                                                                               F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                              August 29, 2005
                                   TENTH CIRCUIT
                                                                           PATRICK FISHER
                                                                                    Clerk

 OBINNA FAUSTINUS EMEJURU,

                Petitioner,                                  No. 04-9601
           v.
 ALBERTO R. GONZALES, Attorney                         (B.I.A. No. A95 556 405)
 General,

                Respondent.


                              ORDER AND JUDGMENT*


Before McKAY, PORFILIO, and HARTZ, Circuit Judges.


       Petitioner Obinna Emejuru contests the denial by the immigration judge (IJ) of his

request for a continuance of his removal proceedings and the summary affirmance of the

denial by the Board of Immigration Appeals (BIA). Because we lack jurisdiction to

review the discretionary decision denying the continuance request, we dismiss the

petition.


       *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. The
court generally disfavors the citation of orders and judgments; nevertheless, an order and
judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
I.     BACKGROUND

       Mr. Emejuru is a native of Nigeria who was admitted on a nonimmigrant-student

visa on June 2, 1999. The Bureau of Immigration and Customs Enforcement initiated

removal proceedings against him on February 12, 2004, for maintaining unauthorized

employment in violation of the Immigration and Nationality Act (INA) § 237(a)(1)(C)(i);

8 U.S.C. § 1227(a)(1)(C)(i). Mr. Emejuru requested a continuance to allow him to pursue

an adjustment-of-status claim on the basis that he was married to a United States citizen.

The IJ ordered him removed on March 17, 2004. Also, the IJ denied his continuance

request, saying that Mr. Emejuru was rendered ineligible for adjustment of status by INA

§ 212(a)(6)(C)(ii)(I); 8 U.S.C. 1182(a)(6)(C)(ii)(I), which provides that any alien who

falsely misrepresents himself to be a citizen of the United States is inadmissible. The IJ

said that Mr. Emejuru had misrepresented himself as a United States citizen by signing an

I-9 Employment Eligibility Verification form with the box checked asserting that he was

a citizen or national of the United States. The BIA summarily affirmed the IJ’s opinion,

making it the final agency determination. See 8 C.F.R. 1003.1(e)(4) (describing

procedures for affirmance without opinion).

       Mr. Emejuru contests (1) the IJ’s finding that he misrepresented himself as a

United States citizen and (2) the BIA’s affirmance of the denial of a continuance without

issuing an opinion. The challenge to the affirmance-without-opinion procedure is

foreclosed by Yuk v. Ashcroft. 335 F.3d 1222, 1232 (10th Cir. 2004) (summary-


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affirmance procedures do not violate principles of administrative law or due process). As

for the determination that he had misrepresented his citizenship, it was made in the

context of a request for a continuance, and is relevant only to a challenge to the denial of

the request. But we have no jurisdiction to hear such a challenge.

       INA § 242 (a)(2)(B)(ii); 8 U.S.C. § 1252 (a)(2)(B)(ii), removes our jurisdiction to

review certain discretionary decisions made by the Attorney General. It provides:

       Notwithstanding any other provision of law (statutory or nonstatutory),
       including section 2241 of Title 28, or any other habeas corpus provision,
       and sections 1361 and 1651 of such title, and except as provided in
       subparagraph (D), and regardless of whether the judgment, decision, or
       action is made in removal proceedings, no court shall have jurisdiction to
       review--
       (ii) any other decision or action of the Attorney General or the Secretary of
       Homeland Security the authority for which is specified under this
       subchapter to be in the discretion of the Attorney General or the Secretary
       of Homeland Security, other than the granting of relief under section
       1158(a) of this title.

Id. In Yerkovich v. Ashcroft, 381 F.3d 990, 993-95 (10th Cir. 2004), we held that the

regulation governing the issuance of a continuance, 8 C.F.R. § 1003.29 (“[t]he

Immigration Judge may grant a motion for continuance for good cause shown”), clearly

confers discretion on the IJ, and thus the grant or denial of a continuance falls within

§1252 (a)(2)(B)(ii)’s jurisdiction-stripping provision. Because we lack jurisdiction to




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review the discretionary decision to grant or deny a continuance, we DISMISS the

petition.

                                        ENTERED FOR THE COURT


                                        Harris L Hartz
                                        Circuit Judge




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