UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-1139
OLUWOLE C. AKINTUNDE,
Petitioner,
versus
ALBERTO R. GONZALES, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals. (A74-994-441)
Submitted: September 25, 2006 Decided: October 31, 2006
Before SHEDD and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Petition denied by unpublished per curiam opinion.
Irena I. Karpinski, LAW OFFICES OF IRENA I. KARPINSKI, Washington,
D.C., for Petitioner. Peter D. Keisler, Assistant Attorney
General, M. Jocelyn Lopez Wright, OFFICE OF IMMIGRATION LITIGATION,
Song E. Park, OFFICE OF IMMIGRATION LITIGATION, Washington, D.C.,
for Respondent.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Oluwole C. Akintunde, a native and citizen of Nigeria,
petitions for review of a decision of the Board of Immigration
Appeals (“Board”) affirming, without opinion, the immigration
judge’s order denying his motion for a continuance and his request
for voluntary departure.
The decision to grant or deny a continuance “is within
the sound discretion of the immigration judge and is reviewed for
abuse of discretion only.” Onyeme v. INS, 146 F.3d 227, 231 (4th
Cir. 1998). When reviewing the Board’s decision upholding an
immigration judge’s continuance ruling, we will “uphold the
[Board]’s decision unless it was made without a rational
explanation, it inexplicably departed from established policies, or
it rested on an impermissible basis, e.g., invidious discrimination
against a particular race or group.” Id. (internal citation and
quotation marks omitted). Having reviewed the record and finding
no such improprieties, we uphold the immigration judge’s decision.
Akintunde asserts that the immigration judge abused her
discretion in denying his request for a continuance because the
denial precluded him from presenting evidence in support of his
claims for relief, including voluntary departure and adjustment of
status, based on a new relationship that could result in marriage.
This argument fails because Akintunde was not seeking “to pursue
the previously filed adjustment application for adjustment of
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status.” See 8 C.F.R. § 245.2(a)(1) (2006). To be eligible for an
adjustment of status as an arriving alien who is present in the
United States pursuant to the terms of a grant of advance parole,
that alien must be returning to this country to pursue the
previously filed application for adjustment of status. See 8
C.F.R. § 1245.2(a)(1) (2006). The fact that the immigration judge
denied Akintunde the opportunity to pursue a theoretical
application for adjustment of status predicated on the possibility
that, at some point in the future, he would be married to a United
States citizen and that a visa petition would be filed on his
behalf was not an abuse of discretion.
In addition, we lack jurisdiction to review any challenge
to the grant or denial of voluntary departure. See 8 U.S.C.
§ 1229c(f) (2000) (“No court shall have jurisdiction over an appeal
from denial of a request for an order of voluntary departure
. . . .”); 8 U.S.C. § 1252(a)(2)(B)(I) (2000) (“[N]o court shall
have jurisdiction to review any judgment regarding the granting of
relief under section . . . 1229c [the section governing voluntary
departure].”); see Ngarurih v. Ashcroft, 371 F.3d 182, 193 (4th
Cir. 2004) (noting that “[s]ection 1229c specifically precludes
review of a denial of a request for voluntary departure. . . .
[and] [l]ikewise, the general judicial review provision precludes
review of orders granting voluntary departure”).
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Akintunde claims he was denied due process based on such
alleged deprivation. In assessing whether a deportation or asylum
hearing has comported with due process, we have held that aliens
must be given “an opportunity to be heard at a meaningful time and
in a meaningful manner, i.e., [to] receive a full and fair hearing
on their claims.” Rusu v. INS, 296 F.3d 316, 321-22 (4th Cir.
2002). In order to receive relief on a due process claim,
Akintunde must establish that a violation occurred, and show
prejudice from the violation. Id. at 320. Prejudice requires that
the violation was likely to affect the results of his hearing.
Jean v. Gonzales, 435 F.3d 475, 484 (4th Cir. 2006). Because
Akintunde failed to make this showing, he is not entitled to
relief.
Accordingly, we deny the petition for review. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and
argument would not aid the decisional process.
PETITION DENIED
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