales,
447 F.3d 433, 437 (5th Cir. 2006). The denial is reviewed for an abuse of
discretion. Masih v. Mukasey, 536 F.3d 370, 373 (5th Cir. 2008). “The BIA
does not abuse its discretion so long as it is not capricious, racially invidious,
utterly without foundation in the evidence, or otherwise so aberrational that it
is arbitrary rather than the result of any perceptible rational approach.”
Cabral v. Holder, 632 F.3d 886, 890 (5th Cir. 2011) (alterations and citation
omitted). Because Al-Hiyari married his second wife after the commencement
of removal proceedings, the marriage was presumptively invalid. See 8 U.S.C.
§ 1255(e)(1) (adjustment of status of nonimmigrant); e.g., Zafar v. Holder, 322
F. App’x 376, 377 (5th Cir. 2009) (per curiam) (unpublished) (citing Matter of
Arthur, 20 I. & N. Dec. 475, 479 (BIA 1992)). Here, relying on In re Velarde-
Pacheco, the BIA recognized a motion to reopen for adjustment of status based
on a marriage entered into after the commencement of proceedings may be
granted in the exercise of discretion. See 23 I. & N. Dec. 253 (BIA 2002).
Nevertheless, the BIA declined to exercise its discretion. The BIA’s decision
was “not capricious, racially invidious, utterly without foundation in the
evidence, or otherwise so aberrational that it is arbitrary rather than the result
of any perceptible rational approach”. Cabral, 632 F.3d at 890.
Al-Hiyari also maintains the denial of the continuance deprived him of
due process. This contention is unavailing because “discretionary relief from
removal, including an application for an adjustment of status, is not a liberty
or property right that requires due process protection”. Ahmed, 447 F.3d at
440 (citation omitted).
Finally, Al-Hiyari challenges the BIA’s determination that he was
removable because, in 2002, he willfully misrepresented a fact in his student-
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No. 13-60106
visa application. He contends his checking “single” (at a time he was otherwise
claiming he was married for I-130 purposes) was not material to obtaining a
student visa. Because the misrepresentation had a natural tendency to
influence the decision of the then Immigration and Naturalization Service, the
misrepresentation was material. See Matter of D-R-, 25 I. & N. Dec. 445, 450
(BIA 2011).
DENIED.
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