USCA11 Case: 21-11003 Date Filed: 12/03/2021 Page: 1 of 7
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11003
Non-Argument Calendar
____________________
PIYUSHKUMAR PATEL,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
____________________
Petition for Review of a Decision of the
Board of Immigration Appeals
Agency No. A208-789-014
____________________
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2 Opinion of the Court 21-11003
Before WILSON, JORDAN, and NEWSOM, Circuit Judges.
PER CURIAM:
Piyushkumar Patel petitions us for review of the Board of
Immigration Appeals’ (BIA) order affirming the Immigration
Judge’s (IJ) decision denying his application for cancellation of re-
moval and his request for a continuance pending the adjudication
of his application for U nonimmigrant status (U visa application) by
United States Citizenship and Immigration Services (USCIS). We
will address each of these decisions in turn.
I.
Patel, a citizen of India, was admitted to the United States
on a temporary visitor visa in 2003, which authorized him to re-
main in the United States until 2004. In 2020, the Department of
Homeland Security served Patel with a notice to appear, alleging
that he was removable because he had remained in the United
States after the expiration of his visa without authorization and be-
cause, in February 2017, he had been convicted of an aggravated
assault.
Patel moved for the IJ to continue his removal proceedings,
pending the outcome of his U visa application filed with USCIS,
arguing that the IJ was required to continue the case until USCIS
adjudicated that application. The IJ denied this motion, finding
that Patel had not demonstrated good cause for a continuance. Pa-
tel then applied for cancellation of removal and adjustment of
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21-11003 Opinion of the Court 3
status, claiming that his children would suffer exceptional and ex-
tremely unusual hardship if he was returned to India. The IJ denied
this application for cancellation of removal. In particular, the IJ
found that Patel’s aggravated assault conviction was a crime in-
volving moral turpitude. Even if this conviction did not constitute
a disqualifying crime involving moral turpitude, the IJ noted that
Patel failed to show his family would suffer exceptional and ex-
tremely unusual hardship if he were removed from the United
States. The BIA affirmed on both the denial of cancellation and the
denial of the continuance. Regarding the denial of cancellation, the
BIA adopted the IJ’s decision on the ground that Patel did not show
the requisite hardship. Regarding the denial of the continuance,
the BIA agreed with the IJ that Patel failed to establish good cause.
Following entry of an order to this effect, Patel timely appealed.
II.
Patel argues that the IJ erred in denying his application for
cancellation of removal because his Alford plea 1 to aggravated as-
sault in 2017 in Georgia state court did not constitute a “convic-
tion” under the Immigration and Nationality Act (INA), 8 U.S.C.
§ 1101(a)(48)(A). He specifically contends that his plea is outside
the scope of the INA’s definition of “conviction” because (1) he did
1North Carolina v. Alford, 400 U.S. 25, 37 (1970) (holding that an individual
may “consent to the imposition of a prison sentence” despite maintaining that
he is innocent of the charged crime).
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4 Opinion of the Court 21-11003
not concede guilt, and (2) he has not been adjudicated guilty by a
court under Georgia’s First Offender Act, O.C.G.A § 42-6-60.
However, we cannot consider Patel’s argument because we
cannot review the IJ’s decision that Patel was convicted of a dis-
qualifying offense. Under our precedent, we only review the BIA’s
decision, “except to the extent that BIA expressly adopts the [IJ’s]
decision.” Jeune v. U.S. Att’y Gen., 810 F.3d 792, 799 (11th Cir.
2016). Here, the BIA adopted the IJ’s decision, but “only with re-
spect to the [IJ’s]determination that [Patel] did not demonstrate the
requisite hardship to a qualifying relative for purposes of cancella-
tion of removal.”2 The BIA did not address the IJ’s other reasons
for denying Patel’s cancellation of removal application, including
his conviction. Therefore, we lack jurisdiction to review the IJ’s
decision regarding Patel’s conviction because the BIA did not ex-
pressly adopt the IJ’s decision on that issue. Accordingly, we dis-
miss Patel’s petition in this respect
III.
Patel also argues that the IJ abused its discretion in denying
his motion to continue removal proceedings pending USCIS’s
2 The relevant statute provides that the Attorney General may cancel removal
of an undocumented immigrant who: (1) has been physically present in the
United States for a continuous period of at least 10 years; (2) has been a person
of good moral character; (3) has not been convicted of a disqualifying offense;
and (4) establishes that removal would result in exceptional and extremely un-
usual hardship to a qualifying family member. 8 U.S.C. § 1229b(b)(1)(A)–(D);
see also Martinez v. U.S. Att’y Gen., 446 F.3d 1219, 1221 (11th Cir. 2006).
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21-11003 Opinion of the Court 5
adjudication of his U visa application, because he showed good
cause for the continuance. He asserts that, instead of analyzing all
the factors set out by the BIA in Matter of Sanchez Sosa, 25 I&N
Dec. 807 (BIA 2012), for analyzing good cause for a continuance,
the IJ focused solely on one factor—the fact that the government
opposed the continuance. He argues that the remaining two fac-
tors—whether the U visa application was prima facie approvable
and “the reason for the continuance and other procedural fac-
tors”—weighed in his favor and should have been included in the
IJ’s analysis. Id. at 812–13.
As a threshold matter, we have jurisdiction to review Patel’s
argument in this respect. Generally, we do not have jurisdiction to
review “any judgment regarding the granting of relief under sec-
tion . . . 1229b.” 8 U.S.C. § 1252(a)(2)(B)(i). However, an exception
to this general rule is that we do have jurisdiction to review “con-
stitutional claims or questions of law.” Id. § 1252(a)(2)(D). The
Supreme Court has held that “questions of law” can include “the
application of a legal standard to undisputed or established facts.”
Guerrero-Lasprilla v. Barr, 140 S. Ct. 1062, 1068 (2020). Because
Patel argues that the BIA and IJ applied the wrong standard of law,
we have jurisdiction to review this issue. Furthermore, although
the BIA did not expressly adopt the IJ’s reasoning on this issue in
full, it “agree[d] with the [IJ’s] conclusion that [Patel] did not estab-
lish good-cause for a continuance” and relied on several of the IJ’s
findings. Accordingly, we will consider both the BIA’s decision and
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6 Opinion of the Court 21-11003
the IJ’s findings, to the extent that the BIA relied on them. See
Jeune, 810 F.3d at 799.
We review the decision to deny a motion for a continuance
for abuse of discretion. Haswanee v. U.S. Att’y Gen., 471
F.3d 1212, 1214 (11th Cir. 2006) (per curiam). In this context, abuse
of discretion review is limited to determining whether the exercise
of administrative discretion was arbitrary or capricious. Lapaix v.
U.S. Att’y Gen., 605 F.3d 1138, 1145 (11th Cir. 2010) (per curiam).
The movant “bears the burden of establishing good cause for a con-
tinuance” before the IJ. Matter of L-A-B-R-, 27 I&N Dec. 405, 415
(A.G. 2018).
We conclude that the IJ and the BIA did not abuse their dis-
cretion in denying Patel’s motion for a continuance. Although Pa-
tel argues that the IJ did not properly consider all of the factors set
out in Matter of Sanchez Sosa, the Attorney General later refined
the analysis for a continuance in Matter of L-A-B-R- to focus prin-
cipally on (1) the likelihood that the litigant will receive collateral
relief, and (2) whether the relief will materially affect the outcome
of the removal proceedings. Id. at 413; see also Matter of L-N-Y-,
27 I&N Dec. 755, 757 (BIA 2020) (describing Matter of L-A-B-R- as
having “refined” the analytical framework established in Matter of
Sanchez Sosa).
Here, the IJ and the BIA found that Patel failed to demon-
strate that his U visa application was likely to be approved. The
only evidence Patel filed in support of his motion for a continuance
was a receipt from USCIS acknowledging the filing of his U visa
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21-11003 Opinion of the Court 7
application. But without more information, the BIA and the IJ had
no basis to determine whether the grant of that application was
likely. See L-A-B-R-, 27 I&N Dec. at 413. Therefore, we find that
the BIA’s decision to affirm the IJ’s denial of a continuance was not
arbitrary and capricious, and thus the agency did not abuse its dis-
cretion. Accordingly, we deny the petition in this respect.
PETITION DISMISSED IN PART AND DENIED IN
PART.