               Not for Publication in West's Federal Reporter

          United States Court of Appeals
                      For the First Circuit


No. 07-1515

                      MARIA A. LOPEZ, ET AL.,

                             Petitioners,

                                    v.

               MICHAEL MUKASEY, ATTORNEY GENERAL,

                              Respondent.


              ON PETITION FOR REVIEW OF AN ORDER OF
                 THE BOARD OF IMMIGRATION APPEALS


                                 Before

                       Lynch, Circuit Judge,

           Campbell and Selya, Senior Circuit Judges.



     William E. Graves, Jr. and Graves & Doyle on brief for
petitioners.
     Robbin K. Blaya, Attorney, Office of Immigration Litigation,
United States Department of Justice, Peter Keisler, Assistant
Attorney General, Civil Division, and Anthony W. Norwood, Senior
Litigation Counsel, on brief for respondent.



                            March 14, 2008
            CAMPBELL, Senior Circuit Judge.        Petitioners Maria Adela

Lopez1 and her daughters Flor Katherin Roman-Nunez and Karen Roman-

Nunez, natives and citizens of Peru, petition for review of a final

order of removal issued by the Board of Immigration Appeals ("BIA"

or "Board") on February 28, 2007.            They contend that the Board

abused its discretion when it denied their motion for a continuance

and that denial of the continuance violated their due process

rights.    We deny the petition for review.

            The petitioners were admitted to the United States in

Miami, Florida, on or about July 31, 2001 as nonimmigrant visitors

with permission to stay in the United States for a temporary period

not   to   exceed   January   30,    2002.    On   January   30,   2004,   the

Department of Homeland Security ("DHS") issued Notices to Appear

charging petitioners with removal because they had overstayed their

time in the United States.          Petitioners admitted the charges and

conceded removability.        Peru was designated as the country of

removal.

            Maria Lopez appeared before the immigration judge ("IJ")

with counsel on April 28, 2005 (her daughters were excused from

coming to the hearing).             Their counsel informed the IJ that

petitioners' visa applications had been denied but that they

planned to appeal from the denial.            They, therefore, sought a



      1
      Lopez is referred to as "lead petitioner" unless otherwise
noted, to avoid confusion with her claimed husband, Jorge Lopez.

                                      -2-
continuance of the removal proceedings in order to pursue their

appeal from the visa denials.   Petitioners had contended in their

visa applications that because the lead petitioner (Maria Lopez)

had married an American citizen, Jorge Lopez, before her daughters

reached the age of 18, all three petitioners were entitled to an

adjustment of status.

          The government opposed the continuance, noting that this

was the second denial of a visa petition ("I-130") in the case.

The government asserted that because the lead petitioner had

engaged in marriage fraud she was barred from receiving a visa by

8 U.S.C. § 1154(c) (prohibiting the granting of immigrant status to

those involved with marriage fraud). In connection with the motion

to continue, however, the government had no objection to allowing

petitioners to file a full copy of their visa petition and the

evidence submitted in connection with it, along with the DHS's

decision and the appeal notice.    Petitioners' counsel was ordered

to submit these materials to the immigration court by May 31, 2005.

          At the next hearing, on June 23, 2005, petitioners'

counsel admitted he had not submitted the ordered materials by the

prescribed date but said he had appealed from the visa denial and

had with him evidence of having done so.   The IJ responded that she

had given the May 31, 2005 date for submission of the visa petition

proceedings so that she could review the application and supporting

documentation to see if there was any merit to the continuance


                                  -3-
request. Petitioners' counsel indicated that "my sense is that the

Government has some--some evidence that, in fact, the marriage was

not entered into in good faith."

           The IJ noted that petitioners' counsel had yet to submit

an actual motion for continuance.              In response, petitioners'

counsel stated he believed the "best way to proceed" was to have a

hearing on the issue of voluntary departure and handle the visa

issue on appeal to the Board.            He said that he had missed the

filing deadline due to the "press of business."               The IJ granted

petitioners' counsel another continuance of more than two months to

submit the relevant information.             A hearing was scheduled for

October 3, 2005 to decide whether a further continuance should be

granted and to rule on the application for voluntary departure.

The IJ informed counsel that any motion for a continuance was due

on or before September 21, 2005, and that the voluntary departure

issue would be waived if he missed the date.

           At a subsequent hearing held on November 9, 2005, the IJ

noted   that   DHS   had   submitted    as   evidence   an   I-130   filed   in

September 30, 2002, the notice of intent to deny, and the denial.

Additionally, DHS submitted a copy of the I-130 that had been

resubmitted on November 23, 2004 and notice of denial of the second

petition on April 18, 2005.      DHS opposed any further continuances.

The court pointed out there had been two denials of what was

essentially the same visa petition and that apparently the second


                                       -4-
denial, dated April 18, 2005, was on appeal.        Petitioners' counsel

indicated that he was attempting to gather evidence to address some

of the DHS's concerns on appeal and offered some of that evidence

at the instant hearing.    Counsel indicated he had copies for the

DHS and the immigration court and that he would be seeking another

continuance.

            DHS stated it was opposed to any further continuances

based on petitioners' purported appeal from denial of the visa

petition.    DHS counsel said there was a "history of fraud and

shammed marriage" in the case and little prospect for success on

the appeal from the second denial.        The IJ agreed with DHS that a

continuance was unwarranted.

            Petitioners' counsel argued that medical evidence he

presented concerning Jorge Lopez addressed some of the issues

related to the denial of the I-130.          The IJ responded that the

medical evidence did not establish the existence of a marriage.

The IJ denied the motion for a continuance and then recessed to

allow petitioners to speak to their attorney about applying for

voluntary   departure.    When    the    hearing   resumed,   petitioners'

counsel stated petitioners would not seek voluntary departure.

            The IJ then denied the motion to continue in an opinion

issued on November 9, 2005.      She found that the evidence submitted

did not establish any exceptional or actual hardship to Lopez.

Further, she found that the documentation did not compel a finding


                                   -5-
different from that arrived at by DHS.   She said the Board should

decide the I-130 appeal as quickly as possible. As petitioners did

not seek voluntary departure, she ordered them removed to Peru.

           On February 28, 2007, the Board dismissed petitioners'

appeal from the denial of the continuance.     The Board explained

that an IJ may grant a motion for continuance only for good cause

shown and that a denial of such a motion will not be reversed

"unless the alien establishes that the denial caused her actual

prejudice and harm and materially affected the outcome of her

case."   In re Perez-Andrade, 19 I&N Dec. 433 (BIA 1987).

           The Board found that a review of the record showed that

on two occasions, Jorge Lopez filed an I-130 on behalf of Maria

Lopez and her children.   On November 21, 2003, in response to the

first I-130, U.S. Citizenship and Immigration Services ("CIS")

issued a Notice of Intent to Deny detailing allegations of a sham

marriage between Maria and Jorge Lopez.      The Notice of Intent

stated that the lead petitioner (Maria Lopez) was in fact married

to Luis Roman, a Peruvian national and the father of her two

children, with whom she resided in Cranston, Rhode Island.     The

Notice went on to say she had previously provided sworn testimony

to CIS that she had not been married and that the father of her

children resided in Peru.   Her request to withdraw this petition

was rejected by CIS, and a final decision issued finding petitioner




                                -6-
had entered into a sham marriage for the purpose of evading the

immigration laws.

           The Board's decision went on to note that Jorge Lopez had

refiled the I-130 on behalf of the petitioners.                Supplemental

information submitted by the lead petitioner acknowledged she was

in fact married to Luis Roman when the original petition was filed

but said she had divorced him on May 6, 2004 and married Jorge

Lopez the next day.     Maria and Jorge Lopez were called to the local

CIS office to provide testimony regarding the petition. CIS issued

a final decision on April 18, 2005, upholding its previous finding

of marriage fraud. The decision contained a thorough review of the

wholly   inconsistent    testimony    given   by   the   two   during   their

separate interviews with CIS.

           The Board agreed with the IJ that petitioners had not

shown good cause for a continuance.        The Board also questioned the

truth of petitioners' representation to the IJ that a valid appeal

from the I-130 was pending before the Board.         The only evidence of

such an appeal, the Board said, was a photocopy of an appeal and

fee receipt dated May 5, 2005, but stamped by the immigration court

on September 21, 2005, well after the period for a timely appeal

had expired. Petitioners have submitted no evidence beyond the fee

receipt in support of their claim to have appealed.

           On October 1, 2007, the Board denied the petitioners'

motion to reopen proceedings for adjustment of status.              In that


                                     -7-
decision, as to which no review action is pending, the Board

observed in a footnote that:

      It is noted that the lead respondent [Maria Lopez]
      asserts that she is the beneficiary of a Form I-130,
      which was twice denied by the United States Citizenship
      and Immigration Services (CIS). She further claims that
      she appealed from the CIS denial to this Board. However,
      the Board's electronic system does not confirm the filing
      of the appeal, nor has the respondent provided a copy of
      such.

                                  Discussion

              Petitioners argue that the BIA abused its discretion in

denying their request for a continuance to pursue their adjustment

claim.   They further argue that their due process rights were

violated.       We   find   a   conspicuous    absence   of   merit   in   both

contentions and deny the petition for review.

              The Attorney General's regulations authorize immigration

judges in their discretion to grant or deny continuances. 8 C.F.R.

§   1003.29     ("The    immigration   judge    may   grant   a   motion   for

continuance on good cause shown."); Alsamhouri v. Gonzales, 484

F.3d 117, 122 (1st Cir. 2007); see also 8 C.F.R. § 1240.6 ("the

immigration judge may grant a reasonable adjournment . . . for good

cause shown.").         The decision whether to continue a hearing is

committed to the immigration judge's sound discretion, see In re

Sibrun, 18 I&N Dec. 354, 356-57 (BIA 1983).              Thus, on a petition

for review, we review an IJ's denial of a continuance only for an

abuse of discretion.        Feliz v. Gonzales, 487 F.3d 71, 73 (1st Cir.

2007).   We have said that we will reverse only if the IJ "made an

                                       -8-
error of law or acted in a manner that is arbitrary or capricious."

Cruz-Bucheli v. Gonzales, 463 F.3d 105, 107 (1st Cir. 2006).

Nothing of the sort appears here.

          As the Board found, the IJ did not abuse her discretion

when she denied petitioners' motion for continuance.              There was

strong, indeed overwhelming, evidence in the record of the visa

petition proceedings supporting the DHS's determination of marriage

fraud and its recorded denial of the I-130.

          The     Board,   in   its    review,   examined   the    evidence

carefully, as have we.      Petitioners' testimony was studded with

inconsistencies, and the record plainly justified the finding of

marriage fraud.     There was little reason to believe that finding

would be overturned on appeal.

          Additionally, the Board determined that while petitioners

argued, in justification of a continuance, that they had appealed

to the Board from the second I-130 denial, the only evidence of an

appeal was a fee receipt dated May 5, 2005 and a copy of a notice

of appeal stamped on September 21, 2005, well after expiration of

the period allowed for filing an appeal.          8 U.S.C. § 1003.38(b).

In its October 1, 2007 denial of the petitioners' motion to reopen,

the Board once again noted that there was no record of the filing

of an appeal and that the petitioners had not provided a copy of

one.   Moreover, even if a valid appeal were pending, the Board

reasonably found that "good cause is not shown by requesting a


                                      -9-
continuance to await the results of a collateral event, which may

occur at some indefinite time in the future, and the outcome of

which, may or may not be favorable" to petitioners.                There was no

abuse of discretion in the denial of the motion for a continuance.

            Petitioners also argue they were not provided with due

process because CIS "appeared gratuitously harsh" to the family and

because   they    were   not   represented    by   counsel    in   their    I-130

application.      We review constitutional claims de novo.                 Ibe v.

Gonzales, 415 F.3d 142, 144 (1st Cir. 2005).                 An alien may not

predicate a due process claim on a denial of adjustment of status

because it is a discretionary form of relief in which the alien has

no cognizable liberty interest.           Naeem v. Gonzales, 469 F.3d 33,

38-39 (1st Cir. 2007).         Moreover, there is no evidence here of

undue harshness by anyone.

            Further, petitioners have failed to show any prejudice.

"[B]efore   a    petitioner    in   an   immigration   case    may   advance    a

procedural due process claim, he must allege some cognizable

prejudice fairly attributable to the challenged process."                  Lattab

v. Ashcroft, 384 F.3d 8, 20 (1st Cir. 2004).           Petitioners contend

they had no opportunity to rebut the claims against them, but they

could have responded to the Notice of Intent to Deny and attempted

to explain why the DHS's evidence of marriage fraud was incorrect

or insufficient.     Petitioners had their petitions reviewed twice,

and they have yet to show that the proceedings were "fundamentally


                                     -10-
unfair."   Jobe v. INS, 238 F.3d 97, 98 n.3 (1st Cir. 2001) (en

banc) (quoting Bernal-Vallejo v. INS, 195 F.3d 56, 63 (1st Cir.

1999)) (internal quotation marks omitted).

           Petition for review is denied.




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