     Case: 14-60484      Document: 00513103431         Page: 1    Date Filed: 07/02/2015




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

                                    No. 14-60484                                  FILED
                                  Summary Calendar                             July 2, 2015
                                                                             Lyle W. Cayce
                                                                                  Clerk
JOSE ARDUENGO-RIVERA, also known as Jose Arduengo Rivera,

                                                 Petitioner

v.

LORETTA LYNCH, U.S. ATTORNEY GENERAL,

                                                 Respondent


                       Petition for Review of an Order of the
                          Board of Immigration Appeals
                               BIA No. A205 075 883


Before PRADO, OWEN, and GRAVES, Circuit Judges.
PER CURIAM: *
       Jose Arduengo-Rivera petitions for review of a dismissal by the Board of
Immigration Appeals (BIA) of his appeal of the denial of his motion for a
continuance. He contends that the denial of his motion was an abuse of
discretion. He also contends that the immigration judge (IJ) violated his due
process rights during his removal hearing. Because the BIA’s decision was




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                  No. 14-60484

based on the IJ’s decision, we will consider both in this case. See Theodros v.
Gonzales, 490 F.3d 396, 400 (5th Cir. 2007).
      “The grant of a continuance lies within the sound discretion of the IJ,
who may grant a continuance for good cause shown.” Masih v. Mukasey, 536
F.3d 370, 373 (5th Cir. 2008). To establish good cause, “an alien at least must
make a reasonable showing that the lack of preparation occurred despite a
diligent good faith effort to be ready to proceed and that any additional
evidence he seeks to present is probative, noncumulative, and significantly
favorable to the alien.” Matter of Sibrun, 18 I&N Dec. 354, 356 (BIA 1983).
The alien must also show that “the denial caused him actual prejudice and
harm and materially affected the outcome of his case.” Id. at 356-57.
      The BIA’s determination that the IJ properly denied Arduengo-Rivera’s
continuance request is supported by the record, which establishes that
Arduengo-Rivera moved for a continuance solely because his attorney was not
prepared to take witness testimony or present evidence regarding the date and
manner of Arduengo-Rivera’s entry into the United States. Arduengo-Rivera’s
lack of diligence constituted a reasonable basis for the IJ to deny the
continuance motion. See Sibrun, 18 I&N Dec. at 356. Even if the IJ had
granted the continuance, Arduengo-Rivera’s request for adjustment of status
to that of a person admitted for permanent residence would have nevertheless
failed in light of both his failure to apply for adjustment of status and his
concession that his prior narcotics conviction rendered him statutorily
ineligible for such relief. See 8 U.S.C. § 1182(a)(2)(A)(i)(II), § 1255(a); see also
Matter of Sanchez-Sosa, 25 I&N Dec. 807, 815 (BIA 2012) (holding that, as a
general rule, an alien who is unlikely to be granted relief should not be
permitted to engage in dilatory tactics to forestall the conclusion of removal
proceedings).



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                                  No. 14-60484

      Arduengo-Rivera’s due process argument, which we review de novo, is
equally without merit. An alien raising a due process argument must first
show substantial prejudice. Anwar v. I.N.S., 116 F.3d 140, 144 (5th Cir. 1997).
Because Arduengo-Rivera was not eligible for adjustment of status as a result
of his failure to file an application and his prior narcotics conviction, he has
failed to establish actual prejudice. Id.
      Arduengo-Rivera’s petition for review is DENIED. His motion to hold
these proceedings in abeyance is also DENIED.




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