### IN THE UNI TED STATES COURT OFAPPEALS FOR THE FIF TH 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 contin u a n ce 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 U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Janu ary31 , 20 13 Lyle W . Cayce Clerk

Purs uant to 5 TH C IR

. R. 47.5 , the court hasd ete rm inedthat thisop inion sho uld not * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 TH C IR

. R. 47.5 .4. Case: 12-60186 Document: 00512131296 Page: 1 Date Filed: 01/31/2013No. 12-60186

petition could not be granted based on the determination made on the adjudication of his first wife’s I-130 immigr ant 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 discre ti o n o f 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 disc r e tion. See id

. There is no abuse of discretion where the IJ’s or the BIA’s decision is not “capricious, racially i nvi dious, utterly without foundation in the evidence, or otherwise s o aberrational that it is arbitrary rather than the result of any perceptible rational approach.” Galvez-Vergara v. Gonzales , 484 F.3d 798, 801 ( 5 th Cir. 2007) (internal quotations and citation omitted). When assess i n g whether a continuance should be granted to await the final adjudi c ati o n o f 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 a n d the USCIS’s determinations could also be presented and considered. These prior filings or other evidence of p o t e nti al 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 B IA 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 h i n d e r e d the likelihood of the petition’s

s u c cess. The Government’s denial of the first I-130 petition on groun d s o f 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 i n the BIA’s dismissal of his

a p p e al o f 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