Catalin Aionesei Lupu v. U.S. Attorney General

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-11514
Non-Argument Calendar
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Agency No. A087-417-960
CATALIN AIONESEI LUPU,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
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Petition for Review of a Decision of the
Board of Immigration Appeals
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(January 7, 2016)
Before WILLIAM PRYOR, JILL PRYOR and FAY, Circuit Judges.
PER CURIAM:
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Catalin Lupu, a native and citizen of Romania, petitions for review of the
dismissal of his appeal by the Board of Immigration Appeals (“BIA”). After
careful review, and for the reasons set forth below, we deny Lupu’s petition in part
and dismiss in part.
I.
Lupu was admitted to the United States with a visitor’s visa in September
2007 with authorization to remain in the country until March 2008. He overstayed
his visa, and in December 2008 married Odalis Gonzalez-Perez, a United States
citizen. In January 2009, Lupu submitted an Application to Register Permanent
Residence or Adjust Status with the U.S. Citizenship and Immigration Services
(“USCIS”). That same day, Gonzalez-Perez filed a Form I-130 Petition, called a
Petition for Alien Relative or visa petition, on Lupu’s behalf (the “first visa
petition”).
After interviewing the couple and determining that the marriage was a sham
or fraudulent marriage, USCIS denied the first visa petition and Lupu’s application
for adjustment of status. Immigration and Customs Enforcement thereafter
initiated removal proceedings against Lupu, charging him as removable under 8
U.S.C. § 1227(a)(1)(B), for staying in the United States beyond his original
authorization. Lupu appeared before an immigration judge (“IJ”) with counsel
and, after receiving an initial continuance to prepare his case, conceded
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removability and requested a continuance so that Gonzalez-Perez could file
another visa petition on his behalf (the “second visa petition”). The IJ granted this
continuance, and Gonzalez-Perez filed the second visa petition.
Lupu requested and received seven additional continuances from the IJ
(bringing the total to eight) pending the adjudication of the second visa petition,
including one immediately following USCIS’s denial of the second visa petition in
October 2013. In December 2013, Gonzalez-Perez appealed the denial of the
second visa petition to the BIA. Lupu requested a ninth continuance to allow the
BIA time to issue its decision, but the IJ denied the request and Lupu’s application
for adjustment of status. The IJ reasoned that Gonzalez-Perez’s visa petitions had
been denied twice, Lupu had failed to establish prima facie eligibility to adjust his
status, and several continuances had already “allow[ed] for the adjudication of the
I-130 in compliance with Matter of Hashmi,” 24 I. & N. Dec. 785 (BIA 2009).1
A.R. at 45.2 The IJ asked Lupu whether he wished to voluntarily depart the United
States and he responded that he did not, so the IJ ordered Lupu removed to
Romania.
1 In Matter of Hashmi, 24 I. & N. Dec. at 790, and its companion case Matter of Rajah,
25 I. & N. Dec. 127, 128 (BIA 2009), the BIA held that an IJ must decide whether good cause
exists to grant a continuance, considering and balancing, where applicable, certain factors,
including but not limited to: the government’s response to the continuance request; whether the
underlying visa petition is prima facie approvable; the respondent’s statutory eligibility for
adjustment of status; whether the application for adjustment of status merits a favorable exercise
of discretion; and the reason for the continuance and other procedural factors.
2 “A.R.” refers to the certified administrative record in this case.
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Lupu appealed the IJ’s final order of removal to the BIA, arguing in part that
the IJ failed to consider the factors set forth in Matter of Hashmi in denying his
continuance request. The BIA dismissed Lupu’s appeal. Although the BIA
acknowledged Lupu’s contention that the IJ should have granted a further
continuance pending adjudication of Gonzalez-Perez’s appeal from the denial of
the second visa petition, it noted “that during the pendency of the present appeal,
this Board has adjudicated, and dismissed, the appeal from the denial of [that]
petition.” BIA Order at 2. Accordingly, the BIA concluded that it “need not
ultimately resolve whether a pending [I-130] petition falls within the scope of our
precedent in Matter of Hashmi, . . . as the record establishes no persuasive
evidence establishing that the respondent is presently the beneficiary of a pending
visa petition or visa petition appeal.” Id. And, the BIA stated, Lupu had “not
identified any other basis for continuing his removal proceedings.” Id.
Lupu now petitions this Court for review.
II.
A.
Lupu first asserts that the BIA erred in affirming the IJ’s decision to deny his
ninth request for a continuance. We review the denial of a request for a
continuance for an abuse of discretion. Chacku v. U.S. Att’y Gen., 555 F.3d 1281,
1285 (11th Cir. 2008). “When the BIA issues a decision, we review only that
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decision, except to the extent that the BIA expressly adopts the IJ’s decision.” Id.
Here, the BIA issued its own decision affirming the IJ’s denial of Lupu’s request.
Accordingly, we review only the BIA’s decision, and we need not address Lupu’s
contentions that the IJ’s decision itself was flawed.
And indeed, the IJ’s decision essentially was rendered moot by the BIA’s
subsequent decision affirming the denial of the second visa petition Gonzalez-
Perez filed on Lupu’s behalf. Lupu argues that the BIA’s decision erroneously was
based solely on the fact that the BIA had affirmed the denial of that visa petition.
But he cites no reason why the BIA’s reliance on this event amounted to an abuse
of discretion, and we see none. In concluding that its decision on the second visa
petition appeal decided the issue and rendered a discussion of the IJ’s Matter of
Hashmi analysis unnecessary, the BIA emphasized that “the respondent’s wife did
not carry her burden of proof in establishing that the couple’s marriage is bona
fide.” BIA Order at 2. Put differently, Lupu could not establish that he was likely
to succeed in obtaining an adjustment of status because he would have no basis for
the adjustment. We cannot say this was an abuse of discretion. Rather, the BIA’s
conclusion reflected its own consideration of the Matter of Hashmi factors,
including whether the visa petition was prima facie approvable and whether Lupu
was eligible for an adjustment of status. See Matter of Hashmi, supra note 1.
Accordingly, we deny Lupu’s petition for review on this ground.
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B.
Lupu also contends, for the first time in this Court, that the IJ denied him
due process by forcing him to choose whether to depart voluntarily before a
decision was rendered on the second visa petition appeal. He asserts that, had he
on the one hand chosen to depart voluntarily before the appeal was decided but
then refused to do so, he would have been barred statutorily from seeking an
adjustment of status for ten years. Had he on the other hand been permitted to
decide whether to depart voluntarily after the second visa petition appeal was
decided, he argues, he would have departed voluntarily and would not have faced
the same statutory bar. “We lack jurisdiction to consider a claim raised in a
petition for review unless the petitioner has exhausted his administrative remedies
with respect thereto.” Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250
(11th Cir. 2006). If a petitioner has failed to raise a claim before the BIA, it is
unexhausted. See id. Here, because Lupu failed to present his due process
challenge to the BIA, we are without jurisdiction to entertain it. See id. We
accordingly dismiss this portion of his petition for review.
PETITION DENIED IN PART AND DISMISSED IN PART.
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