UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

NNAMDI REGINALD OKEKE,

Petitioner,

v.

No. 95-2559

U.S. IMMIGRATION & NATURALIZATION

SERVICE,

Respondent.

On Petition for Review of an Order

of the Immigration and Naturalization Service.

(A29-695-906)

Submitted: May 7, 1996

Decided: May 22, 1996

Before MURNAGHAN, ERVIN, and MICHAEL, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Thanos Kanellakos, Baltimore, Maryland, for Petitioner. Frank W.

Hunger, Assistant Attorney General, Richard M. Evans, Assistant

Director, Christine Bither, UNITED STATES DEPARTMENT OF

JUSTICE, Washington, D.C., for Respondent.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).
OPINION

PER CURIAM:

Nnamdi Reginald Okeke, a native and citizen of Nigeria, appeals

from a Board of Immigration Appeals ("BIA") order that denied his

request for an extension of time to file his application for adjustment

of status and denied his motion to reopen. Because we find that the

record supports the BIA's denial of permission to file out of time and

that the BIA did not abuse its discretion in denying Okeke's motion

to reopen, we affirm the BIA's order.

I.

At his deportation hearing, Okeke conceded deportability but

requested time to file an application to adjust his status to that of a

lawful permanent resident based on his marriage to a United States

citizen. The Immigration Judge ("IJ") granted him until November 25,

1992,1 to file his adjustment application.

In a memorandum to the IJ dated November 10, 1992, Okeke,

through his attorney, requested an additional thirty days to file the

application. Counsel asserted that he

had some difficulty in getting Mrs. Sharon Okeke to visit

[his] office to sign Form I-130. [He also claimed that his]

client . . . need[ed] more time to have the medical examination performed and to have the necessary photos taken.

On November 12, 1992, the clerk of the immigration court returned

the motion to Okeke, because it did not have a proposed order

attached. However, the clerk's notice that was sent to Okeke incorrectly stated that the motion was being returned for failure to serve

the opposing party.

_________________________________________________________________

1 The parties dispute the date on which the adjustment application was

due. Although the IJ states in his initial decision that the deadline was

November 25, Okeke's counsel asserts that the due date was November

13. The administrative record does not include a transcript of the hearing

during which the date was set.

 2
On November 30, Okeke filed a memorandum alleging that the

clerk was mistaken in stating that he had not served the INS. However, he did not attach an adjustment application or offer an explanation as to why it had not been filed. On December 2, the IJ found that

Okeke had abandoned his application for adjustment of status. The IJ

did not address Okeke's motion for an extension, and Okeke did not

appeal.

On January 28, 1993, Okeke filed a motion to reconsider, which

again did not include either the adjustment application or an explanation as to why it was not attached. Okeke asserted that the clerk's

erroneous notice prevented him from timely filing a motion for an

extension. The IJ denied the motion for reconsideration, finding that

Okeke had failed to posit a satisfactory explanation warranting an

extension. The IJ further found that, because Okeke still had not filed

his adjustment application, there was nothing to reconsider and the

application was properly found to have been abandoned.

Okeke appealed that decision to the BIA and moved to reopen his

case based on the adjustment application which he submitted with his

appeal. Okeke contended that the IJ abused his discretion by not permitting Okeke to file his application out of time when a clerical mistake had caused confusion. The BIA dismissed the appeal and denied

the motion to reopen, finding that Okeke's visa petition was incomplete and he was therefore not prima facie eligible for adjustment of

status.

Okeke filed a timely petition for review with this court. He asserts

that the BIA abused its discretion by refusing to extend the time

period for Okeke to file the required applications and by denying his

motion to reopen.

II.

The regulation governing the submission of applications provides:

[t]he Immigration Judge may set and extend time limits for

the filing of applications and related documents and

responses thereto, if any. If an application or document is

 3
not filed within the time set by the Immigration Judge, the

opportunity to file that application or document shall be

deemed waived.

8 C.F.R. § 3.31(c) (1995). Because the IJ possesses the power to set

time limits, the mere request of an extension does not obligate the IJ

to grant one. See Patel v. INS, 803 F.2d 804, 806 (5th Cir. 1986) (submission of a motion for a continuance does not relieve an alien of the

obligation to appear at the hearing).

Okeke contends that the BIA improperly affirmed the IJ's denial

of his motion to reconsider because a "clerical error" led to the IJ's

determination that Okeke had abandoned his application for adjustment of status. However, since it is undisputed that Okeke never

attempted to file his application within the time period set by the IJ,

the IJ was required to consider his application waived. 8 C.F.R.

§ 3.31(c).

Furthermore, the clerk's error, at most, caused the IJ to rule before

having seen or considered Okeke's timely motion for an extension.2

Nonetheless, any clerical error was harmless because, on reconsideration, the IJ explicitly stated that Okeke's explanation would not have

warranted any further time for filing. Therefore, because Okeke failed

to timely file his adjustment application, the IJ did not err in finding

that Okeke had abandoned his application.

III.

A motion to reopen should be denied if the movant has not established a prima facie case for the underlying relief sought. M.A. v. INS,

899 F.2d 304, 308 (4th Cir. 1990) (in banc). We review the BIA's

denial of a motion to reopen for lack of prima facie eligibility under

an abuse of discretion standard. Id. Denial of a motion to reopen

"must be reviewed with extreme deference," since immigration statutes do not contemplate reopening and the applicable regulations disfavor motions to reopen. Id.

_________________________________________________________________

2 However, in light of the fact that the motion was filed two days before

the IJ issued his decision, it appears likely that the IJ fully considered

Okeke's motion at that time.

 4
By regulation, in order to establish the bona fides of his marital

relationship, Okeke was required to submit, inter alia, proof of the

legal termination of all of his and his wife's previous marriages. 8

C.F.R. § 204.2(a)(2) (1995). Although the marriage certificate identified both Okeke and his spouse as divorced, neither submitted any

legal documents proving that their prior marriages ended in divorce.

Furthermore, on appeal, Okeke does not contest the determination

that he failed to establish prima facie eligibility for adjustment of status. Therefore, since Okeke did not satisfy the eligibility requirements

for a visa, the BIA did not abuse its discretion in denying Okeke's

motion to reopen.

IV.

For these reasons, we affirm the Board's order. We dispense with

oral argument because the facts and legal contentions are adequately

presented in the materials before the court and argument would not

aid the decisional process.

AFFIRMED

 5