                                                              United States Court of Appeals
                                                                       Fifth Circuit
                                                                    F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                       January 25, 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’s (“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.

     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


     *
       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this opinion should not be published and is not precedent except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-

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, 466-67 (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 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.
                                 No. 04-60744
                                      -3-

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).

      Tounsadi avers next that the Board erred in construing his

motion     to   reopen    the    I-130    proceedings    as    a   motion     for

reconsideration.         Tounsadi contends that because he sought to

present the Board with “new evidence,” which was not presented to
                                       No. 04-60744
                                            -4-

the District Director, the motion was one to reopen, not to

reconsider.      However, because we do not have jurisdiction over the

underlying merits of the I-130 petition, we also lack jurisdiction

over    the     Board’s       treatment        of    the   motion       to    reopen          those

proceedings.       See Rodriguez v. Ashcroft, 253 F.3d 797, 800 (5th

Cir.    2005)     (“It       is   axiomatic         that   if     we    are    divested         of

jurisdiction       to        review    an      original         determination            by    the

Board . . . we must also be divested of jurisdiction to review the

Board’s denial of a motion to reopen . . . .”).

       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 DISMISSED IN PART FOR WANT OF

JURISDICTION AND DENIED IN PART.
