     Case: 12-60756       Document: 00512351980         Page: 1     Date Filed: 08/23/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                          August 23, 2013
                                     No. 12-60756
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

KEFA MOSE,

                                                  Petitioner

v.

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

                                                  Respondent


                       Petitions for Review of an Order of the
                           Board of Immigration Appeals
                               BIA No. A097 395 621


Before JONES, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
       Kefa Mose, a native and citizen of Kenya, has filed a petition for review of
the Board of Immigration Appeals (BIA) August 28, 2012, decision dismissing
his appeal of the immigration judge’s (IJ) denial of his request for a continuance
and his request for voluntary departure.
       With respect to the IJ’s denial of a continuance, Mose argues that the
continuance should have been granted to afford him a reasonable opportunity
to have the second I-130 immigrant visa petition his spouse filed on his behalf

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
    Case: 12-60756     Document: 00512351980      Page: 2    Date Filed: 08/23/2013

                                  No. 12-60756

adjudicated. An approved petition, he asserts, would have allowed him to adjust
his status.
      The decision whether to grant a motion to continue lies within the sound
discretion of the IJ, who may grant the motion for good cause shown. Witter v.
INS, 113 F.3d 549, 555 (5th Cir. 1997). When assessing whether a continuance
should be granted to await the final adjudication of a pending visa petition, “the
focus of the inquiry is the apparent ultimate likelihood of success on the
adjustment application.” Matter of Hashmi, 24 I. & N. Dec. 785, 790-91 (BIA
2009); see Wu v. Holder, 571 F.3d 467, 469-70 (5th Cir. 2009). In this case, the
IJ’s decision reveals that the denial of a continuance was based, inter alia, on the
IJ’s assessment of the viability of the then pending second I-130 petition in the
light of the denial of an earlier filed I-130 petition on grounds of marriage fraud.
As the BIA observed in Hashmi, “[if] other visa petitions filed on the
respondent’s behalf have been denied, those petitions and the USCIS’s
determinations could also be presented and considered. These prior filings or
other evidence of potential fraud or dilatory tactics may impact the viability of
the visa petition underlying the motion.” Hashmi, 24 I. & N. Dec. at 792.
      Mose has shown no abuse of discretion in the BIA’s dismissal of his appeal
of the IJ’s denial of a continuance. See Witter, 113 F.3d at 555. His petition for
review of this issue is denied.
      Mose also challenges the denial of his request for voluntary departure. We
lack jurisdiction to review that discretionary decision.          See 8 U.S.C. §
1252(a)(2)(B); Eyoum v. INS, 125 F.3d 889, 891 (5th Cir. 1997).
      Finally, Mose’s petition for review of the BIA’s August 2012 decision does
not confer upon us jurisdiction to consider his challenge to the IJ’s June 2004
later-invalidated decision sustaining all of the charges alleged in the notice to
appear. See § 1252(b)(1); see also Stone v. INS, 514 U.S. 386, 394-95 (1995).
      Accordingly, Mose’s petition for review is DENIED IN PART and
DISMISSED IN PART FOR LACK OF JURISDICTION.

                                         2
