     Case: 12-60038       Document: 00512171542         Page: 1     Date Filed: 03/12/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                          March 12, 2013
                                     No. 12-60038
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

AMIN MEMANJI MOMIN; SULTANABEN KURBAN MOMIN,

                                                  Petitioners

v.

ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,

                                                  Respondent


                       Petitions for Review of an Order of the
                           Board of Immigration Appeals
                               BIA No. A078 562 049
                               BIA No. A094 908 068


Before REAVLEY, JOLLY, and DAVIS, Circuit Judges.
PER CURIAM:*
       Amin Memanji Momin and Sultanaben Kurban Momin petition for review
of the Board of Immigration Appeals’ (BIA) dismissal of their appeal from the
Immigration Judge’s denial of their motions for a continuance and transfer of
venue and of the BIA’s denial of their motion to reconsider. We review the BIA’s
rulings for an abuse of discretion. See Ali v. Gonzales, 440 F.3d 678, 680 (5th
Cir. 2006); Zhao v. Gonzales, 404 F.3d 295, 303-04 (5th Cir. 2005); Chow v. INS,


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                   No. 12-60038

12 F.3d 34, 39 (5th Cir. 1993). There is no abuse of discretion if the BIA’s
decision is “not capricious, racially invidious, utterly without foundation in the
evidence, or otherwise so aberrational that it is arbitrary rather than the result
of any perceptible rational approach.” Cabral v. Holder, 632 F.3d 886, 890 (5th
Cir. 2011) (internal quotation marks and citation omitted).
      We assume the parties’ familiarity with the underlying facts and
procedural history in this case. We note, however, that the Momins sought to
continue their removal proceedings so that Momin, an arriving alien, could seek
adjustment of status from United States Citizenship and Immigration Services
(USCIS), and Mrs. Momin, if Momin’s application was successful, could seek
derivative adjustment of status from the immigration court.
      There was no abuse of discretion in the decision to deny the Momins’
motion for continuance under the standards set forth in Matter of Hashmi, 24
I. & N. Dec. 785, 790 (2009). In Hashmi, the BIA outlined certain factors that
an IJ should consider when ruling on a motion to continue removal proceedings
so the respondent can seek adjustment of status based upon a pending visa
petition; however, it noted that “the focus of the inquiry is the likelihood that the
adjustment application will be granted.” Id. It is undisputed that, in its review,
the BIA focused on Momin’s eligibility for status adjustment by noting Momin’s
concession that he might be ineligible for adjustment of status without a
concomitant waiver of inadmissibility.         Moreover, the record before the
immigration court established that Momin’s prior request for adjustment of
status and a waiver of inadmissability had been denied by USCIS. Given the
prior denial and Momin’s concession, the BIA did not abuse its discretion in
finding that the Momins’ removal proceedings should not be continued until
Momin’s renewed adjustment application before the USCIS was adjudicated or
in dismissing their appeal from the IJ’s denial of a continuance.            See id.
Moreover, because the Momins’ request for a transfer of venue was based only
upon their conclusory speculation that Momin’s adjustment application would

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                                  No. 12-60038

be approved by the USCIS, they have not demonstrated an abuse of discretion
with respect to the denial of that motion. See Chow, 12 F.3d at 39.
      Finally, for the reasons noted above, the BIA did not abuse its discretion
in denying the Momins’ motion to reconsider.         Zhao, 404 F.3d at 303-04.
Moreover, they have not demonstrated that the BIA abused its discretion in
denying their motion to reconsider because it rejected their request that their
removal proceedings be administratively closed. The factors to consider when
determining whether to administratively close removal proceedings include
whether it is likely that the respondent will succeed on any petition, application,
or other action he or she is pursuing outside of removal proceedings. See Matter
of Avetisyan, 25 I. & N. Dec. 688 (BIA 2012). The Momins did not make that
showing. Accordingly, the Momins’ petitions for review are DENIED.




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