                                                             [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________                    FILED
                                                        U.S. COURT OF APPEALS
                            No. 09-12245                  ELEVENTH CIRCUIT
                                                             JANUARY 5, 2010
                        Non-Argument Calendar
                                                                JOHN LEY
                      ________________________
                                                              ACTING CLERK

                        Agency No. A095-263-919

ROBERTO ORDONEZ VARGAS,


                                                                     Petitioner,

                                  versus

U.S. ATTORNEY GENERAL,

                                                                   Respondent.


                      ________________________

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

                             (January 5, 2010)

Before CARNES, MARCUS and WILSON, Circuit Judges.

PER CURIAM:
       Through counsel, Roberto Ordonez Vargas (“Ordonez Vargas”), a native

and citizen of Colombia, appeals from the Board of Immigration Appeals’s

(“BIA”) decision upholding the immigration judge’s (“IJ”) order of removal and

denial of his request for a continuance of the removal proceedings. On appeal,

Ordonez Vargas argues that he showed good cause to warrant a continuance

because he would be eligible to adjust his status upon receiving an immigrant visa

in the future, and that he should have been given the opportunity to apply for relief

under the Convention Against Torture (“CAT”). Upon review of the record and

the parties’ briefs, we deny the petition.

                                         I. Background

       Gloria Cristina Arzuza Duran (“Duran”) filed an application for asylum and

withholding of removal under the Immigration and Nationality Act (the “INA”)

and for relief under CAT, listing her husband, Ordonez Vargas, and her daughter as

derivative beneficiaries.1 The Government filed a notice to appear, alleging that

Duran, her daughter, and Ordonez Vargas were subject to removal for remaining in

the country for a period longer than permitted. INA § 237(a)(1)(B), 8 U.S.C. §

1227(a)(1)(B). The IJ found that Duran met her burden of proof for withholding of

removal. On appeal, however, the BIA reversed the IJ’s grant of withholding of

       1
        Under INA § 208(b)(3)(A), 8 U.S.C. § 1158(b)(3)(A), “[a] spouse or child . . . of an
alien who is granted asylum . . . may . . . be granted the same status as the alien if accompanying,
or following to join, such alien.”
                                                   2
removal and remanded for the IJ to consider Duran’s request for CAT relief and

voluntary departure in the first instance, and in order to allow Duran, her daughter,

and Ordonez Vargas to request any other form of relief.

      On remand, the IJ held a hearing, and Duran’s counsel explained that after

the BIA’s decision, Ordonez Vargas and Duran initiated divorce proceedings, and

Duran and her daughter were willing to accept voluntary departure. Ordonez

Vargas, however, sought adjustment of status because an I-130 visa petition filed

by his United States citizen sister was approved on his behalf, and it is dated April

30, 2001. However, Ordonez Vargas’s immigrant visa number was not yet

available, and counsel conceded that it would not be available for at least one year

due to the backlog. The IJ then asked if Ordonez Vargas was requesting any other

relief. His counsel responded that Ordonez Vargas was hoping to obtain a

continuance until the immigrant visa became available. The IJ denied the request,

explaining that he could not “grant a continuance for that long.” Admin. R. at 87.

Because Ordonez Vargas made it clear that he would not seek any other form of

relief, including voluntary departure, the IJ issued an oral decision ordering

Ordonez Vargas removed to Colombia and reiterating the denial of his request for

continuance.

      Ordonez Vargas appealed the IJ’s decision to the BIA arguing that he

showed good cause to warrant a continuance because, although he was not
                                           3
presently eligible for adjustment of status, he would be so eligible in the future.

The BIA dismissed the appeal, finding no error in the IJ’s denial of Ordonez

Vargas’s request for continuance because his “speculative future eligibility for

adjustment of status fails to establish good cause.” Admin. R. at 3.

                              II. Standard of Review

      We have jurisdiction to review the BIA’s decision affirming the IJ’s denial

of a motion to continue a removal hearing. Zafar v. U.S. Att’y Gen., 461 F.3d

1357, 1360 (11th Cir. 2006). “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) (per curiam) (citing Haswanee v. U.S. Att’y Gen., 471 F.3d 1212, 1214

(11th Cir. 2006) (per curiam)). When the BIA issues a decision, this Court reviews

only that decision, except to the extent that the BIA expressly adopts the IJ’s

decision. Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001). In this

case, the BIA issued its own decision, and we therefore review only that decision.

“The immigration regulations provide that the IJ may grant a continuance ‘for

good cause shown.’” Chacku, 555 F.3d at 1285 (quoting 8 C.F.R. § 1003.29).

                                    III. Discussion

      Ordonez Vargas’s primary argument on appeal is that his future eligibility

for adjustment-of-status relief—to be triggered when an immigrant visa number

becomes available—constituted good cause for a continuance. While aliens who
                                           4
overstay their visas are generally ineligible for adjustment-of-status relief, INA

§ 245(i), 8 U.S.C. § 1255(i), creates an exception for certain aliens who are the

beneficiary of either a petition for classification or an application for a labor

certification—including an I-130 petition filed by a U.S. citizen or lawful

permanent resident who is the alien’s sibling2 —filed on or before April 30, 2001.

Zafar, 461 F.3d at 1362; INA § 245(i)(1), 8 U.S.C. § 1255(i)(1). However, the

Attorney General may only grant adjustment-of-status relief to those aliens if,

inter alia, “an immigrant visa is immediately available to the alien at the time the

application is filed.” INA § 245(i)(2)(B), 8 U.S.C. § 1255(i)(2)(B). While

immigrant visas are immediately available to parents, spouses, and children of an I-

130 petitioner, see INA § 201(b)(2)(A)(i), 8 U.S.C. § 1151(b)(2)(A)(i), other

relatives, including siblings, are placed in preference categories that are subject to

worldwide numerical limitations. See INA §§ 201(c), 203(a)(4), 8 U.S.C. §§

1151(c), 1153(a)(4). Thus, the State Department determines visa eligibility for

those aliens based on the alien’s preference category and the date on which the I-

130 petition is filed. See 8 C.F.R. §§ 204.1(c), 245.1(g).

       In Chacku, we held that the BIA did not abuse its discretion by denying a

motion for a continuance where the alien was statutorily ineligible to adjust his



       2
        See INA § 204(a)(1)(A)(i), 8 U.S.C. § 1154(a)(1)(A)(i), cross-referencing INA §
203(a)(4), 8 U.S.C. § 1153(a)(4); 8 C.F.R. §§ 204.1(a)(1), 204.2(g).
                                               5
status under INA § 245(i), 8 U.S.C. § 1255(i). 555 F.3d at 1285–86. Specifically,

we held that the BIA did not abuse its discretion “because [the petitioner] was not

statutorily eligible for an adjustment of status on . . . the day he filed his

adjustment application, as he did not have an immigrant visa immediately

available to him at this time.” Id. at 1286; accord Zafar, 461 F.3d at 1362–64

(holding that “it clearly was not an abuse of discretion for the IJs to deny the

motions for continuances of the removal proceedings” because, at the time of the

removal hearings, the petitioners had not met the requirements for adjustment-of-

status relief under INA § 245(i)(2), 8 U.S.C. § 1255(i)(2), including the immediate

availability of a visa). In so holding, we distinguished our prior decisions in

Haswanee, 471 F.3d at 1215, and Merchant v. United States Attorney General,

461 F.3d 1375, 1378 n.4., 1379 (11th Cir. 2006), on the ground that the aliens in

those cases had met all of the statutory requirements, including the immediate

availability of an immigrant visa number. Chacku, 555 F.3d at 1286.

       In this case, it is undisputed that an immigrant visa number has never been

immediately available to Ordonez Vargas, even though his visa petition had been

approved. This case is therefore controlled by Chacku and Zafar, and Ordonez

Vargas’s reliance on Merchant is without merit. Ordonez Vargas also argues that

the IJ’s denial of his request for a continuance precluded him from seeking relief

under CAT, but the BIA correctly found that, despite being given the opportunity
                                            6
to do so, Ordonez Vargas did not request a continuance on this basis and failed to

set forth a CAT claim at the hearing when given the opportunity. In fact, Ordonez

Vargas specifically informed counsel that he would not seek voluntary departure

or any other relief. Finally, Ordonez Vargas suggests that the IJ was predisposed

to denying a continuance, but this contention is not supported by the record.

                                  IV. Conclusion

      The BIA did not abuse its discretion by upholding the denial of Ordonez

Vargas’s request for a continuance because Ordonez Vargas did not show good

cause. An immigrant visa number was not immediately available to Ordonez

Vargas for an adjustment in status, and Ordonez Vargas did not request a

continuance on the basis that he wanted to file a claim for CAT relief.

Accordingly, after review of the record and consideration of the parties’ briefs, we

deny the petition.



      PETITION DENIED.




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