## United S tates Cou rt of Appe als FOR THE EIGH TH C IRC UIT

___________ No. 03-21 60

___________ Charles Osiemo Ony

inkwa, *

* Petition er, * *
v. * Petition f or Review

of an Or der of * the Board

of Im migra tion Appeals. John D. Ashcroft, Attorney General * for the Unit ed States o f America, * * Respond ent. *

___________ Submi tted: May 13 , 2004 Filed: July 15, 2004

___________ Before M URPHY , HEA

NEY, and MAG ILL, Circuit J udges.

___________ MURPHY, Circuit J udge.

Charles Osiem

o O nyinkw a's visa p etition and applicati on for adj ustme nt of status was denied in 1997 after the Imm igration & Naturalizat ion Servi ce (INS) determined

that his m arriage to a Unite d States c itizen wa s for the pu rpose of e vading the imm igration la

ws. Af ter rem oval proce edi ngs w ere instit uted, his w ife file d a second visa

applicati on and Ony

inkwa re quested a c ontinuanceof the proc eedings. An immigration judge (IJ) denied a continuance, a nd the Boar d of Im migra tion Appeals (BIA) affirm

ed. Ony inkwa petitions for

review, and we dis miss f or lack of jurisdicti on.-2-

Onyinkwa is a native and citizen of Kenya who enter ed the United St ates in 1987 on a student vi sa. Hemar ried a U nited Stat es citize n in 1995, and his wife filed
a visa applic ation on his behalf in Jan uary 1 996. Aft er inter

viewing O nyinkw a and his wife, the INS found that t heir m arriage

was ente red into sol ely f

or the purp ose of evadingthe immigration laws and denied the visa application on Februar y 25, 1 997. Onyinkwa appealed the visa de nial on or a bout M arch 12, 199 7, and the BIA dismissed the appea l on May

21, 1999. On June 15, 1999 the INS denied Onyinkwa's applicati on for

adjustment of status, and it issued him a notice ten days later to appear for removal proce edings.
Onyin kw a's wife filed a sec ond vis a petitio n on Octob er 20, 1999 , a nd h e requesteda continua

nce of his re moval proceedings pending adjudication of that petition. The proceedings were continued for other reasons, and the IN S noticed i ts intent to deny the second application on December 28, 1999. Then on Ma

rch 2, 2000 , an IJ denied O nyinkw a's reque st for cont inuance of

the rem oval proce edings. The IJ stated th at a thorou gh examinatio n by her of the is sues inv olving Onyinkwa ' s
marr iage would be an unwarranted intrusion on the district director 's authori ty over the adjudicati on of vis a petitio ns. See Matter of Arthur , 20 I. & N. Dec. 475 (BIA 1992).

Since the distric t director

had notice d an intent t o deny t he second peti tion, the IJ concluded t

hat the visa

petition an d Onyinkwa's adjustm ent of stat us applicat

ion
were not prim a facieapprovable , and she d eclined to exercise her discretion to gra

nt
a continu ance. See Ma tter of G arcia , 16 I. & N. Dec. 653 (BIA 1978). The BIA
summ arily affirmed on April 2, 2003 and orde red Ony inkwa volun

tarily to depart t

he United Stat es within 3 0 days.

O nyi nkwa petitions f

or review , arguing that the IJ abused her

discretio n in denying his request f

or a contin

uance of h is rem oval proce edings. Respondent argues that this court l acks jur isd ictionto consider an IJ's discretionary denial of a-3-

continuance, citing the judic ial revie w provision s in the Ill egal Im migra tionReform and Immigrant Responsi bility Act of 19 96, Pub.L. 104 -208, 1 10 Stat. 3 009 (1996) ("IIRIRA"), codified a t 8 U.S.C. § 1 252 (2004). IIRIRA is applica

ble becaus e Onyinkwa's rem oval proce edings were initiated after A pril 1, 199 7. Our c ourt has not y et considere d the reviewability of an IJ' s refusal

to continue remo val proce edings under IIRIRA.

IIRIRA provides that no co urt h as juris diction to review "a ny dec ision or ac tion of the Attorney General

the authority for which is specified under this subchapter to be in the discretion of the Attorney General," exce

pt for the granting

of relief under 8 U.S.C. § 1158(a) ( 2004). 8 U.S.C. § 1 252(a)(2)( B)(ii) (200 4). T he phrase " this subchapter" refers to subchapter II of C hapter 12 of Title 8, including 8 U .S.C. §§ 1151-1378. Van Dinh

v. Reno , 197 F.3d 427, 433 (10th Cir. 1999). Whenever a regulation

imple menting a subchapter II statute confers discretion upon an IJ, IIRIRA generall y divests cour

ts of jur isdiction to review t

he exercise

of that disc retion. CDI Service s, Inc. v. Reno , 278 F.3d 61 6, 619 (6t h Cir. 2002 ). See also Halabi v. Ashcroft , 316 F.3d 807, 808 (8th Cir. 2003) (no jurisdiction to review discretionary
canc ellati on of removal); Regalado- Garcia v. INS , 305 F.3d 784, 786 n.2 (8th Cir. 2002) (no jurisdiction to review discretio nary d ecision to deny voluntary departure).

Imm igration judges de rive the discre tionary authority to grant or

deny motion s for continuanc e from

8 U.S.C. § 1229a(a)(1) (2004), and this provision is contained

w ith in subchapt er II. See Van Dinh , 197 F.3d at 433. This section authorizes imm igration j udges to "conduct removal proceed ings," 8 U.S. C. § 1229a( a)(1), and
an imple menting r e gulation pro vides that " [a]n im migra tion judgemay

grant a continuance for good cause shown." 8 C.F.R . § 1003.29 (2004). T his language has long been he ld to confe r discret ion upon an IJ

to grant or

deny a contin uance. See, e.g. , Witter

v. INS , 113 F.3d 549, 555 (5th Cir . 1999). Even bef ore IIR IRA, c ourts traditionally

revi ewed an I J's denial of a m otion for c ontinuancefor abuse of discretio n. See, e .g. Al Khouri v. Ashcroft , 362 F.3 d 461, 464 (8th Cir. 2004). Since1 Several circuits have sugges ted tha t courts retain jurisdiction to review

discretionary

decisions by

imm igration j udges if a p etitioner has dem onstrated a substantial constit utional violatio n. See, e.g. , Morales V entura v. Ashcroft , 348 F.3 d 1259, 1262 (10th Cir. 2003) ; Carranza v. INS , 277 F.3d 65, 73 (1st Cir. 2002); Torres-Aguilar

v. INS , 246 F.3 d 1267, 1271 ( 9th Cir. 2001 ); Mendes v. INS , 197 F.3d 6, 11 (1999). See also Calcano-Martinez , 533 U. S. 348, 3 50 n.2 (2001 ) (govern ment concededthat court s of appeal s retain ju risdic tion to review "substantial constitutional challenges"). In any c ase, "a

petitioner

may not creat e the jur

isdiction that Congre ss chose to r

emove simply by cloa king an abuse

of discre tion argum

ent in constitutional garb." Torres-Aguilar , 246 F.3 d at 1271.
-4- a regulatio n imple menting subchapte r II spec ifies that the power

to gr ant continuances is within t

he discre tion of imm

igration j udges, unde r IIRIR A courts generall y h a ve no jurisd iction to review the ex ercise of th at discret ion. See CDI Services , 278 F.3d

at 619. See also Koenig v. INS , 64 Fed.Appx. 996, 998 (6th Cir. 2003) (unpublishe d) (no ju risdiction to review

IJ's deni al of continuance). The only recognizedexception to this rule need not be addres sed here w

here Ony inkwa has not made any sho wing of a s ubstantial constitution al violatio n. 1 His petition should be dismissed fo r lack of juris diction

.
Even if we w ere to con sider the m erits o f Ony in kwa's motion, ho wever, we would not find tha

t the IJ abused h er discreti on by denying th e continu ance. See Al K houri , 362 F.3d. at 464 (sta ndard of review). The IN S denied th e vis a petitio n because Onyinkwa and his wif e gave conf

licting inf orma tion about their re lationship and contacts. For example, their testimony wa s in conflict as to when and where they met, whether Onyinkwa had m et his wife's mothe r, what

they had done on Christm as, and the number and genders of his wife's children. Moreover, the evidence suggested that the couple was not living together as they claimed. In light of the INS notice of intent to deny the second visa petition for these reasons, the IJ was well within her discretio n to deny

the m otion for c on tin uance to a llow furt her proce edings.-5-

Cf. Onyeme v. INS , 146 F.3 d 227, 233 (4 th Cir. 19 98) (no abus e of discretio n to deny continuance pending adjudication of frivolous visa application).

For these rea sons Onyink wa's petiti on is dis missed.

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