IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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:*

United States Court of Appeals

Fifth Circuit

F I L E D

August 16, 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.

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No. 12-60909

Fateh Judhani, his wife Nazlin Judhani, and their adult daughter Soniya

Judhani petition for review of the decision of the Board of Immigration Appeals

(“BIA”), which affirmed the denial, by the immigration judge (“IJ”), of a continuance and of their motion to reopen (which was construed as a motion to remand),

and which dismissed their appeal. The petitioners contend, inter alia, that the

BIA’s affirmance of the IJ’s denial 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, depriving

them of due process. Further, the petitioners raise numerous arguments arising

from the BIA’s decision itself denying their motion to remand on the ground that

their claims were not credible. 

“A court may review a final order of removal only if . . . the alien has

exhausted all administrative remedies available to the alien as of right.”

8 U.S.C. § 1252(d)(1). We may sua sponte raise the exhaustion requirement,

because failure to exhaust deprives the court of jurisdiction. See Said v. Gonzales, 488 F.3d 668, 670–71 (5th Cir. 2007); Roy v. Ashcroft, 389 F.3d 132, 137

(5th Cir. 2004). “A remedy is available as of right if (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 must raise an issue in

the first instance before the BIA, either on direct appeal, in a motion to reopen,

or in a motion for reconsideration. See Omari, 562 F.3d at 320; Roy, 389 F.3d

at 137. 

The petitioners raise issues “stemming from the BIA’s act of decisionmaking” that could not have been raised prior to the BIA’s issuance of its decision.

See Omari, 562 F.3d at 319-21; see also Agholor v. Holder, 454 F. App’x 360,

362–63 (5th Cir. 2011); Argueta-Iglesias v. Holder, 448 F. App’x 496, 497 (5th

Cir. 2011). Those arguments challenge the BIA’s affirmance of the IJ’s denial

of a continuance, the legal standard that the BIA applied, and the lack of consid2

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No. 12-60909

eration of the evidence presented in support of their claim of ineffective assistance of counsel and challenge the BIA’s decision denying their motion to

remand. Although the petitioners allege due-process violations, they may not

escape the exhaustion requirement by couching their claims, which could have

been raised in the first instance before the BIA, in terms of due process. See

Goonsuwan v. Ashcroft, 252 F.3d 383, 389-90 (5th Cir. 2001); Roy, 389 F.3d

at 137. 

The petitioners were required to raise the issues in a motion for reconsideration in order to satisfy the exhaustion requirement. See Omari, 562 F.3d at

320. Because they did not present those issues to the BIA, the issues are unexhausted, and we lack jurisdiction to consider those aspects of the petition for

review. See Roy, 389 F.3d at 137. The petitioners filed a motion to reconsider,

but they did not file a separate petition for review from the BIA’s denial of that

motion, so we lack jurisdiction 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 that the BIA abused its discretion

in affirming the IJ’s denial of a continuance because they demonstrated good

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

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

denial of a continuance is reviewed for abuse of discretion. Ali 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 DENIED in part and is DISMISSED

in part for want of jurisdiction.

3

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