United States Court of Appeals

for the Fifth Circuit

No. 20-61087

Anthony Elue, 

Petitioner,

versus

Merrick Garland, U.S. Attorney General, 

Respondent.

Petition for Review of an Order of the

Board of Immigration Appeals

BIA No. A089 522 439

Before Smith, Clement, and Haynes, Circuit Judges.

Per Curiam:*

Appellant Anthony Elue petitions for review of a removal order issued 

by the Board of Immigration Appeals (“BIA”). Specifically, Elue argues that 

the Immigration Judge (“IJ”) and BIA abused their discretion in denying his 

* Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited 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 Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

August 4, 2022

Lyle W. Cayce

Clerk

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No. 20-61087

2

motion for a continuance concerning one of his I-130 petitions1 by picking 

and choosing between the factors articulated in Matter of L-A-B-R-, 27 I. &

N. Dec. 405 (A.G. 2018). Per Elue, this denial prevented him from 

“exercising his right to present evidence during removal proceedings,”

which violated due process and caused him prejudice and harm.2 

An IJ may grant a continuance “for good cause shown.” 8 C.F.R. 

§ 1003.29. Because the regulations do not define “good cause,” the 

Attorney General, in L-A-B-R-, identified two primary factors for an IJ to 

consider when ruling on a motion for a continuance: “(1) the likelihood that 

the [petitioner] will receive the collateral relief, and (2) whether the relief will 

materially affect the outcome of the removal proceedings.” 27 I. & N. Dec. 

at 413. In addition, “immigration judges must also consider any other 

relevant factors.” Id. at 415. These “secondary factors may include . . . the 

respondent’s diligence in seeking collateral relief, DHS’s position on the 

motion for continuance, and concerns of administrative efficiency,” as well 

as “the length of the continuance requested, the number of hearings held and 

continuances granted previously, and the timing of the continuance motion.” 

Id. 

1 As noted by the IJ, four I-130 petitions have been filed on Elue’s behalf, and three 

of those petitions have been denied. Moreover, Elue has benefited from at least twelve 

continuances. 

2 Elue also argues that L-A-B-R- violates due process and exceeds the statutory 

authority granted to the Attorney General. To the extent these claims are constitutional 

and capable of review, see Gonzalez Hernandez v. Garland, 9 F.4th 278, 286 (5th Cir. 2021), 

we have already concluded that “L-A-B-R- was not a significant departure from prior 

precedent,” Faudoa-Gonzalez v. Barr, 836 F. App’x 242, 247 (5th Cir. 2020) (per curiam), 

and we have approved of the BIA using the standards set forth in this case, see VelasquezZelaya v. Garland, No. 20-60531, 2022 WL 445158, at *2 (5th Cir. Feb. 14, 2022) (per 

curiam). 

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We conclude that the BIA did not abuse its discretion in denying Elue 

another continuance. See Masih v. Mukasey, 536 F.3d 370, 373 (5th Cir. 2008)

(reviewing the denial of a continuance for abuse of discretion).

3

 Elue argues 

that the IJ erred by only considering the two primary factors (and ignoring all 

the other factors) set out in L-A-B-R-. On closer inspection, however, we 

agree with the BIA’s assessment that the IJ actually considered several 

secondary factors in its analysis, including the DHS’s opposition to the 

continuance and the fact that Elue has been granted multiple continuances 

over the past several years. Moreover, we agree with the BIA that Elue “has 

not demonstrated that [his] pending visa petition is likely to be approved,”

as well as its overall conclusion that Elue has not demonstrated good cause to 

merit an additional continuance.

As for Elue’s argument that he was denied due process as a result of 

the denial of his motion for a continuance, “[w]e have previously held that 

the denial of a continuance does not violate due process where [a petitioner] 

fails to show good cause.” Ali v. Gonzales, 440 F.3d 678, 681 (5th Cir. 2006)

(per curiam). Because Elue failed to demonstrate good cause, his due process 

argument must also fail on that ground.

For the foregoing reasons, we DENY Elue’s petition for review. 

3 We generally “review only the decision of the BIA.” Zhu v. Gonzales, 493 F.3d 

588, 593 (5th Cir. 2007). However, we review the IJ’s decision if “the IJ’s ruling affects 

the BIA’s decision.” Id. 

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