IMG
- 061 NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 11

- 3408

___________ EVELYN OWUSU , Petitioner

v. ATTORNEY GENERAL OF THE UNITED STATES , Respondent

____________________________________

On Petition for Review of an Order of the Board of Immigration Appeals

(Agency No. A79

- 012

- 290 ) Immigration Judge: Honorable Eugene Pugliese

____________________________________ Submitted Pursuant to Third Circuit LAR 34.1(a) April 25, 2012 Before: FUENTES, JORDAN AND VAN AN TWERPEN , Circuit Judges (Opinion filed : April 26, 2012 )

___________

OPINION

___________ PER CURIAM In 2001, Evelyn Owusu, a citizen of Ghana, was admitted to the United St ates on a
B

- 2 visa. She overstayed her admission period and was charged with removability pursuant to the Immigration and Nationality Act (“INA”) § 237(a)(1)( B) [8 U.S.C.2 § 1227(a)(1)(B) ]

. Meanwhile, Owusu applied several times to adjust her status based on her marriage to a United States citizen. Later , however, Owusu and her husband divorced

. In July 2009 , Owusu’s attorney filed in Immigration Court a motion for a continuance , noting that he would be unable to attend a hearing scheduled for July 16, 2009, because he needed to take a four

- month leave from work due to illness. The Immigration Judge (“IJ”) denied the motion for a continuance. Owusu appeared without counsel fo r the July 16, 2009, hearing

. In an order entered the same day, the IJ grant ed voluntary departure and acknowledged the denial of the request for a continuance. Owusu did not file an administrative appeal of that decision. Instead, in September 2009, she filed a motion to reopen and reconsider with the IJ. In that motion, Owusu argued that the IJ abused his discretion by denying the motion for a continuance and requested reopening to allow her to apply for adjustment of status based on her second marriage to a United States citizen . The IJ denied the motion, stating that Owusu and “counsel were previously warned that there would be no further adjournments in this case for any reason; in any event, presence of counsel on July 16 would not have altered the court’s decision since [Owusu] still does not have an approved I

- 130 [ relat ive visa petition] and the case has a history of revoked and wit hdrawn I

- 130s.” Owusu appealed

. The B oard of Immigration Appeals (“B IA ”) dismissed Owusu’s appeal. The Board concluded that the IJ properly denied the motion to reopen, stating that Owusu d id not provide proof of an approved visa petition or evidence of prima facie eligibility for3 relief from removal. The BIA also agreed with the IJ’s denial of the motion to reconsider the denial of her request for a continuance . According to the Board, th e IJ had warned Owusu that no further continuances would be granted, she failed to establish good cause for a continuance because she had been granted multiple continuances in the past, and she did not appear to be eligible for any relief from removal o n t he date of her last hearing. Owusu filed a petition for review.
We have jurisdiction pursuant to INA § 242 [ 8 U.S.C. § 1252 ], 1 and review the BIA’s denial of Owusu’s motion to reopen and for reconsider ation for abuse of discretion. Pllumi v. Att’y Gen

. , 642 F.3d 155, 158 (3d Cir. 2011)

. Under this standard, we may reverse the BIA’s decision only if it is “arbitrary, irrational, or contrary to law.” Guo v. Ashcroft , 386 F.3d 556, 562 (3d Cir. 2004)

. When, as here, “ the BIA both adopts the findings of the IJ and discusses some of the bases for the IJ’s decision, we have authority to review the decisions of both the IJ and the BIA.” Chen v. Ashcroft

The BIA did not abuse its discretion in affirming the IJ’s denial of Owusu’s motion to reopen. As noted, Owusu sought to reopen the proceedings so she could apply for adjustment of status based on her marriage to her second husband. A motion to reopen to apply for adjustment of status based on a marriage entered into aft er removal , 376 F.3d 215, 222 (3d Cir. 2004)

.

1 Owusu argues that her prior counsel was ineffective and states that s he has complied with the requirements of Matter of Lozada , 19 I. & N. Dec. 637, 639 (BIA 1988)

. T his argument was not rais ed before the BIA and is thus unexhausted. We lack jurisdiction to review unexhausted arguments. Abdulrahman v. Ashcroft , 330 F.3d 587, 594

- 95 (3d Cir. 2003)

.4 proceedings are commenced may be granted if several conditions are met. In re Velarde

Pacheco , 23 I. & N. Dec. 253, 256 (BIA 2002) . One of these conditions is that “the motion presents clear and convincing evidence indicating a strong likeliho od that the respond ent’s marriage is bona fide.” Id. ; see also

The BIA also properly rejected Owusu’s contention that the IJ should have granted
h er request for a continuance. We review the decision to deny a continuance for abuse of discretion. INA § 245(e)(3) [ 8 U.S.C. § 1255(e)(3) ]

. An approved I

- 130 petition based on marriage “will be considered primary evidence of eligibility for the bona fide marriage exemption.” 8 C.F.R. § 12 45.1(c)(8)(v)

. In this case, the BIA agreed that Owusu failed to make a prima facie showing that her marriage was bona fide . In particular, the BIA noted that Owusu did not hav e an approved I

- 130 petition, that the revocation or withdrawal of her first h usband’s visa petition “cast[] doubt on the prima facie approv ability of the instant petition,” and that she did not provide evidence that the underlying visa petition was approvable. Indeed, while Owusu provided a certificate establishing the existence o f her marriage to her second husband, that evidence was not probative of the bona fides of the marriage. 8 C.F.R. § 204.2(a)(1)(i ii )(B) (describing evidence that may demonstrate that a marriage is bona fide )

. Owusu argues that her “case was not evaluated with respect to its individual and unique set of fact s and circumstances.” Notably, though , she does not claim that the IJ overlooked any evidence presented in support of her motion to reopen , nor does she identify any evidence establishing that her seco nd marriage was bona fide.

Ponce

- Leiva v. Ashcroft , 331 F.3d 369, 37 7 (3d Cir. 2003) . “The question of5 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 must be resolved on a case by case basis according to the facts and cir cumstances of each case.” Id. ( quoting Baires v. INS , 856 F.2d 89, 91 (9th Cir. 1988) ). An IJ “may grant a continuance for good cause shown.” 8 C.F.R. § 1003.29

. “[T] he BIA [has] set forth five criteria to be considered in evaluating wheth er to grant a motion to continue removal proceedings pending an adjustment of status application premised on a pending visa petition: ‘(1) [T]he DHS response to the motion; (2) whether the underlying visa petition is prima facie approvable; (3) the respond ent’s statutory eligibility for adjustment of status; (4) whether the respondent’s application for adjustment merits a favorable exercise of discretion; and (5) the reason for the continuance and other procedural factors.’” Simon v. Holder , 654 F.3d 440, 442 (3d Cir

. 2011) (quoting In re Hashmi , 24 I. & N. Dec. 785, 790 (BIA 2009) . In Simon , we granted the petition for review because the BIA did not evaluate the motion for a continuance pursuant to those criteria

. Id.

Here, by contrast , the Board adequately considered the at 443 (holding that the “factors mu st be considered every time an alien files a motion for a continuance based on an application for adjustment of status premised on a pending or approved I

- 130 . . . petition

. ”). Hashm i factors . In particular , t he Board concluded that Owusu had “ not shown that the underlying visa petition was prima facie approvable or has subsequently been approved.” As discussed above, Owusu did not provide evidence of a bona fide marriage to establish prima facie6 eligibility for adjustment of status. Cf. Morgan v. Gonzales , 445 F.3d 549, 552 (2d Cir. 2006) ( holding that IJ did not abuse his discretion in denying a continuance for adjudication of a second visa petition based on same marriage when first such petitio n was denied for failure to establish bona fide marriage). T he BIA also noted that Owusu had been granted multiple continuances and warned that no further cont inuances would be granted. These procedural factors are proper consideration s , although “the nu mber and length of prior continuances ‘are not alone determinative.’” Simon , 654 F.3d at 44 2 (quoting Hashmi , 24 I. & N. Dec. at 794 ). The Board further recognized that “an earlier visa petition filed by a different United States citizen spouse had appar ently been revoked or withdrawn.” See Hashmi , 24 I. & N. Dec. at 792 (noting that prior visa petitions “ or other evidence of potential fraud or dilatory tactics may impact the viability of the visa petition underlying the motion .”). Finally, the Board pr operly acknowledged that Owusu
was not prejudiced by the inability of her attorney to attend the hearing on July 16, 2009

. Id. at 787 (stating that “an Immigration Judge’ s discretionary decision denying a continuance will not be reversed on appeal unless the respondent establishes that the denial caused him actual prejudice and harm, and it materially affected the outcome of his case. ”). Owusu h as failed to demonstrate that her attorney ’s attendance at the hearing would have affected the IJ’s decision to deny the motion to reopen , which was based in part on the absence of an approved visa petition. Cf. Khan v. Att’y Gen. , 448 F.3d 226, 236 (3d Cir. 2006) (stating that petitioner “ cannot show that h e has been prejudiced by the IJ’ s denial of his continuanc e motion because there is no evidenc e as to when, if ever,7 his wife’ s Labor Certification might be granted. ”). Under these circumstances, we agree with the BIA that the IJ did not abuse his discretion in denying Owusu ’s request for a continuance.
For the above reasons, we will deny the petition for review

.