                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                 January 4, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                            No. 04-60744
                          Summary Calendar



MOSTAFA TOUNSADI,

                                     Petitioner,

versus

ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,

                                     Respondent.

                        --------------------
               Petition for Review of an Order of the
                    Board of Immigration Appeals
                         BIA No. A76 329 401
                        --------------------

Before JOLLY, DAVIS, and OWEN, Circuit Judges.

PER CURIAM:*

     Mostafa Tounsadi petitions this court for review of the

Board of Immigration Appeals’ (“Board”) order affirming the

immigration judge’s (IJ) denial of his request for a continuance

and the denial of his motion to reopen.      He also seeks to

challenge the District Director’s denial of the I-130 visa

petition filed on his behalf.   This issue we have no jurisdiction

over.    See Liu v. INS, 645 F.2d 279, 284-85 (5th Cir. 1981); see

also Conti v. INS, 780 F.2d 698, 702 (7th Cir. 1985).


     *
       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this opinion should not be published and is not precedent except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. 04-60744
                                 -2-

     Tounsadi avers that the Board abused its discretion by

affirming the IJ’s denial of his request for a continuance.     He

avers that the IJ’s denial of his motion for continuance so that

he could appeal the denial of his I-130 petition was

“fundamentally unfair.”    The respondent asserts that we do not

have jurisdiction over this issue.    This argument is foreclosed

by this court’s opinions in Zhao v. Gonzales, 404 F.3d 295, 302-

03 (5th Cir. 2005), and Manzano-Garcia v. Gonzales, 413 F.3d 462,

466 (5th Cir. 2005).

     On a petition for review of a Board decision, we review

factual findings for substantial evidence and questions of law de

novo.    Lopez-Gomez v. Ashcroft, 263 F.3d 442, 444 (5th Cir.

2001).    We review the order of the Board and will consider the

underlying decision of the IJ only if it influenced the

determination of the Board.    Ontunez-Tursios v. Ashcroft, 303

F.3d 341, 348 (5th Cir. 2002).    We review the Board’s affirmance

of an IJ’s denial of a continuance for abuse of discretion.

Witter v. INS, 113 F.3d 549, 555-56 (5th Cir. 1997).     An IJ may

grant a continuance upon a showing of good cause.     Id.

     The pendency of a prima facie approvable petition for

adjustment of status is good cause for the continuance of removal

proceedings.    In re Garcia, 16 I & N Dec. 653, 657 (BIA 1978).

In this case, however, the petition was not prima facie

approvable because it had been denied.     The Board and the IJ,

whose reasoning was adopted by the Board, adequately explained
                           No. 04-60744
                                -3-

the reasoning for their denial of Tounsadi’s request for a

continuance.   Moreover, the IJ had previously continued

Tounsadi’s removal proceedings on 11 separate occasions, spanning

a total of almost five years.   Given these circumstances, the

Board did not abuse its discretion by affirming the IJ’s denial

of Tounsadi’s request for a continuance.

     Tounsadi avers that the District Director’s decision to deny

his I-130 petition without the opportunity to have a hearing and

confront his accusers was a violation of his due process rights.

He contends that the District Director’s finding of marriage

fraud was not based on substantial and probative evidence since

the Director failed to consider several missing documents which

contradicted a finding of marriage fraud.   The respondent avers

that this court is without jurisdiction to review the District

Director’s finding of marriage fraud and the denial of Tounsadi’s

I-130 petition.

     The respondent is correct.   The merits of the I-130 petition

are not before this court because this appeal is from the Board’s

denial of Tounsadi’s motion for a continuance and the order of

deportation; the IJ had no jurisdiction over the I-130 petition.

See Liu, 645 F.2d at 284-85); see also Conti, 780 F.2d at 702

(“INS District Director’s decision with regard to the disposition

of a visa application is a collateral issue outside the purview”

of an appeal of an order of deportation).
                            No. 04-60744
                                 -4-

     Tounsadi avers next that the Board erred in construing his

motion to reopen as a motion for reconsideration.   Tounsadi

contends that because he sought to present the Board with “new

evidence,” which was not presented to the District Director, the

motion was one to reopen, not to reconsider.

     Tounsadi is incorrect that the Board erred in construing the

motion to reopen as a motion for reconsideration.   In the motion,

he merely sought to introduce documents which he admits he

submitted to the Board during the appeal of the visa petition.

See 8 C.F.R. § 1003.2; Matter of Cerna, 20 I. & N. Dec. 399, 400

(BIA 1991).   We also conclude that the Board did not abuse its

discretion by denying Tounsadi’s motion to reconsider because the

motion failed to “identify a change in the law, a misapplication

of the law, or an aspect of the case that the BIA overlooked.”

Zhao, 404 F.3d at 301.

     Finally, Tounsadi claims that he is eligible for a waiver of

the finding by the INS that he committed marriage fraud.   There

is a waiver provision at INA § 212(a)(6)(C)(iii), 8 U.S.C.

§ 1182(a)(6)(C)(iii), which provides that in certain limited

circumstances the ground of inadmissibility found at INA

§ 212(a)(6)(C) for misrepresentation, may be waived, but this

waiver provision, which relates to grounds of inadmissibility,

has nothing to do with a finding of marriage fraud that makes an

alien ineligible for an I-130 visa petition under INA § 204(c).

Tounsadi’s petition for review is DENIED.
