UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 10-2383


ZAFAR MAHMOOD,

                 Petitioner,

          v.

ERIC H. HOLDER, JR., Attorney General,

                 Respondent.



On Petition for Review of an Order of the Board of Immigration
Appeals.


Submitted:   June 7, 2011                    Decided:   June 17, 2011


Before GREGORY, DAVIS, and DIAZ, Circuit Judges.


Petition denied by unpublished per curiam opinion.


Anser  Ahmad,   ADVANCED IMMIGRATION     LAW  GROUP,   Harrisburg,
Pennsylvania, for Petitioner.      Tony West, Assistant Attorney
General, Lyle D. Jentzer, Senior Litigation Counsel, Aaron R.
Petty,   Office   of   Immigration   Litigation,   UNITED   STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Zafar     Mahmood,       a    native    and     citizen          of    Pakistan,

petitions for review of an order of the Board of Immigration

Appeals   (“Board”)       dismissing       his    appeal       from    the        immigration

judge’s order denying his application for adjustment of status

and ordering him removed to Pakistan.

            Before this court, Mahmood first argues that the Board

abused    its    discretion      in      upholding       the    immigration           judge’s

denial of his request for a continuance.                       We review the denial

of a motion for a continuance for abuse of discretion.                                    See

Lendo v. Gonzales, 

, 441 (4th Cir. 2007); Onyeme v.

INS, 

, 231 (4th Cir. 1998).                    The court “must uphold

the IJ’s denial of a continuance ‘unless it was made without a

rational explanation, it inexplicably departed from established

policies,       or   it     rested    on    an     impermissible             basis,    e.g.,

invidious discrimination against a particular race or group.’”

(quoting 

).

            Here,     the    immigration         judge   noted        that    Mahmood     had

more than ample time to present any and all applications for

relief.     Mahmood’s removal proceedings remained pending before

the immigration judge for more than five years, and yet he did

not seek to file an application for asylum until after it became




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clear       that        he    was       ineligible     for    adjustment      of        status. 1

Moreover, the Board noted that Mahmood arguably waived such an

application by stating before the immigration court that he did

not wish to pursue “any other forms of relief,” and further

noted that any asylum application would appear to be barred by

the    one-year         time     limitation.          Because    the   agency      offered      a

rational explanation for its denial of a continuance and did not

rest its decision on an impermissible basis, we find that no

abuse of discretion occurred.

                 We further find that Mahmood has failed to demonstrate

that       the    denial       of   a    continuance    violated       his   right       to   due

process.          To succeed on a procedural due process claim, Mahmood

must demonstrate “(1) that a defect in the proceeding rendered

it fundamentally unfair and (2) that the defect prejudiced the

outcome of the case.”                    Anim v. Mukasey, 

, 256 (4th

Cir. 2008); accord Rusu v. INS, 

, 320-22 (4th Cir.

2002).           Because Mahmood fails to give any indication of what

evidence         he     would       have    presented    in     support      of    an     asylum

application, he cannot show that the denial of a continuance

affected          the        outcome       of   his    case     and    therefore          cannot

       1
        Although Mahmood faults the Department of Homeland
Security for failing to put him on notice that it intended to
argue that he was ineligible for adjustment of status, Mahmood
had the burden of demonstrating his eligibility for such relief.
See 8 C.F.R. § 1240.8(d) (2011).



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demonstrate the requisite prejudice.                     See Amouri v. Holder, 

, 36 (1st Cir. 2009).

            Finally, although Mahmood appears to concede that he

is ineligible for adjustment of status, he argues that 8 C.F.R.

§ 1245.10(j) (2011) 2 violates the language and intent of 8 U.S.C.

§ 1255(i) (2006) and is therefore ultra vires.                            This argument,

however,   is    squarely      foreclosed         by    our    decision      in    Suisa   v.

Holder,    

,   320     (4th     Cir.      2010).       In     Suisa,   we

considered an identical challenge to 8 C.F.R. § 1245.10(j) and

concluded that the regulation is “a permissible construction of

§   1255(i)”     and   “a     valid      exercise       of    the   Attorney       General’s

rulemaking authority.”             

sole challenge to

the   denial     of    his    application         for    adjustment        of     status   is

clearly without merit, we uphold the agency’s denial of relief.

            We    therefore        deny     the     petition        for    review.         We

dispense    with       oral    argument       because         the    facts        and   legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.



                                                                          PETITION DENIED


      2
       Section 1245.10(j) (2011) provides that “[a]n alien who
was substituted for the previous beneficiary of the application
for the labor certification after April 30, 2001, will not be
considered to be a grandfathered alien.”



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