(caption unavailable)

*Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the Court has determined
that this opinion should not be published.
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 92-4710
Summary Calendar
PATRICK ISI IKHIFA,
Petitioner,
VERSUS
IMMIGRATION AND NATURALIZATION,
SERVICE,
Respondent.
Appeal For Review Of An Order Of
The Board of Immigration Appeals
(A27 899 062)
( March 18, 1993 )
Before HIGGINBOTHAM, SMITH, and DeMOSS, Circuit Judges.
PER CURIAM:*
I.
BACKGROUND
Patrick Isi Ikhifa is a Nigerian national who entered this
country in January 1984 on a visa issued in Logos, Nigeria. Upon
his arrival, Ikhifa enrolled as a non-degree student at Southern

-- 1 of 11 --

1 Section 241 (a) (5) of the Act, 8 U.S.C. 1251 (a) (5)
provides in relevant part:
"[a]ny alien in the United States shall, upon order
of the Attorney General, be deported who... (5) ...
has been convicted under section 1546 of Title 18 ...."
2
University and Louisiana State University. In 1986, Ikhifa
received a residency scholarship to Loyola University in New
Orleans to pursue an MBA degree. In June of 1986 Ikhifa married
Pamela Hollins, an American citizen.
Ikhifa was convicted in the United States District Court on
October 19, 1988 of willful possession and use of a false
immigration document and an altered passport, in violation of 18
U.S.C. § 1546 (a); willful use of an altered passport, in violation
of 18 U.S.C. § 1543; and two counts of knowingly and willfully
obtaining by fraud and false statements guaranteed student loans,
in violation of 20 U.S.C. § 1097 (a).
On October 20, 1988, the INS initiated deportation proceedings
against Ikhifa by issuing an Order to Show Cause (OSC) why he
should not be deported. The OSC charged Ikhifa deportable under
section 241 (a) (5) of the Immigration and Nationality Act (Act);
8 U.S.C. § 1251 (a) (5).1 After being found deportable as charged,
Ikhifa requested relief from deportation, and the proceedings were
continued.
At the reconvened hearing on April 10, 1989, Ikhifa sought
relief from deportation by submitting applications for adjustment
of status, asylum, withholding of deportation, and voluntary
departure. At this time in the proceedings, Ikhifa moved for a

-- 2 of 11 --

2 The status of an alien may be adjusted on the basis of
a marriage if the alien establishes by clear and convincing
evidence that the marriage was entered into in good faith; and in
accordance with the laws of where the marriage took place; and
the marriage was not entered into for the purpose of procuring
the alien's entry as an immigrant and no fee or other
consideration was given. 8 U.S.C. § 1255 (e) (3).
3 "The Attorney General shall establish a procedure for
an alien physically present in the United States ..., to
apply for asylum, and the alien may be granted asylum ..., if the
Attorney General determines that such alien is a refugee...." 8
U.S.C. § 1158 (a).
The term "refugee" means (A) any person who is outside any
country of such person's nationality, ... and is unable or
unwilling to avail himself... of the protection of , that country
because of persecution or a well-founded fear of persecution
account of race, religion, nationality, membership in a
particular social group, or political opinion.... 8 U.S.C. § 1101
(a)(42) (A).
3
continuance on the ground that his wife's I-130 immediate relative
visa petition,2 the approval of which was a prerequisite to
obtaining adjustment of status relief, was then pending with the
INS. In response, the INS submitted for the record a copy of a
Notice of Intent to Deny (the I-130 petition) which it had issued
on February 16, 1989. Because he was without authority to grant an
adjustment of status without an approved I-130 petition, the
Immigration Judge (IJ) denied Ikhifa's motion for continuance,
proceeded to hear his other claims for relief, and issued a
decision denying the requested relief from deportation.
With respect to his asylum claim, the IJ found that there was
no evidence that Ikhifa or any member of his family had been
persecuted within the meaning of the Act.3 Therefore, the IJ
denied Ikhifa's applications for asylum and withholding of

-- 3 of 11 --

4
deportation due to his failure to meet his burden of proof for
either form of relief. Because of his criminal conviction under 18
U.S.C. § 1546, the IJ denied Ikhifa's application for voluntary
departure as well. Accordingly, the IJ ordered Ikhifa deported to
the United Kingdom, or in the alternative, to Nigeria.
Ikhifa appealed the IJ's decision to the Board of Immigration
Appeals (Board) on April 17, 1989. The Board upheld the IJ's order
and dismissed the appeal on June 17, 1992. In dismissing Ikhifa's
appeal, the Board upheld the IJ's denial of a continuance of the
deportation proceedings stating that Ikhifa failed to establish
that a denial of continuance would cause him any prejudice or
materially affect the outcome of his proceedings. The Board
further noted that the granting of a continuance pending the
outcome of a visa petition is within the ultimate discretion of the
IJ, and concluded that there is no abuse of discretion where the
only record evidence is the intended denial of that petition.
Ikhifa appeals the order of deportation entered by the
Immigration Judge and affirmed by the Board of Immigration Appeals.
Ikhifa contends that the IJ abused his discretion in denying a
continuance to his deportation proceedings and denying his
application for asylum and that such denials denied him due
process. Because we find Ikhifa's due process challenge to the
deportation proceedings without merit, we AFFIRM.

-- 4 of 11 --

5
II.
ANALYSIS
A. Denial of a Continuance to The Deportation Proceedings.
The first issue raised by Ikhifa is that the IJ abused his
discretion by denying his motion for continuance pending the INS's
adjudication of the visa petition filed on his behalf. He argues
that he is entitled to a continuance of his deportation proceedings
pending approval of the I-130 immediate relative visa petition,
which his spouse filed on his behalf and which was pending at the
time of his deportation hearing. In support of his argument,
Ikhifa relies primarily upon the decisions of Matter of Garcia, 16
I&N Dec. 653, 654 (BIA 1978), and Matter of Arthur, Interim
Decision 3173 (BIA 1992).
This Circuit has held that "[t]he grant of a continuance rests
in the sound discretion of the immigration judge, who may grant an
adjournment of a deportation hearing only for <good cause’." Patel
v. United States Immigration and Naturalization Service, 803 F.2d
804, 806 (5th Cir. 1986) (citing 8 C.F.R. § 242.13); Howard v.
Immigration and Naturalization Service, 930 F.2d 432, 436 (5th Cir.
1991) (quoting and following Patel). The administrative decision
to grant or deny a continuance is reviewed by this Circuit under
the abuse of discretion standard. Howard, 930 F.2d at 436.
The cases cited by Ikhifa involve motions to reopen for
consideration of applications for adjustment of status based upon
unadjudicated visa petitions, not a motion for continuance as is

-- 5 of 11 --

4 The status of an alien...may be adjusted by the
Attorney General, in his discretion and under such
regulations...if
(1) the alien makes an application for such
adjustment;
(2) the alien is eligible to receive an immigrant visa
and is admissible to the United States for permanent
residence; and
(3) an immigrant visa is immediately available to him
at the time his application is filed.
6
presented here. Therefore, we find Ikhifa's reliance on these
cases inapposite.
In the instant case, at the initial hearing the only record
information that the immigration judge possessed regarding Ikhifa's
eligibility for an immigrant visa is the INS's intent to deny the
visa petition. Accordingly, we find no abuse of discretion in the
IJ's decision not to continue the deportation proceedings.
Ikhifa further argues that "discretion should as a general
rule, be favorably exercised where a prima facie approvable visa
petition and adjustment application have been submitted in the
course of a deportation hearing." Garcia, 16 I&N at 657. He
asserts that there is substantial reason to believe that his wife's
visa petition appeal will be approved. Furthermore, Ikhifa
contends that he has easily met the threshold requirement of "prima
facie eligibility" by having been married for several years before
being placed in deportation hearings.
We find Ikhifa's argument unpersuasive.
As the IJ and the Board correctly noted, at the time of the
deportation hearing Ikhifa did not have an approved visa petition,
which is a prerequisite for adjustment of status relief.4 In fact,

-- 6 of 11 --

8 U.S.C. § 1255 (a).
7
at the time of the hearing the record reflects that the INS
intended to deny the pending visa petition. Because petitioner was
not the beneficiary of an approved relative visa petition at the
time of his application, he did not satisfy the statutory
requirements for adjustment of status relief. Therefore, Ikhifa's
argument that he has met the threshold requirement establishing
"prima facie eligibility" for relief is without merit. Ikhifa did
not satisfy the statutory requirements and is, therefore, precluded
from adjustment of status relief.
In Matter of Sibrun, 18 I&N Dec. 356, 357 (BIA 1983), the
Board stated that "an immigration judge's decision denying [a]
motion for continuance will not be reversed unless the alien
establishes that th[e] denial caused him actual prejudice and harm
and materially affected the outcome of his case." Furthermore,
the government violates procedural due process "only if its actions
substantially prejudice the complaining party." Calderon-Ontiveros
v. Immigration & Naturalization Service, 809 F.2d 1050, 1052 (5th
Cir. 1986) (citing Ka Fung Chan v. Immigration & Naturalization
Service, 634 F.2d 248, 258 (5th Cir. 1981)).
Ikhifa failed to demonstrate that the IJ's decision to deny
his continuance motion caused him substantial prejudice. He did
not establish that the visa petition filed on his behalf was
ultimately approved or that if an additional continuance had been
granted the outcome of his case would have differed. In fact,
Ikhifa acknowledged in his brief to this Court that the INS denied

-- 7 of 11 --

8
the visa petition in June, 1992, and that his wife appealed the
denial to the Board.
B. Denial of Application For Asylum.
The final issue raised by Ikhifa on appeal is that the IJ
acted improperly in denying his asylum application. Although
Ikhifa cites no authority, he argues that the IJ's finding that his
lack of a well-founded fear of persecution if deported is so
deficient in its analysis and lack of sufficient evidence that it
amounts to an error in law.
Ikhifa primarily bases his claim of well-founded fear of
persecution upon the fact that his father was a member of a
political party which was overthrown just prior to Ikhifa coming to
the United States. Ikhifa alleges that because of this political
affiliation his father has had real estate confiscated, foreign
bank accounts frozen, travel abroad denied and is unemployed.
Ikhifa suggests that he will be persecuted as a result of what
happened to his father if he returned to Nigeria. Moreover, he
fears being persecuted for refusing to go to compulsory service in
the National Youth Service. Additionally, he asserts the fact that
he received an education in the United States will prompt
unwarranted inquiry into where he obtained the funding for his
education, and strongly believes that he and his father is at risk
if they are unable to explain how he financed his education.
The Attorney General has the discretion to grant asylum under
section 208(a) of the Act, 8 U.S.C. § 1158(a), to an alien who is
physically present in the United States if the alien meets the

-- 8 of 11 --

9
statutory definition of a refugee contained in section 101 (a)(42)
(A). An asylum determination involves proving statutory
eligibility and persuading the exercise of discretion; and the
alien bears the burden at both stages. Youssefinia v. Immigration
& Naturalization Service, 784 F.2d 1254, 1260 (5th Cir. 1986). The
"well-founded fear" standard contains both subjective and objective
components. Immigration & Naturalization Service v. Cardoza-
Fonseca, 480 U.S. 421, 430-31 (1987). The subjective component
requires genuine fear, while the objective component explores
"whether a reasonable person in the applicant's circumstances would
fear persecution." Rojas v. Immigration & Naturalization Service,
937 F.2d 186, 189 (5th Cir. 1991). The burden of proof in asylum
cases is this: "[a]n alien possesses a <well-founded fear of
persecution’ if a reasonable person in her circumstances would fear
persecution" if deported. Campos-Guardado v. Immigration &
Naturalization Service, 809 F.2d 285, 291 (5th Cir. 1987), cert.
denied, 484 U.S. 826 (1987).
A denial of discretionary relief such as asylum cannot be
disturbed on appeal by this court "absent a showing that such
action was arbitrary, capricious or an abuse of discretion."
Youssefinia, 784 F.2d at 1260; Zamora-Morel v. Immigration &
Naturalization Service, 905 F.2d 833, 838 (5th Cir. 1990) (quoting
Young v. INS, 759 F.2d 450, 455 n. 6 (5th Cir. 1985), cert. denied,
474 U.S. 996 (1985)).
We agree with the IJ's findings in denying Ikhifa's asylum
application. Ikhifa has not demonstrated either a well-founded

-- 9 of 11 --

5 In considering Ikhifa's fear of retribution for
avoiding compulsory military service, the IJ stated that Ikhifa
did not explain why he should be exempt from this compulsory
service; and that in the absence of any exemption, Ikhifa was
required to comply. Accordingly, the IJ concluded that any
punishment would be prosecutorial in nature rather than
persecutorial within the meaning of the Act.
10
fear of persecution argument or that he will be persecuted if he is
returned to Nigeria. Although the father had been detained and
questioned, it does not appear that he has incurred harm in any
manner or form, and if Ikhifa's father and brothers are able to
live in Nigeria, there is no reason why Ikhifa will be harmed if he
returned. Moreover, Ikhifa could obtain letters from LSU and
Loyola in order to explain how he financed his education. On the
issue of avoiding compulsory military service, any trouble Ikhifa
would incur would be "prosecutory" rather than "persecutory."5
Though Ikhifa argues that the IJ did not properly weigh the
evidence that his father had been denied economic opportunities
since the coup, and that his own economic opportunities will be
similarly limited, the record reflects otherwise. Ikhifa's father
has an automobile; his brothers and sisters are able to get an
education and find employment; and his father and family are able
to live without employment. Economic detriment due to a change in
political fortune is alone insufficient to establish a well-founded
fear of persecution. Youssefinia, 784 F.2d at 1262. Therefore, we
affirm the holding of the IJ that Ikhifa did not meet his burden of
proof of demonstrating eligibility for asylum in the United States.
Ikhifa's argument regarding his fear of persecution based on
his religion is raised for the first time before this Court, and

-- 10 of 11 --

11
was not presented either in his asylum application, at his
deportation hearing, or on appeal to the Board.
The general rule is that "[t]his Court lacks jurisdiction to
address new allegations of error by petitioner not raised initially
at the administrative level." United States v. L.A. Tucker Truck
Lines, 344 U.S. 33, 37 (1952); Campos-Guardo v. Immigration &
Nationalization Service, 809 F.2d 285, 291 (5th Cir.1987), cert.
denied, 484 U.S. 826 (1987). This failure to exhaust [his]
administrative remedies precludes our considering the issue on
appeal. Id.
III.
CONCLUSION
For the foregoing reasons we hold that the Immigration Judge
did not abuse his discretion in denying both Ikhifa's motion for
continuance and his application for asylum.
We AFFIRM.

-- 11 of 11 --