NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 13-1410

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BHIKHABHAI S. PATEL,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A088-680-340)

Immigration Judge: Honorable Steven Morley

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Submitted Pursuant to Third Circuit LAR 34.1(a)

July 3, 2013

Before: FUENTES, HARDIMAN and VAN ANTWERPEN, Circuit Judges

(Opinion filed: July 10, 2013)

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OPINION

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PER CURIAM

Bhikhabhai Patel seeks review of a final order of the Board of Immigration 

Appeals (“BIA”). For the following reasons, we will deny the petition for review.
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Patel, a citizen of India, arrived in the United States sometime in 2002 or 2003. In 

2010, removal proceedings were initiated against him pursuant to INA § 212(a)(6)(A)(i),

8 U.S.C. § 1182(a)(6)(A)(i), as an alien present in the United States without being 

admitted or paroled. In September 2011, Patel, through counsel, conceded to the 

Immigration Judge (“IJ”) that he was removable and not eligible for cancellation, 

adjustment of status, or asylum. However, he moved for a continuance based on a June 

2011 policy memorandum by ICE Director John Morton (“Morton Memo”), which 

provides “guidance on the exercise of prosecutorial discretion to ensure that the agency‟s 

immigration enforcement resources are focused on the agency‟s enforcement priorities.” 

Patel argued that he should be granted a continuance to await implementation of the 

policy and determine whether it entitled him to some form of relief. The IJ denied Patel‟s 

motion, finding his argument regarding potential relief pursuant to the Morton Memo too 

speculative, and ordered him removed to India. Patel appealed, arguing that the IJ abused 

his discretion in denying a continuance. The BIA dismissed the appeal, finding no abuse 

of discretion. Patel thereafter filed a timely, counseled petition for review in this Court. 

We have jurisdiction under INA § 242(a)(1), 8 U.S.C. § 1252(a)(1). An IJ may 

“grant a motion for continuance for good cause shown.” 8 C.F.R. § 1003.29. An IJ‟s 

refusal to grant a continuance is reviewed for abuse of discretion, Khan v. Att‟y Gen., 

448 F.3d 226, 233 (3d Cir. 2006), and will be overturned only if the decision is arbitrary, 

irrational, or contrary to law, see Hashmi v. Att‟y Gen., 531 F.3d 256, 259 (3d Cir. 2008). 

“The question whether denial of a continuance in an immigration proceeding constitutes 

an abuse of discretion cannot be decided through the application of bright-line rules; it 
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must be resolved on a case by case basis according to the facts and circumstances of each 

case.” Ponce-Leiva v. Ashcroft, 331 F.3d 369, 377 (3d Cir. 2003) (internal quotation

marks and citation omitted).

We agree with the BIA that the denial of Patel‟s motion for a continuance was not 

an abuse of the IJ‟s discretion. Patel‟s argument regarding potential relief pursuant to the 

Morton Memo was speculative and could have led to an indefinite delay in the 

proceedings. See Contreras v. Att‟y Gen., 665 F.3d 578, 587 (3d Cir. 2012) (“An IJ has 

no obligation to grant a continuance that would be essentially „indefinite‟ if there is „only 

the speculative possibility that at some point in the future‟ the alien‟s labor certification 

application will be approved.”) (quoting Khan, 448 F.3d at 235). Although Patel asserts 

that he had “a very fair chance of prosecutorial discretion,” he provided no facts or 

evidence in support of that assertion. He also failed to explain why a continuance of the 

removal proceedings was necessary to obtain the benefit of ICE‟s new internal policies 

regarding the exercise of prosecutorial discretion. See Memorandum from John Morton, 

Dir., U.S. Immigration & Customs Enforcement, to All Field Office Directors et al., 

Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement 

Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens at 3

(June 17, 2011), http://www.ice.gov/doclib/secure-communities/pdf/prosecutorialdiscretion-memo.pdf (ICE attorneys may exercise prosecutorial discretion at any stage of 

the removal proceedings, including during administrative and judicial appeals); see also

Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 483-85 (1999). 

Finally, to the extent Patel argues that the denial of his continuance request violated his 
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Fifth Amendment due process rights, he fails to establish that the IJ or BIA prevented 

him from presenting his case or that he suffered prejudice as a result. See Khan, 448 F.3d 

at 235-36. 

Accordingly, the petition for review will be denied.