     Case: 12-60186       Document: 00512131296         Page: 1     Date Filed: 01/31/2013




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

                                                                            FILED
                                                                         January 31, 2013
                                     No. 12-60186
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

BRIJESH BHADWAL,

                                                  Petitioner

v.

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

                                                  Respondent


                        Petition for Review of an Order of the
                           Board of Immigration Appeals
                                BIA No. A099 293 379


Before KING, CLEMENT, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Brijesh Bhadwal, a native and citizen of India, filed a petition for review
of the decision of the Board of Immigration Appeals (BIA) dismissing his appeal
of the immigration judge’s (IJ) denial of his request for a continuance.
       Bhadwal challenges the IJ’s denial of a continuance, arguing that he had
demonstrated good cause for a continuance to seek adjustment of status
following the adjudication of his second wife’s I-130 immigrant visa petition on
his behalf. Bhadwal contends that the IJ erroneously concluded that the current

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 12-60186     Document: 00512131296       Page: 2   Date Filed: 01/31/2013

                                   No. 12-60186

petition could not be granted based on the determination made on the
adjudication of his first wife’s I-130 immigrant visa petition that the first
marriage was entered into so that Bhadwal could obtain immigration benefits.
      The grant of 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). We review for an abuse of discretion. See id. There is no
abuse of discretion where the IJ’s or the BIA’s decision is not “capricious, racially
invidious, utterly without foundation in the evidence, or otherwise so
aberrational that it is arbitrary rather than the result of any perceptible rational
approach.” Galvez-Vergara v. Gonzales, 484 F.3d 798, 801 (5th Cir. 2007)
(internal quotations and citation omitted).
      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.” Wu v.
Holder, 571 F.3d 467, 470 (5th Cir.2009) (internal quotation marks and citation
omitted). Further, “[i]f 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.” Matter of Hashmi, 24 I. & N. Dec. 785, 792 (BIA 2009).
      The BIA concluded that the prior marriage fraud determination did not
conclusively establish that Bhadwal’s second wife’s petition on his behalf would
be denied but that it significantly hindered the likelihood of the petition’s
success. The Government’s denial of the first I-130 petition on grounds of
marriage fraud was, therefore, evidence that the pending I-130 petition was not
likely to be approved. See Hashmi, 24 I. & N. Dec. at 792.
      Bhadwal 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. The
petition for review is DENIED.

                                         2
