Not for Publication in West's Federal Reporter 

United States Court of Appeals 

For the First Circuit 

No. 15-1526 

JORGE SENA SILVA, 

Petitioner, 

v. 

LORETTA E. LYNCH, 

Attorney General of the United States, 

Respondent. 

PETITION FOR REVIEW OF AN ORDER OF 

THE BOARD OF IMMIGRATION APPEALS 

Before 

Lynch, Lipez, and Thompson, 

Circuit Judges. 

George Charles Maroun Jr. on brief for petitioner. 

Lindsay M. Murphy, Trial Attorney, Office of Immigration 

Litigation, United States Department of Justice, Benjamin C. 

Mizer, Principal Deputy Assistant Attorney General, Civil 

Division, and Cindy S. Ferrier, Assistant Director, on brief for 

respondent. 

January 28, 2016 
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LYNCH, Circuit Judge. Jorge Sena Silva ("Silva"), a 

native and citizen of Brazil, petitions for review of a final order 

of removal issued by the Board of Immigration Appeals ("BIA") on 

April 1, 2015.1 Silva contends that the BIA erred in affirming 

the Immigration Judge's ("IJ") order because the IJ abused her 

discretion in denying his January 23, 2013, request for a 

continuance after granting many other such requests, and that the 

denial of a continuance violated his due process rights. We deny 

the petition. 

I. 

Jorge Sena Silva entered the United States on a sixmonth tourist visa in February 1998. In 1999, Silva's employer, 

Assembly of God in Boston, filed an I-360 Special Immigrant 

Religious Worker visa petition on Silva's behalf, which was 

approved in 2000 but subsequently revoked in 2003 after Silva's 

attorney at the time, Javier Lopera ("Lopera"), was convicted of 

federal crimes related to the filing of fraudulent visa petitions. 

Silva has maintained that he is a legitimate pastor and a victim 

of Lopera's ineffective assistance of counsel. 

Silva was placed in removal proceedings in July 2004 for 

remaining in the United States longer than permitted, in violation 

 1 Ruth Cardoso Silva, Silva's wife, was a party to the 

appeal in this matter to the BIA, but she is not a petitioner to 

this court in this case. She remains involved as an interested 

party. 
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of 8 U.S.C. § 1227(a)(1)(B).2 At his May 20, 2005, proceeding, 

Silva informed the IJ that he had filed with the United States 

Citizen and Immigration Services ("USCIS"), an agency within the 

Department of Homeland Security ("DHS"), a motion to reopen his 

1999 petition; Silva requested a continuance on the basis that his 

petition remained pending with USCIS. The IJ granted the 

continuance and continued granting continuances for almost five 

years while the motion to reopen appeared to have remained pending 

with USCIS. 

At a May 6, 2010, proceeding, Silva informed the court 

that the motion to reopen still remained pending before USCIS, but 

that in hopes of expediting the immigration process, he had found 

a new employer sponsor and a second I-360 visa petition had been 

filed. World Revival Church had filed an I-360 on his behalf in 

2008. Silva represented that although the second petition had 

been denied, it was then on appeal with USCIS. Because of the 

pending matters, the IJ granted another continuance.3

At his January 23, 2013, proceedings before the IJ, Silva 

acknowledged that the motion to reopen the first petition had been 

 2 Although Silva originally denied his removability, the 

IJ's opinion states that Silva conceded removability, and Silva 

has not challenged the finding on appeal. We therefore assume 

Silva is removable as charged. 

3 Based on confusion around the status of the motion to 

reopen and the pending appeal of the second visa petition, three 

additional continuances were granted between 2010 and 2013. 
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denied as of May 20, 2010, and that the appeal of his second visa 

petition was dismissed in February of 2011. Yet, he again moved 

for a continuance on the basis of a supposed pending motion to 

USCIS to reconsider the denial of the motion to reopen the first 

petition. The IJ concluded that both visa petitions had been fully 

adjudicated, and relying on the several factors endorsed in Matter 

of Rajah, 25 I. & N. Dec. 127 (BIA 2009), did not find a reason to 

permit further delay. The IJ granted Silva voluntary departure 

over the government's objection. 

Silva appealed to the BIA, asserting that it was error 

for the IJ not to review his application for adjustment of status, 

an application which he suggested was either submitted to or raised 

before the IJ.4 On April 1, 2015, the BIA dismissed the appeal, 

finding that the IJ did not err in not allowing the continuance, 

as Silva was ineligible for adjustment of status and had not 

 4 Pursuant to 8 U.S.C. § 1255(a), "the Attorney General 

[has the discretion to] adjust an alien's status to that of a 

lawful permanent resident," Mele v. Lynch, 798 F.3d 30, 32 (1st 

Cir. 2015), "if (1) the alien makes an application for such 

adjustment, (2) the alien is eligible to receive an immigrant visa 

and is admissible to the United States for permanent residence, 

and (3) an immigrant visa is immediately available to him at the 

time his application is filed." 8 U.S.C. § 1255(a). 

Silva's briefing before the BIA asserted that he was 

appealing the IJ's denial of his request "to adjudicate his I-485 

Application for Adjustment of Status previously denied by USCIS 

due to the fraudulent activity of the attorney who handled the 

I-360 Special Immigrant Religious Worker and Adjustment 

applications filed by respondent and his family." 
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requested that relief before the IJ. The BIA issued a final 

removal order allowing Silva to depart voluntarily. This petition 

for review followed. 

II. 

Before us, Silva contends that the IJ should have granted 

a continuance and that failing to do so violated his due process 

rights.5 When the BIA affirms a decision of an IJ but discusses 

the reasoning of the IJ's opinion, our review examines both 

opinions. See Weng v. Holder, 593 F.3d 66, 71 (1st Cir. 2010). 

We review the denial of a continuance in Silva's case 

for abuse of discretion. Sheikh v. Holder, 696 F.3d 147, 149 (1st 

Cir. 2012). Federal regulations permit an immigration judge to 

grant a motion for a continuance for good cause. 8 C.F.R. 

§ 1003.29. The BIA has previously set forth several factors to 

guide an IJ's analysis of whether there is "good cause," and while 

 5 Our review is limited to Silva's final order of removal. 

The revocation of Silva's first I-360 visa petition and denial of 

his second did not occur within the context of his removal 

proceedings in front of the IJ. Review of those petitions was 

never sought before the IJ, and they are not properly before this 

court. See 8 U.S.C. § 1252(d)(1). 

 In his brief, Silva makes a "prosecutorial discretion 

request" that the "respondent grant and exercise prosecutorial 

discretion to cancel, administratively close or otherwise 

terminate all removal proceedings as to petitioner." This does 

not appear to be an argument for this court's consideration, but 

a request directed at the government, one that Silva is free to 

pursue with the government prior to his departure. Regardless, 

Silva made no such argument before the BIA, and so we lack 

jurisdiction to consider the argument now. See Lopez-Reyes v. 

Gonzales, 496 F.3d 20, 22-23 (1st Cir. 2007). 
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"the focus of the inquiry is the likelihood that the adjustment 

application will be granted," Matter of Hashmi, 24 I. & N. Dec. 

785, 790 (BIA 2009), there are a number of other considerations, 

including: 

1) the [government's] response to the motion; 

2) whether the underlying visa petition is 

prima facie approvable; 3) the [alien's] 

statutory eligibility for adjustment of 

status; 4) whether the . . . application for 

adjustment merits a favorable exercise of 

discretion; and 5) the reason for the 

continuance and other procedural matters. 

Sheikh, 696 F.3d at 149–50 (alterations in original) (quoting 

Matter of Hashmi, 241 I. & N. Dec. at 790); see Matter of Rajah, 

25 I. & N. Dec. at 130, 135–36. 

Denying Silva a continuance was not an abuse of 

discretion under the standards adopted in Matter of Rajah. Silva's 

visa petitions had been revoked and denied; he was statutorily 

ineligible for adjustment of status because he lacked an 

immediately available visa, see 8 U.S.C. § 1255(a); and the 

government was opposed to his request. The IJ acted well within 

her discretion in finding that Silva's supposedly pending motion 

to USCIS to reconsider the denial of his motion to reopen one of 

his failed I-360 visa petitions did not justify further delay. 

Silva also argues that "the denied continuance deprived 

him of a fair hearing and, thus, transgressed his right to due 

process." Giving Silva the benefit of the doubt that this argument 
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is even properly before us, his due process claim is untenable. 

The court was more than fair to Silva, granting continuance after 

continuance over the course of some seven years, even after the 

government confirmed that Silva's first and second petitions had 

been revoked and denied, respectively. Apart from an oblique 

reference to the merits of his adjustment of status application, 

an application which was not before the IJ or the BIA and is not 

before this court, Silva's only contention is that "[t]he denied 

continuance somehow produced a fundamentally unfair hearing." 

Neither his I-360 petitions nor a request for an adjustment of 

status was before the IJ, Silva received his requested relief of 

voluntary departure, and Silva failed to show unfairness. We find 

no violation of due process. 

III. 

The petition for review is denied.