                                                             [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                  FILED
                     FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                       ________________________ ELEVENTH CIRCUIT
                                                              AUGUST 21, 2009
                             No. 08-16963                    THOMAS K. KAHN
                         Non-Argument Calendar                   CLERK
                       ________________________

                Agency Nos. A098-498-745, A098-498-744

MATHEUS RAMALHO GIUNCO,
MIQUEIAS RAMALHO GIUNCO,
LIDIA DE SOUZA GIUNCO,
JOSUE GIUNCO,

                                                                    Petitioners,

                                  versus

U.S. ATTORNEY GENERAL,

                                                                   Respondent.


                       ________________________

                  Petition for Review of a Decision of the
                       Board of Immigration Appeals
                       _________________________

                            (August 21, 2009)

Before DUBINA, Chief Judge, BLACK and BARKETT, Circuit Judges.

PER CURIAM:
      Matheus Ramalho Giunco and his family, natives and citizens of Brazil,

petition for review of the Board of Immigration Appeals’s (“BIA’s”) decision that

they did not make a prima facie showing of eligibility for immigration relief and

did not receive ineffective assistance of counsel. The BIA affirmed the

immigration judge’s denial of a continuance, despite Giunco’s assertion that his

initial immigration counsel was ineffective for failing to timely apply for

immigration relief.

      In his petition, Giunco argues that the BIA erred by finding that he

abandoned his application for relief. He maintains that he had a path to lawful

permanent residence through non-discretionary relief, a visa as a religious worker.

Giunco argues that he would have been eligible for adjustment under the

Immigration and Nationality Act (“INA”) § 245(i), 8 U.S.C. § 1255, if his initial

immigration lawyer had not defrauded him. He maintains that the BIA erred by

finding that he did not qualify for lawful permanent residence because he was

eligible for INA § 245(i) relief as a religious worker. He asserts that he was not

required to comply with Matter of Lozada, 19 I & N Dec. 637 (BIA 1988), to show

ineffective assistance of counsel because he was not making a motion to reopen.

Further, he argues that he suffered prejudice because he was seeking non-

discretionary relief.



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      “We review the denial of a motion for continuance for an abuse of

discretion.” Chacku v. U.S. Att’y Gen., 555 F.3d 1281, 1285 (11th Cir. 2008).

Immigration regulations allow an immigration judge to grant a continuance for

good cause. Id. (citing 8 C.F.R. § 1003.29). When “the only thing standing

between [an alien] and permanent residence status [is] the agency’s approval of his

. . . visa petition and adjustment of status application,” denial of a continuance by

the immigration judge or the Board of Immigration Appeals is an abuse of

discretion. Id. at 1286. However, denial of a continuance when an alien is not

“statutorily eligible for adjustment of status” is not an abuse of discretion. Id.

      Under 8 U.S.C. § 1255(i), certain categories of aliens not legally admitted

may apply for adjustment of status to lawful permanent resident. 8 U.S.C.

§ 1255(i). To qualify, as further discussed, an alien must have been physically

present in the United States on December 21, 2000. Id. at § 1255(i)(1)(C).

Additionally, the alien must be a beneficiary of a petition for classification or an

application for a labor certificate. Id. at § 1255(i)(1)(B). An application for a labor

certificate is unavailable unless the Secretary of Labor certifies that there are

insufficient willing, able, and qualified workers for a job. See id. at §

1182(a)(5)(A). A petition for classification requires that an application be filed

before April 30, 2001. Id. at § 1255(i)(1)(B)(i). Further, such a petition must be

submitted by an American citizen for the alien’s benefit. Id. at § 1154(a)(1)(A)(i).
                                            3
An alien entering the United States to act as a religious minister can be admitted as

a ‘special immigrant’ if the alien meets certain qualifications, but the alien does not

automatically become an American citizen. Id. at § 1101(a)(27)(C).

      Because the record shows that Giunco was not eligible for relief pursuant to

8 U.S.C. § 1255(i), we conclude that the IJ and BIA did not abuse their discretion

by affirming the immigration judge’s denial of a continuance. Accordingly, we

deny Giunco’s petition for review.

      PETITION DENIED.




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