Jose Ubaldo Lopez-Balvaneda v. JEFFERSON B. SESSIONS III, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE UBALDO LOPEZ-BALVANEDA,
Petitioner,
v.
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
No. 16-70745
Agency No. A087-958-364
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 18, 2017**
Before: WALLACE, SILVERMAN, and BYBEE, Circuit Judges.
Jose Ubaldo Lopez-Balvaneda, a native and citizen of Mexico, petitions for
review of the Board of Immigration Appeals’ (“BIA”) decision denying a motion
to remand and dismissing his appeal from an immigration judge’s removal order
denying a continuance. We have jurisdiction under 8 U.S.C. § 1252. We review for
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
DEC 20 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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abuse of discretion the denial of a continuance and review de novo questions of
law. Ahmed v. Holder, 569 F.3d 1009, 1012 (9th Cir. 2009). We review for abuse
of discretion the BIA’s denial of a motion to remand. Romero-Ruiz v. Mukasey,
538 F.3d 1057, 1062 (9th Cir. 2008). We deny the petition for review.
The agency did not err or abuse its discretion in denying a continuance to
pursue post-conviction relief and file an I-130 visa petition, where Lopez-
Balvaneda waited several years to seek post-conviction relief, and where he did not
show he had filed the visa petition more than a year after he was eventually granted
post-conviction relief. See Singh v. Holder, 638 F.3d 1264, 1274 (9th Cir. 2011) (IJ
not required to grant a continuance based on speculation); Matter of Hashmi, 24
I. & N. Dec. 785 (BIA 2009) (listing factors for agency to consider when deciding
whether to continue proceedings for an alien to seek adjustment of status based on
a pending visa petition); see also Mendez-Castro v. Mukasey, 552 F.3d 975, 980
(9th Cir. 2009) (the agency applies the correct legal standard where it expressly
cites and applies relevant case law).
The BIA did not abuse its discretion in denying Lopez-Balvaneda’s motion
to remand, where he had not shown a visa petition application had been filed on his
behalf, and thus could not show a visa was immediately available. See 8 U.S.C.
§ 1255(i)(2)(B) (an immigrant visa must be immediately available to be granted
adjustment of status); Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010) (the

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BIA can deny a motion to remand for failure to establish a prima facie case for the
relief sought).
In light of this determination, we need not address Lopez-Balvaneda’s
contention that he warrants a grant of adjustment of status in the exercise of
discretion. See Simeonov v. Ashcroft, 371 F.3d 532, 538 (9th Cir. 2004).
PETITION FOR REVIEW DENIED.

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