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

                                               FILED
                                                                        October 30, 2009

                                    No. 09-60146                     Charles R. Fulbruge III
                                  Summary Calendar                           Clerk



MOHAMMAD A. KASHEM,

                                                 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. A097-676-497


Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Mohammad Kashem has filed a petition for review of a Board of
Immigration Appeals (“BIA”) decision affirming the denial of Kashem’s request
for a continuance. He alleges that the Immigration Judge (“IJ”), sustained by
the BIA, committed an abuse of discretion by refusing to continue Kashem’s
removal proceedings until a pending I-130 visa petition could be adjudicated.
We find no error. Accordingly, the petition for review is DENIED.


*
 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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                       No. 09-60146



                                     BACKGROUND
A.     Initial Proceedings
       Mohammad Kashem, a native of Bangladesh, was admitted to the United
States in August 2001 as a non-immigrant student to attend Bellevue University
in Nebraska. He was authorized to remain in the United States for the duration
of his student status. However, after earning his degree in June 2004, Kashem
remained in the country without authorization.
       On October 6, 2005, the Department of Homeland Security issued an
arrest warrant and a Notice to Appear, which charged Kashem with
removability as an alien present in violation of the law and with failing to
comply with the conditions of the non-immigrant status under which he had
been admitted. Kashem was taken into custody the same day and released on
bond on October 14, 2005.
       During a hearing before the IJ on October 20, 2005, Kashem admitted the
factual allegations in the Notice to Appear and conceded removability. However,
Kashem requested adjustment of status based on his July 24, 2004 marriage to
Shashonde Gunnels, a United States citizen. Although they had been married
for nearly fifteen months at the time of the hearing, Gunnels did not file an I-
130 1 visa petition on Kashem’s behalf until the day before the hearing, October
19, 2005. The IJ sua sponte continued the hearing for one month to permit
Kashem to submit evidence demonstrating that his marriage was bona fide.




1
       An I-130 visa petition, also known as a Petition for Alien Relative, is filed by a United
States citizen or permanent resident on behalf of an alien relative. The petition is only
approved after verifying that the claimed familial relationship is bona fide. See 8 C.F.R.
204.2(a).

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      When the hearing resumed on November 29, 2005, Kashem presented the
following evidence in support of his claim that his marriage to Gunnels was bona
fide: a copy of the I-130 visa petition and receipt notice; a copy of their marriage
license and 2004 tax returns filed as a married couple; a lease agreement; bank
and electricity statements; and family photos, including photos from their
wedding. In addition, Kashem, Gunnels, and several members of Gunnels’s
family testified on Kashem’s behalf.          Two Immigration and Customs
Enforcement (“ICE”) officers who had been assigned to investigate Kashem’s
immigration status testified for the government.
      At the conclusion of the hearing, the IJ issued an oral decision finding
Kashem removable on the charges in the Notice to Appear.              In addition,
Kashem’s motion for a continuance to await adjudication of the pending I-130
visa petition was denied. In denying a continuance, the IJ relied on Matter of
Velarde, 23 I. & N. Dec. 253 (BIA 2002) and found that Kashem failed to
establish that his marriage was bona fide by clear and convincing evidence.
Finally, the IJ denied Kashem’s request for voluntary departure, and ordered
him removed to Bangladesh.
      On April 13, 2007, the BIA held that the IJ erroneously relied on Matter
of Velarde when determining whether to grant Kashem’s continuance request.
The BIA explained that since Kashem entered into marriage prior to the removal
proceedings, he was exempt from complying with the requirements outlined in
Matter of Velarde, including the requirement that he establish that his marriage
was bona fide by clear and convincing evidence. Accordingly, this matter was
remanded to the IJ to determine whether Kashem’s I-130 visa permit was prima
facie approvable.
B.    Proceedings After Remand to Immigration Judge


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      On remand to the IJ, Kashem was ordered to submit evidence
demonstrating the bona fides of his marriage prior to a September 21, 2007
hearing. Accordingly, Kashem submitted documentary evidence similar to that
which he provided prior to the November 2005 hearing.
      At the start of the September 21, 2007 hearing, Kashem’s new attorney
made her first appearance. She advised the court that she did not plan to call
any witnesses and indicated that she did not object to the documentary evidence
submitted to the court by Kashem’s previous attorney. The government then
submitted a Notice of Intent to Deny Visa Petition (“NOID”) issued three days
earlier by the Director of the Dallas Field Office, United States Citizenship and
Immigration Services (“USCIS”). Kashem’s attorney said she had no objection
to admitting the NOID into evidence.
      The NOID was a three-page letter that first summarized the procedure
that had been followed, including that Kashem and Gunnels were interviewed.
The letter listed what the USCIS considered to be significant discrepancies
between the answers Kashem and Gunnels gave about their shared lives. The
differences convinced the USCIS that it was unlikely the couple was actually
living together as each asserted. Included on the list were these matters:
      (1) Gunnels stated that her younger son sees his biological father
      almost daily. Kashem claimed the biological father does not see the
      younger son at all.

      (2) Gunnels stated that her older son has an on-going relationship
      with his biological father and visited him for a month in Arizona
      during 2006. Kashem claimed the biological father has no
      relationship with the older son.

      (3) Gunnels stated that they do not use birth control because she
      had received a birth control shot. Kashem claimed the couple used
      condoms.


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      (4) Gunnels did not know Kashem was Muslim, where he attended
      college, what field he earned his Bachelor’s and Master’s degrees in,
      the names or ethnic background of Kashem’s parents, or the name
      of the country where his parents reside.

      After highlighting these and other discrepancies, the letter informed
Gunnels that the USCIS concluded that “you and your spouse entered into this
marriage by fraud with the sole intention of evading immigration laws to obtain
an immigration benefit.” The USCIS said it intended to deny the I-130 visa
petition, but that a final decision would not be made for thirty days. The delay
was to allow Gunnels an opportunity to submit any evidence she believed would
rebut the reasons for denial stated in the letter.
      Kashem alleges that prior to the hearing, neither he nor Gunnels had been
provided with a copy of the NOID. They were unaware that one had even been
issued. Although both were present at the hearing, neither Kashem nor Gunnels
provided any testimony to rebut the allegations in the NOID.
      At the conclusion of the hearing, the IJ issued an oral decision in which he
found that Kashem “has failed to meet his burden of proof that his visa petition
is prima facie approvable.” The IJ further explained:
      in light of the notice of intent to deny the visa Petition . . . and the
      information obtained herein which has not been rebutted or refuted
      by the respondent or the petitioner today, the Court finds that no
      good cause has been established to continue this matter and
      therefore, the continuance is denied.

After denying Kashem’s request for a continuance to await the final adjudication
of the I-130 visa petition, the IJ ordered Kashem removed from the United
States to Bangladesh.
      On February 5, 2009, the BIA dismissed Kashem’s appeal. The BIA found
Kashem’s evidence in support of the prima facie approvability of the visa petition


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to be countered by the NOID. The allegations in the NOID “directly affected the
evidentiary weight of [Kashem’s] documents.”      The BIA also stated that even
though Kashem’s failure to testify did not preclude him from establishing that
his marriage was bona fide, his failure to dispute the allegations in the NOID
was “highly significant.” Finally, the BIA concluded that Kashem “has not
shown that his marriage is bona fide and that his wife’s visa petition is prima
facie approvable.”    All of this meant that the IJ did not need to grant a
continuance because there was no good cause shown.
                                 DISCUSSION
      The only issue in this petition for review is whether the BIA improperly
failed to overturn the refusal of the IJ to grant a continuance in order to await
a resolution of the I-130. Two different arguments are made. One is that it was
error to rely on the NOID as evidence. The other argument is that good cause
for the continuance was shown.
      We review a decision to deny a continuance of a removal proceeding for
abuse of discretion. Masih v. Mukasey, 536 F.3d 370, 373 (5th Cir. 2008).
Although we only have authority to review the BIA’s decision, “we may consider
the IJ’s decision to the extent that it influenced the BIA.” Id.
      An alien properly admitted into the United States who later becomes
subject to removal based on a failure to maintain his nonimmigrant status may
be eligible for an adjustment of status. Bolvito v. Mukasey, 527 F.3d 428, 431
(5th Cir. 2008).     The only eligibility criterion challenged here is that an
immigrant visa must be immediately available when the application for
adjustment of status is filed. 8 C.F.R. § 245 (a)(3). When a previously admitted
alien seeks adjustment of status based on marriage to a United States citizen,
an approved I-130 visa petition satisfies the requirement that a visa be


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immediately available. INS v. Miranda, 459 U.S. 14, 15 (1982). Once an I-130
visa petition is approved, the alien can apply for status adjustment pursuant to
8 U.S.C. § 1255(a). In re Hashmi, 24 I. & N. Dec. 785, 789 (BIA 2009).
      Although an IJ has discretion in deciding whether there is good cause for
a continuance of a removal proceeding, a continuance generally should be
ordered if it is shown that a “prima facie approvable” I-130 immigration visa
petition has been properly presented to the USCIS but no order has been
entered. Hing Chuen Wu v. Holder, 571 F.3d 467, 469 (5th Cir. 2009). The alien
bears the burden of demonstrating prima facie approvability. Id.
      Kashem claims that the pending I-130 visa petition remained prima facie
approvable at the time of the September 21, 2009 hearing, because no final
denial had been issued.      Under that premise, Kashem contends that he
demonstrated good cause for the continuance, and that the IJ abused his
discretion by denying this request.
      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,” and “it
is useful for the Immigration Judge to evaluate the viability of the underlying
I-130.” In re Hashmi, 24 I. & N. Dec. at 790-91. Here, the record shows that the
IJ did focus on the viability of the I-130. An I-130 visa petition cannot be
approved if the marriage supporting the petition was entered for the purpose of
evading the immigration laws. 8 U.S.C. § 1154(c); 8 C.F.R. § 204.2(a)(1)(i)(C)(ii).
Thus, the USCIS’s conclusion that Kashem entered into the marriage “by fraud
with the sole intention of evading immigration laws to obtain an immigration
benefit” is evidence that the I-130 visa petition was not likely to be approved.




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      Though a NOID is not the equivalent of a final denial from USCIS, the
evidence it provides to the IJ is relevant in deciding whether a I-130 visa petition
is prima facie approvable. The NOID was properly admitted into evidence
without objection. The IJ weighed this evidence against the documentary
evidence submitted by Kashem.            Kashem did not attempt to rebut the
allegations in the NOID.        Viewing this evidence as a whole, we find that
substantial evidence supported the IJ’s finding that the pending I-130 visa
petition was not prima facie approvable.
      Kashem was the party seeking a continuance and therefore had the
burden of demonstrating good cause. Ramchandani v. Gonzales, 434 F.3d 337,
338 (5th Cir. 2005). The IJ was entitled to find that the I-130 visa petition was
not prima facie approvable. Accordingly, the IJ did not abuse his discretion by
finding no good cause for a continuance.
      Finally, Kashem claims that he was unfairly required to respond to the
allegations in the NOID during the September 21, 2007 hearing, despite the fact
that he only became aware of the NOID’s existence when the government
admitted it into evidence. This seems to be a claim that the IJ violated his due
process rights. Kashem’s attorney made no objection when the NOID was
admitted. He did not, for example, request a continuance for the purpose of
responding to the allegations contained in the NOID.2 Not having objected at
the time to the process being followed, Kashem cannot now claim that his due
process rights were violated. See Bolvito, 527 F.3d at 438.
      The petition for review is DENIED.




2
       This request for a continuance would have been different from Kashem’s request for
a continuance to await final adjudication of the I-130 visa petition.

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