* 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this opinion should not be published and is not precedent except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.

United States Court of Appeals

Fifth Circuit

FILED

June 27, 2007

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 05-61071

Summary Calendar

MUHAMMAD SARFRAZ KHAN,

Petitioner,

versus

ALBERTO R. GONZALES, U.S. Attorney General,

Respondent.

--------------------

Petition for Review of an Order of the

Board of Immigration Appeals

BIA No. A79 008 104

--------------------

Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.

PER CURIAM:*

Muhammad Sarfraz Khan (Khan), a native and citizen of

Pakistan, petitions this court for review of an order of the

Board of Immigration Appeals (BIA). In his brief, Khan

challenges the BIA’s affirmance of the immigration judge’s (IJ)

decision and its denial of Khan’s motions for remand and for

reconsideration. Respondent argues that the petition for review

is timely only as to the denial of Khan’s motion for

reconsideration. Because Khan’s petition for review was not
No. 05-61071

-2-

filed within 30 days of the BIA’s affirmance of the IJ’s decision

and denial of the motion for remand, his petition for review must

be dismissed as to those rulings. See 8 U.S.C. § 1252(b)(1);

Karimian-Kaklaki v. INS, 997 F.2d 108, 111 (5th Cir. 1993).

Khan’s petition for review is timely as to the BIA’s denial

of his motion for reconsideration. Khan does not make any

argument concerning the BIA’s finding that it did not commit

factual or legal error in determining that In re Velarde-Pacheco,

23 I. & N. Dec. 253 (BIA 2002), did not apply to employment-based

visa petitions. Accordingly, he has abandoned any challenge to

this aspect of the BIA’s ruling. See Al-Ra’id v. Ingle, 69 F.3d

28, 33 (5th Cir. 1995). 

Khan next argues that the BIA erred in denying him a

continuance pending the adjudication of his wife’s labor

certification. Khan has not shown that he is eligible for

adjustment of status based on an immediately available immigrant

visa. See Ahmed v. Gonzales, 447 F.3d 433, 438-39 (5th Cir.

2006). Thus, a continuance was not warranted. See id. at 439. 

Khan’s contention that the denial of a continuance violated his

due process rights fails because “discretionary relief from

removal, including an application for an adjustment of status,

is not a liberty or property right that requires due process

protection.” Id. at 440. 

Khan failed to raise before the BIA his claim that his

status should be adjusted due to the exceptional circumstance
No. 05-61071

-3-

that his wife’s labor certification request was not approved in a

timely manner. He does not argue that his claim constitutes a

due process violation. As such, this court lacks jurisdiction to

consider the claim. See Wang v. Ashcroft, 260 F.3d 448, 452 (5th

Cir. 2001). 

Khan argues that the National Security Entry-Exit

Registration System (NSEERS) violates principles of equal

protection and due process, and evidence obtained therefrom

should be excluded from removal proceedings. Because Khan did

not specifically challenge the BIA’s decision as to this issue in

his motion for reconsideration, and as the motion for

reconsideration is the sole issue before this court, this court

lacks jurisdiction to review the argument. See Karimian-Kaklaki

v. INS, 997 F.2d 108, 111 (5th Cir. 1993); § 1252(b)(1).

The BIA’s denial of Khan’s motion for reconsideration was

not an abuse of discretion. See Singh v. Gonzales, 436 F.3d 484,

487 (5th Cir. 2006). Accordingly, the petition for review is

denied.

Khan’s motion for remand to the BIA for reconsideration of

his application for adjustment of status is denied, as Khan has

failed to show reasonable grounds for his failure to submit his

new evidence to the BIA. See Miranda-Lores v. INS, 17 F.3d 84,

85 (5th Cir. 1994). His motion for a stay of removal pending

this court’s decision on his petition for review also is denied,
No. 05-61071

-4-

as Khan’s petition for review is unavailing, and he does not

assert that he is scheduled to be removed. 

PETITION FOR REVIEW DISMISSED IN PART, DENIED IN PART;

MOTIONS DENIED.