                                                                      [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT           FILED
                                    ________________________ U.S. COURT OF APPEALS
                                                                     ELEVENTH CIRCUIT
                                            No. 10-13780               MARCH 21, 2011
                                                                         JOHN LEY
                                        Non-Argument Calendar              CLERK
                                      ________________________

                                           Agency No. A089-531-657


JAYOUN MIN SHEEHAN,

llllllllllllllllllllllllllllllllllllllll                                      Petitioner,

                                                     versus

U.S. ATTORNEY GENERAL,

llllllllllllllllllllllllllllllllllllllll                                    Respondent.

                                     ________________________

                               Petition for Review of a Decision of the
                                    Board of Immigration Appeals
                                    ________________________

                                              (March 21, 2011)

Before BARKETT, PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:
       Jayoun Sheehan, a native and citizen of South Korea, seeks review of the

Board of Immigration Appeals’s (“BIA”) decision affirming the Immigration

Judge’s (“IJ”) denial of her request for a continuance of her removal proceedings,

pursuant to 8 C.F.R. § 1003.29. On appeal, Sheehan argues that the IJ abused her

discretion when she denied Sheehan’s request to continue the removal proceedings

to allow the United States Citizenship and Immigration Services (“USCIS”) time

to complete the adjudication of the second I-130 visa petition that Sheehan’s

adoptive mother had filed on her behalf.1

       Sheehan was adopted by her U.S. citizen maternal aunt, Chong Ok Sheehan,

in September 2005. In June 2007, Sheehan’s adoptive mother submitted a I-130

Petition seeking a visa for Sheehan as her adopted child. USCIS denied the I-130

in March 2008 on the basis that Sheehan had not established that her adoptive

mother had exercised primary parental control and authority over her for two years

as required by law. The decision cited to numerous pieces of evidence that USCIS

asserted demonstrated that Sheehan’s natural parents had not relinquished primary


       1
          We have jurisdiction to review an IJ’s decision to deny a motion to continue a removal
hearing. Zafar v. U.S. Att’y Gen., 461 F.3d 1357, 1360-62 (11th Cir. 2006). Additionally, when
the BIA issues a decision, we review only that decision, except to the extent that the BIA
expressly adopts the IJ’s decision, in which case we review the IJ’s decision as well. Al Najjar v.
Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001). Thus, to the extent that the BIA agreed with the
IJ’s reasons for not granting Sheehan a continuance of her removal proceedings, we review both
the BIA’s and IJ’s decisions.

                                                 2
control over her and also explained that facts pertinent to the adjudication of the I-

130 Petition had been concealed by the adoptive mother, thereby placing doubt on

the reliability of all evidence submitted in support of the I-130 Petition. The

decision stated that the I-130 Petition and supporting documentation had not

established that Sheehan’s adoption was anything but an ad hoc adoption meant to

circumvent the immigration laws. Sheehan did not appeal the denial of the I-130

Petition. She was placed into removal proceedings by the Department of

Homeland Security (“DHS”). Sheehan conceded that she was removable but

requested a continuation of the proceedings on the basis that her adoptive mother

had filed a second I-130 on her behalf that showed she met the two year residence

requirement. The IJ denied Sheehan’s request for a continuance finding that she

was not prima facie eligible for the approval of her second I-130 for the reasons

given by USCIS in its decision on Sheehan’s original I-130.

      We review an IJ’s decision to deny a motion for a continuance for an abuse

of discretion. Haswanee v. U.S. Att’y Gen., 471 F.3d 1212, 1214 (11th Cir. 2006).

“Judicial review of denials of discretionary relief incident to [removal]

proceedings . . . is limited to determining whether there has been an exercise of

administrative discretion and whether the matter of exercise has been arbitrary or




                                          3
capricious.” Garcia-Mir v. Smith, 766 F.2d 1478, 1490 (11th Cir. 1985)

(quotation marks omitted).

       Under the Immigration and Nationality Act (“INA”), a petitioner must file a

I-130 visa petition on behalf of an alien-beneficiary, the purpose of which is “to

establish that there is a legal relationship between the petitioner and the

beneficiary of the I-130, such that the beneficiary is entitled to apply for a change

or adjustment of status based on that legal relationship.” Alvarez Acosta v. U.S.

Att’y Gen., 524 F.3d 1191, 1194 n.6 (11th Cir. 2008).2 According to the BIA, an

I-130 petition filed on behalf of a U.S. citizen’s immediate relative can be

approved if the petitioner establishes: 1) her U.S. citizenship; 2) the bona fides of

the claimed relationship with the beneficiary; and 3) that the family relationship

meets the statutory requirements. Matter of Hashmi, 24 I. & N. Dec. 785, 789

(BIA 2009) (citing 8 C.F.R. §§ 204.1-204.2 (2008)). For purposes of determining

whether an individual is eligible for an immigrant visa as an immediate relative,

the term “immediate relative” includes “children, spouses, and parents of a citizen

of the United States.” 8 U.S.C. § 1151(b)(2)(A)(i). With regard to an adopted


       2
           Under the INA, the Attorney General has the discretion to adjust the status of an alien
to that of a lawful permanent resident “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 [her] at the time [her]
application is filed.” INA § 245(a), 8 U.S.C. § 1255(a).

                                                4
child, the term “child” means a person under the age of twenty-one who was

“adopted while under the age of sixteen years if the child has been in the legal

custody of, and has resided with, the adopting parent or parents for at least two

years.” 8 U.S.C. § 1101(b)(1)(E)(i).

      An IJ may grant a continuance “for good cause shown,” 8 C.F.R. § 1003.29,

and in the context of a beneficiary, like Sheehan, who has requested a continuance

while awaiting the adjudication of an I-130 petition, we have stated that

“‘discretion should, as a general rule, be favorably exercised where a prima facie

approvable visa petition and adjustment application have been submitted in the

course of a deportation hearing . . . .’” Bull v. I.N.S., 790 F.2d 869, 872 (11th Cir.

1986) (quoting In re Garcia, 16 I. & N. Dec. 653, 655, 657 (BIA 1978)). We

further recognized that this is not intended to be “an inflexible rule requiring the

immigration judge in all cases to continue deportation proceedings.” Id. at 872

(quoting Garcia, 16 I. & N. Dec. at 657). “It clearly would not be an abuse of

discretion for the immigration judge to summarily deny a request for a continuance

. . . upon his determination that the visa petition is frivolous or that the adjustment

application would be denied on statutory grounds or in the exercise of discretion

notwithstanding the approval of the petition.” Id.




                                           5
       Here, we cannot say that the IJ abused her discretion to deny Sheehan’s

request for a continuance by relying on USCIS’s decision on Sheehan’s original I-

130 Petition to determine that Sheehan failed to establish prima facie eligibility

for the approval of her second I-130. Although USCIS denied the first I-130 on

the basis that Sheehan did not meet the two year residency requirement for an

adopted child, it reached that conclusion based on its finding that Sheehan’s

natural parents had not relinquished primary control of her and that the adoption

was potentially a sham. Sheehan did not challenge USCIS’s findings regarding

the legitimacy of her adoption by appealing the denial of her first I-130, thus we

cannot say that the IJ abused her discretion in crediting the findings and

conclusions in that decision as they pertained to Sheehan’s prima facie eligibility

for her second I-130 visa petition.3

       PETITION DENIED.




       3
         Moreover, the BIA has stated that “Congress did not by its definition intend to recognize
ad hoc adoptions entered into to circumvent immigration laws,” and noted that adoptions, like
marriages, may be entered into simply to facilitate entry into the United States. Matter of
Marquez, 20 I. & N. Dec. 160, 163 (BIA 1990). The BIA has further concluded that an IJ can
look into the bona fides of an adoption to determine whether it was a “sham” even if the adoptive
child and adoptive parent meet the age, legal custody, and residency requirements. Id. at 163-65.

                                                6
