### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-60909 Summary Calendar

FATEH ALI JUDHANI; NAZLIN JUDHANI; SONIYA FATEH ALI JUDHANI, Petitioners,

versus ERIC H. HOLDER, JR., U.S. Attorney General, Respondent.

Petition for Review of an Order of the Board of Immigration Appeals No. A 097 941 195 No. A 097 941 96 No. A 097 941 197

Before JOLLY, SMITH, and CLEMENT, Circuit Judges. PER CURIAM: * U n i t e d S t a te s C o u rt o f A p p e al s F i f t h C i rc u i t 

### F I L E D Aug ust 16, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R

. 47. 5, the court has d eterm ined that this op inion should not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 12-60909 Document: 00512343727 Page: 1 Date Filed: 08/16/2013No. 12-60909

Fateh Judhani, his w ife Nazlin Judhani, and their adult d a ughter Soniya Judhani petition for r eview of the decision of the Board o f Immigration Appeals (“BIA”), w hich a ffirmed the denial, by the immigration judge (“IJ”), of a continuance and of their motion to reopen (which was c onstrued as a m otion to remand), and w hich dismissed their appeal. The petitioners contend, inter alia , that the BIA’s a ffirmance of the IJ’s d enial of a continuance should be reversed, because the decision applied the incorrect legal standard and failed to consider the evidence in support of their claim of ineffective assistance of counsel , d e p r i v ing them of due process. Further, the petitioners raise numerous arguments arising from the BIA’s decision itself denying their m otion to remand on the ground that their claims were not credible. “A court may r eview a final order of removal only i f

. . . t h e alien has exhaus t e d a l l administrative remedies available to the alien a s of right.” 8 U. S

. C

. § 1252(d)(1). W e may sua sponte raise the exhaustion requirement, because failure to exhaust d eprive s t h e court of jurisdiction. See Said v. Gonzales , 488 F.3d 668, 670–71 (5th Cir. 20 0 7 ) ; Roy v. Ashcroft , 389 F.3d 1 32, 137 (5th Cir. 2004). “A remedy is available as of right i f (1) the petitioner could have argued the claim before the BIA, and (2) the BIA has adequate mechanisms to address and remedy such a claim.” Omari v. Holder , 562 F.3d 314, 318–19 (5th Cir. 2009). To exhaust administrative remedies, an alien m ust r aise an issue in the f irst instance before the BIA, either on direct appeal, in a motion to reopen,

or in a m o t i o n f

or reconsideration. See Omari , 562 F.3d a t 320; Roy, 389 F.3d at 137. The petitioners raise issues “stemming from t he BIA’s act of decisionmaking” that could not have been raised prior to the BIA’s issuance of its decision. See O m a ri , 562 F.3d at 319-21; see also Agholor v. Holder , 454 F

. App’x 360, 362–63 (5th Cir. 2011); A rgueta-Iglesias v . Holder , 448 F. App’x 496, 497 (5th Cir. 2 011). Those arguments challenge the BIA’s affirmance of the IJ’s denial of a continuance, the legal standard that the BIA applied, and t he lack of consid2 Case: 12-60909 Document: 00512343727 Page: 2 Date Filed: 08/16/2013No. 12-60909

eration of the evidence pre s e n t e d in support of their claim of ineffective assistance of counsel and challenge the BIA’s d ecision denying their m otion to remand. Al t h o u gh the petitioners allege due-process violations, they may not escape the exhaustion requirement by couching t h eir claims, which could have been r aised in the first i nstance before the BIA, in terms of due p rocess. See Goonsuwan v. Ashcroft , 2 52 F.3d 383, 3 89-90 (5th Cir. 2001) ; R o y , 3 8 9 F.3d at 137. The petitioners were required to raise the issues i n a motion for reconsideration in order to satisfy the exhaustion r equirement. See Omari , 562 F.3d at 320. Because they did not present those issues to the BIA, the issues are unexhausted, and we lac k jurisdiction to consider those aspects of t h e petition for review. See Roy, 389 F.3d at 137. The petitioners f iled a m otion t o reconsider, but t hey did not file a separate petition for review from the BIA’s denial of that motion, so we l ack j urisdiction to consider that motion. See Guevara v. Gonzales, 450 F.3d 173, 176 (5th Cir. 2006); Stone v. INS, 514 U.S. 386, 405 (1995). To the extent that the petitioners argue t hat the BIA abused its discretion in affirmi n g the IJ’s denial of a continuance because they demonstrated good

cause for a continuance, we have jurisdiction to r e view the denial of a motion for continuance. See A h m e d v. G onzales , 447 F.3d 433, 437 (5th Cir. 2006). The denial of a continuance is reviewed f or abuse of discretion. A li v. Gonzales , 440 F.3d 678, 680 (5th Cir. 2006). “An IJ may grant a motion for continuance only ‘for good cause shown.’” Id. (quoting 8 C.F.R. § 1003.29). The petitioners’ speculative and conclusional assertions do not meet that standard. Accordingly, the petition for review is D E NIED in part and is DISMISSED in part for want of jurisdiction.

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