    13-629
    Santos v. Holder
                                                                                   BIA
                                                                              Straus, IJ
                                                                          A079 719 022
                         UNITED STATES COURT OF APPEALS
                             FOR THE SECOND CIRCUIT
                                     SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

         At a stated term of the United States Court of Appeals
    for the Second Circuit, held at the Thurgood Marshall United
    States Courthouse, 40 Foley Square, in the City of New York,
    on the 13th day of March, two thousand fourteen.

    PRESENT:
             BARRINGTON D. PARKER,
             GERARD E. LYNCH,
             CHRISTOPHER F. DRONEY,
                  Circuit Judges.
    _____________________________________

    JOE SANTOS,
                       Petitioner,

                       v.                                  13-629

    ERIC H. HOLDER, JR., UNITED STATES
    ATTORNEY GENERAL,
             Respondent.
    _____________________________________

    FOR PETITIONER:                   Elyssa Williams, D. Wade Luckett,
                                      Formica Williams, P.C., New Haven,
                                      Connecticut.

    FOR RESPONDENT:                   Stuart F. Delery, Assistant Attorney
                                      General; Emily Anne Radford,
                                      Assistant Director; Craig A. Newell,
                                      Jr., Trial Attorney, Office of
                        Immigration Litigation, Civil
                        Division, United States Department
                        of Justice, Washington D.C.

    UPON DUE CONSIDERATION of this petition for review of a

Board of Immigration Appeals (“BIA”) decision, it is hereby

ORDERED, ADJUDGED, AND DECREED that the petition for review

is DISMISSED in part and DENIED in part.

    Petitioner Joe Santos, a native and citizen of the

Dominican Republic, seeks review of a January 25, 2013,

order of the BIA, affirming the June 13, 2011, decision of

an Immigration Judge (“IJ”), which denied his request for a

continuance, denied his request for further review of an I-

751 good faith marriage waiver, and ordered him removed.      In

re Joe Santos, No. A079 719 022 (B.I.A. Jan. 25, 2013),

aff’g No. A079 719 022 (Immig. Ct. Hartford June 13, 2011).

On appeal, Santos challenges the agency’s decision to deny

his I-751 good faith marriage waiver, and argues that the

agency abused its discretion in denying his motion for a

continuance while Gloria Mercado, his current wife,

challenges the denial of an I-130 visa petition she has

filed on his behalf.   We review these challenges seriatim,

and assume the parties’ familiarity with the underlying

facts and procedural history of this petition.


                              2
Denial of Marriage Waiver

    Congress has conferred “sole discretion” to the agency

to decide whether to grant a hardship waiver to an eligible

petitioner and to determine “what evidence is credible and

the weight to be given that evidence,” in determining a

petitioner’s eligibility.   8 U.S.C. § 1186(c)(4); Contreras-

Salinas v. Holder, 585 F.3d 710, 713-14 (2d Cir. 2009).     We

lack jurisdiction to review these purely discretionary

decisions unless they raise questions of law or

constitutional claims.   See 8 U.S.C. §§ 1252(a)(2)(B)(ii),

1252(a)(2)(D).

    Santos argues that the agency erred as a matter of law

in reviewing his I-751 marriage waiver petition by “failing

to balance the equities . . . and only weigh[ing] the

negative factors” and by failing to properly weigh the

evidence provided.   Pet. Br. at 21.   These arguments do not

concern any legal question, but rather the “ultimate

decision whether to grant relief” and “what evidence is

credible and the weight to be given that evidence,” both of

which are entrusted to the discretion of the agency by

statute and thus are not subject to review by this Court.

Atsilov v. Gonzales, 468 F.3d 112, 116 (2d Cir. 2006); see



                              3
also Contreras-Salinas, 585 F.3d at 713-14.     Accordingly, we

dismiss this portion of Santos’s petition for review.

Denial of Continuance

    We review the agency’s decision to grant or deny a

continuance for abuse of discretion.     Sanusi v. Gonzales,

445 F.3d 193, 198-99 (2d Cir. 2006).     While it is

established agency policy that “an alien is entitled to a

continuance of removal proceedings against him while a prima

facie approvable I-130 immigrant visa petition is pending in

front of the District Director,” where, as here, an I-130

petition has been denied by the District Director and there

is a “reliable basis to conclude that the visa petition . .

. will ultimately be denied,” the I-130 petition no longer

establishes a prima facie case of eligibility.     Pedreros v.

Keisler, 503 F.3d 162, 165-66 (2d Cir. 2007) (internal

quotation marks removed).     Once such a “reliable basis” for

concluding the petition will be denied has been found, the

agency does not abuse its discretion in denying a

continuance, even if an appeal of the initial denial is

pending before the BIA.     Id.

    The District Director denied Mercado’s I-130 petition

on Santos’s behalf because of, inter alia, substantive

discrepancies and omissions in the petition and the agency’s

                                  4
determination that the petition did not adequately

demonstrate a bona fide marriage.   Consequently, the agency

reasonably found that the District Director’s “very thorough

denial of the visa petition” provided a reliable basis to

believe that the I-130 petition would ultimately be denied

and, despite Mercado’s efforts to appeal that denial, the

agency did not abuse its discretion in denying a

continuance.

    For the foregoing reasons, the petition for review is

DISMISSED in part and DENIED in part. As we have completed

our review, Santos’s pending motion for a stay of removal is

DENIED as moot.



                           FOR THE COURT:
                           Catherine O’Hagan Wolfe, Clerk




                             5
