Agyekum-Boateng v. Holder

SUMMARY ORDER Petitioner Ebenezer Yaw Agyekum-Boateng, a native and citizen of Ghana, seeks review of a February 8, 2013 decision of the BIA affirming the September 6, 2011 decision of Immigration Judge (“IJ”) Michael W. Straus, denying a continuance and ordering removal. See In re Ebenezer Yaw Agyekum-Boateng, No. A096 657 041 (B.I.A. Feb. 8, 2013), aff'g No. A096 657 041 (Immig.Ct.Hartford., Conn. Sept. 6, 2011). We assume the parties’ familiarity with the underlying facts and procedural history in this case. Under the circumstances of this case, we have reviewed both the IJ’s and the BIA’s opinions “for the sake of completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.2008) (quoting Wangchuck v. DHS, 448 F.3d 524, 528 (2d Cir.2006)). The IJ’s denial of a request for a continuance is reviewed “under a highly deferential standard of abuse of discretion.” Morgan v. Gonzales, 445 F.3d 549, 551 (2d Cir.2006) (“IJs are accorded wide latitude in calendar management, and we will not micromanage their scheduling decisions any more than when we review such decisions by district judges.”). The agency did not abuse its discretion in denying Agyekum-Boateng a continuance as it considered the factors set forth in Matter of Hashmi, 24 I. & N. Dec. 785, *22 790 (BIA 2009). It correctly concluded that: (1) the government opposed the request for a continuance, (2) the underlying visa petition was not prima facie approva-ble because the U.S. Citizenship and Immigration Services (“USCIS”) had denied the visa petition, and that denial was upheld on appeal, (B) Agyekum-Boateng would only be statutorily eligible to adjust status if the visa petition had been approved, and (4) Agyekum-Boateng’s proceedings had been continued for almost two years while the visa petition was pending. See Morgan v. Gonzales, 445 F.3d at 552 (holding that because petitioner was ineligible for adjustment of status at time of hearing, IJ did not abuse discretion by denying continuance while petitioner attempted to become eligible via second I-130 petition stemming from marriage that had been determined to lack bona ftdes); see also Elbahja v. Keisler, 505 F.3d 125, 129 (2d Cir.2007) (holding that IJ did not abuse discretion in denying continuance where petitioner’s eligibility for adjustment of status based on pending labor certification was “speculative at best”). The issue of whether a continuance is warranted pending Agyekum-Boateng’s appeal in the district court is not properly before us. See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 119-20 (2d Cir.2007). Regardless, the district court’s 14 consideration of the denial of his wife’s visa petition would not alter the decision below 15 because it remains that both the USCIS and the BIA have denied that petition, indicating that it is not prima facie ap-provable. We note that Agyekum-Boa-teng may nevertheless request from the USCIS a stay of removal pending the district court’s decision. See 8 C.F.R. § 1241.6; cf. Felzcerek v. INS, 75 F.3d 112, 118 (2d Cir.1996) (denying petitioner’s request to stay proceedings for BIA to review his pending motion to reopen where he could have sought stay from agency). For the foregoing reasons, the petition for review is DENIED.