Case: 15-60394      Document: 00513669122         Page: 1    Date Filed: 09/08/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                       United States Court of Appeals
                                                                                Fifth Circuit

                                    No. 15-60394                              FILED
                                  Summary Calendar                    September 8, 2016
                                                                         Lyle W. Cayce
                                                                              Clerk
IMUETINYAN FRANK OSAYI,

                                                 Petitioner

v.

LORETTA LYNCH, U.S. ATTORNEY GENERAL,

                                                 Respondent


                       Petition for Review of an Order of the
                          Board of Immigration Appeals
                               BIA No. A087 074 786


Before KING, DENNIS, and COSTA, Circuit Judges.
PER CURIAM: *
       Imuetinyan Frank Osayi, a native and citizen of Nigeria, petitions for
review on behalf of himself and his two minor children of a decision of the
Board of Immigration Appeals (BIA). The BIA dismissed Osayi’s appeal of an
immigration judge’s (IJ) denial of a motion for a continuance and an
application for adjustment of status. Osayi contends that the dismissal was
an abuse of discretion and a deprivation of his due process rights.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-60394

      We review “a decision to grant or deny a continuance for an abuse of
discretion.” Masih v. Mukasey, 

, 373 (5th Cir. 2008). The grant
of a motion to continue “lies within the sound discretion of the IJ, who may
grant a continuance for good cause shown.” 

IJ’s denial of a
continuance will not be reversed by the BIA on appeal unless the alien
demonstrates that the “denial caused him actual prejudice and harm and
materially affected the outcome of his case.”       Matter of Sibrun, 18 I&N
Dec. 354, 356-57 (BIA 1983). Although we have the authority to review only
the BIA’s decision, when, as here, the BIA affirms the IJ and relies on the
reasons set forth in the IJ’s decision, we consider the decision of the IJ to the
extent that it influenced the BIA. 

.
      In Matter of Hashmi, 24 I & N. Dec. 785, 790 (BIA 2009), the BIA set out
a list of factors to be considered in determining whether to continue removal
proceedings pending a final adjudication of an I-130 visa petition filed in
conjunction with an adjustment application. While the factors may be relevant
in a given case, “the focus of the inquiry is the apparent ultimate likelihood of
success on the adjustment application.” 

      The IJ’s and the BIA’s decisions were reached after due consideration of
the Hashmi factors. The focus was on the fact that Osayi did not show good
cause for a continuance because he had not established the existence of a
pending prima facie approvable visa petition based on a real marriage to a
United States citizen, given that three separate I-130 Petitions for Alien
Relative were denied on the basis of marriage fraud.           The denial of a
continuance was in accord with Hashmi, as the likelihood of success of a
pending I-130 petition should be “the focus” of any consideration of whether
good cause exists for a continuance. On appeal, Osayi has not demonstrated
that he was actually harmed and prejudiced by the denial of a continuance and



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                                 No. 15-60394

that the denial “materially affected the outcome of his case.” Sibrun, 18 I&N
Dec. at 356-57. Finally, the denial of a continuance does not violate due process
where, as here, Osayi has failed to demonstrate good cause for the continuance.
Ali v. Gonzales, 

, 681 (5th Cir. 2006).
      Accordingly, Osayi’s petition for review is DENIED.




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