Chikwu Edeh v. MERRICK GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHIKWU EDEH,
Petitioner,
v.
MERRICK GARLAND, Attorney General,
Respondent.
No. 21-70781
Agency No. A203-139-634
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted December 8, 2022
Phoenix, Arizona
Before: WARDLAW and BUMATAY, Circuit Judges, and ZOUHARY,** District
Judge.
Chikwu Edeh, a citizen of Nigeria, petitions for review of a decision of the
Board of Immigration Appeals (“BIA”) affirming the order of an Immigration Judge
(“IJ”) denying his request for a continuance. We have jurisdiction under 8 U.S.C. §
1252 and deny the Petition.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Jack Zouhary, United States District Judge for the
Northern District of Ohio, sitting by designation.
FILED
DEC 9 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Edeh came to the United States in 2010 on a non-immigrant visa, which lasted
only six months. He remained in the country and was placed in removal proceedings
in 2013. After two continuances, an IJ found Edeh removable under 8 U.S.C. §
1227(a)(1)(B) in 2017. The IJ then scheduled an additional hearing to determine
whether Edeh was eligible for any potential form of relief. At the next hearing, Edeh
conceded he was removable and ineligible for cancellation of removal, and also
indicated he did not seek voluntary departure. However, Edeh claimed that he may
be eligible for adjustment of status under 8 U.S.C. § 1255(e)(3) because, years
earlier, he married a United States citizen.
Edeh, through counsel, asserted that his wife submitted a Form I-130 alien
relative visa petition to United States Citizenship and Immigration Services
(“USCIS”) on his behalf in April 2018. He requested another continuance pending
adjudication of the visa petition. The IJ denied Edeh’s request for a continuance,
noting Edeh allegedly married “some two years after being placed in removal
proceedings” and “no I-130 ha[d] been approved.” The IJ then ordered Edeh
removed because there was “no form of relief immediately available.”
Edeh timely appealed, asserting the IJ should have continued proceedings to
allow USCIS to process the I-130 visa petition. The BIA rejected that argument
because Edeh did not “submit[] documentation supporting his claim of prima facie
eligibility for adjustment of status to warrant a continuance pending adjudication of

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the visa petition.” Further, the record lacked any “proof of the filing of a Form I-
130 on [Edeh’s] behalf or clear and convincing evidence to demonstrate the bona
fides of the marriage.” The BIA affirmed the IJ decision and dismissed Edeh’s
appeal. Edeh now challenges the IJ’s denial of a continuance and the BIA’s order
affirming that denial.
When the BIA affirms an IJ decision while adding its own reasoning, we
review both decisions. See Rodriguez-Roman v. INS, 98 F.3d 416, 425 n.11 (9th Cir.
1996). “We review for abuse of discretion an IJ’s denial of a continuance.” Ahmed
v. Holder, 569 F.3d 1009, 1012 (9th Cir. 2009); see also Rios-Berrios v. INS, 776
F.2d 859, 862 (9th Cir. 1985) (“[T]he decision to grant or deny continuances is in
the sound discretion of the [IJ] and will not be overturned except on a showing of
clear abuse.”). “Absent a showing of clear abuse, we typically do not disturb an IJ’s
discretionary decision not to continue a hearing.” Biwot v. Gonzales, 403 F.3d 1094,
1099 (9th Cir. 2005).
Edeh argues he was entitled to a continuance because he was the beneficiary
of a prima facie approvable I-130 visa petition. He correctly notes that pursuit of an
adjustment of status may qualify as good cause for a continuance. But petitioners
are not entitled to continuances based on mere speculation. See Singh v. Holder, 638
F.3d 1264, 1274 (9th Cir. 2011); see also Matter of L-A-B-R-, 27 I&N Dec. 405, 414
(A.G. 2018) (noting that the BIA has “long held that continuances should not be

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granted when a [petitioner’s] collateral pursuits are merely speculative”).
An IJ may grant a continuance only “for good cause shown.” 8 C.F.R. §
1003.29. “Whether a denial of a continuance constitutes an abuse of discretion must
be evaluated on a case by case basis . . . .” Ahmed, 569 F.3d at 1012. In cases like
this one, “the focus of the inquiry is the apparent ultimate likelihood of success on
the adjustment application.” Matter of Hashmi, 24 I&N Dec. 785, 790 (BIA 2009).
Because Edeh was already in removal proceedings when the alleged marriage took
place, there is a rebuttable presumption that the marriage was entered into in bad
faith. Malilia v. Holder, 632 F.3d 598, 604–05 (9th Cir. 2011). Thus, Edeh “had
the burden of proof to show, through ‘clear and convincing evidence,’ that his
marriage was not fraudulent.” Id.
Edeh failed to meet that burden. He presented no evidence, outside of his own
representations, that he was eligible for adjustment of status. In fact, he failed to
produce any documentary evidence that an I-130 visa petition had been submitted
on his behalf or that his marriage was legitimate. Thus, as the IJ noted and BIA
confirmed, Edeh failed to establish that any immediate relief was available to him.
And even if he were eligible for adjustment, the denial was proper because the
“application had not been approved at the time of the hearing and no relief was then
immediately available.” Sandoval-Luna v. Mukasey, 526 F.3d 1243, 1247 (9th Cir.
2008) (per curiam).

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Without clear and convincing evidence demonstrating good cause, it was well
within the IJ’s discretion to deny the requested continuance.
PETITION DENIED.

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