     Case: 11-60594      Document: 00513455959         Page: 1    Date Filed: 04/07/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 11-60594
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                             April 7, 2016
SHAILESHKUMAR ARVINDBHAI SHAH,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Petitioner

v.

LORETTA LYNCH, U. S. ATTORNEY GENERAL,

                                                 Respondent


                       Petition for Review of an Order of the
                          Board of Immigration Appeals
                               BIA No. A096 689 213


Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM: *
       Shaileshkumar Arvindbhai Shah, a native citizen of India, has filed a
petition for review of a dismissal by the Board of Immigration Appeals (BIA)
of an appeal of an immigration judge’s (IJ) denial of a motion for a continuance.
Shah complains that his motion for a continuance of the removal proceedings
was not considered against the factors set forth in the BIA’s decision in Matter
of Hashmi, 24 I & N. Dec. 785 (BIA 2009).


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 11-60594     Document: 00513455959     Page: 2   Date Filed: 04/07/2016


                                  No. 11-60594

      The grant of a motion to continue 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). This court reviews “a decision to grant or deny
a continuance for an abuse of discretion.” Id. Although this court only has the
authority to review the BIA’s decision, when, as here, the BIA affirms the IJ
and relies on the reasons set forth in the IJ’s decision, this court considers the
decision of the IJ to the extent that it influenced the BIA. Id.
      In Hashmi, the BIA set out a list of factors to be considered in
determining whether to continue removal proceedings pending a final
adjudication of an I-130 petition filed in conjunction with an adjustment
application. 24 I. & N. Dec. at 790. Those factors include, but are not limited
to: “(1) the [Department of Homeland Security] response to the motion; (2)
whether the underlying visa petition is prima facie approvable; (3) the
respondent's statutory eligibility for adjustment of status; (4) whether the
respondent's application for adjustment merits a favorable exercise of
discretion; and (5) the reason for the continuance and other procedural factors.”
Id. “While all these factors may be relevant in a given case, the focus of the
inquiry is the apparent ultimate likelihood of success on the adjustment
application.” Id. (citation omitted).
      Although Shah complains that the BIA failed to consider the Hashmi
factors, it is clear that its decision was supported by the factors. The BIA cited
Hashmi as the relevant law in deciding whether a continuance of the removal
proceedings was proper. The BIA explained that the IJ had properly denied
Shah a continuance given that the United States Citizenship and Immigration
Services had denied both of the I-130 petitions filed by Shah’s wife and noted
the BIA’s recent denial of the pending appeal of the second petition. This
determination is in accord with Hashmi, as the likelihood of success of a



                                        2
    Case: 11-60594    Document: 00513455959     Page: 3   Date Filed: 04/07/2016


                                 No. 11-60594

pending I-130 petition should be “the focus” of any consideration of whether
good cause exists for a continuance. See Hashmi, 24 I & N. Dec. at 790. And
as the Government points out, at the time that Shah sought a continuance, he
was not simply awaiting an agency adjudication of his wife’s I-130 petition; the
agency had already denied the visa petition−twice−for marriage fraud.
      Still, Shah faults the IJ for refusing to consider the I-130 petition or
examine the bona fides of his marriage.       Though Hashmi instructs that
submission of the underlying I-130 petition may help the IJ in evaluating
“whether the respondent is the beneficiary of a prima facie approvable I-130,”
there is no requirement that the IJ delve into the “bona fides” of the marriage.
See 24 I. & N. Dec. at 791.
      The BIA also noted that the IJ had already continued the removal
proceedings at Shah’s request. And Hashmi instructs that the number and
length of prior continuances, though not alone determinative, may be
considered in determining whether to move the case forward. 24 I. & N. Dec.
at 794. The BIA also considered, consistent with Hashmi, the response of the
Department of Homeland Security, noting that the agency was opposed to a
continuance.
      Based on the forgoing, Shah has not shown that the BIA abused its
discretion in dismissing his appeal of the IJ’s denial of a continuance. It is
clear from the record that both the IJ and the BIA considered the relevant
factors set out in Hashmi. As such, Shah’s petition for review is DENIED.




                                       3
