IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 95-60258

Summary Calendar _____________________

FRANCIS OSA EHIGIE,

Petitioner,

v.

IMMIGRATION AND NATURALIZATION SERVICE,

Respondent.

_________________________________________________________________

Petition for Review of an Order of the Board of Immigration Appeals (A26 088 636) _________________________________________________________________ November 21, 1995 Before KING, SMITH and BENAVIDES, Circuit Judges.

PER CURIAM:*

Francis Osa Ehigie challenges a final order of deportation

issued by the Board of Immigration Appeals (BIA). Finding no

error, we dismiss the petition for review.

Waiver of Admissibility under § 212(c)

* 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 Pursuant to that Rule, the court has determined that this opinion should not be published. Ehigie argues that the BIA erred in denying his application

for a waiver of admissibility under § 212(c) of the Immigration

and Nationality Act (Act),

(c). Section 212(c)

provides in pertinent part:

Aliens lawfully admitted for permanent resident [sic] who temporarily proceeded abroad voluntarily and not under an order of deportation, and who are returning to a lawful unrelinquished domicile of seven consecutive years, may be admitted in the discretion of the Attorney General . . . .

(c). The statute has been interpreted to apply

not only to aliens who briefly left and then reentered the

country, but also to those who have not left the country and are

facing deportation. See Ghassan v. INS,

, 634 n.2

(5th Cir. 1992), cert. denied,

(1993). This

court reviews the BIA's denial of an applicant's petition for

relief under § 212(c) for abuse of discretion. Ghassan,

.

Under this standard, the Board's decision may be reversed as an abuse of discretion when it is made without rational explanation, or inexplicably departs from established policies. Further, a decision by the Board may be found arbitrary if the Board fails to address meaningfully all material factors extant.

. In considering § 212(c) applications, the

immigration judge (IJ):

must balance the adverse factors evidencing an alien's undesirability as a permanent resident with the social and humane considerations presented in his behalf to determine whether the granting of section 212(c) relief appears in the best interests of this country . . . .

2 Diaz-Resendez v. INS,

(5th Cir. 1992)

(internal quotation and citation omitted). The factors the BIA

considers are equities. Ghassan,

.

Among the adverse factors considered by the BIA are the

nature and underlying circumstances of the deportation grounds at

issue. Ghassan,

. Other adverse factors include

the presence of additional significant violations of immigration

laws, the existence of a criminal record, and if so, its nature,

recency, and seriousness, and the presence of other evidence

indicative of bad character or undesirability.

Favorable factors include family ties within the United

States; residence of long duration in this country, particularly

when inception of residence occurred while respondent was of a

young age; evidence of hardship to the respondent and family if

deportation occurs; a history of employment; the existence of

property or business ties; evidence of value and service to the

community; proof of a genuine rehabilitation if a criminal record

exists; and other evidence of good character.

In denying Ehigie's application for a waiver, the IJ

reasoned that Ehigie failed to demonstrate any unusual or

outstanding equities and that even had Ehigie demonstrated such

equities, his extensive criminal record and the amount of time

spent in prison compared to the length of his permanent residence

would probably mandate the denial of the application. The IJ

considered that Ehigie had a wife and daughter, both of whom were

citizens of the United States. She noted, however, that neither

3 Ehigie's wife nor daughter showed much interest in him. She also

noted that Ehigie's employment history was spotty, that his value

and service to the community was not unusual, and that the

hardship on Ehigie and his family if Ehigie were deported was not

unusual or outstanding.

The BIA, in adopting the IJ's reasons for denying the

§ 212(c) waiver application, adequately addressed the factors

weighing both in favor and against granting Ehigie's § 212(c)

application and determined that the application should not be

granted. The decision was not "without rational explanation,"

nor did the BIA "inexplicably depart from established policy."

Ehigie has not established that the BIA abused its discretion in

this regard.

Ehigie argues that the IJ's denial of a continuance during

which he could have compiled supporting documents for his

application for a § 212(c) waiver violated his due process and

equal protection rights. The BIA concluded that because Ehigie

identified no additional evidence which might have changed the

outcome of the hearing, his contention that the IJ erred in

denying a sixth continuance of the proceedings lacked merit. The

denial of a continuance was not an abuse of discretion.

Applications for Adjustment of Status and Waiver of Deportation

Ehigie does not contest the requirement of a Form I-130 in

order for him to be considered for an adjustment of status or for

a § 212(h) waiver of deportation. Rather, he argues that he

4 explained to the IJ that his wife had difficulty getting to the

INS office to file the Form I-130 for lack of transportation.

He argues that his wife did, in fact, file a Form I-130 on his

behalf by mail. As the INS notes, the only proof Ehigie offers

in support of his contention that his wife did in fact file the

Form I-130 is a receipt reflecting that he paid the filing fee on

February 2, 1995, more than two months after the November 21,

1994 hearing.

This court is authorized to review only the decision of the

BIA, and not that of the IJ. Ogbemudia v. INS,

(5th Cir. 1993). The court may consider errors by the IJ only to

the extent that they affect the BIA's decision.

"To qualify for a § 212(h) adjustment of status or waiver of

inadmissibility . . . [Ehigie] must show that his exclusion would

result in `extreme hardship' to a qualifying family member."

Onyebuchi v. INS, No. 94-41176, slip op. at 2 (5th Cir. July 19,

1995) (unpublished). The regulations provide that

[b]efore an application for an adjustment of status under section 245 of the Act may be considered properly filed, a visa must be immediately available. If a visa would be immediately available upon approval of a visa petition, the application will not be considered properly filed unless such petition has first been approved.

(a)(2)(i). Because Ehigie sought to adjust his

status based upon his marriage to a United States citizen, such

proof should have been furnished by an approved immediate

relative petition, Form I-130. See

; Ikhifa v.

INS, No. 93-5030 (5th Cir. January 25, 1994) (unpublished); see

5 Ikhifa v. INS, No. 92-4710 (5th Cir. March 18, 1993)

(unpublished).

At the September 16, 1994, hearing before the IJ, the IJ

warned Ehigie that an immediate relative visa petition had to be

filed on Ehigie's behalf by his wife and approved by the INS

before he could be considered for a § 212(h) waiver or for

readjustment of status. The BIA noted that during the

proceedings, the IJ repeatedly advised Ehigie that his wife's

visa petition had not been properly filed with the INS and that

it had to be approved before Ehigie could apply for adjustment of

status in conjunction with a § 212(h) waiver. The BIA noted that

although Ehigie acknowledged his understanding of the IJ's

warning, he failed to submit the required documents. The

immigration court "has the power to set its own docket in the

manner it sees fit to promote the most efficient disposition of

cases before it." Hwei-Jen Chou v. INS,

(5th

Cir. 1985). The BIA did not abuse its discretion in

pretermitting Ehigie's applications for readjustment of status

and for a § 212(h) waiver of inadmissibility.

Ehigie argues that the IJ violated his due process and equal

protection rights in denying his motion for a seven-day

continuance during which time he could have completed his

application for a § 212(h) waiver. "The grant of a continuance

rests in the sound discretion of the [IJ], who may grant an

adjournment of a deportation proceeding only for `good cause.'"

6 Patel v. INS,

(5th Cir. 1986). The refusal to

grant a sixth continuance was not an abuse of discretion.

Application for Asylum

Ehigie argues that the BIA erred in denying his application

for political asylum and withholding of deportation based upon

his membership in a particular social group in Nigeria. The BIA

noted that although Ehigie's persecution claim was only fully

considered in his original proceeding, and not in the last

proceeding before the IJ, the BIA concurred with the IJ's

decision to deny asylum. The BIA determined that Ehigie failed

to establish that he was eligible for relief or that he merited

asylum. On this basis, the BIA rejected Ehigie's contention that

he should be granted another opportunity to relitigate his

persecution claim.

This court generally reviews the BIA's determination that

the petitioner is ineligible for asylum or withholding of

deportation to determine if it is supported by substantial

evidence in the record. See 8 U.S.C. § 1105a(a)(4); Faddoul v.

INS,

(5th Cir. 1994). This court will not

reverse the BIA's finding merely because it disagrees with the

BIA's evaluation of the facts. Jukic v. INS,

(5th Cir. 1994). Under the substantial evidence test, this court

may not reverse the BIA's factual determination unless the

evidence compels it. Chun v. INS,

(5th Cir.

1994). The alien must "show that the evidence . . . was so

7 compelling that no reasonable factfinder could fail to find the

requisite fear of persecution." INS v. Elias-Zacarias,

(1992). At a hearing before the IJ, Ehigie testified

that although he would be unable to return to the area of Nigeria

in which his tribe was located, he would be able to visit other

parts of Nigeria. This evidence does not compel a reversal of

the BIA's determination that Ehigie failed to prove the requisite

fear of persecution.1

DISMISSED.

1 Ehigie argues that he should be afforded the opportunity to reapply for adjustment of status. He appears to be asking this court to reopen his deportation proceedings. This appeal is not the proper vehicle to ask for such relief.

8