### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-60038 Summary Calendar

AMIN MEMANJI MOMIN; SULTANABEN KURBAN MOMIN,
Petitioners

v. ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL, Respondent

Petitions for Review of an Order of the Board of Immigration Appeals BIA No. A078 562 049 BIA No. A094 908 068

Before REAVLEY, JOLLY, and DAVIS, Circuit Judges. PER CURIAM: * Amin Memanji Momin and Sultanaben Kurban Momin petition for review of the Board of Immigrati o n Appeals’ (BIA) dismissal o f their appeal from the Immigration Judge’s denial of their motions f or a continuance and t r a n s f e r of

venue a nd of the B IA’s denial of their m otion to reconsider. We review the BIA’s ruling s f o r a n abuse of discretion. See Ali v. Gonzales , 440 F.3d 678, 680 (5th Cir. 2006); Zhao v. Gonzales , 404 F.3d 295, 303-04 ( 5th Cir. 2005); Chow v. INS , U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D March 12, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R

. 47. 5, the court has d eterm ined that this op inion should not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

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12 F.3 d 3 4 , 3 9 (5th C ir. 1993). There is no abuse of discretion if the BIA’s decision is “not capricious, racially invidious, utterly without foundation in the evidence, o r otherwise so aberrational that it is arbitrary r ather than the result of any p erceptible rational approach.” Cabral v. Holder , 632 F .3d 886, 890 (5th Cir. 2011) (internal quotation marks and citation omitted). We assume the p art i e s ’ familiarity with the underlying facts and procedural hi s tory in this case. We note, however, that the M o mins sought to continue their removal proceedings s o that Momin, a n arriving alien, could seek adjustment of status from United States Citizenship and I mmigration Services (USCIS), and Mrs. M omin, if Momin’s application was s uccessful, could seek derivative adjustment of status from the immigration court. There was no abuse of discr e t i o n in the decision to deny the Momins’ motion for continuance u nder the standards s et f orth in Matter of H

ashmi , 24 I. & N. Dec. 785, 790 (2009). In Hashmi , the BIA outlined certain factors that

an IJ should consider when ruling on a motion to continue removal proceedings

so the respondent can seek adjustment of status based u p o n a p e nding visa petition; however, it noted that “the focus of the inquiry is th e likelihood that the adjustment application will be granted.” Id. It is undisputed that, i n its review, the BIA focused on Momin’s eligibility for status adjustment by noting Momin’s concession that he might b e ineligible f or adjustment of s t atus without a
c o n c omitant waiver of i nadmissibility. Moreover, the record before t h e immigration court established that Momin’s prior r e q u e s t for adjustment of status and a w aiver of i n a d m issability had been denied by USCIS. Given the
p rior denial and M omin’s concession, the BIA did not abuse its discre t i o n i n finding that the Momins’ removal procee d ings should n ot be continued until Momin’s renewed adjustment application before the USCIS w as a djudicated or in dismissing their appeal from the IJ’s d enial of a cont i n u a n c e . See id. Moreover, because the Momins’ request for a transfer of venue was based only upon their conclusory speculation that Momin’s adjustment app l i c ation would
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be approved by the USCIS, they have not demonstrated an abuse of discretion with respect to the denial of that motion. See Chow, 12 F.3d at 39. Finally, for the reasons noted above, the B IA did n ot abuse its discretion in denying the Momins’ motion to reconsi d e r . Z h a o, 404 F.3d at 303-04. Moreover, they h av e not demonstrated that the BIA abused its di scretion in denying their motion to reconsider because it rejected their r e quest that the ir removal proceed i n g s be administratively closed. The factors to consider when determining whether t o a dministrativ e l y close removal proceedings include whether it is likely that the r espondent will succeed on any petition, application,

or other action h e o r she i s pursuing outside o f r emoval proceedings. See Matter of Avetisyan , 25 I. & N. Dec. 688 (BIA 2012). The Momins did not m ake that showing. Accordingly, the Momins’ petitions for review are DENIED.

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