Musyoki v. Gonzales

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
July 9, 2007
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-60921
Summary Calendar
CHRISTOPHER MUSYOKI,
Petitioner,
versus
ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,
Respondent.
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Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A78 885 665
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Before SMITH, DeMOSS, and PRADO, Circuit Judges.
PER CURIAM:*
Christopher Musyoki petitions this court for review of the
Board of Immigration Appeals’s (BIA) order affirming the
immigration judge’s (IJ) denial of his request for a continuance.
Musyoki sought a continuance of his removal proceeding pending an
appeal by his wife of the denial of an I-130 petition filed on
his behalf.
Musyoki argues that he was unfairly surprised by the denial
of the I-130 petition. He contends that his wife did not have an
opportunity to respond to the denial or to lodge an appeal.

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No. 06-60921
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The grant of a motion to continue lies within the sound
discretion of the IJ, who may grant the motion for good cause
shown. Witter v. INS, 113 F.3d 549, 555-56 (5th Cir. 1997); see
8 C.F.R. § 1003.29. An “immigration judge’s decision denying a
motion for a continuance will not be reversed unless the alien
establishes that [the] denial caused him actual prejudice and
harm and materially affected the outcome of his case.” In re
Sibrun, 18 I & N Dec. 354, 356-57 (BIA 1983). To show prejudice,
“the alien must specifically articulate the particular facts
involved or the evidence which he would have presented, and
otherwise fully explain how the denial of his motion
fundamentally changed the result reached.” Id. at 357.
Given that the I-130 petition filed by his wife had been
denied, the petition was not “prima facie approvable.” In re
Garcia, 16 I & N Dec. 653, 656 (BIA 1978). Musyoki did not show
good cause for the grant of a continuance before the IJ. See
Witter, 113 F.3d at 555-56. On his appeal to the BIA, Musyoki
failed to show that the BIA’s affirmance of the IJ’s denial of a
continuance prejudiced him or that it had a material affect on
the outcome of his case. See In re Sibrun, 18 I & N Dec. at 356-
57. Musyoki has not shown that the BIA abused its discretion in
affirming the IJ’s denial of his motion a continuance. See
Witter, 113 F.3d at 555.
Musyoki also contends that the denial of a continuance
violated his right to due process given that his wife is entitled

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No. 06-60921
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to appeal the denial of the I-130 petition. Musyoki has not
specified facts or evidence that would suggest that the I-130
petition filed on his behalf by his spouse was improperly denied
or that the outcome would be different on appeal. Musyoki’s due
process claim fails because he has not made “an initial showing
of substantial prejudice.” Anwar v. INS, 116 F.3d 140, 144 (5th
Cir. 1997).
PETITION FOR REVIEW DENIED.

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