* 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should not be published and is not precedent except under the limited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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-60873

Summary Calendar

ZHONG WEI SUN

Petitioner

v.

MICHAEL B MUKASEY, U S ATTORNEY GENERAL

Respondent

Petition for Review of an Order of the

Board of Immigration Appeals

BIA No. A95 607 161

Before WIENER, CLEMENT, and PRADO, Circuit Judges.

PER CURIAM:*

Petitioner Zhong Wei Sun, a native and citizen of the People’s Republic of

China, petitions this court to review the Board of Immigration’s (BIA) order

affirming the Immigration Judge’s (IJ) decision denying his motion for

continuance, finding him removable, and granting voluntary departure.

Sun argues that the IJ abused his discretion in denying a continuance for

adjudication of his pending labor certification. He also argues that he was

deprived of due process based on the IJ’s denial of a continuance after his labor

United States Court of Appeals

Fifth Circuit

F I L E D

December 29, 2008

Charles R. Fulbruge III

Clerk
No. 07-60873

2

certification was approved and his visa petition was denied but was still pending

final consideration on appeal.

“The grant of a continuance lies within the sound discretion of the IJ, who

may grant a continuance for good cause shown.” Masih v. Mukasey, 536 F.3d

370, 373 (5th Cir. 2008); see also 8 C.F.R. § 1003.29. Although the decision is

discretionary, we have jurisdiction to review the denial of a motion for a

continuance. Ahmed v. Gonzales, 447 F.3d 433, 437 (5th Cir. 2006). We review

a decision to grant or deny a continuance for an abuse of discretion. Masih, 536

F.3d at 373. Because the BIA affirmed the IJ without opinion, we review the IJ’s

decision. See Ali v. Gonzales, 440 F.3d 678, 680 (5th Cir. 2006).

Sun’s labor certification was approved, but his visa petition was denied.

At the time of his last hearing when he sought his tenth continuance, Sun was

not eligible for the discretionary relief of adjustment of status under 8 U.S.C.

§ 1255(i). See Ahmed, 447 F.3d at 438 & n.3 (visa petition must be approved to

be eligible for relief under § 1255(i)); see also Masih, 536 F.3d at 374 (To be

eligible for adjustment of status, alien needs labor certification and visa petition

approved and a visa must be immediately available.). The IJ granted nine

continuances and allowed Sun nearly three years to pursue his adjustment of

status until Sun’s visa petition was ultimately denied. When Sun’s visa petition

was denied, the IJ concluded that proceedings needed to go forward and that

good cause was no longer present to justify yet another continuance. The IJ did

not abuse his discretion in denying a continuance because Sun lacked good

cause, given his ineligibility for removal relief. See Ahmed, 447 F.3d at 439.

Sun also contends that he was “deprived of due process when the

Immigration Judge declined a short continuance.” Sun did not make this due

process argument before the BIA in his Notice of Appeal, asserting only that the

immigration judge abused his discretion. Sun has not exhausted his

administrative remedies regarding this due process argument, and we lack
No. 07-60873

3

jurisdiction to consider the issue on appeal. See Wang v. Ashcroft, 260 F.3d 448,

452-53 (5th Cir. 2001).

The petition for review is DENIED.