[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 23-10001

Non-Argument Calendar

____________________

MANTAS KAKLIAUSKAS, 

Petitioner,

versus

U.S. ATTORNEY GENERAL, 

Respondent.

____________________

Petition for Review of a Decision of the

Board of Immigration Appeals

Agency No. A089-643-408

____________________

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2 Opinion of the Court 23-10001

Before WILSON, GRANT, and LUCK, Circuit Judges.

PER CURIAM:

Mantas Kakliauskas petitions for review of the Board of 

Immigration Appeals’s order denying his motion for 

reconsideration of the Board’s earlier order affirming an 

immigration judge’s denial of his request to continue his removal 

proceedings. He also claims, for the first time on appeal, that he 

has suffered a violation of his due process rights during the entire 

course of proceedings. Because the first claim is meritless, and the 

next unexhausted, we deny the petition in part and dismiss it in 

part. 

I.

In June 2002, Mantas Kakliauskas, a citizen of Lithuania, 

entered the United States as a nonimmigrant on a J-1 visa, which 

permitted him to remain temporarily in the country until October 

2002. But Kakliauskas never left. He married U.S. Citizen Shandra 

Fitzpatrick in 2006, and she filed a Form I-130 Petition for Alien 

Relative to adjust Kakliauskas’s immigration status. She sat for an 

interview regarding Kakliauskas’s eligibility for that form of relief, 

but later withdrew her petition and testified in a sworn statement 

that she had received money for marrying Kakliauskas to help him 

receive his green card. The pair formally divorced in 2007. 

In 2012, Kakliauskas applied for asylum, withholding of 

removal, and relief under the Convention Against Torture (CAT), 

claiming that he feared persecution if he returned to Lithuania. 

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While that application was pending, Kakliauskas married his 

current wife, Tatiana Volcov. She too filed a Form I-130 on behalf 

of Kakliauskas. 

In 2015, during his pending asylum proceedings, Kakliauskas 

informed the immigration judge that Volcov’s I-130 petition had 

been denied because United States Citizenship and Immigration 

Services (USCIS) had found that he had previously committed 

fraud in his marriage to Fitzpatrick. See 8 U.S.C. § 1154(c). Because 

USCIS’s decision barred him from obtaining the requested visa, the 

immigration judge decided to extend his removal hearing date so

Volcov and Kakliauskas could appeal USCIS’s decision. But rather 

than appeal the denial of her initial petition, Volcov filed a second 

I-130 petition. The new filing included a new sworn statement 

from Fitzpatrick, this time saying her marriage to Kakliauskas had 

been legitimate. Fitzpatrick claimed that she only withdrew the 

initial I-130 petition because she had been threatened and 

intimidated by the examiner during the interview process. 

Kakliauskas’s removal proceedings finally resumed in 2019, 

and he moved for the immigration judge to continue the 

proceedings again, this time on the ground that Volcov’s second 

pending I-130 petition would likely be approved. The immigration 

judge denied the motion. Specifically, the immigration judge 

pointed out that this exact issue had already been raised, and that 

proceedings had already been pushed back to give Kakliauskas 

more time to have the marriage fraud issue reconsidered. At this 

point, more than a year later, a continuance was unwarranted, the 

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4 Opinion of the Court 23-10001

immigration judge said, because any possibility of a status 

adjustment was merely speculative. Kakliauskas’s removal 

proceedings then moved to the merits. The immigration judge 

denied Kakliauskas’s petition for asylum, withholding of removal, 

and relief under CAT, and ordered him removed under 8 U.S.C. 

§ 1228. 

Kakliauskas appealed this decision to the Board of 

Immigration Appeals. He argued that the immigration judge

should not have proceeded with removal while the I-130 petition 

was pending since its approval would have made him prima facie 

eligible for a status adjustment. And he contended that the 

immigration judge erred in concluding that he did not have an 

objective fear of persecution in Lithuania. 

While that appeal was pending, USCIS denied the second 

Form I-130 petition from Volcov, Kakliauskas’s second wife, again 

based on the marriage-fraud bar. Specifically, USCIS found that for 

Kakliauskas’s first marriage, to Fitzpatrick, the documents 

submitted by the couple for the original I-130 application appeared 

to have been created following receipt of their interview notice; 

there was no demonstrated payment toward any kind of shared 

marital obligations like rent or insurance; and the couple provided 

contradictory testimony about things like the marriage proposal, 

where they spent their wedding night, and when they cohabitated. 

On top of all these inconsistencies was Fitzpatrick’s sworn 

statement that her marriage to Kakliauskas was a sham. USCIS 

acknowledged Ms. Fitzpatrick’s new statement, but concluded that 

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23-10001 Opinion of the Court 5

“the original statement is considered more credible than the 

recantation seven years later.” 

The Board dismissed Kakliauskas’s appeal. It agreed with 

the immigration judge on the merits of the asylum claims and 

affirmed the denial of Kakliauskas’s motion for a continuance. The

immigration judge had noted that Kakliauskas had already been 

granted numerous continuances, had two I-130 petitions denied, 

and still had the marriage-fraud bar in place. As a result, the Board

concluded that the record did not support a finding of good cause 

for continuance. That order was entered in December 2021, and 

Kakliauskas did not seek judicial review. 

Instead, he filed a motion to reopen and reconsider the 

Board’s decision and to remand pending complete adjudication of 

Volcov’s second I-130 petition. This filing contested the Board’s 

decision regarding the propriety of a continuance, but did not raise 

any due process argument. 

In December 2022, the Board denied the motion. It found 

that it had considered the appropriate factors in reaching its earlier 

decision, and that Kakliauskas had not introduced any new 

evidence to the contrary. Kakliauskas timely appealed the Board’s 

order.1 

1 Kakliauskas only petitioned this court for review of the Board’s 2022 decision 

denying his “Motion to Reconsider of the BIA decision affirming the Removal 

Order of the Immigration Court,” not the underlying Board decision itself. 

Moreover, even if Kakliauskas had intended this petition to seek review of the 

underlying Board decision, it would have been untimely. See 8 U.S.C. 

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II.

This Court reviews the Board’s decision as a final judgment, 

“unless the BIA expressly adopted” the immigration judge’s 

decision. Gonzalez v. U.S. Att’y Gen., 820 F.3d 399, 403 (11th Cir. 

2016). Then, we review the decision of both the Board and the 

immigration judge. Ayala v. U.S. Att’y Gen., 605 F.3d 941, 948 (11th 

Cir. 2010). We review the Board’s denial of a motion to reconsider 

and the denial of a motion for a continuance for abuse of 

discretion. Ferreira v. U.S. Att’y Gen., 714 F.3d 1240, 1242 (11th Cir. 

2013); Chacku v. U.S. Att’y Gen., 555 F.3d 1281, 1285–86 (11th Cir. 

2008). Under this standard, “review is limited to determining 

whether the BIA exercised its discretion in an arbitrary or 

capricious manner.” Zhang v. U.S. Att’y Gen., 572 F.3d 1316, 1319 

(11th Cir. 2009). 

III.

A.

The Board did not abuse its discretion in declining to 

reconsider the order affirming the denial of Kakliauskas’s request 

to continue his removal proceedings. A motion to reconsider must 

“state the reasons for the motion by specifying the errors of fact or 

law” in the underlying decision. 8 C.F.R. § 1003.2(b)(1); see also 8 

U.S.C. § 1229a(c)(6)(C). A motion to reconsider “that merely 

republishes the reasons that had failed to convince the tribunal in 

§ 1252(b)(1); Dakane v. U.S. Att’y Gen., 371 F.3d 771, 773 n.3 (11th Cir. 2004). 

Accordingly, we limit our review to the order denying reconsideration. 

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23-10001 Opinion of the Court 7

the first place gives the tribunal no reason to change its mind,” and 

therefore, “merely reiterating arguments previously presented to 

the BIA” is insufficient to succeed on this kind of motion. Calle v. 

U.S. Att’y Gen., 504 F.3d 1324, 1329 (11th Cir. 2007) (quotation 

omitted). “The moving party bears a heavy burden” because 

motions to reopen or reconsider are especially disfavored in 

removal proceedings. Zhang, 572 F.3d at 1319; see also INS v. Abudu, 

485 U.S. 94, 107 (1988). 

Kakliauskas did not specify any errors of law or fact in the 

Board’s order denying his appeal; he repeated the same arguments 

he made below. 8 U.S.C. § 1229a(c)(6)(C). In his BIA appeal, he 

argued that the immigration judge should not have proceeded with 

his removal proceedings because he was likely to succeed on his 

Form I-130 petition because of Fitzpatrick’s new statement, and if 

that petition were approved, he would be eligible for adjustment 

of status. In his motion to reconsider, Kakliauskas reasserted these

same points, arguing that Volcov’s second I-130 petition was 

supported by Fitzpatrick’s “credible affidavit” and that “reasonable 

discretion” called for a continuance until the adjudication of that 

petition was complete. Similarly, he argued in the appeal that 

Volcov had met her burden in proving that their marriage was 

legitimate, and that USCIS had failed to meet its burden to show 

that the first marriage was a sham. He made the same argument 

in his motion to reconsider, and even appears to have copied 

substantial sections of the exact same language from the first 

argument into the second. 

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8 Opinion of the Court 23-10001

Moreover, the underlying Board decision that Kakliauskas 

wanted reconsidered was not an abuse of discretion. The standard 

for granting a motion for continuance is “good cause shown.” 8 

C.F.R. § 1003.29. True, in cases where removal proceedings are 

occurring while an I-130 petition is pending, “discretion should, as 

a general rule, be favorably exercised where a prima facie 

approvable visa petition and adjustment application have been 

submitted in the course of a deportation hearing.” Bull v. INS, 790 

F.2d 869, 872 (11th Cir. 1986) (quoting In re Garcia, 16 I. & N. Dec. 

653, 657 (BIA 1978)). But that is not an absolute rule, and it is not 

an abuse of discretion to deny a request for a continuance based on 

the conclusion that the movant is “statutorily ineligible for 

adjustment of status,” or that there is only the “speculative 

possibility” that the petition will be granted. Id.; Zafar v. U.S. Att’y 

Gen., 461 F.3d 1357, 1363–64 (11th Cir. 2006). 

Here, Kakliauskas did not show that he was prima facie

eligible for adjustment of his status. The marriage-fraud bar was in 

place when the immigration judge made the original decision, 

when the Board affirmed that decision, and when the Board denied 

Kakliauskas’s motion to reconsider. So at all relevant time periods

Kakliauskas was already statutorily ineligible for Form I-130 

approval. See 8 U.S.C. § 1154(c). 

For both of these reasons, it was well within the Board’s 

discretion to deny Kakliauskas’s motion to reconsider. Calle, 504 

F.3d at 1331.

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B.

Kakliauskas argues, for the first time on appeal, that he was 

deprived of his right to due process and fair proceedings. He 

acknowledges that he does not have a constitutional right to the 

discretionary relief of a continuance, but still contends that he has 

a valid due process claim because “the totality of the record 

indicates that the order of removal was issued in violation of his 

right to due process and fair proceeding.” See Scheerer v. U.S. Att’y 

Gen., 513 F.3d 1244, 1253 (11th Cir. 2008). 

A court can only review a final order of removal if “the alien 

has exhausted all administrative remedies available to the alien as 

of right.” 8 U.S.C. § 1252(d)(1). Until recently, this Court has

interpreted this rule to mean that we lack jurisdiction to consider 

unexhausted claims raised in a petition for review. See AmayaArtunduaga v. U.S. Att’y Gen., 463 F.3d 1247 (11th Cir. 2006). But in 

Santos-Zacaria v. Garland, the Supreme Court held that the 

obligation to exhaust administrative remedies is a claim-processing 

rule, not a jurisdictional limitation. 598 U.S. 411, 416–19 (2023). But

if properly raised by a party, mandatory claim-processing rules are 

“unalterable.” See Manrique v. United States, 581 U.S. 116, 121, 125 

(2017). Here, because the Attorney General raised the issue of 

exhaustion in his brief, and because Kakliauskas conceded that he 

did not raise a due process claim before the immigration judge or 

the Board, we enforce the exhaustion rule. See Kemokai v. U.S. Att’y 

Gen., 83 F.4th 886, 891 (11th Cir. 2023). We thus dismiss 

Kakliauskas’s due process claim for failure to exhaust and decline 

to reach the merits. 

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* * *

The Board did not abuse its discretion when it denied 

Kakliauskas’s motion to reconsider the order affirming the 

immigration judge’s denial of his application for asylum, 

withholding of removal, and relief under CAT. We do not 

consider the merits of his due process claim because it was 

unexhausted. Accordingly, Kakliauskas’s petition for review of the 

Board’s order denying his motion to reconsider is DENIED in part 

and DISMISSED in part. 

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