Awolowo v. Mukasey , 284 F. App'x 155 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 7, 2008
No. 07-60492
Summary Calendar Charles R. Fulbruge III
Clerk
EZEKIEL OLUSANYA AWOLOWO
Petitioner
v.
MICHAEL B MUKASEY, U S ATTORNEY GENERAL
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A96 032 231
Before STEWART, OWEN and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Ezekiel Olusanya Awolowo 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. Awolowo 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should not be published and is not precedent except under the limited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. 07-60492
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). This court reviews
the BIA’s decision affirming the IJ’s denial of a continuance for an abuse of
discretion. Witter, 113 F.3d at 555.
The IJ continued Awolowo’s hearing two times pending the adjudication
of his I-130 visa petition. Once the I-130 visa petition was denied, Awolowo
became ineligible to adjust status, and because he was ineligible to adjust status,
there was no good cause for the continuance, particularly as he did not
demonstrate any likelihood for success on appeal and could not advise when his
appeal would be adjudicated. See 8 U.S.C. § 1255(a); see also Witter, 113 F.3d
at 555-56. Moreover, Awolowo failed to show that the BIA abused its discretion
in affirming the IJ’s denial of his request for a third continuance as he makes no
argument that the denial resulted in prejudice or materially affected the
outcome of his case. See In re Sibrun, 18 I & N Dec. at 356-57.
This court lacks jurisdiction to consider Awolowo’s complaint that
Department of Homeland Security has failed to comply with its own regulations
in processing the appeal of the denial of his I-130 petition. See Liu v. INS, 645
F.2d 279, 284-85 (5th Cir. 1981). To the extent that Awolowo argues that the
denial of the continuance violated his due process rights, the argument 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 v. Gonzales, 447 F.3d 433, 440 (5th Cir. 2006).
Additionally, 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).
The petition for review is DENIED.
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