               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 07a0190n.06
                           Filed: March 12, 2007

                                  Nos. 05-3667 and 05-4335

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT



BTISSAM TAGHZOUT and                                       )
RACHID BENAYAD,                                            )
                                                           )      On Appeal from the Bureau
       Petitioners,                                        )      of Immigration Appeals
                                                           )
v.                                                         )
                                                           )
ALBERTO R. GONZALES,                                       )
Attorney General,                                          )
                                                           )
       Respondent.                                         )



Before:       GILMAN and SUTTON, Circuit Judges; and HOOD, District Judge.*

       HOOD, DENISE PAGE, District Judge. Petitioner Btissam Taghzout, as the primary

applicant, and her husband, Rachid Benayad, filed an application for asylum, withholding of

removal, and protection under the United Nations Convention against Torture (“CAT”). The

immigration judge denied the asylum application as untimely. The immigration judge thereafter

reconsidered and denied the asylum application on the merits, finding that Taghzout had not

established past persecution or a well-founded fear of future persecution. The immigration judge

also denied Taghzout’s alternative application for withholding of removal.       The Board of

Immigration Appeals (“BIA”) affirmed the immigration judge’s decision. The BIA also denied a


* The Honorable Denise Page Hood, United States District Judge for the Eastern District of
Michigan, sitting by designation.
motion to reopen the process to review Benayad’s application for adjustment of status based on an

I-140 petition. For the reasons set forth below, we affirm the BIA’s decisions.

                                      I. BACKGROUND

       Taghzout and Benayad, both Muslims, are natives and citizens of Morocco. They were

neighbors and began spending time together alone and in secret in 1990. After two or three years,

Benayad proposed marriage to Taghzout, but her father refused permission. Benayad asked

Taghzout’s father again two or three years later but Taghzout’s father refused permission. Taghzout

claims that her family refused to give her permission to marry because she brought money into the

household from her work as a secretary and she did the cooking and housework.

       In 1998, Benayad came to the United States as a visitor and stayed. Benayad and Taghzout

were able to keep in touch by way of letters because Taghzout was the one who went to the post

office to pick up the mail. They occasionally spoke by telephone. Taghzout’s father died in 1999

and her uncle became responsible for the family.

       Taghzout secretly saved money from her paychecks and Benayad sent her money so that she

could come to the United States. Taghzout was able to obtain a visa and purchase a plane ticket to

the United States. She came to the United States on September 9, 2001. Benayad requested

Taghzout’s uncle’s permission to marry Taghzout, but it was refused. Benayad and Taghzout were

married in a mosque in Ann Arbor, Michigan on October 11, 2001. Their daughter, Sofia, was born

in August 2002.1 Taghzout’s uncle was furious when he learned of the marriage. Taghzout had

ignored the Muslim rules followed in Morocco by marrying on her own without someone present

who is responsible for her to give her away in marriage. The marriage will not be recognized by


       1
           A second daughter was born in February 2005. (Case No. 05-4335, J.A. 44)

                                                2
Taghzout’s family nor by the Moroccan government. If they return to Morocco, Taghzout’s uncle

will allegedly be able to separate the family and force Taghzout to marry another man. Benayad

believes that his family would not be safe anywhere in Morocco because Morocco is a small country

and the uncle could find them.

       Taghzout’s application for asylum was dated September 3, 2002. (J.A. 288) Taghzout

signed a supplemental form dated October 7, 2002. (J.A. 289) The asylum application was not filed

until October 10, 2002 because Taghzout was recuperating from a difficult pregnancy and had hoped

that her uncle would now accept her marriage due to the birth of the child. (J.A. 280, 130) Taghzout

was represented by an attorney, Alexander Azzam, who was responsible for mailing the application.

The asylum application was referred to the immigration court. A Notice to Appear was filed on

December 4, 2002 against Taghzout and Benayad, initiating the removal proceedings against them

for remaining in the United States beyond the approved time. (J.A. 361, 371)

       On March 26, 2003, a hearing on the removal proceedings was held, at which time Taghzout

and Benayad conceded removal. (J.A. 98) Counsel at the hearing indicated that there was a pending

asylum application by Taghzout. (J.A. 98-99) The asylum application hearing was scheduled for

June 30, 2003 and later rescheduled to April 20, 2004. (J.A. 100-02, 338-39) On April 2, 2004, new

counsel requested a continuance of the April 20, 2004 hearing date, claiming ineffective assistance

of prior counsel. Respondent opposed the motion and the immigration judge denied the motion,

stating that Taghzout had not complied with the requirements for showing ineffective assistance of

counsel and further that her “claims of lack of knowledge of evidentiary requirements to prove her

case are without merit.” (J.A. 319) The immigration judge allowed substitution of counsel as long

as counsel was prepared to go forward on the date of the scheduled hearing. (J.A. 320)


                                                 3
       At the hearing on April 20, 2004, Taghzout appeared with new counsel and renewed her

request for a continuance for an additional sixty days to attempt to obtain affidavits from family

members in Morocco. (J.A. 111-12) New counsel attempted to submit an envelope as evidence that

new counsel had been unable to obtain the file from former counsel. (J.A. 111-12) The immigration

judge denied the request for further continuance, stating that Taghzout had almost 13 months from

the initial hearing to obtain any evidence to be presented at the hearing. (J.A. 114) Taghzout moved

to amend her application for asylum, replacing the stated fear of persecution on account of her

political beliefs with a fear of persecution on account of her membership in a particular social group,

which was granted by the immigration judge. (J.A. 114-15, 284, 288)

       Taghzout and Benayad testified at the hearing. The following documents were presented at

the hearing: 1) the Department of State Country Report on Human Rights Practices (Morocco) for

2003 (J.A. 263-78); 2) Souad Eddouada, Feminism and Politics in Moroccan Feminist Non-

Governmental Organizations, (April 2001) (J.A. 179-84); 3) Shahrzad Mojab, “Honor Killing”:

Culture, Politics and Theory, Vol. XVII Nos. 1, 2 (Association for Middle East Women’s Studies)

(Spring/Summer 2002) (J.A. 186-94); 4) Julia Beamish & Lina Tazi Abderrazik, Adolescent and

Youth Reproductive Health in Morocco, (POLICY Project (USAID), Futures Group International)

(January 2003) (J.A. 196-233); 5) Prayer Profile: The Moroccan Arabs of Morocco (Bethany World

Prayer Center) (1997) (J.A. 235-37); 6) Malikiyyah, Maliki, Malikis, Believe Religious Information

Source, at http://mb-soft.com/believe/txw/maliki.htm (J.A. 239-40); and, 7) Nadia Masid, Islam

Working Against women in Morocco, pp. 1-18 (unpublished, undated) (J.A. 242-59) The article on

honor killing and the undated paper by Nadia Masid were excluded by the immigration judge. (J.A.

107-111; 161)


                                                  4
       Based on the testimony and evidence submitted at the hearing, the immigration judge found

that Taghzout failed to support her application for asylum based on fear of persecution because she

has been threatened with mistreatment by her family, physical harm for having a relationship, or

being in a relationship with her husband for years before marriage and opposing customs and

traditions. (J.A. 35) The immigration judge noted that Taghzout did not testify that she had been

threatened with physical harm by anyone in her family, but merely testified that she was given no

reason by her father for the two rejections of her now-husband’s offer of marriage, nor did Taghzout

testify that she was threatened with physical harm for opposing customs and traditions. (J.A. 46-47)

The immigration judge found that Taghzout had testified that upon her return, “well, she might be

separated from her husband and daughter by her uncle, who refused to accept the marriage.” (J.A.

47) The immigration judge also found that Taghzout’s claim that she was restricted by her family

in her activities was inconsistent with Taghzout’s testimony that she was able to obtain employment

as a secretary, was able to obtain a passport from the restrictive Moroccan government (apparently

on her own), was able to go to the Embassy to obtain a visa, purchase an airline ticket and depart the

country without the permission of her uncle, who, according to Taghzout, had the right to oversee

and restrict her movements. (J.A. 48) The immigration judge noted that Taghzout presented no

evidence regarding the fundamentalist Islamic branch to which her family belonged and failed to

introduce any evidence of harm exacted upon Islamic women who marry against the wishes of their

family. (J.A. 49) The immigration judge found that the evidence submitted by Taghzout did not

show that women who marry outside of the wishes of their families but within the context of Sharia

law are subject to outside dissolution of their marriage by nonconsenting family members. (J.A. 50)

       The immigration judge held that Taghzout failed to meet her burden under CAT to show


                                                  5
acquiescence of an official to torture. (J.A. 53) Taghzout did not submit any evidence to show that

the Moroccan government was aware of the harm Taghzout claims she would suffer if she returns

to Morocco–the dissolution of the marriage by the family. (J.A. 53) The immigration judge found

that Taghzout presented no evidence to support her assertion that the Moroccan government would

not accept the determinations of the Imam and the practice of Sharia law in the United States and

not recognize her marriage to Benayad. (J.A. 53-54) The immigration judge denied the applicants

any form of relief, but granted their request for voluntary departure to Morocco in a summary oral

decision entered on April 20, 2004. (J.A. 54)

       Taghzout and Benayad timely filed an appeal with the BIA on May 3, 2004. (J.A. 11) On

May 4, 2005, the BIA affirmed the decision of the immigration judge. (J.A. 6-7) The petition for

review before this court was timely filed on June 2, 2005. (J.A. 57)

       On August 2, 2005, Taghzout and Benayad filed a Motion to Reopen and Remand before the

BIA, claiming that Benayad obtained an approved Employment Certification from the Department

of Labor and filed a petition I-140 for an adjustment of status based on employment. (Case No. 05-

4335, J.A. 25-27) The BIA denied the motion in a September 29, 2005 Order. (Case No. 05-4355,

J.A. 5-6) On October 27, 2005, a petition for review of the BIA’s denial was timely filed with the

court. The hearings on appeal of the denial of both the asylum application and the motion to reopen

were consolidated.

                                         II. ANALYSIS

A.     Jurisdiction and Standard of Review

       This Court has jurisdiction over final orders by the BIA under 8 U.S.C. § 1252. The court

is without jurisdiction to review an immigration judge’s determination regarding an application’s


                                                6
timeliness. 8 U.S.C. § 1158(a)(3); See Castellano-Chacon v. INS, 341 F.3d 533, 544 (6th Cir. 2003).

       In asylum cases, the standard of review of the immigration judge’s factual findings is

deferential: factual findings are conclusive, unless the court determines that the evidence is “so

compelling that no reasonable factfinder could fail to find the requisite fear of persecution.” I.N.S.

v. Elias-Zacarias, 502 U.S. 478, 484, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992).               The BIA’s

determination against withholding the removal of an alien must be upheld unless it is “manifestly

contrary to the law.” Castellano-Chacon, 341 F.3d at 552.

       A decision of the BIA to deny a motion to reopen is reviewed for abuse of discretion.

Sinistaj v. Ashcroft, 376 F.3d 516, 519 (6th Cir. 2004).

B.     One-Year Filing Deadline

       Petitioners claim that the BIA erred in affirming the immigration judge’s dismissal of their

asylum application because it was filed beyond the one year filing deadline. Petitioners claim

extraordinary circumstances existed to excuse the untimely filing. Taghzout’s application for asylum

was dated September 3, 2002. (J.A. 288) Taghzout signed a supplemental form dated October 7,

2002. (J.A. 289) The asylum application was filed on October 10, 2002. (J.A. 280) The

government argues that this court lacks jurisdiction to review the immigration judge’s determination

that Taghzout’s asylum application was not timely filed and that she failed to establish extraordinary

circumstances warranting tolling.

       Aliens seeking asylum must apply within one year of their arrival in the United States. 8

U.S.C. § 1158(a)(2)(B). The alien must demonstrate by clear and convincing evidence that the

application has been timely filed. Id. An untimely application may be considered if the alien

demonstrates “to the satisfaction of the Attorney General either the existence of changed


                                                  7
circumstances which materially affect the applicant’s eligibility for asylum or extraordinary

circumstances relating to the delay in filing an application within the period.” 8 U.S.C. §

1158(a)(2)(D). No court shall have jurisdiction to review any determination of the Attorney General

under paragraph (2) regarding the time limit. 8 U.S.C. § 1158(a)(3). In Castellano-Chacon, we held

that “we are barred from reviewing the BIA’s decision denying [Petitioner’s] application on the basis

that it was untimely and must therefore affirm the BIA’s decision on this point” in light of 8 U.S.C.

§ 1158(a)(3), which states that, “[n]o court shall have jurisdiction to review any determination of the

Attorney General under paragraph (2).” Castellano-Chacon, 341 F.3d at 544. Our decision in

Almuhtaseb v. Gonzales, 453 F.3d 743 (6th Cir. 2006), modified Castellano-Chacon’s blanket

pronouncement, holding that it “bar[s] our review of asylum applications denied for untimeliness

only when the appeal seeks review of discretionary or factual questions, but not when the appeal

seeks review of constitutional claims or matters of statutory construction.” 453 F.3d at 748.

       In the present case, Taghzout’s challenge to the timeliness determination by the immigration

judge centers on the factual finding that the application was not filed by the governing deadline and

the discretionary ruling that no extraordinary circumstances warranted an extension of time. We

therefore lack jurisdiction to review the timeliness decision and we decline to reach the merits of

Taghzout’s asylum application.

C.     Constitutionality of the One-Year Filing Deadline

       Petitioners also argue on appeal that the establishment of a one-year deadline is

unconstitutional because it violates and contradicts an international treaty to which the United States

is a party. Petitioners’ constitutional argument does not identify a specific constitutional right which

has been violated, other than stating that the deadline violates an international treaty, specifically,


                                                   8
the 1967 United Nations Protocol Relating to the Status of Refugees, 19 U.S.T. 6223, T.I.A.S. No.

6577, 606 U.N.T.S. 267 (1967), which Petitioners claim has been in effect since the 1951 United

Nations Convention Relating to the Status of Refugees (the Refugee Convention, 189 U.N.T.S. 150,

152 (1951)).

        We note that the United States is not a signatory to the 1951 Refugee Convention, but is a

signatory to the 1967 Protocol Relating to the Status of Refugees, which incorporates the substantive

provisions of Article 2 through 34 of the Refugee Convention. 19 U.S.T. 6223. The Sixth Circuit

addressed this issue in Castellano-Chacon, holding that an alien cannot circumvent the one year

filing deadline and make a claim under the Refugee Protocol since it is not self-executing and

therefore is not judicially enforceable law in the United States. Castellano-Chacon, 341 F.3d at 544.

The Sixth Circuit further held that the United States’ treaty obligations are implemented in section

241(b)(3) of the INA, 8 U.S.C. § 1231, which deals with applications for withholding of removal

and does not provide a time limit. Id. Petitioners’ argument that the one-year deadline is

unconstitutional because the deadline violates the Refugee Protocol is not supported by the law in

this circuit.

D.      Withholding of Removal and Relief under CAT

        In the alternative, Taghzout claims the immigration judge erred in denying her application

for withholding of removal. The burden of proof for withholding of removal is more exacting than

that for asylum and an alien who does not qualify for asylum cannot meet the higher standard for

withholding removal. Mikhailevitch v. I.N.S., 146 F.3d 384, 391 (6th Cir. 1998). Despite lacking

jurisdiction to review the immigration judge’s decision on the timeliness of asylum application, we

have jurisdiction to review the denial of requests for withholding of removal and relief under CAT.


                                                 9
See 8 U.S.C. § 1252(b)(4); Castellano-Chacon, 341 F.3d 545-53. An alien seeking withholding of

removal must demonstrate “that there is a clear probability that he will be subject to persecution if

forced to return to the country of removal” on account of his race, religion, nationality, membership

in a particular social group, or political opinion. Singh v. Ashcroft, 398 F.3d 396, 401 (6th Cir. 2005)

(quotation omitted); 8 U.S.C. § 1231(b)(3)(A). In order to show relief under CAT, an alien must

show that it is “more likely than not that he ... would be tortured if removed to the proposed country

of removal.” 8 C.F.R. § 208.16(c)(2).

        On review, we must uphold an immigration judge’s findings and conclusions unless

“manifestly contrary to the law,” and any findings of fact “are conclusive unless any reasonable

adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4). Credibility

findings are considered findings of fact and are afforded substantial deference. Yu v. Ashcroft, 364

F.3d 700, 702 (6th Cir. 2004). Findings of fact by the immigration judge must be supported by

specific reasons “based on issues that go to the heart of the applicant’s claim” and not merely

irrelevant inconsistencies. Sylla v. INS, 388 F.3d 924, 925-26 (6th Cir. 2004). We may reverse the

immigration judge’s factual determination only if “the evidence not only supports a contrary

conclusion, but indeed compels it.” Klawitter v. INS, 970 F.2d 149, 152 (6th Cir. 1992).

        Taghzout’s counsel at closing arguments before the immigration judge indicated that

Taghzout’s claim was not based on past persecution but fear of future persecution based on her

membership in a particular social group. (J.A. 159) The immigration judge made findings on both

claims of past and future persecutions. The immigration judge’s findings noted the differences

between her testimony and her statements in her asylum application. In her application, Taghzout

stated that she was mistreated by her family for having a relationship with her husband years before


                                                  10
the marriage and that she had been threatened with physical harm for opposing customs and

traditions. (J.A. 46) The immigration judge found that Taghzout failed to establish past persecution

by her family in light of Taghzout’s testimony that her relationship with her husband did not become

known to her family until she left Morocco. (J.A. 46) The immigration judge noted that Taghzout

did not testify she had been threatened with physical harm by anyone in her family for opposing

customs and traditions and her relationship with her husband while she was still in Morocco. (J.A.

46-47)

         Addressing the fear of future persecution claim, the record shows that Tagzhout testified at

the hearing that she and her husband were neighbors but that her father or stepmother did not know

they were seeing each other. (J.A. 120, 126) Her husband proposed twice while they were in

Morocco. (J.A. 120) She testified her father did not accept the proposal and did not give her a

reason for the refusal. (J.A. 121) Benayad again proposed to Taghzout when they were in United

States. (J.A. 122) Benayad contacted Taghzout’s uncle for her hand in marriage because the uncle

became responsible for the family after the death of her father. (J.A. 124) The uncle did not accept

Benayad’s proposal. (J.A. 122) Taghzout and Benayad were married one month after Taghzout

arrived in the United States. (J.A. 125) Taghzout told her family of the marriage but they did not

accept the marriage. (J.A. 125-26) Taghzout further testified that she did not speak directly to her

uncle because he was furious and he did not wish to speak with her. (J.A. 128) Taghzout testified

that she was afraid to return to Morocco because her uncle is still furious and has sworn to separate

her from her husband and child. (J.A. 128) Taghzout testified that she could not seek protection

from the Government because they would not believe her. (J.A. 129) Taghzout did not testify to

any physical threats either by her father or her uncle. The immigration judge concluded that other


                                                 11
than a threat to separate Taghzout from her husband and family, Taghzout failed to show that she

may suffer future persecution by her uncle and other family members. (J.A. 48)

        As to Taghzout’s claim that she belongs to a social group–women who refuse to follow the

norms of their society and wish to marry outside of their families’ wishes–the immigration judge

found this evidence insufficient to establish that such a social group may have a claim for protection

under the INA, although Taghzout submitted significant evidence of a patriarchal domination of

women within the country of Morocco. (J.A. 51) The immigration judge found that Taghzout failed

to establish: the existence of such a group; that there is an affiliation (or close affiliation) within this

group; that they have a common motive or interest; that there is a voluntary relationship that exists;

or that the members view themselves as a group. (J.A. 50-51)

        Taghzout cited In Re S-A-, 22 I. & N. 1328, 1335 (BIA June 27, 2000) to support her claim

that the BIA has recognized that Moroccan women are subject to control by their fathers. In In Re

S-A-, the BIA did not undertake an analysis of whether the woman in that case was a member of a

group cognizable under the INA. However, the BIA recognized that the Moroccan woman suffered

repeated physical assaults, imposed isolation, and deprivation of education which did not come from

the government, but from her own father, and that the Moroccan authorities would have been unable

or unwilling to control her father’s conduct. Id. at 1335. Even if Taghzout could show that she is

a member of a particular social group that may receive protection under the INA, Taghzout did not

establish by her testimony that she may suffer future persecution by her family–in particular, her

uncle, or the government. The immigration judge’s factual findings are supported by the record and

the conclusions of law are not manifestly contrary to the law. There is insufficient evidence to

support a contrary finding on review and we affirm the immigration judge’s determination denying


                                                    12
the requests for withholding and relief under CAT.

E.      Due Process

       Taghzout and Benayad claim that the immigration judge improperly denied their claim for

a continuance in this matter. The government argues that this court lacks jurisdiction to review the

immigration judge’s denial of petitioners’ request for a continuance of the removal hearing. After

the government filed its brief, however, this court rejected a virtually identical argument in Abu-

Khaliel v. Gonzales, 436 F.3d 627, 633-34 (6th Cir. 2006).

       The court in that case held that the grant or denial of a continuance did not fall within the

category of discretionary decisions that the courts of appeals are barred from reviewing. See id.

Regardless of the merits of the government’s argument, the panel is bound by the decision in Abu-

Khaliel and reviews the denial of a continuance under the abuse-of-discretion standard of review.

See id. at 634.

       An alien is entitled to a full and fair hearing on her immigration claims. Reno v. Flores, 507

U.S. 292, 306, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993); Huicochea-Gomez v. INS, 237 F.3d 696, 699

(6th Cir. 2001).   Due process in immigration proceedings requires a full and fair hearing.

Huicochea-Gomez, 237 F.3d at 699. An immigration judge has broad discretion in how she conducts

a hearing regarding any given petitioner and her decision is reviewed only for abuse of discretion.

Mikhailevitch v. INS, 146 F.3d 384, 391 (6th Cir. 1998); Onyeme v. INS, 146 F.3d 227, 231 (4th Cir.

1998). Whether the hearing is fair, and thus the process provided is adequate, depends upon whether

the petitioner is able to show prejudice. When a person has no hearing or opportunity to be heard

whatsoever, the process is inadequate. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542,

105 S.Ct. 1487, 84 L.Ed.2d 494 (1985) ; Carey v. Piphus, 435 U.S. 247, 266, 98 S.Ct. 1042, 55


                                                13
L.Ed.2d 252 (1978) (holding that “the right to procedural due process is ‘absolute’ in the sense that

it does not depend upon the merits of a claimant’s substantive assertions”).

       On March 26, 2003, a hearing was scheduled before the immigration judge. The petitioners

were represented by counsel who requested an adjournment of the hearing. The immigration judge

granted the request and rescheduled the hearing for June 30, 2003 and then for April 20, 2004. (J.A.

94, 101, 366). Prior to the April 20, 2004 hearing, petitioners sought to substitute counsel. The

immigration judge granted the request only if new counsel was ready to proceed on the scheduled

hearing date. (J.A. 320) New counsel appeared at the April 20, 2004 hearing date requesting a

further continuance claiming additional evidence and affidavits were required. (J.A. 111-12) The

motion was denied because the immigration judge found that more than a year had passed and that

the clients had waited until six weeks before the trial to prepare and obtain evidence. (J.A. 112) The

immigration judge ruled that the delay in attempting to prepare for the case did not require the judge

to delay consideration of the case, especially when 13 months had passed since the date was

scheduled. (J.A. 114)

       The immigration judge did not abuse her discretion in denying the motion for continuance,

in light of the fact that the hearing had been scheduled for more than a year.

F.     Motion to Reopen

       On August 2, 2005, Benayad filed a Motion to Reopen and Remand before the BIA, claiming

that Benayad had obtained an approved Employment Certification from the Department of Labor and

filed a petition I-140 for an adjustment of status based on employment. The BIA denied the motion.

Benayad claims the BIA erred in denying his Motion to Reopen the case.

       The Attorney General has the discretion to adjust the status of an alien under 8 U.S.C. §


                                                 14
1255(a) if: 1) the alien makes an application for such adjustment; 2) the alien is eligible to receive

an immigrant visa and is admissible to the United States for permanent residence; and 3) an

immigrant visa is immediately available to the alien at the time the application is filed. 8 U.S.C. §

1255(a); Daneshvar v. Ashcroft, 355 F.3d 615, 625 (6th Cir. 2004). The Supreme Court has held

that the abuse of discretion standard applies to the judicial review of the Board’s determination of

motions to reopen. INS v. Abudu, 485 U.S. 94, 96, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988). The Board

has broad but not unlimited discretion. Babai v. INS, 985 F.2d 252, 255 (6th Cir. 1993) (quoting

Mejia-Carillo v. INS, 656 F.2d 520, 522 (9th Cir. 1991)).

       In its denial, the BIA held that Petitioners failed to establish that they are prima facie eligible

for adjustment of status. (Case No. 05-4335, J.A. 5) The BIA found that although Benayad

demonstrated he is the beneficiary of an Application for Alien Employment Certification (Form ETA

750), which has been certified by the United States Department of Labor, there is no evidence that

he is the beneficiary of an approved Immigration Petition for Alien Worker (Form I-140). (Case No.

05-4335, J.A. 5) The BIA concluded that, without an approved Form I-140 and a current priority

date, a visa is not immediately available and Petitioners cannot establish prima facie eligibility for

adjustment of status. (Case No. 05-4335, J.A. 5) The BIA found that Petitioners’ reliance on the BIA

decision, Matter of Velarde, 23 I & N Dec. 253 (BIA 2002), was misplaced since that case involved

an adjustment of status based on a marriage entered into after the commencement of proceedings,

whereas in this case, Petitioners seek adjustment of status based on Benayad’s employment

relationship. (Case No. 05-4355, J.A. 5)

       Benayad states in his brief that there was no evidence that the I-140 was filed. He claims it

was because the BIA denied the petition in less than two months and counsel did not have sufficient


                                                  15
time to provide such proof. Benayad claims the proof is now available and if the BIA had delayed

its ruling, this matter could have been rectified. (Case No. 05-4355, Appellants’ Br., p. 9) The

government argues that visa numbers were unavailable in August and September of 2005 and visa

numbers remained unavailable in January 2006. The government claims that Petitioners’ argument

that the BIA should have waited to rule until counsel could provide evidence of the Form I-140 filing

should not be considered because during the eight weeks the matter was pending, counsel did not

provide such evidence nor was there a request to delay the matter. The government argues that the

regulations require all supporting documentation to be filed with a motion to reopen, and that the

manual to practice before the BIA so provides. 8 C.F.R. § 1003.2(c)(1). Petitioners do not provide

any explanation as to why the evidence was not provided to the BIA or the reason for the delay.

       The BIA’s decision was not an abuse of its discretion because Benayad was unable to show

that he received an immigrant visa, or that the visa was immediately available to him at the time he

applied. Petitioners did not provide any explanation as to why the appropriate documents were not

provided to the BIA nor any indication as to when the documents would be provided. Petitioners

have not shown that the BIA had the obligation to wait until such documentation was provided

before issuing its decision. In any event, the BIA waited two months before issuing its decision.

Petitioners have not submitted any evidence to rebut the Government’s statement that visa numbers

were unavailable in August and September of 2005 and that the numbers remain unavailable through

January 2006. Petitioners have failed to establish a prima facie case that they are entitled to an

adjustment of status.

                                       III. CONCLUSION

       For the reasons set forth above, the BIA’s decisions denying the application for asylum, the


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withholding of removal, protection under the CAT, and the motion to reopen are affirmed.




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