United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 18, 2005
Charles R. Fulbruge III
Clerk
No. 04-60394
Summary Calendar
OMAR ABDEL ALROHMAN JARADAT,
Petitioner,
versus
ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,
Respondent.
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Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A76 653 018
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Before DAVIS, SMITH and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Omar Abdel Alrohman Jaradat petitions this court for review
of the Board of Immigration Appeal’s (“BIA”) order affirming the
denial of his request for a continuance and final order of
removal. Jaradat argues that the BIA abused its discretion by
affirming the denial of his request for a continuance because the
appeal from the denial of his wife’s petition for adjustment of
his status based upon their marriage was still pending and had
not been forwarded to the BIA. Jaradat asserts that the
immigration judge (“IJ”) granted him one continuance because the
*
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this opinion should not be published and is not precedent except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.
No. 04-60394
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appeal had not been forwarded to the BIA but did not grant him
another continuance even though the appeal still had not been
forwarded to the BIA.
As an initial matter, the respondent asserts that we do not
have jurisdiction over Jaradat’s petition for review under 8
U.S.C. § 1252(a)(2)(B)(ii). This argument is foreclosed by this
court’s opinions in Zhao v. Gonzales, 404 F.3d 295, 302-03 (5th
Cir. Mar. 15, 2005), and Manzano-Garcia v. Gonzales, __ F.3d __,
2005 WL 1400023 at *5 (5th Cir. June 15, 2005).
On a petition for review of a BIA decision, we review
factual findings for substantial evidence and questions of law de
novo. Lopez-Gomez v. Ashcroft, 263 F.3d 442, 444 (5th Cir.
2001). We review the order of the BIA and will consider the
underlying decision of the IJ only if it influenced the
determination of the BIA. Ontunez-Tursios v. Ashcroft, 303 F.3d
341, 348 (5th Cir. 2002). We review the BIA’s affirmance of an
IJ’s denial of a continuance for abuse of discretion. Witter v.
INS, 113 F.3d 549, 555-56 (5th Cir. 1997). An IJ may grant a
continuance upon a showing of good cause. Id.
The pendency of a prima facie approvable petition for
adjustment of status is good cause for the continuance of removal
proceedings. In re Garcia, 16 I & N Dec. 653, 657 (BIA 1978).
In this case, however, the petition was not prima facie
approvable because it had been denied and was on appeal. The BIA
and the IJ, whose reasoning was adopted by the BIA, adequately
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explained the reasoning for their denial of Jaradat’s request for
a continuance. While the IJ granted Jaradat a continuance at a
previous hearing because the appeal had not been forwarded to the
BIA, the record shows that at the hearing in question, the
respondent explained that the appeal was in the process of
adjudication and was not being unduly delayed. The IJ had
previously continued Jaradat’s removal proceedings on 15 separate
occasions, spanning a total of almost five years. Given these
circumstances, the BIA did not abuse its discretion by affirming
the IJ’s denial of Jaradat’s request for a continuance.
PETITION FOR REVIEW DENIED.