Olofinjana v. Gonzales

Filing 920070329

Opinion

United States Court of Appeals Fifth Circuit

F I L E D
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT March 29, 2007 Charles R. Fulbruge III Clerk No. 06-60647 Summary Calendar TEMITAYO O OLOFINJANA Petitioner v. ALBERTO R GONZALES, US ATTORNEY GENERAL Respondent -------------------Petition for Review of an Order of the Board of Immigration Appeals BIA No. A28 303 029 -------------------Before KING, HIGGINBOTHAM and GARZA, Circuit Judges. PER CURIAM:* Temitayo O. Olofinjana petitions this court for review of the Board of Immigration Appeals's (BIA) denial of his motion to reconsider its order affirming the immigration judge's (IJ) denial of his request for a continuance. The respondent argues

that this court is without jurisdiction because Olofinjana was ordered removed as an alien convicted of a crime involving moral turpitude. The respondent further contends that the denial of a

continuance does not involve a constitutional claim or a question of law which would give this court jurisdiction under 8 U.S.C. 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 06-60647 -2§ 1252(a)(2)(D). The denial of a continuance implicates due process where an alien shows good cause for the continuance. See Ali v. Gonzales,

440 F.3d 678, 680 (5th Cir. 2006); Patel v. U.S., I.N.S., 803 F.2d 804, 806-07 (5th Cir. 1986). Therefore, Olofinjana's

argument that the denial of a continuance violated his due process rights because he showed good cause presents a constitutional claim over which we have jurisdiction. (a)(2)(D). This court reviews the BIA's denial of a motion to reconsider under a highly deferential abuse-of-discretion standard. Lara v. Trominski, 216 F.3d 487, 496 (5th Cir. 2000); An IJ See § 1252

Osucukwu v. INS, 744 F.2d 1136, 1141-42 (5th Cir. 1984). may grant a continuance upon a showing of good cause. INS, 113 F.3d 549, 555-56 (5th Cir. 1997).

Witter v.

Olofinjana argues

that a pending I-130 petition constitutes good cause for a continuance. However, 8 U.S.C. § 1154(c) prohibits the approval

of a petition if the Attorney General has determined that an alien entered into a marriage for the purpose of evading immigration laws. The evidence showed that two prior petitions

filed on Olofinjana's behalf were denied based on a finding of fraud regarding the marriage upon which the petitions were based. Thus, Olofinjana did not show good cause for a continuance. The

BIA did not abuse its discretion in denying Olofinjana's motion

No. 06-60647 -3to reconsider its decision affirming the IJ's denial of a continuance. Olofinjana's petition for review is DENIED.