                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 March 21, 2006

                       _____________________             Charles R. Fulbruge III
                                                                 Clerk
                           No. 05-60413

                         (Summary Calendar)
                       _____________________

OLUSHOLA FESTUS OMOTOYO, also known as Festus Omotoyo

                            Petitioner,

v.

ALBERTO R GONZALES, U S ATTORNEY GENERAL,

                                 Respondent.

          __________________________________________

                   Petition for Review from the
                  Board of Immigration Appeals,
                          No. A75 887 824
          __________________________________________

Before SMITH, GARZA, AND PRADO, Circuit Judges.

PER CURIAM:*

     Petitioner Olushola Festus Omotoyo petitions for review of

the Board of Immigration Appeals’ (“BIA”) decision to dismiss his

appeal.



                                 I

     Omotoyo is a native and citizen of Nigeria who was lawfully


     *
          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that this opinion should not be published and is not precedent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.

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admitted to the United States in August 2000 as a permanent

resident.    On February 2, 2004, he was convicted in Texas for

assaulting his wife, an offense for which a sentence of one year

or longer may be imposed.    Omotoyo was sentenced to deferred

adjudication and twelve months community supervision.

     The Department of Homeland Security (“DHS”) served Omotoyo

with a Notice to Appear (“NTA”), alleging that Omotoyo was

subject to removal from the United States pursuant to Immigration

and Naturalization Act (“INA”) § 237(a)(2)(E)(I), as amended, as

an alien who at any time after entry had been convicted of a

crime of domestic violence.    The NTA also alleged that Omotoyo

was removable pursuant to INA § 237(a)(2)(A)(I), as amended,

having been convicted of a crime involving moral turpitude for

which a sentence of one year or longer may be imposed, committed

within five years after admission.

     Omotoyo’s removal hearing was continued four times.    At the

second hearing, the IJ found Omotoyo removable as charged, but

allowed the subsequent continuances so that Omotoyo could secure

an attorney.    At the fifth hearing, Omotoyo’s attorney requested

another continuance because an I-130 visa petition would be filed

on Omotoyo’s behalf within two weeks.    The IJ noted that Omotoyo

was not eligible for any relief, with the exception of voluntary

departure.    The IJ declined to continue the proceedings because,

inter alia, the case had been on the docket five times and

Omotoyo had failed to apply for any relief.    The IJ held that

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Omotoyo remained removable as charged.

     On October 19, 2004, Omotoyo appealed the IJ’s decision to

the BIA.   On February 11, 2005, Petitioner filed a motion to

reopen proceedings with the BIA requesting that proceedings be

remanded to the IJ.    Petitioner claimed that the I-130 visa

petition had now been filed on his behalf and argued that a visa

was immediately available due to his classification as an

immediate relative under INA § 201(b)(2)(A)(I), based on his

marriage to a United States citizen.

     On April 21, 2005, the BIA denied Omotoyo’s request to

reopen proceedings and dismissed his appeal.

     On May 16, 2005, Omotoyo filed a petition for review pro se

from the BIA’s decision.



                                 II

     We review questions of law de novo and review factual

conclusions of the BIA for substantial evidence.     Carbajal-

Gonzalez v. INS, 78 F.3d 194, 197 (5th Cir. 1996).    We review an

IJ’s denial of a request to continue removal proceedings for

abuse of discretion.    See Manzano-Garcia v. Gonzales, 413 F.3d

462, 467 (5th Cir. 2005) (reviewing the BIA’s denial of request

to reopen removal proceedings under an abuse of discretion

standard).

     Omotoyo argues that his sentence of deferred adjudication

probation that he received was not a final conviction under the

                                  3
Texas Code of Criminal Procedure, and thus does not amount to a

“conviction” for immigration purposes.    The government urges that

this court lacks jurisdiction to consider this argument because

Omotoyo failed to raise it before the IJ.    The record reveals

Omotoyo did raise this argument during the administrative

proceedings, and we have jurisdiction to review.    Omotoyo bases

his argument on Martinez-Montoyo v. Immigration & Naturalization

Service, 904 F.2d 1018 (5th Cir. 1990), but that case’s holding

was superceded by statute.    Moosa v. Immigration & Naturalization

Service, 171 F.3d 994, 1001-02 (5th Cir. 1999).     In 1997,

Congress broadened the scope of the definition of “conviction” to

include cases in which adjudication was deferred.     Id. at 1002.

     Omotoyo also argues that the IJ abused his discretion in

denying Omotoyo’s request for a continuance to file an I-130 visa

petition.    When the BIA denied Omotoyo’s request to reopen

proceedings, it noted that, “[n]either during any of the five

hearings, [n]or in connection with [the] motion to reopen,” did

Omotoyo submit an application for adjustment of status to the IJ.

The BIA denied Omotoyo’s motion to remand because the record did

not establish that the underlying I-130 visa petition had been

favorably adjudicated and that a visa was currently available to

Omotoyo.    Therefore, the BIA found that the IJ did not act

unreasonably in denying Omotoyo’s request for a continuance.      See

Matter of Garcia, 16 I&N Dec. 653, 657 (BIA 1978) (holding that

an IJ should generally grant a motion to reopen or a request for

                                  4
a continuance pending final adjudication of a visa petition filed

simultaneously with an adjustment application, if the visa

petition is prima facie approvable and the adjustment application

has in fact been submitted to him) modified on other grounds by

Matter of Arthur, 20 I&N Dec. 475 (BIA 1992); see also Witter v.

INS, 113 F.3d 549, 555 (5th Cir. 1999) (“The grant of a

continuance of a deportation hearing lies within the sound

discretion of the immigration judge, who may grant a continuance

upon a showing of good cause” (citation omitted)).    The IJ did

not abuse his discretion in refusing Omotoyo’s request.

     Omotoyo next argues that the IJ denied him due process when

he failed to inform Omotoyo of various forms of relief or

protection under the INA, including, inter alia, asylum and

protection under the Convention Against Torture.    Omotoyo’s

argument is without merit.    A due process challenge to a removal

proceeding requires a showing of substantial prejudice.      Anwar v.

INS, 116 F.3d 140, 144 (5th Cir. 1997).    Omotoyo has not

established that he was eligible for any form of relief of which

he was unaware.    Furthermore, eligibility for discretionary

relief in an immigration proceeding is not protected by due

process.   See United States v. Lopez-Ortiz, 313 F.3d 225, 331

(5th Cir. 2002).   Omotoyo’s due process rights are not implicated

because it is within the IJ’s discretion to grant him relief.

     Finally, Omotoyo argues that his conviction for assaulting a

family member in violation of Texas Penal Code § 22.01(a)(1) does

                                  5
not render him removable.   Section 1227(a)(2)(E)(I) of Title 8 of

the United States Code renders removable an alien convicted of a

crime of violence committed against a person protected under the

family violence laws of any state.   An assault in violation of

Texas Penal Code § 22.01(a)(1) is a crime of violence.   See

United States v. Shelton, 325 F.3d 553, 558-61 (5th Cir. 2003)

(holding that § 22.01(a)(1) of the Texas Penal Code is a crime of

violence for purposes of 18 U.S.C. § 921(a)(33)(A)).   “Family

members” fall into the class of persons protected under the

family violence laws of Texas.   TEX. PENAL CODE § 22.01(b)(2).

Omotoyo is removable.

     Omotoyo argues for the first time in his reply brief that

the Due Process Clause prevents DHS from initiating removal

proceedings while he was serving a state sentence of probation.

We deem it waived.   Linbrugger v. Abercia, 363 F.3d 537, 541 n.1

(5th Cir. 2004) (stating that an argument made for the first time

in a reply brief is waived).

     Accordingly, we DENY Omotoyo’s petition for review of the

BIA’s decision.




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