UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ NITHIN RADHAKRISHNAN, Petitioner,

v. WILLIAM P. BARR, United States Attorney General, Respondent. No. 19-9534 (Petition for Review)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before BRISCOE , McHUGH , and MORITZ , Circuit Judges.

________________ _________________ Nithin Radhakrishnan petitions for re view of the Board of Immigration Appeals’ (BIA’s) decision affirming an Immi gration Judge’s (IJ’s) decision to order Radhakrishnan’s removal from the Unite d States to India and dismissing Radhakrishnan’s appeal. Exercising jurisd iction pursuant to 8 U.S.C. § 1252, we deny the petition for review.

* After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not ma terially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### November 15, 2019
Elisabeth A. Shumaker Clerk of Court2 I Radhakrishnan, who was born on July 28, 1990, is a native of the United Arab Emirates and a citizen of India. R OA at 9, 67. On September 1, 2016, Radhakrishnan was admitted to the United States as a non-im migrant/M1 vocational student, with authorization to stay in the United States until August 31, 2017. Id. According to Radhakrishnan, he attended a flight school in Centennial, Colorado, graduated in 2016, and began thereafter looking for work in the aviation industry. Id. at 9. At some point in 2018, Radhakrishnan married a United States citizen. Id. at 10. On July 30, 2018, Radhakrishnan plead ed guilty in Arapahoe County (Colorado) District Court on one count of theft in the am ount of $750 to $2000, in violation of Colo. Rev. St at. § 18-4-401(1), (2)(e). Id. at 67, 133. According to the record, Radhakrishnan “was involved in an organized retail theft scheme with six other subjects to return merchandise to . . . Home Depot and request refunds for merchandise that was never purchased.” 1 Id. at 36. Radhakrishnan was sentenced to two years of probation, 100 hours of comm unity service, and restitution in the amount of $11,716.84. Id. at 16, 67. On August 30, 2018, Radha krishnan was detained by Department of Homeland Security (DHS) employees and informed that he had overstayed his visa. Id. at 16.

1 In his pleadings in this appeal, Ra dhakrishnan admits returning items to Home Depot on behalf of anot her person, but denies any knowing involvement in an organized retail theft scheme.3 Shortly thereafter, DHS initiated a re moval proceeding by filing with the Immigration Court a Notice to App ear (NTA) against Radhakrishnan. Id. at 34. The NTA alleged, in pertinent part, that Radhakrishnan was removable under Section 237(a)(1)(B) of the Immigr ation and Nationality Act. Id. Radhakrishnan had his initial appearance be fore the IJ on September 12, 2018. Id. at 55–56. Radhakrishnan requested a dditional time to obtain an attorney. Id. at 56. The IJ granted the request and sche duled another hearing for September 25,
2018. Id. at 57. At the second hearing on September 25, 2018, Radhakrishnan again requested additional time to find an attorney. Id. at 60. The IJ grante d the request, but advised Radhakrishnan that this would be his final continuance. Id. at 60–61. At the third hearing before the IJ on October 9, 2018, Radhakrishnan appeared pro se and admitted the factua l allegations in the NTA. Id. at 34–35, 66–69. Based upon those admissions, the IJ sustaine d the single charge of removability. Id. Radhakrishnan conceded, upon ques tioning by the IJ, that he did not have any fear of harm if he were returned to India. Id. at 69–70. But Radhakrishnan informed the IJ that his wife was a United States citizen and that she intended to file an I-130 immediate relative petition on his behalf. Id. at 70–72. The IJ granted another continuance to allow Radhakrishnan tim e to consider how to proceed. Id. at 73–74. The IJ informed Radhakrishnan, however, that “based on what you’ve told me, there’s not any relief that you are currently eligible for,” and that, as a result, the IJ “may have to enter an order of rem oval or consider voluntary departure.” Id. at 73.4 At the fourth hearing before the IJ on October 23, 2018, Radhakrishnan appeared pro se. Id. at 76. Radhakrishnan informed the IJ that he intended to file an I-485 adjustment of stat us application, and that his wife also intended to file an I-130 immediate relative petition. Id. at 18, 35, 76–78. The IJ advised Radha krishnan that he might “have a difficult ti me getting adjustment of st atus granted” due to his “criminal record.” Id. at 80. The IJ also advised Radhakrishnan that he would not “continue to continue this case for purpose s of the I-130 being approved that hasn’t even been filed yet” because “those I- 130’s take many, ma ny months to get approved.” Id. The IJ “strongly encourage[d]” Radha krishnan to “get an attorney” to assist him in determini ng “how to proceed.” Id. Lastly, the IJ continued the case until November 6, 2018. Id. At the fifth hearing befo re the IJ on November 6, 2018, Radhakrishnan again appeared pro se. Id. at 82. Radhakrishnan st ated that his wife sti ll intended to file an I-130 petition on his behalf, but that she was “still in the hospital.” Id. at 84. In response to questioning by the IJ, the DHS a ttorney stated that she “wouldn’t oppose one final continuance since [R adhakrishnan was] pr o se and his wife appears to be in the hospital.” Id. at 85. The IJ informed Radhakris hnan: “All right, sir, I’m going to – since the Department isn’ t opposing one more continua nce, I’m going to give you one more continuance.” Id. After assurance by Radhakr ishnan that his wife would be able to file the I-130 pe tition, the IJ continued the cas e until November 20, 2018. Id. at 85–86. The IJ advised Radhakrishnan, however, “I’m going to need proof that5 she’s filed the I-130, so you need to have a copy of that . . . by th e time of the next court hearing.” Id. at 86. At the sixth hearing before the IJ on November 20, 2018, Radhakrishnan again appeared pro se. Id. at 88. Radhakrishna n requested an additional continuance, stating “that he would be able to have an attorney for his next hearing,” and that his wife, who had not yet given birt h to their son, had been una ble to file the I-130 visa petition. Id. at 36. The IJ denied Radhakrishnan’ s request. In doing so, the IJ noted that Radhakrishnan “ha[d] been granted five continuances in th[e] matter” and that DHS opposed his request fo r a sixth continuance. Id. at 36. The IJ also “note[d] that [Radhakrishnan] ha[d] a serious criminal convic tion . . . for theft.” Id. Lastly, the IJ noted “the speculative nature of having an I-130 approved and having an adjustment status application approved wh ich would require a waiver of a very serious criminal offense for which the [IJ] [wa]s not inclined to grant a waiver.” Id. at 36–37. Consequently, the IJ ordered Ra dhakrishnan “removed to India.” Id. at 37. Radhakrishnan appealed the IJ ’s decision to the BIA. Id. at 43. Radhakrishnan disputed whether he needed a waiver to apply for an I-485 adjustment of status. Id. at 44. He also alleged that hi s wife had been unable, due to her physical condition, to file an I-130 petition. Id. On April 26, 2019, the BIA issued a written decision affirming the IJ’s decision ordering Radhakrishnan’s remova l from the United Stat es to India and dismissing the appeal. Id. at 2. The BIA noted that Radhakrishnan “d[id] not meaningfully dispute that he [wa]s subject to remova l . . . because, after his6 admission to this country as a nonimmigrant student in 2016, he remained for a time longer than permitted.” Id. The BIA further noted that he “ha[d] not applied for any form of relief from removal which c[ould] be granted by an [IJ] or [the BIA].” Id. Lastly, the BIA concluded th at “[g]ood cause did not exis t for a continuance” of the proceedings before the IJ. Id. The BIA noted, in support, that Radhakrishnan “ha[d] not presented any evidence that his spouse ha[d] filed an immigrant visa petition on his behalf,” and it expressed skepticism that, even if Radha krishnan’s spouse did file such a petition, that Radhakrishnan “w[oul d] be able to esta blish eligibility for adjustment of status.” Id. On May 24, 2019, Radhakrishnan filed a petition for review with this court.
II “We review the ruling of the BIA as the agency’s final decision.” Jimenez v. Sessions , 893 F.3d 704, 709 (10th Cir. 2018) . In conducting that review, we generally “review legal issues de novo and fa ctual findings for substantial evidence.” Id. In this case, the BIA’s ruling focu sed solely on whethe r Radhakrishnan should have been afforded another continuance. “[W]e review that decision for an abuse of discretion.” Jimenez-Guzman v. Holder , 642 F.3d 1294, 1297 (10th Cir. 2011). “Only if the decision ‘was made without a rational[] e xplanation, inexplicably departed from established policies, or re sted on an impermissible basis,’ will we grant the petition for review.” Id. (quoting Nunez-Pena v. INS , 956 F.2d 223, 226 (10th Cir. 1992)).7 Radhakrishnan argues in his opening brie f that the BIA erred in concluding “that he requires a waiver” to “file an application for I-485. ” Pet. Br. at 3. More specifically, Radhakrishnan argues that his Colorado state conviction for theft does not constitute a “crime of moral turpitude,” and thus he is, in fact, eligible for cancellation of removal. Id. The problem with Radhakrishnan’s argumen ts, however, is that the BIA never conclusively determined whether he was elig ible for cancellation of removal. Rather, the BIA concluded only that “[ g]ood cause did not exist fo r a continuance.” ROA at 2. In reaching that conclusion, the BIA note d: “To date, more than 8 months after the filing of the Notice to Appear, [Radhakrishna n] has yet to presen t any evidence that his spouse has filed a visa petition on his behalf.” Id. Given “the highly speculative likelihood that, at a future time, [Radhakris hnan’s] spouse w[ould] file an immigrant visa petition on his behalf and, in turn, [that] he w[ould] be able to establish eligibility for adjustment of status,” the BIA concluded that “a further continuance of the[] proceedings [wa]s not warranted.” Id. After examining the record on appeal, we conclude that there was a rational explanation for the BIA’s decision. As was the case when Radhakrishnan’s appeal was pending before the BIA, the record a nd materials now before this court fail to reveal any attempt on the pa rt of Radhakrishnan’s spouse to file a petition on his behalf. Likewise, although Radhakrishnan states in his opening appellate brief that he still intends to file an I-485 petition, he has ye t to do so, even though the proceedings against him have now been ongoi ng for more than a year. Consequently,8 we conclude that the BIA did not abuse its discreti on in denying Radhakrishnan’s request for a continuance. We DENY the petition for review. Petitioner’s motion to proceed in forma pauperis is DENIED.

Entered for the Court
Mary Beck Briscoe Circuit Judge