Case: 11-60205 Document: 00511747706 Page: 1 Date Filed: 02/03/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 3, 2012
No. 11-60205
Summary Calendar Lyle W. Cayce
Clerk
ABDUL AZIZ MOHAMMED,
Petitioner
v.
ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A094 077 022
Before BARKSDALE, STEWART, and PRADO, Circuit Judges.
PER CURIAM:*
Abdul Aziz Mohammed, a native and citizen of India, petitions for review
of the Board of Immigration Appeals’ (BIA) dismissal of his appeal of the
immigration judge’s (IJ) denying his request for a continuance of his removal
proceedings. Subsequently, he was ordered removed. Mohammed contends: in
the light of factors identified by the BIA in In re Hashmi, 24 I. & N. Dec. 785,
790-91 (BIA 2009), the continuance should have been granted.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
Case: 11-60205 Document: 00511747706 Page: 2 Date Filed: 02/03/2012
No. 11-60205
Whether to grant a motion to continue lies within the sound discretion of
the IJ, who may grant it for good cause shown. Witter v. INS, 113 F.3d 549, 555
(5th Cir. 1997). We review for abuse of discretion. Id. “Neither the BIA nor the
IJ abuses its discretion so long as [the 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.” Galvez-Vergara v. Gonzales, 484 F.3d 798, 801 (5th Cir. 2007)
(citation and internal quotation marks omitted).
Mohammed’s reliance on Hashmi is misplaced. In Hashmi, the alien’s
spouse filed a Form I-130 (petition for priority status of alien relative) before the
alien moved for a continuance of his removal proceedings. 21 I. & N. Dec. at 786.
In this instance, Mohammed’s purported spouse, Rosalinda Espinoza, did not file
a Form I-130 on Mohammed’s behalf until after Mohammed moved for the
continuance.
More importantly, when Mohammed so moved, he was not legally married
to Espinoza, because, as found by both the IJ and the BIA, she had not yet
divorced her first husband. And, Mohammed could not specify when Espinoza’s
divorce would be final. See Witter, 113 F.3d at 555-56 (“The BIA did not abuse
its discretion in affirming the IJ’s refusal to grant a continuance of indefinite
duration.”).
DENIED.
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