13-691-ag Agyekum-Boateng v. Holder BIA Straus, IJ A096 657 041 UNITED STATES COURT OF APPEALS FOR THE SECO ND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT = S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DA TABASE (WITH THE NOTATION A SUMMARY ORDER @ ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the 1 Thurgood Marshall United States Co urthouse, 40 Foley Square, in the City of New York, on the 2 13 th day of March, two thousand fourteen. 3 4 PRESENT: REENA RAGGI, 5 DENNY CHIN, 6 SUSAN L. CARNEY, 7 Circuit Judges

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-------------------------------------- --------------------- 9 EBENEZER YAW AGYEKUM-BOATENG, 10 Petitioner , 11 12 v. No. 13-691-ag 13 14 ERIC H. HOLDER, JR., UNITED STATES 15 ATTORNEY GENERAL, 16 Respondent

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-------------------------------------- --------------------- 18 FOR PETITIONER: Gregory C. Osakwe, Hartford, Connecticut. 19 20 FOR RESPONDENT: Stuart F. Delery, A ssistant Attorney General; Luis E. 21 Perez, Senior Litigation Counsel; Gary J. Newkirk, 22 Trial Attorney, Office of Immigration Litigation, U.S. 23 Department of Justice, Washington, D.C. 242 UPON DUE CONSIDERATION of this pe tition for review of a Board of 1 Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, AND 2 DECREED that the petition for review is DENIED. 3 Petitioner Ebenezer Yaw Agyekum -Boateng, a native and citizen of Ghana, seeks 4 review of a February 8, 2 013 decision of the BIA affirm ing the September 6, 2011 5 decision of Immigration Judge (“IJ”) Mich ael W. Straus, denying a continuance and 6 ordering removal. See In re Ebenezer Yaw Agyekum-Boateng, No. A096 657 041 7 (B.I.A. Feb. 8, 2013), aff’g No. A096 657 04 1 (Immig. Ct. Hartford., Conn. Sept. 6, 8 2011). We assume the parties’ familiarity with the underlying facts and procedural 9 history in this case. 10 Under the circumstances of this case, we have reviewed both the IJ’s and the 11 BIA’s opinions “for the sake of complete ness.” Zaman v. Muka sey, 514 F.3d 233, 237 12 (2d Cir. 2008) (quoting Wangchuck v. DHS, 44 8 F.3d 524, 528 (2d Cir. 2006)). The IJ’s 13 denial of a request for a continuance is revi ewed “under a highly deferential standard of 14 abuse of discretion.” Morgan v. Gonzales, 445 F.3d 549, 551 (2d Cir. 2006) (“IJs are 15 accorded wide latitude in calendar manage ment, and we will not micromanage their 16 scheduling decisions any more than when we re view such decisions by district judges.”). 17 The agency did not abuse its discre tion in denying Agyekum-Boateng a 18

continuance as it considered the fa ctors set forth in Matter of Hashmi , 24 I. & N. Dec. 19 785, 790 (BIA 2009). It correctly conc luded that: (1) the government opposed the 20 request for a continuance, (2) the underlying visa petition was not prima fa cie approvable 21 because the U.S. Citizenship and Immigration Services (“US CIS”) had denied the visa 223 petition, and that denial was upheld on appeal, (3) Agyekum-Bo ateng would only be 1 statutorily eligible to adjust status if the visa petition had been approved, and 2 (4) Agyekum-Boateng’s proceedi ngs had been contin ued for almost two years while the 3 visa petition was pending. Se e Morgan v. Gonzales, 445 F. 3d at 552 ( holding that 4 because petitioner was ineligible for adjustment of status at time of hearing, IJ did not 5 abuse discretion by denying c ontinuance while petitioner atte mpted to become eligible 6 via second I-130 petition stemming from marriage that had been determined to lack bona 7 fides); see also Elbahja v. Keisler, 505 F. 3d 125, 129 (2d Cir. 2007) (holding that IJ did 8 not abuse discretion in denyin g continuance where petitioner’s eligibility for adjustment 9 of status based on pending labor certif ication was “speculative at best”). 10

The issue of whether a continuance is warranted pending Agyekum-Boateng’s 11 appeal in the district court is not properly before us. See Lin Zhong v. U.S. Dep’t of 12 Justice, 480 F.3d 104, 119– 20 (2d Cir. 2007). Regardless, the district court’s 13

consideration of the denial of his wife’s visa petition woul d not alter the decision below 14

because it remains that both the USCIS and th e BIA have denied th at petition, indicating 15 that it is not prima facie approvable. We note that Ag yekum-Boateng may nevertheless 16 request from the USCIS a stay of removal pe nding the district court’s decision. See 17 8 C.F.R. § 1241.6; cf. Felzcerek v. INS, 75 F.3d 112, 118 (2d Cir. 1996) (denying 18 petitioner’s request to stay proceedings for BIA to review his pe nding motion to reopen 19 where he could have sought stay from agency). 20

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224 For the foregoing reasons, the petition for review is DENIED. 1

FOR THE COURT: 2 Catherine O’Hagan Wolfe, Clerk of Court 3 4