                              NOT FOR PUBLICATION                        FILED
                    UNITED STATES COURT OF APPEALS                       DEC 20 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT

JOSE UBALDO LOPEZ-BALVANEDA,                    No.    16-70745

                Petitioner,                     Agency No. A087-958-364

 v.
                                                MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,

                Respondent.

                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                          Submitted December 18, 2017**


Before:      WALLACE, SILVERMAN, and BYBEE, Circuit Judges.

      Jose Ubaldo Lopez-Balvaneda, a native and citizen of Mexico, petitions for

review of the Board of Immigration Appeals’ (“BIA”) decision denying a motion

to remand and dismissing his appeal from an immigration judge’s removal order

denying a continuance. We have jurisdiction under 8 U.S.C. § 1252. We review for


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
abuse of discretion the denial of a continuance and review de novo questions of

law. Ahmed v. Holder, 569 F.3d 1009, 1012 (9th Cir. 2009). We review for abuse

of discretion the BIA’s denial of a motion to remand. Romero-Ruiz v. Mukasey,

538 F.3d 1057, 1062 (9th Cir. 2008). We deny the petition for review.

      The agency did not err or abuse its discretion in denying a continuance to

pursue post-conviction relief and file an I-130 visa petition, where Lopez-

Balvaneda waited several years to seek post-conviction relief, and where he did not

show he had filed the visa petition more than a year after he was eventually granted

post-conviction relief. See Singh v. Holder, 638 F.3d 1264, 1274 (9th Cir. 2011) (IJ

not required to grant a continuance based on speculation); Matter of Hashmi, 24

I. & N. Dec. 785 (BIA 2009) (listing factors for agency to consider when deciding

whether to continue proceedings for an alien to seek adjustment of status based on

a pending visa petition); see also Mendez-Castro v. Mukasey, 552 F.3d 975, 980

(9th Cir. 2009) (the agency applies the correct legal standard where it expressly

cites and applies relevant case law).

      The BIA did not abuse its discretion in denying Lopez-Balvaneda’s motion

to remand, where he had not shown a visa petition application had been filed on his

behalf, and thus could not show a visa was immediately available. See 8 U.S.C.

§ 1255(i)(2)(B) (an immigrant visa must be immediately available to be granted

adjustment of status); Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010) (the


                                         2                                    16-70745
BIA can deny a motion to remand for failure to establish a prima facie case for the

relief sought).

      In light of this determination, we need not address Lopez-Balvaneda’s

contention that he warrants a grant of adjustment of status in the exercise of

discretion. See Simeonov v. Ashcroft, 371 F.3d 532, 538 (9th Cir. 2004).

      PETITION FOR REVIEW DENIED.




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