Olajide Eyitayo v. Attorney General United States

NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________ No. 21-3335 ___________ OLAJIDE ABRAHAM EYITAYO, Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA ____________________________________ On Petition for Review of an Order of the Board of Immigration Appeals (Agency No. A073-630-931) Immigration Judge: Alice Song Hartye ____________________________________ Submitted Pursuant to Third Circuit LAR 34.1(a) September 22, 2022 Before: MCKEE, SHWARTZ, and MATEY, Circuit Judges (Opinion filed: September 29, 2022) ___________ OPINION * ___________ * This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. PER CURIAM Olajide Abraham Eyitayo petitions for review of the Board of Immigration Appeals’ (BIA) order dismissing his appeal of an Immigration Judge’s (IJ) order of removal. For the reasons that follow, we will dismiss the petition for lack of jurisdiction. Eyitayo, a native of Nigeria and a citizen of both Nigeria and the United Kingdom, entered the United States in 1995 and became a lawful permanent resident in 2002. In 2018, he was convicted of wire fraud and charged with removability as an alien convicted of an aggravated felony. See 8 U.S.C. § 1227(a)(2)(A)(iii). Eyitayo conceded the charge, but requested a continuance to pursue readjustment of status, in conjunction with a waiver of inadmissibility under 8 U.S.C. § 1182(h), based on his U.S. citizen wife’s I-130 Petition for Alien Relative filed with the U.S. Citizenship and Immigration Services (USCIS). 1 The Department of Homeland Security (DHS) requested an expedited adjudication of the I-130 petition, and the immigration proceedings were continued numerous times, including twice after the USCIS issued a notice of intent to deny the petition because of questions regarding the bona fides of Eyitayo’s marriage. At the eighth and final immigration hearing on April 19, 2021, Eyitayo’s counsel stated that USCIS had denied the I-130 petition but that an appeal was pending. The Government opposed any further continuance. The IJ determined 1 If approved, an I-130 petition can serve as the basis for an alien’s application for adjustment of status based on marriage to a U.S. citizen. See 8 U.S.C. § 1255(a); Robinson v. Napolitano, 554 F.3d 358, 361 (3d Cir. 2009). 2 that there was no “good cause” for continuing the matter and entered an order of removal. See 8 C.F.R. § 1003.29. On appeal, the BIA affirmed, agreeing with the IJ that Eyitayo had failed to show good cause for a continuance. The BIA emphasized that the visa petition had been denied, and that Eyitayo “ha[d] not identified the exact basis for the visa petition’s denial” or presented “documentary evidence” to suggest that USCIS would reverse the decision on appeal. A.R. at 3; see In re L-A-B-R-, 27 I. & N. Dec. 405, 406 (Att’y Gen. 2018) (clarifying that an IJ’s “principal focus” in determining whether to grant a continuance is the likelihood that the underlying visa petition “will be granted and will materially affect the outcome of the removal proceedings”); In re Sanchez Sosa, 25 I. & …

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