* Pursuant to Federal Rule of Appellate Procedure 43( c)(2), Acting Attorney General Peter D. Keisler

is automat

ically substitute d for for

mer Attor ney Genera l Alberto R. Gonzale s.

** The Honorable John

R. Gibson, U

nited State s Court of A

ppeals f or the Eig hth Circui

t, sitting by desig

nation. -1- 06-3172-ag Osorio-Pedreros v. Gonzales

UNITED STATE S COURT OF APPEA LS 1 2 FOR THE SEC OND CIRC UIT 3 4 5 6 August Term, 2006 7 8 (Submitted: June 14, 2007 Decided: October 3, 2007) 9 10 Docket No. 06-3172-ag 11 12 13 14 15 16 CARLO S-HUMBERTO OSARIO PEDREROS, 17 18 Petitioner , 19 20 – v. – 21 22 PETER D. KEISL ER, * ATT ORN EY G ENE RAL, 23 24 Respondent

. 25 26 27 28 29 30 Before: LEV

AL, CAL ABRESI, and GI

BSON, ** Circuit Judges

. 31 32 Petition for revie w of a de cision of

the Boa rd of I mmigrat ion Appea

ls’ refu sal to gr

ant a 33 continuance of Petitioner’s removal proceeding s pending an appeal to the BI A of the District 34 Director’s denial of an I -130 immigrant visa petition filed on Petitioner’s behalf. The petition for 35-2-

review is DENIED. 1 2 3 LI LA SLJI VAR, Wilens & Baker, New York, N.Y., for 4 Petitione r. 5 6 KE VIN M. MU LC AH Y, As si st an t U ni te d S ta te s A tt or ne y, 7 for Stephen J. Murphy, United States Attorney for the 8 Eastern District of Michigan, Detroit, Mich., for 9 Respondent

. 10 11 12 13 14 PER CURI

AM: 15 Petitioner Carlos Humberto Osorio-Pedreros (“petitioner” or “O sorio-Pedreros”), a native 16 and citizen of Colombia, petitions for review of the BI A’s and IJ’s refusal to gr

ant a continuance 17 of h is rem ova l p roc eed in gs p end in g an app eal to th e BIA of t he D is tri ct D ire cto r’s den ial of a n I18 130 immigrant visa petition filed on Osorio-Pedreros’ behalf. The B IA concluded that the 19 petitioner offered no meaningful ar gument as to his likelihood of success on appeal of the denial 20 of the I -130 peti

tion and, on this basis , affirmed the I J’s decision. As the B IA was within i ts 21 discretion in denying the continuance on this ground, the petition for review is denied. 22
23
BACKGROUND 24 Osorio-Pedreros entered the United States without inspection in 1985 and was order ed 25 deported in abstentia in 1986. The petitioner never left the country, and in 1997, he married an 26 America

n citizen. S hortly

thereafter Osorio-Pedr

eros’s w ife file d an I -130 immig

rant visa 27 petition on his behalf, and Osorio-Pedreros concurrently filed an application to adjust his status 28 to lawful permanent resident based on his marriag e to an American citizen. 291 The IJ also denied voluntary departure, a decision which the petitioner has not appea led. -3- While these

applica tions wer e pending , Osorio- Pedrero s filed suc cessful motions to 1

reo pen th e de por tat io n pr oce edi ngs aga in st hi m an d t o t ran sfe r th e pr oce edi ngs to New Yor k. In 2 the reopened proceedings, Osor io-Pedreros conceded deportability, and sought no relief except 3 adjustment of status pursuant to 8 U.S.C. § 1255(i) and, in the alternative, voluntary departure. 4 The IJ continued the removal procee dings on multiple occasions over two y ears in order to give 5 the immigration authorities an opportunity to a djudicate the I-130 petition. 6 In September 2004, the Citizenship and I mmigration Services District Director denied the 7 immigrant visa petition filed on Osorio-Pedreros’ behalf. The District Dire ctor concluded that 8 Osorio-Pe dreros a nd his wife

had not pr

ovided suf

ficient e vidence to establi sh that the

re was a 9 bona fide marriage and that discrepanc ies in the couple’s answers during the Stokes interview 10 made the bona fides of their marriage “doubtful.” Osorio- Pedreros timely appe aled this decision 11 to the BIA (the “I-130 appeal”). 12 Subsequently the I J declined to continue the removal proceedings and order ed the 13 petitioner deported. 1 The IJ explained that while t he removal proce edings were pro perly 14 continue d while the I-13 0 petition was pendin g in front of the D istrict Di rector , he belie

ved it 15 was inappropriate to adjourn the removal procee dings once the District Director had denied the 16 petition even though Osorio-Pedreros was appea ling that decision to the BIA. 17 Osorio-Pedreros appealed the I J’s decision to the BIA (the “continuanc e appeal”). Before 18 considering the separately filed I-130 appeal, the B IA affirmed the I J’s decision, finding that the 19 conclusion that there was no good cause for a continuance was “fully supported by the re cord and 20 in conformity with ge neral principles of discretion.” The BI A, however, did not base its holding 21-4-

solely on the Dist

rict Dire ctor’s d

enial of the I -130 peti

tion. Rathe

r, the B IA a

lso relie d on its 1 finding that while Osorio-Pedreros had made conc lusory alleg ations that the District Director’s 2 report contained errors, he had not prese nted “any e

vidence” challenging the

District Director’s 3 analysis and deta

iled summary of the Stokes intervie w and thus

had “fa iled to sup

port his 4 assertion that the adverse finding was incorr ect in any substantial wa

y.” 5 Osorio-Pedreros timely f iled a petition for review. 6 7 8 DISCUSSION 9 10 Under the immigration regulations, an I J may grant a motion for a “reasonable” 11 adjournme

nt, or a con tinua nce, for “ good

caus e shown.”

8 C.F .R. §§ 1003. 29, 12 40.45 . We 12 review the agency ’s denial of a continuance for abuse of disc retion. Sanusi v. Gonzales , 445 13 F.3d 193, 199 (2d Cir . 2006) (p er curi am); see also Morgan v. Gonzales , 445 F.3d 549, 551-552 14 (2d Cir. 2006) . An IJ abuses his discreti on in deny

ing a co ntinuanc e if “‘( 1) [his] dec ision rest s 15 on an error of law (such as application of the wrong legal principle) or a clearly e rroneous factual 16 finding

or (2) [his ] decision -

though n ot neces sarily

the produ

ct of a le gal er

ror or a clearly 17 erroneous factual finding - ca nnot be located within the range of permissible decisions.’” 18 Morgan , 445 F.3d at 551 -52 (q uoti ng Zervos v. Verizon New York, Inc ., 252 F.3d 163, 169 (2d 19 Cir. 2001)) (alterations in original). 20 Under 8 U.S.C. § 1255(i), an alien who entered the United States without inspection may 21 apply

to the Attorney

Genera l for the a djustment o f his statu s to that of “an alie n lawfull y 22 admitted for permanent residence” if he is the beneficiary

of an immigrant visa petition filed on 23 his behalf before April 30, 2001. Id. 24-5-

It is a matter of long-st anding and expre ss BI

A policy that, as a gener al matter, an alie

n is 1

ent it led to a co nt in uan ce o f re mo val pro cee di ngs aga in st hi m wh il e a “ pri ma f aci e ap pro vab le” I2 130 immigrant visa petition is pending in front of the District Director. In re Gar cia , 16 I & N 3
Dec. 653 , 656-7 (B IA 19 78); see also H assan v. I NS , 110 F.3d 490, 492-493 (7th Cir. 1997) 4 (“[A]n alie

n is gene rally entitled t o the favorable e

xercise o f an IJ's discr

etion re gardin

g a req uest 5 for a continuanc e where the Distr ict Dire ctor has

not yet adjudi cated a

prima fa cie appr ovable 6 visa petition and adjustment of status application.”); Bull v. INS , 790 F.2d 869, 872 (11th. Cir. 7 1986) (holding that “the fact that [a] petition for an immigrant visa had not y et been approved at 8 the time that [the pet itioner] r equeste d a contin

uance [is ] not, in and

of itself , suffic ient rea son to 9 deny the continuanc e.”). The instant case is not, however, directly covered by

the Garcia policy 10 as Osorio-Pedreros’ petition is no longer pending in fr ont of the District Director. 11 Nor is our holding in Morgan , 445 F.3d 549, controlling in the factual circumstance s of 12 the instant case. In Morgan , we held that the IJ did not abuse his discretion when he denie d a 13 continuance pending the adjudication of a petitioner’ s second I-130 petition before the District 14 Director, given that the petitioner’s first I -130 petition, based on a marriage to the same woma n, 15 had already

been denied for lack of bona fides

. Id. at 552. In Morgan , the petitioner had not 16 appealed the denial of the first I -130 petition, and thus the District Director’s determination that 17 the marriage lacked bona fides was the ultimate determination of the issue. In the instant case, 18 the agency

as a whole has made no equivalent final determination of the bona fides of the 19 petitioner’s marriage: the District Director’ s initial determination is still actively pending revie w 20 by the BI

A. 212 In front of the BI A, Osorio-Pedreros argued that his ability to point out the errors in the District Director’s decision was hindered by the agency ’s failure to provide transcripts of the Stokes interview despite his request for them. We need not consider here , however, whether the agency ’s failure to provide transcripts of the Stokes intervie w should excuse Osor

io-Pedre ros’ lack of argument because O sorio-Pedreros has not renewed this line of arg ument to us. Accordingly , it has been abandoned . Yueqing Zhang v. Gonzales , 426 F.3d 540, 542 n.1 (2d Cir. 2005). I n any event, the BI

A was pro

bably correct that the d

etailed s ummary of the inte

rview to which Osorio-Pedreros did have access should have enabled the petitioner to at least make some arguments as to why

the Director’s conclusion was erroneous. -6- We are thus faced with a question of first impression in this Circuit—whether the ag ency 1 abuses its discretion in not granting a continuance w hen a petitioner’s I-130 pe tition has been 2 denied by the District Dire ctor but an appeal of that decision is still pending in front of the BI A. 3 We need not, howeve r, decid e the per haps diff icult que stion of whether in such a ci rcumstan ce it 4 would be an abuse of discretion to deny a continuance on the sole ground that the District 5 Director had denied the petition, given the possibility that the BIA may

overturn the District 6 Director’s decision. Here, the BI A clearly grounded its holding not only on the fact that the 7 District Director had denied the I -130 petition, but also on its finding, fully supported by the 8 record, that Osorio-Pedreros had failed to provide any meaning ful arg ument or e

vidence as to 9 why

the Distr ict Dire ctor’s d

ecision was erroneous. 2 And when the BIA bases its ruling on 10 grounds different than the I J, we review the opinion of the BIA. Yan Chen v. Gonzales , 417 F.3d 11 268, 271 (2d Cir. 2005). 12 The agency ’s refusal to grant a continuance was not an abuse of discretion. Under the 13 BIA’s policy

, the mandated granting of continuanc es is limited to situations in which the pending 14 immigra

tion visa is

“ prima faci

e approvable.” In re Gar

cia , 16 I & N Dec . at 656-57. 15 Additionally, the BI A has stated that “[i]t clearly would not be an a buse of discretion for the 16 immigra

tion judg e to summar

ily d eny a reque st for a c ontinuanc e or a mot ion to reo pen upon h

is 17-7-

determination that the visa petition is frivolous or that the adjustment application would be 1 denied on statutory g rounds or in the exercise of discretion notwithstanding the approval of the 2 petition.” Id. 3 As other circuits have concluded, we find no basis for obligating the agency to grant 4 continua

nces pen ding ad judication of an immi grant v isa petiti on when there is a reliable basis to 5 conclude that the visa petition or the adjustment of status will ultimately be de nied. See, e.g. , 6 Oluyemi

v. INS , 902 F.2d 1032, 1033 (1st Cir. 1990) (holding that there was “nothing unla wful 7 about the immigration judge’s decision not to permit the petitioner to stay in this country pending 8 the outcome of his w ife’s vis a reque st” when

the “like lihood tha

t the I NS will gr

ant that r equest 9 is ver y small” gi ven th at the petit ioner was pr obabl y preclude d unde r the s tatut e from obtai ning a 10 visa); Bull , 790 F.2d at 872 (“[The] denial of the request for a continuance based upon the 11 conclusi on that B ull’s gu ilty plea ma[de ] him statutor ily i neligib le for a

djustment o f status would 12 not be an abuse of discretion were that conclusion cor rect.”). 13 While Osorio-Pedreros’ marriage to an Amer ican citizen may well have been sufficient 14 initially to establish a prima facie case of eligibility for a visa petition and therefore for 15 adjustment of status, once the District Director denied the petition on the grounds tha t the 16 marriage lacked bona fides , that prima facie case had been rebutted. And in the absenc e of some 17 evidence or argument by Osorio-Pedreros as to why the District Director’s decision was 18 incorrect, the agency had no basis to conclude that the denial of the I -130 petition had any 193 Osorio-Pe dreros has also f ailed to ma

ke any showing to this cou

rt that wo uld substantiate his claim that the District Director’s decision was in error. Nor is a ny error obvious on the face of the District Director’s opinion. -8- likelihood

of being overtur ned on ap peal. 3 Accord

ingly, we can

not say the BI A abused its 1 discretion in upholding the IJ’s denial of a furthe r continuance in the case before us. 2 Petitioner also argues to this Court that the BI A erred in failing to adjudicate the sepa rate, 3 but co-pending I- 130 appeal prior to deciding the continuance a ppeal that is the subject of the 4 instant petition for review. We decline to reach this issue here, howeve r, as it was not raised 5 before the agency. At no time did Osorio-Pedreros request that the BI A consolidate the two 6 cases, nor did he argue to the B IA that it should decide the I -130 appeal before considering the 7 appeal of the denial of the continuance. Ac cordingly , the issue is waived. See Lin Zhong v. U.S. 8 Dep’t of Justice , 480 F.3d 104, 123 (2d Cir. 2007), reh'g denied 489 F.3d 126, 127 (2d Cir. 9 2007). 10 For the foregoing r easons, the petition for review is DENI ED. Having completed our 11 review, any

stay of remova

l that the Court previously gr anted in this petition is VACATED, and 12
any

pending motion for

a stay of removal in this pe

tition is DI SMISSED

as moot. 13