IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-60186

Summary Calendar

BRIJESH BHADWAL,

Petitioner

v.

ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,

Respondent

Petition for Review of an Order of the

Board of Immigration Appeals

BIA No. A099 293 379

Before KING, CLEMENT, and HIGGINSON, Circuit Judges.

PER CURIAM:*

Brijesh Bhadwal, a native and citizen of India, filed a petition for review

of the decision of the Board of Immigration Appeals (BIA) dismissing his appeal

of the immigration judge’s (IJ) denial of his request for a continuance.

Bhadwal challenges the IJ’s denial of a continuance, arguing that he had

demonstrated good cause for a continuance to seek adjustment of status

following the adjudication of his second wife’s I-130 immigrant visa petition on

his behalf. Bhadwal contends that the IJ erroneously concluded that the current

United States Court of Appeals

Fifth Circuit

F I L E D

January 31, 2013

Lyle W. Cayce

Clerk

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.

 Case: 12-60186 Document: 00512131296 Page: 1 Date Filed: 01/31/2013
No. 12-60186

petition could not be granted based on the determination made on the

adjudication of his first wife’s I-130 immigrant visa petition that the first

marriage was entered into so that Bhadwal could obtain immigration benefits. 

The grant of a motion to continue lies within the sound discretion of the

IJ, who may grant the motion for good cause shown. Witter v. INS, 113 F.3d 549,

555 (5th Cir.1997). We review for an abuse of discretion. See id. There is no

abuse of discretion where the IJ’s or the BIA’s decision is not “capricious, racially

invidious, utterly without foundation in the evidence, or otherwise so

aberrational that it is arbitrary rather than the result of any perceptible rational

approach.” Galvez-Vergara v. Gonzales, 484 F.3d 798, 801 (5th Cir. 2007)

(internal quotations and citation omitted).

When assessing whether a continuance should be granted to await the

final adjudication of a pending visa petition, “the focus of the inquiry is the

apparent ultimate likelihood of success on the adjustment application.” Wu v.

Holder, 571 F.3d 467, 470 (5th Cir.2009) (internal quotation marks and citation

omitted). Further, “[i]f other visa petitions filed on the respondent’s behalf have

been denied, those petitions and the USCIS’s determinations could also be

presented and considered. These prior filings or other evidence of potential

fraud or dilatory tactics may impact the viability of the visa petition underlying

the motion.” Matter of Hashmi, 24 I. & N. Dec. 785, 792 (BIA 2009).

The BIA concluded that the prior marriage fraud determination did not

conclusively establish that Bhadwal’s second wife’s petition on his behalf would

be denied but that it significantly hindered the likelihood of the petition’s

success. The Government’s denial of the first I-130 petition on grounds of

marriage fraud was, therefore, evidence that the pending I-130 petition was not

likely to be approved. See Hashmi, 24 I. & N. Dec. at 792.

Bhadwal has shown no abuse of discretion in the BIA’s dismissal of his

appeal of the IJ’s denial of a continuance. See Witter, 113 F.3d at 555. The

petition for review is DENIED.

2

 Case: 12-60186 Document: 00512131296 Page: 2 Date Filed: 01/31/2013