Filed: Jan. 25, 2006
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT January 25, 2006 Charles R. Fulbruge III Clerk No. 04-60744 Summary Calendar MOSTAFA TOUNSADI, Petitioner, versus ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL, Respondent. - Petition for Review of an Order of the Board of Immigration Appeals BIA No. A76 329 401 - Before JOLLY, DAVIS and OWEN, Circuit Judges. PER CURIAM:* Mostafa Tounsadi petitions this court for review of the Board of
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT January 25, 2006 Charles R. Fulbruge III Clerk No. 04-60744 Summary Calendar MOSTAFA TOUNSADI, Petitioner, versus ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL, Respondent. - Petition for Review of an Order of the Board of Immigration Appeals BIA No. A76 329 401 - Before JOLLY, DAVIS and OWEN, Circuit Judges. PER CURIAM:* Mostafa Tounsadi petitions this court for review of the Board of ..
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United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 25, 2006
Charles R. Fulbruge III
Clerk
No. 04-60744
Summary Calendar
MOSTAFA TOUNSADI,
Petitioner,
versus
ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,
Respondent.
--------------------
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A76 329 401
--------------------
Before JOLLY, DAVIS and OWEN, Circuit Judges.
PER CURIAM:*
Mostafa Tounsadi petitions this court for review of the Board
of Immigration Appeals’s (“Board”) order affirming the immigration
judge’s (IJ) denial of his request for a continuance and the denial
of his motion to reopen. He also seeks to challenge the District
Director’s denial of the I-130 visa petition filed on his behalf.
Tounsadi avers that the Board abused its discretion by
affirming the IJ’s denial of his request for a continuance. He
avers that the IJ’s denial of his motion for continuance so that he
*
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this opinion should not be published and is not precedent except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. 04-60744
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could appeal the denial of his I-130 petition was “fundamentally
unfair.” The respondent asserts that we do not have jurisdiction
over this issue. This argument is foreclosed by this court’s
opinions in Zhao v. Gonzales, 404 F.3d 295, 302-03 (5th Cir. 2005),
and Manzano-Garcia v. Gonzales,
413 F.3d 462, 466-67 (5th Cir.
2005).
On a petition for review of a Board decision, we review
factual findings for substantial evidence and questions of law de
novo. Lopez-Gomez v. Ashcroft, 263 F.3d 442, 444 (5th Cir. 2001).
We review the order of the Board and will consider the underlying
decision of the IJ only if it influenced the determination of the
Board. Ontunez-Tursios v. Ashcroft,
303 F.3d 341, 348 (5th Cir.
2002). We review the Board’s affirmance of an IJ’s denial of a
continuance for abuse of discretion. Witter v. INS,
113 F.3d 549,
555-56 (5th Cir. 1997). An IJ may grant a continuance upon a
showing of good cause.
Id.
The pendency of a prima facie approvable petition for
adjustment of status is good cause for the continuance of removal
proceedings. In re Garcia, 16 I & N Dec. 653, 657 (BIA 1978).
In this case, however, the petition was not prima facie approvable
because it had been denied. The Board and the IJ, whose reasoning
was adopted by the Board, adequately explained the reasoning for
their denial of Tounsadi’s request for a continuance. Moreover,
the IJ had previously continued Tounsadi’s removal proceedings on
11 separate occasions, spanning a total of almost five years.
No. 04-60744
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Given these circumstances, the Board did not abuse its discretion
by affirming the IJ’s denial of Tounsadi’s request for a
continuance.
Tounsadi avers that the District Director’s decision to deny
his I-130 petition without the opportunity to have a hearing and
confront his accusers was a violation of his due process rights.
He contends that the District Director’s finding of marriage fraud
was not based on substantial and probative evidence since the
Director failed to consider several missing documents which
contradicted a finding of marriage fraud. The respondent avers
that this court is without jurisdiction to review the District
Director’s finding of marriage fraud and the denial of Tounsadi’s
I-130 petition.
The respondent is correct. The merits of the I-130 petition
are not before this court because this appeal is from the Board’s
denial of Tounsadi’s motion for a continuance and the order of
deportation; the IJ had no jurisdiction over the I-130 petition.
See Liu, 645 F.2d at 284-85; see also
Conti, 780 F.2d at 702 (“INS
District Director’s decision[] with regard to the disposition of a
visa application is a collateral issue outside the purview” of an
appeal of an order of deportation).
Tounsadi avers next that the Board erred in construing his
motion to reopen the I-130 proceedings as a motion for
reconsideration. Tounsadi contends that because he sought to
present the Board with “new evidence,” which was not presented to
No. 04-60744
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the District Director, the motion was one to reopen, not to
reconsider. However, because we do not have jurisdiction over the
underlying merits of the I-130 petition, we also lack jurisdiction
over the Board’s treatment of the motion to reopen those
proceedings. See Rodriguez v. Ashcroft, 253 F.3d 797, 800 (5th
Cir. 2005) (“It is axiomatic that if we are divested of
jurisdiction to review an original determination by the
Board . . . we must also be divested of jurisdiction to review the
Board’s denial of a motion to reopen . . . .”).
Finally, Tounsadi claims that he is eligible for a waiver of
the finding by the INS that he committed marriage fraud. There is
a waiver provision at INA § 212(a)(6)(C)(iii), 8 U.S.C.
§ 1182(a)(6)(C)(iii), which provides that in certain limited
circumstances the ground of inadmissibility found at INA
§ 212(a)(6)(C) for misrepresentation may be waived, but this waiver
provision, which relates to grounds of inadmissibility, has nothing
to do with a finding of marriage fraud that makes an alien
ineligible for an I-130 visa petition under INA § 204(c).
Tounsadi’s petition for review is DISMISSED IN PART FOR WANT OF
JURISDICTION AND DENIED IN PART.
