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Ahmad v. Gonzales, 04-60980 (2005)

Court: Court of Appeals for the Fifth Circuit Number: 04-60980 Visitors: 39
Filed: Nov. 16, 2005
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 November 16, 2005 Charles R. Fulbruge III Clerk No. 04-60980 Summary Calendar MAZEN JABER MAHMOUD AHMAD; SUHAIR SAADO BANAT; RAMI MAZEN JABER AHMED; RAWAN MAZEN JABER AHMAD; RUBA MAZEN JABER AHMAD, Petitioners, versus ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL, Respondent. Petition for Review of an Order of the Board of Immigration Appeals BIA No. A79 556 494 BIA No. A79 556 495 BIA
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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                   November 16, 2005

                                                            Charles R. Fulbruge III
                                                                    Clerk
                            No. 04-60980
                          Summary Calendar



     MAZEN JABER MAHMOUD AHMAD;
     SUHAIR SAADO BANAT;
     RAMI MAZEN JABER AHMED;
     RAWAN MAZEN JABER AHMAD;
     RUBA MAZEN JABER AHMAD,

                                           Petitioners,

          versus

     ALBERTO R. GONZALES, U.S.
     ATTORNEY GENERAL,

                                           Respondent.




               Petition for Review of an   Order of the
                    Board of Immigration   Appeals
                         BIA No. A79 556   494
                         BIA No. A79 556   495
                         BIA No. A79 556   496
                         BIA No. A79 556   497
                         BIA No. A79 556   498



Before GARWOOD, JONES and SMITH, Circuit Judges.

PER CURIAM:*

     Mazen Jaber Mahmoud Ahmad, his wife Suhair Saado Banat, and

their children (collectively, the Ahmads) petition this court for


     *
      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opinion should not be published and is not precedent except under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.
review of the Board of Immigration Appeals’ (BIA) order denying

their motion to reconsider a final order of removal.                 The Ahmads

contend that the immigration judge (IJ) abused his discretion in

denying a motion for a continuance because the Ahmads established

that their visa application should have been approved, rendering

visas “immediately available” to them as required by 8 U.S.C. §

1255(a)(3).

     As an initial matter, the respondent asserts that we do not

have jurisdiction over the Ahmads’ petition for review under 8

U.S.C. § 1252(a)(2)(B)(ii).      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
, 466-70

(5th Cir. 2005).

     This court reviews the BIA’s denial of a motion to reconsider

under a highly deferential abuse-of-discretion standard.                Lara v.

Trominski, 
216 F.3d 487
, 496 (5th Cir. 2000); Osucukwu v. INS, 
744 F.2d 1136
, 1141-42 (5th Cir. 1984).             The Ahmads have not met this

standard.   An alien is entitled to an adjustment of status at the

Attorney    General’s    discretion       “if    (1)   the   alien    makes   an

application for such adjustment, (2) the alien is eligible to

receive an immigration visa and is admissible to the United States

for permanent residence, and (3) an immigrant visa is immediately

available to [the alien] at the time his application is filed.”                8

U.S.C. § 1255(a).       Even if it is assumed that the Ahmads’ visa


                                      2
application was approved, rendering them eligible to receive visas,

they have not established that immigrant visas are immediately

available to them as third preference visa holders.                See 8 U.S.C.

§ 1153(a)(3).      See also 8 U.S.C. § 1101(b)(1).             The IJ therefore

did not abuse his discretion in denying a motion for continuance,

because the Ahmads have not shown good cause.             See Witter v. INS,

113 F.3d 549
, 555 (5th Cir. 1997); Diarra v. Gonzales, 137 F.

App’x.    627,   632   n.5   (5th   Cir.   June   2,   2005)    (No.   04-60097)

(unpublished).     Consequently, the Ahmads’ petition for review is

DENIED.




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Source:  CourtListener

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