OPINION
In 2001, Evelyn Owusu, a citizen of Ghana, was admitted to the United States on a B-2 visa. She overstayed her admission period and was charged with removability pursuant to the Immigration and Nationality Act (“INA”) § 237(a)(1)(B) [8 U.S.C. § 1227(a)(1)(B) ]. Meanwhile, Owusu applied several times to adjust her status based on her marriage to a United States citizen. Later, however, Owusu and her husband divorced.
In July 2009, Owusu’s attorney filed in Immigration Court a motion for a continuance, noting that he would be unable to attend a hearing scheduled for July 16, 2009, because he needed to take a four-month leave from work due to illness. The Immigration Judge (“IJ”) denied the
The Board of Immigration Appeals (“BIA”) dismissed Owusu’s appeal. The Board concluded that the IJ properly denied the motion to reopen, stating that Owusu did not provide proof of an approved visa petition or evidence of prima facie eligibility for relief from removal. The BIA also agreed with the IJ’s denial of the motion to reconsider the denial of her request for a continuance. According to the Board, the IJ had warned Owusu that no further continuances would be granted, she failed to establish good cause for a continuance because she had been granted multiple continuances in the past, and she did not appear to be eligible for any relief from removal on the date of her last hearing. Owusu filed a petition for review.
We have jurisdiction pursuant to INA § 242 [8 U.S.C. § 1252],1 and review the BIA’s denial of Owusu’s motion to reopen and for reconsideration for abuse of discretion. Pllumi v. Att’y Gen., 642 F.3d 155, 158 (3d Cir.2011). Under this standard, we may reverse the BIA’s decision only if it is “arbitrary, irrational, or contrary to law.” Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir.2004). When, as here, “the BIA both adopts the findings of the IJ and discusses some of the bases for the IJ’s decision, we have authority to review the decisions of both the IJ and the BIA.” Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir.2004).
The BIA did not abuse its discretion in affirming the IJ’s denial of Owusu’s motion to reopen. As noted, Owusu sought to reopen the proceedings so she could apply for adjustment of status based on her marriage to her second husband. A motion to reopen to apply for adjustment of status based on a marriage entered into after removal proceedings are commenced may be granted if several conditions are met. In re Velarde-Pacheco, 23 I. & N. Dec. 253, 256 (BIA 2002). One of these conditions is that “the motion presents clear and convincing evidence indicating a strong likelihood that the respondent’s marriage is bona fide.” Id.; see also INA § 245(e)(3) [8 U.S.C. § 1255(e)(3) ]. An approved 1-130 petition based on marriage “will be considered primary evidence of eligibility for the bona fide marriage exemption.” 8 C.F.R. § 1245.1(c)(8)(v). In this case, the BIA
The BIA also properly rejected Owusu’s contention that the IJ should have granted her request for a continuance. We review the decision to deny a continuance for abuse of discretion. Ponce-Leiva v. Ashcroft, 331 F.3d 369, 377 (3d Cir.2003). “The question of whether denial of a continuance in an immigration proceeding constitutes an abuse of discretion cannot be decided through the application of bright-line rules; it must be resolved on a case by case basis according to the facts and circumstances of each case.” Id. (quoting Baires v. INS, 856 F.2d 89, 91 (9th Cir.1988)). An IJ “may grant a continuance for good cause shown.” 8 C.F.R. § 1003.29. “[T]he BIA [has] set forth five criteria to be considered in evaluating whether to grant a motion to continue removal proceedings pending an adjustment of status application premised on a pending visa petition: ‘(1) [T]he DHS response to the motion; (2) whether the underlying visa petition is prima facie ap-provable; (3) the respondent’s statutory eligibility for adjustment of status; (4) whether the respondent’s application for adjustment merits a favorable exercise of discretion; and (5) the reason for the continuance and other procedural factors.’” Simon v. Holder, 654 F.3d 440, 442 (3d Cir.2011) (quoting In re Hashmi, 24 I. & N. Dec. 785, 790 (BIA 2009)). In Simon, we granted the petition for review because the BIA did not evaluate the motion for a continuance pursuant to those criteria. Id. at 443 (holding that the “factors must be considered every time an alien files a motion for a continuance based on an application for adjustment of status premised on a pending or approved 1-130 ... petition.”).
Here, by contrast, the Board adequately considered the Hashmi factors. In particular, the Board concluded that Owusu had “not shown that the underlying visa petition was prima facie approvable or has subsequently been approved.” As discussed above, Owusu did not provide evidence of a bona fide marriage to establish prima facie eligibility for adjustment of status. Cf. Morgan v. Gonzales, 445 F.3d 549, 552 (2d Cir.2006) (holding that IJ did not abuse his discretion in denying a continuance for adjudication of a second visa petition based on same marriage when first such petition was denied for failure to establish bona fide marriage). The BIA also noted that Owusu had been granted multiple continuances and warned that no further continuances would be granted. These procedural factors are proper considerations, although “the number and length of prior continuances ‘are not alone determinative.’ ” Simon, 654 F.3d at 442 (quoting Hashmi, 24 I. & N. Dec. at 794). The Board further recognized that “an earlier visa petition filed by a different
For the above reasons, we will deny the petition for review.
1.
Owusu argues that her prior counsel was ineffective and states that she has complied with the requirements of Matter of Lozada, 19 I. & N. Dec. 637, 639 (BIA 1988). This argument was not raised before the BIA and is thus unexhausted. We lack jurisdiction to review unexhausted arguments. Abdulrahman v. Ashcroft, 330 F.3d 587, 594-95 (3d Cir.2003).