November 03, 2009
Columbia Farms to enter into deferred prosecution agreement
COLUMBIA, S.C. - The Greenville, S.C., poultry processing plant, Columbia Farms, Inc., and its affiliate companies with House of Raeford Farms, entered into a deferred prosecution and global settlement agreement with the federal government to resolve pending criminal charges, as well as any civil and administrative violations, regarding the companies' alleged hiring of undocumented workers.
The federal investigation into Columbia Farms' hiring practices began in December 2007, when U.S. Immigration and Customs Enforcement (ICE) agents began reviewing the company's employment eligibility forms and supporting employment documentation for suspected violations of hiring undocumented workers and their continued employment. That review, and an October 2008 search of the Greenville plant, resulted in the criminal prosecution of 21 supervisory employees who were hired with false documents as well as the administrative deportation of more than 300 employees who were likewise determined to be in the country illegally.
The agreement was filed today in federal court, just before jury selection was scheduled to begin in the criminal trial against Columbia Farms and two of its employees, Elaine Crump and Barry Cronic, on federal charges related to the alleged hiring of undocumented workers at the Greenville plant.
"Today's announcement demonstrates ICE's sustained effort to hold companies and employers accountable for their hiring practices," said Homeland Security Assistant Secretary for ICE John Morton. "We are committed to bringing employers into compliance with the law and will leverage all of our authorities to achieve that goal. Although voluntary compliance is our preferred outcome, ICE will use enforcement tools, civil and criminal, when appropriate to bring about compliance."
Under the terms of the agreement, the criminal case against Columbia Farms will be continued for 24 months, allowing the company and its affiliates to continue with ongoing efforts to institute internal hiring procedures and controls at each of its eight poultry processing facilities in South Carolina, North Carolina, and Louisiana.
The companies will adopt and maintain a compliance program during the 24-month period to ensure that its hiring practices comport with federal law. The companies' efforts will be subject to review by the court, the U.S. Attorney's Office and ICE. The remedial actions called for by the agreement include:
* use of the Department of Homeland Security's "E-Verify" employment eligibility verification program for all hiring;
* use of Spanish language services for the completion of I-9's, Employee Eligibility Verification Form, by Spanish-speaking job applicants;
* use of the Social Security Number Verification Service to ensure that job applicants and current employees hold a validly-assigned social security number;
* providing regular training to employees on hiring practices to ensure compliance with federal law; and
* use of an external auditor to conduct annual reviews of the companies' I-9 employment forms.
In addition, the company will pay $1.5 million dollars to the government to settle all criminal, civil or administrative claims that are pending, or could be brought as a result of the investigation. Provided the company and its affiliates successfully comply with the terms of the agreement, the criminal charges against Columbia Farms will be dismissed.
-- ICE --
Sunday, November 8, 2009
6 South Florida residents indicted for immigration benefit fraud Mastermind of scheme claimed to be an immigration consultant and attorney
November 04, 2009
6 South Florida residents indicted for immigration benefit fraud
Mastermind of scheme claimed to be an immigration consultant and attorney
MIAMI - Six South Florida residents were indicted on charges of conspiracy to induce and encourage aliens to remain in the United States and making false statements in applications for immigration benefits following an investigation by U.S. Immigration and Customs Enforcement (ICE).
The filing of false applications to obtain immigration benefits for individuals that are not authorized to be present in the United States puts the security of our communities at risk," said Anthony Mangione, ICE special agent in charge of ICE's Office of Investigations in Miami. "Immigration benefits like these could be exploited by dangerous criminals to obscure their identities and cover their tracks. ICE will continue to aggressively pursue and criminally charge individuals who would exploit immigrant communities for their own self interests."
Indicted on federal charges on Oct. 29, were Victor Abreu, 45, of Sunny Isles; Pablo Roldan, 38, and Adriana Segundo-Zaldivar, 42, both of Hollywood; Sergio Alfaro, 45, and America Sophia George, 42, both of Miami; and Karina Vazquez, 37, formerly of Hallandale Beach. The six defendants were charged with conspiracy, false statements, and inducing and encouraging aliens to remain in the United States. If convicted, they each face a maximum statutory penalty of 10 years in prison.
On Monday, Nov. 2, ICE special agents arrested five of the six defendants; defendant Karina Vazquez remains a fugitive. The five arrested made their initial appearances Tuesday in federal court in Miami before U.S. Magistrate Judge John O'Sullivan. Detention hearings have been scheduled for Thursday, Nov. 5 at 10:00 a.m.
In May 2007, ICE special agents in Fort Lauderdale began an investigation of Victor Abreu of Abreu & Associates, based on allegations that he was involved in immigration benefit fraud. Abreu and his employees were allegedly preparing false boilerplate immigration applications for illegal immigrants, including applications for employment authorization and employment visas.
According to the indictment, the defendants engaged in a scheme through which they solicited payments from illegal immigrants by falsely promising to assist them with immigration matters. The defendants would then prepare applications for the illegal immigrants, knowing that the immigrants were not entitled to the benefits sought. The scheme involved the preparation of benefit applications for at least 300 individuals from Argentina, Chile, the Dominican Republic, Honduras, Venezuela, and Mexico, among other countries. After receiving payments, Abreu and his co-defendants prepared the false immigration documents. To execute the scheme, Abreu falsely purported to be an immigration attorney and consultant. As a result of the scheme, some of the illegal immigrants obtained legitimate work authorization cards and driver's licenses to which they were not lawfully entitled.
Acting U. S. Attorney Jeffrey H. Sloman said, "Fraudulent schemes, like the one charged in this case, undermine the legal immigration process and can threaten our national security. The U.S. Attorney's Office will continue to enforce the immigration laws."
Pablo Roldan of Argentina, Adriana Segundo-Zaldivar of Mexico and Sergio Alfaro of Argentina were also found to be in violation of U.S. immigration law and face immigration removal proceedings after their criminal cases are completed. ICE agents placed immigration detainers on the three defendants.
The investigation was conducted by ICE's Office of Investigations in Fort Lauderdale.
The case is being prosecuted by Special Assistant U.S. Attorney Lorraine Tashman
6 South Florida residents indicted for immigration benefit fraud
Mastermind of scheme claimed to be an immigration consultant and attorney
MIAMI - Six South Florida residents were indicted on charges of conspiracy to induce and encourage aliens to remain in the United States and making false statements in applications for immigration benefits following an investigation by U.S. Immigration and Customs Enforcement (ICE).
The filing of false applications to obtain immigration benefits for individuals that are not authorized to be present in the United States puts the security of our communities at risk," said Anthony Mangione, ICE special agent in charge of ICE's Office of Investigations in Miami. "Immigration benefits like these could be exploited by dangerous criminals to obscure their identities and cover their tracks. ICE will continue to aggressively pursue and criminally charge individuals who would exploit immigrant communities for their own self interests."
Indicted on federal charges on Oct. 29, were Victor Abreu, 45, of Sunny Isles; Pablo Roldan, 38, and Adriana Segundo-Zaldivar, 42, both of Hollywood; Sergio Alfaro, 45, and America Sophia George, 42, both of Miami; and Karina Vazquez, 37, formerly of Hallandale Beach. The six defendants were charged with conspiracy, false statements, and inducing and encouraging aliens to remain in the United States. If convicted, they each face a maximum statutory penalty of 10 years in prison.
On Monday, Nov. 2, ICE special agents arrested five of the six defendants; defendant Karina Vazquez remains a fugitive. The five arrested made their initial appearances Tuesday in federal court in Miami before U.S. Magistrate Judge John O'Sullivan. Detention hearings have been scheduled for Thursday, Nov. 5 at 10:00 a.m.
In May 2007, ICE special agents in Fort Lauderdale began an investigation of Victor Abreu of Abreu & Associates, based on allegations that he was involved in immigration benefit fraud. Abreu and his employees were allegedly preparing false boilerplate immigration applications for illegal immigrants, including applications for employment authorization and employment visas.
According to the indictment, the defendants engaged in a scheme through which they solicited payments from illegal immigrants by falsely promising to assist them with immigration matters. The defendants would then prepare applications for the illegal immigrants, knowing that the immigrants were not entitled to the benefits sought. The scheme involved the preparation of benefit applications for at least 300 individuals from Argentina, Chile, the Dominican Republic, Honduras, Venezuela, and Mexico, among other countries. After receiving payments, Abreu and his co-defendants prepared the false immigration documents. To execute the scheme, Abreu falsely purported to be an immigration attorney and consultant. As a result of the scheme, some of the illegal immigrants obtained legitimate work authorization cards and driver's licenses to which they were not lawfully entitled.
Acting U. S. Attorney Jeffrey H. Sloman said, "Fraudulent schemes, like the one charged in this case, undermine the legal immigration process and can threaten our national security. The U.S. Attorney's Office will continue to enforce the immigration laws."
Pablo Roldan of Argentina, Adriana Segundo-Zaldivar of Mexico and Sergio Alfaro of Argentina were also found to be in violation of U.S. immigration law and face immigration removal proceedings after their criminal cases are completed. ICE agents placed immigration detainers on the three defendants.
The investigation was conducted by ICE's Office of Investigations in Fort Lauderdale.
The case is being prosecuted by Special Assistant U.S. Attorney Lorraine Tashman
Wednesday, November 4, 2009
Matter of Ajmal Hussain Shah HASHMI, 24 I&N Dec. 785 (BIA 2009) - Denial of Continuance to Adjudicate I-130 Petition in Removal Proceedings cannot be arbitrary
Cite as 24 I&N Dec. 785 (BIA 2009) Interim Decision #3640
Matter of Ajmal Hussain Shah HASHMI, Respondent
File A095 827 197 - Newark, New Jersey
Decided April 22, 2009
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) An alien’s unopposed motion to continue ongoing removal proceedings to await the
adjudication of a pending family-based visa petition should generally be granted if
approval of the visa petition would render him prima facie eligible for adjustment of status.
Matter of Garcia, 16 I&N Dec. 653 (BIA 1978), followed.
(2) In determining whether good cause exists to continue such proceedings, a variety of factors may be considered, including, but not limited to: (1) the Department of Homeland Security’s response to the motion to continue; (2) whether the underlying visa petition is prima facie approvable; (3) the respondent’s statutory eligibility for adjustment of status;
(4) whether the respondent’s application for adjustment merits a favorable exercise of discretion; and (5) the reason for the continuance and any other relevant procedural factors.
FOR RESPONDENT: Regis Fernandez, Esquire, Newark, New Jersey
FOR THE DEPARTMENT OF HOMELAND SECURITY: Xiomara Davis-Gumbs,
Assistant Chief Counsel
BEFORE: Board Panel: OSUNA, Chairman; GREER and MALPHRUS, Board Members.
GREER, Board Member:
On July 7, 2008, in Hashmi v. Attorney General of U.S., 531 F.3d 256 (3d Cir. 2008), the United States Court of Appeals for the Third Circuit granted the respondent’s petition for review of our July 31, 2006, decision, vacated our
prior order, and remanded the case to us for further proceedings. Upon further
review of the respondent’s case, we will sustain the respondent’s appeal and
remand the record to the Immigration Judge for further proceedings.
I. FACTUAL AND PROCEDURAL HISTORY
The respondent, a native and citizen of Pakistan, entered the United States
as a visitor on October 22, 2000. He married a United States citizen in 2001.
The respondent was personally served with a Notice to Appear (Form I-862)
On March 1, 2003, pursuant to the Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135, 2178, the functions of the Immigration and Naturalization Service were transferred to the Department of Homeland Security. As a result of this transfer, benefit and enforcement functions were separated. The DHS’s United States Citizenship and Immigration Services is authorized to provide immigration and naturalization benefits to aliens, including the adjudication of visa petitions. The DHS’s United States Immigration and Customs Enforcement (“ICE”) is authorized to enforce the Immigration and Nationality Act and other immigration-related laws. Attorneys from ICE’s Office of the Principal Legal Advisor represent the DHS in removal proceedings.
2 In this decision, we refer to the ICE attorney as the “DHS attorney.”
on July 30, 2003. When he first appeared before the Immigration Judge on September 25, 2003, the respondent, through counsel, admitted the allegations of fact and conceded the charges of removability in the Notice to Appear. He informed the Immigration Judge that he intended to apply for adjustment of status based on his marriage to a United States citizen and the pending Petition for Alien Relative (Form I-130) filed by his wife on his behalf. The Immigration Judge granted the respondent a 4-month continuance to allow time for the United States Citizenship and Immigration Services (“USCIS”) of the Department of Homeland Security (“DHS”)1 to adjudicate the visa petition.
When the parties reconvened on February 5, 2004, the respondent reported that the I-130 was still pending. He explained that the USCIS interviewed him on November 25, 2003, and the following month he submitted the additional documentation requested by the USCIS. The DHS attorney2 advised that he did not have the respondent’s file because it was with the Cherry Hill USCIS office where the respondent had been interviewed. The Immigration Judge granted the respondent a second continuance to give the USCIS additional time to adjudicate the I-130. The parties reconvened on May 24, 2004, and again reported that the I-130 remained pending. This time the DHS attorney had the respondent’s file. The Immigration Judge granted a third continuance to wait for the USCIS to adjudicate the I-130. On August 26, 2004, the Immigration Judge continued the proceedings for a fourth time for the same reason.
At the final removal hearing on March 29, 2005, counsel for the respondent reported that the Cherry Hill USCIS office could not adjudicate the I-130 because the DHS attorney had the file. The respondent sought another continuance, which the DHS did not oppose. The Immigration Judge denied the fifth continuance request. He observed that despite numerous continuances over an 18-month period, the I-130 was still pending and unadjudicated. The Immigration Judge explained that he was expected to complete cases in a reasonable period of time by meeting certain “case completion goals” set by the Department of Justice. The Immigration Judge recognized that the case completion goals are not mandatory, but they are intended to provide case management guidance to Immigration Judges. The respondent appealed.
On July 31, 2006, we adopted and affirmed the Immigration Judge’s decision denying the respondent’s motion to continue. We agreed with the Immigration Judge that a further continuance was unwarranted in light of the numerous continuances already granted. We also found that the respondent failed to establish that his case was prejudiced because, at the time of our decision, he had yet to proffer an approved I-130. Citing Matter of Sibrun, 18 I&N Dec. 354 (BIA 1983), we recognized that an Immigration Judge’s discretionary decision denying a continuance will not be reversed on appeal unless the respondent establishes that the denial caused him actual prejudice and harm, and it materially affected the outcome of his case. Moreover, we found that the adjudication of the I-130 was delayed, in part, because of the respondent’s failure to disclose a prior marriage, as well as doubts that were cast on the authenticity of his divorce decree.
The respondent filed a petition for review of our decision with the Third Circuit. First, the court found that the Immigration Judge’s denial of the respondent’s final continuance request was arbitrary and an abuse of discretion because it was “based solely on case-completion goals,” rather than the specific facts and circumstances of the case. Hashmi v. Att’y Gen. of U.S., supra, at 261. Next, the court concluded that our finding that the respondent contributed to the delay in the I-130 adjudication constituted impermissible fact-finding on appeal. See 8 C.F.R. § 1003.1(d)(3)(iv) (2008) (“[T]he Board will not engage in factfinding in the course of deciding appeals.”). The case was remanded to us for further proceedings consistent with the court’s opinion.
II. ISSUE
In this case, the respondent sought multiple continuances to afford the USCIS the time and opportunity to adjudicate his I-130, which, if approved, would render him prima facie eligible for adjustment of status. The question presented is what factors should be considered in determining whether the respondent should be allowed to continue ongoing removal proceedings pending the final adjudication of an I-130, which is a prerequisite for adjustment of status. This is a difficult question because of the inherent tension between the conflicting needs to bring finality to the removal proceedings and to give the respondent an opportunity to apply for relief, especially where the respondent may be eligible for lawful permanent resident status through a family-based petition.
3 Matter of Garcia predates the enactment of time and number limits on motions to reopen under section 240(c)(7) of the Act, 8 U.S.C. § 1229a(c)(7) (2006).
III. ANALYSIS
A. Motions for Continuances
The Immigration and Nationality Act does not contain specific statutory authority for the adjudication of motions to continue removal proceedings. Rather, Immigration Judges derive their broad discretionary authority over continuances from the regulations, which state that “[t]he Immigration Judge may grant a motion for continuance for good cause shown.” 8 C.F.R. § 1003.29 (2008); see also 8 C.F.R. § 1240.6 (2008) (providing that the Immigration Judge may grant a reasonable adjournment either at his or her own instance or, for good cause shown, upon application by the respondent or the DHS).
The regulations do not contain a definition of what constitutes good cause.We have defined the parameters of “good cause” in different ways depending on the facts and circumstances presented. For example, in Matter of Sibrun, supra, we set a high standard for adjudicating motions to continue to give the respondent more time to prepare and the opportunity to obtain additional evidence. Under Sibrun, these motions must be accompanied, at a minimum, by a “reasonable showing that the lack of preparation occurred despite a diligent good faith effort to be ready to proceed and that any additional evidence [the alien] seeks to present is probative, noncumulative, and significantly favorable to the alien.” Id. at 356; cf. Matter of Silva-Rodriguez, 20 I&N Dec. 448 (BIA 1992) (holding that good cause was not shown where the respondent sought a continuance to have more time to establish rehabilitation in furtherance of his application for a waiver of inadmissibility under former section 212(c) of the Act, 8 U.S.C. § 1182(c) (Supp. II 1990)).
Pertinent to the matter before us, in Matter of Garcia, 16 I&N Dec. 653 (BIA 1978), modified on other grounds, Matter of Arthur, 20 I&N Dec. 475 (BIA 1992), we considered whether a respondent should be granted reopening or a continuance for the adjudication of a pending I-130. We held “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 or upon a motion to reopen.” Id. at 657. In Garcia, the respondent requested reopening of his deportation proceedings pending adjudication of a visa petition filed by his United States citizen wife simultaneously with his application to pursue adjustment of status before the Immigration Judge, who had jurisdiction over that application.3 Garcia aimed to allow a respondent, as the likely beneficiary of a visa petition conferring immediate eligibility for adjustment of status, an opportunity to await the outcome of the visa petition decision before proceedings concluded. Our decision focused on the likelihood of success of the visa petition on the merits, which would result in “a substantial claim to relief from deportation under section 245 of the Act.” Matter of Garcia, supra, at 656. The circuit courts reacted favorably to Garcia, supporting its presumption that discretion should be favorably exercised in appropriate cases to await resolution of the ancillary visa petition. The circuit courts also recognized that Garcia “did not create an inflexible rule, requiring an [Immigration Judge] to continue deportation proceedings, regardless of the merits of the pending visa petition.” Onyeme v. U.S. INS, 146 F.3d 227, 233 (4th Cir. 1998); see also
Pedreros v. Keisler, 503 F.3d 162, 166 (2d Cir. 2007); Hassan v. INS, 110 F.3d 490 (7th Cir. 1997); Oluyemi v. INS, 902 F.2d 1032, 1034 (1st Cir. 1990).
B. Motions to Continue for Adjustment of Status
1. Adjustment of Status Process
A two-step process underlies a family-based adjustment of status. First, the United States citizen or lawful permanent resident petitioner files an I-130 with the USCIS on behalf of his or her qualifying family member, who is the beneficiary of the visa petition and later becomes the respondent in removal proceedings. The petitioner must establish his or her own United States citizenship or lawful permanent resident status and the bona fides of the claimed relationship to the beneficiary and must also show that the family relationship meets the statutory requirements. See 8 C.F.R. §§ 204.1-204.2 (2008) (providing filing and adjudication procedures for certain family-based immigrant visa petitions).
Once the I-130 is approved and an immigrant visa is immediately available, the respondent may apply for adjustment of status under section 245(a) of the Act, 8 U.S.C. § 1255(a) (2006). The burden is on the respondent to establish his adjustment eligibility. See 8 C.F.R. § 1240.8(d) (2008). To establish eligibility for adjustment of status under section 245(a) of the Act, the respondent must demonstrate that he has been inspected and admitted or paroled into the United States; is eligible to receive an immigrant visa and has a visa immediately available to him; is not statutorily barred from adjustment; and is admissible to the United States within the meaning of section 212(a) of the Act or, if inadmissible, is eligible for a waiver of inadmissibility.
Regarding the requirement that a visa be immediately available, immediate relatives, who are defined as parents, spouses, and children of United States citizens in section 201(b)(2)(A)(i) of the Act, 8 U.S.C. § 1151(b)(2)(A)(i) (2006), are not subject to numerical limits on immigrant visas, meaning that visa availability is immediate. On the other hand, aliens in the preference categories under section 203(a) of the Act, 8 U.S.C. § 1153(a) (2006) (e.g., the spouse of a lawful permanent resident), are subject to numerical limits on visas. The Department of State tracks visa availability in its monthly Visa Bulletin. A visa is immediately available when the alien’s priority date is earlier than the date for the specified preference category shown on the current Visa Bulletin. See 8 C.F.R. §§ 245.1(g)(1), 1245.1(g)(1) (2008). The alien’s priority date is fixed when the I-130 is filed with the USCIS. See 8 C.F.R. §§ 245.1(g)(2), 1245.1(g)(2).
2. Appropriate Factors for Consideration of a Motion To Continue for Adjustment of Status
After evaluating the respondent’s place in the adjustment of status process, the Immigration Judge must determine whether to grant a continuance request. This brings us to the precise issue before us, namely, what factors should be considered in determining whether to continue removal proceedings pending final adjudication of an I-130 filed in conjunction with an adjustment application.
Adjudication of a motion to continue should begin with the presumption stated in Matter of Garcia, supra, at 657, that discretion should be favorably exercised where a prima facie approvable visa petition and adjustment application have been submitted in the course of an ongoing removal hearing.
This presumption is reasonable given the significant interest at stake—the chance to acquire lawful permanent resident status through a family-based visa petition. At the same time, it is well established that Garcia does not require the Immigration Judge to grant a continuance in every case where there is a pending visa petition. Although the focus of the inquiry is the likelihood that the adjustment application will be granted, we find that there are a number of factors that may be relevant to evaluate and weigh in deciding whether a continuance is warranted in family-based adjustment scenarios.
In determining whether to continue proceedings to afford the respondent an opportunity to apply for adjustment of status premised on a pending visa petition, a variety of factors may be considered, including, but not limited to:
(1) the DHS response to the motion; (2) whether the underlying visa petition
is prima facie approvable; (3) the respondent’s statutory eligibility for
adjustment of status; (4) whether the respondent’s application for adjustment
merits a favorable exercise of discretion; and (5) the reason for the continuance
and other procedural factors. These factors are illustrative, not exhaustive. While all these factors may be relevant in a given case, the focus of the inquiry is the apparent ultimate likelihood of success on the adjustment application.
4 In appropriate circumstances, such as where there is a pending prima facie approvable visa petition, we urge the DHS to consider agreeing to administrative closure of the case. See generally Matter of Gutierrez, 21 I&N Dec. 479 (BIA 1996) (stating that administrative closure is used to temporarily remove the case from the court’s docket and that a case may not be administratively closed if opposed by either party). Administrative closure is an attractive option in these situations, as it will assist in ensuring that only those cases that are likely to be resolved are before the Immigration Judge. This will avoid the repeated rescheduling of a case that is clearly not ready to be concluded. Notably, either party can move to have the case recalendered once the visa petition has been adjudicated or some other factor has arisen indicating that the case is ready for a hearing. Id. 791
See Pede v. Gonzales, 442 F.3d 570, 571 (7th Cir. 2006) (stating that the
denial of a continuance was not an abuse of discretion, given the “ultimate hopelessness” of the adjustment application). First, the Immigration Judge should consider the DHS’s position. If the DHS affirmatively expresses a lack of opposition, the proceedings ordinarily should be continued by the Immigration Judge in the absence of unusual, clearly identified, and supported reasons for not doing so.
Government opposition that is reasonable and supported by the record may warrant denial of a continuance. On the other hand, unsupported opposition does not carry much weight. The Immigration Judge should evaluate the Government’s objection, considering the totality of the circumstances. See Badwan v. Gonzales, 494 F.3d 566, 568 (6th Cir. 2007) (stating that the DHS’s lack of opposition “underscores the importance of the [Immigration Judge’s] offering a coherent explanation as to why, from the perspective of the immigration courts, the motion should be denied”).4
If the DHS does oppose a continuance or further analysis is warranted, the Immigration Judge may need to evaluate whether the respondent is the beneficiary of a prima facie approvable I-130. It is well established that Immigration Judges do not have jurisdiction to decide visa petitions. See Matter of Perez Vargas, 23 I&N Dec. 829, 831 (BIA 2005). However, in the context of deciding a motion to continue for the USCIS to adjudicate the petition, it is useful for the Immigration Judge to evaluate the viability of the underlying I-130. See, e.g., Afzal v. Holder, 559 F.3d 677, 679 (7th Cir. 2009) (finding that the denial of a continuance was not an abuse of discretion where the respondent “could not point to any prospect of success regarding the reinstatement of his visa”).
Submission of the visa petition to the Immigration Judge assists in determining the viability of the underlying I-130. If needed, the respondent’s request for a continuance should be supported by particularized facts and evidence, including a copy of the I-130 visa petition packet that the respondent filed with the USCIS, along with the USCIS Notice of Action (Form I-797)
5 In this case, the respondent did not submit any evidence of the pending I-130 and did not specify the date it was filed, although it appears to have been filed prior to the initiation of his removal proceedings.
showing the date of receipt.5 Cf. Ilic-Lee v. Mukasey, 507 F.3d 1044, 1048 (6th Cir. 2007) (noting that the respondent failed to provide evidence, such as a copy of the pending I-130 petition).
If other visa petitions filed on the respondent’s behalf have been denied, those petitions and the USCIS’s determinations could also be presented and considered. These prior filings or other evidence of potential fraud or dilatory tactics may impact the viability of the visa petition underlying the motion. See, e.g., Pedreros v. Keisler, supra, at 166 (finding that it was not an abuse of discretion to deny a continuance where there was “no basis to conclude that the denial of the I-130 petition had any likelihood of being overturned on appeal”); Morgan v. Gonzales, 445 F.3d 549, 552 (2d Cir. 2006) (finding no abuse of discretion in the denial of a continuance for adjudication of a second visa petition when the first I-130 filed by the same petitioner was denied by the USCIS for failure to establish a bona fide marriage).
Third, the Immigration Judge may evaluate the respondent’s statutory eligibility for adjustment of status. We held in Matter of Garcia, supra, that a continuance request could be denied based on a determination that the respondent is statutorily ineligible for adjustment. See also Ilic-Lee v. Mukasey, supra, at 1048 (finding no obligation to continue where it was unlikely that an adjustment application would be approved); Pedreros v. Keisler, supra, at 166 (finding no obligation to continue “when there is a reliable basis to conclude that the visa petition or the adjustment of status will ultimately be denied”); Oluyemi v. INS, supra, at 1034 (finding no obligation to continue when the Immigration Judge “believed that the adjustment petition eventually would be denied”).
To determine the likelihood of success of the adjustment application, the
Immigration Judge needs some basis to examine the merits of the application. Therefore, the respondent may be required to submit evidence establishing prima facie eligibility for adjustment, including the Application to Register Permanent Residence or Adjust Status (Form I-485), the required supporting documentation, and the USCIS fee receipts. See section 245(a) of the Act (requiring that the alien make an application for such adjustment). If warranted, the respondent should provide evidence establishing his admissibility or his eligibility for a corresponding waiver of inadmissibility. See 8 C.F.R. §1245.1(f) (2008) (providing that an application for a waiver of inadmissibility should be filed concurrently with an adjustment application).
If a waiver of inadmissibility is required, the appropriate application for a waiver may also be submitted to the Immigration Judge, along with the required supporting documentation. See Onyeme v. U.S. INS, supra (finding that a respondent who failed to demonstrate eligibility for a waiver of inadmissibility could not establish a prima facie case for adjustment of status).
Similarly, a respondent who is present in this country without having been inspected and admitted or paroled, or who is barred from adjustment under section 245(c) of the Act, would need to establish eligibility for adjustment of status under section 245(i) of the Act. This would include proof that a labor certification or visa petition was properly filed on the respondent’s behalf on or before April 30, 2001, and was approvable when filed. See Matter of Jara Riero and Jara Espinol, 24 I&N Dec. 267 (BIA 2007); 8 C.F.R. § 1245.10 (2008).
Fourth, the Immigration Judge may consider whether the respondent warrants adjustment of status in the exercise of discretion. See Matter of Garcia, supra, at 657 (stating that a continuance may be denied based on a determination that adjustment is not warranted in the exercise of discretion, notwithstanding the approval of the visa petition); see also Malik v. Mukasey, 546 F.3d 890 (7th Cir. 2008) (finding that it is not an abuse of discretion to deny a continuance based on the determination that the alien does not merit adjustment in the exercise of discretion). Factors relevant to determining whether a favorable exercise of discretion is warranted include, but are not limited to, the existence of family ties in the United States; the length of the respondent’s residence in the United States; the hardship of traveling abroad; and the respondent’s immigration history, including any preconceived intent to immigrate at the time of entering as a nonimmigrant. See generally Matter of Blas, 15 I&N Dec. 626 (BIA 1974; A.G. 1976); Matter of Arai, 13 I&N Dec. 494 (BIA 1970); see also Oluyemi v. INS, supra, at 1033-34 (stating that an alien must establish that adjustment is warranted as a matter of discretion). A respondent’s criminal history is an additional consideration. See Abu-Khaliel v. Gonzales, 436 F.3d 627, 634 (6th Cir. 2006).
Fifth, the Immigration Judge may consider the reasons for the continuance and other relevant procedural factors. In some cases, both parties may require additional time. See, e.g., Badwan v. Gonzales, supra (noting that the DHS needed time to complete the required background check and the respondent needed time to prove the validity of his divorce). In other cases, however, a critical inquiry will revolve around which party is most responsible for the delay in the proceedings. In the instant case, the continuance was predicated on the USCIS’s delay in processing the I-130. The delay was exacerbated by the movement of the respondent’s file back and forth between the offices of the USCIS adjudicator and the DHS trial attorney. Delay that is not attributable to the respondent augurs in favor of a continuance. The Immigration Judge may also consider any other relevant procedural factors. Compliance with an Immigration Judge’s case completion goals, however, is not a proper factor in deciding a continuance request, and Immigration Judges should not cite such goals in decisions relating to continuances. See Hashmi v. Att’y Gen. of U.S., supra, at 261. The number and length of prior continuances are not alone determinative. However, a history of continuances being granted by the Immigration Judge for the adjudication of a pending I-130, coupled with other relevant factors, may support a decision to move forward with the case. See, e.g., Abu-Khaliel
v. Gonzales, supra (finding that the denial of a continuance was not an abuse of discretion where the Immigration Judge considered the number and length of prior continuances, the recently filed second I-130 by the respondent’s second wife, and the respondent’s criminal history).
Finally, as with other discretionary determinations, the Immigration Judge should articulate, balance, and explain all these relevant factors, and any others that may be applicable, in deciding whether to grant the respondent a continuance for the USCIS to adjudicate the I-130 or, alternatively, to proceed with the case despite the pendency of the visa petition. See Subhan v. Ashcroft, 383 F.3d 591 (7th Cir. 2004) (finding an abuse of discretion where the Immigration Judge offered no reason for denying the continuance).
IV. CONCLUSION
The record will be remanded to the Immigration Judge so that he can consider the aforementioned factors to determine whether a continuance is warranted in this case. In considering the facts and circumstances of this particular case, he should evaluate the following five factors, as relevant:
(1) the DHS’s position on the motion to continue; (2) whether the underlying visa petition is prima facie approvable; (3) the respondent’s statutory eligibility for adjustment of status; (4) whether the respondent’s application for adjustment merits a favorable exercise of discretion; and (5) the reason for the continuance and any other relevant procedural factors. He may also consider any other facts that he deems appropriate. The parties will be afforded the opportunity to satisfy the evidentiary requirements described above.
ORDER: The respondent’s appeal is sustained.
FURTHER ORDER: The record is remanded to the Immigration Judge for further proceedings consistent with the foregoing opinion and for the entry of a new decision.
Matter of Ajmal Hussain Shah HASHMI, Respondent
File A095 827 197 - Newark, New Jersey
Decided April 22, 2009
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) An alien’s unopposed motion to continue ongoing removal proceedings to await the
adjudication of a pending family-based visa petition should generally be granted if
approval of the visa petition would render him prima facie eligible for adjustment of status.
Matter of Garcia, 16 I&N Dec. 653 (BIA 1978), followed.
(2) In determining whether good cause exists to continue such proceedings, a variety of factors may be considered, including, but not limited to: (1) the Department of Homeland Security’s response to the motion to continue; (2) whether the underlying visa petition is prima facie approvable; (3) the respondent’s statutory eligibility for adjustment of status;
(4) whether the respondent’s application for adjustment merits a favorable exercise of discretion; and (5) the reason for the continuance and any other relevant procedural factors.
FOR RESPONDENT: Regis Fernandez, Esquire, Newark, New Jersey
FOR THE DEPARTMENT OF HOMELAND SECURITY: Xiomara Davis-Gumbs,
Assistant Chief Counsel
BEFORE: Board Panel: OSUNA, Chairman; GREER and MALPHRUS, Board Members.
GREER, Board Member:
On July 7, 2008, in Hashmi v. Attorney General of U.S., 531 F.3d 256 (3d Cir. 2008), the United States Court of Appeals for the Third Circuit granted the respondent’s petition for review of our July 31, 2006, decision, vacated our
prior order, and remanded the case to us for further proceedings. Upon further
review of the respondent’s case, we will sustain the respondent’s appeal and
remand the record to the Immigration Judge for further proceedings.
I. FACTUAL AND PROCEDURAL HISTORY
The respondent, a native and citizen of Pakistan, entered the United States
as a visitor on October 22, 2000. He married a United States citizen in 2001.
The respondent was personally served with a Notice to Appear (Form I-862)
On March 1, 2003, pursuant to the Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135, 2178, the functions of the Immigration and Naturalization Service were transferred to the Department of Homeland Security. As a result of this transfer, benefit and enforcement functions were separated. The DHS’s United States Citizenship and Immigration Services is authorized to provide immigration and naturalization benefits to aliens, including the adjudication of visa petitions. The DHS’s United States Immigration and Customs Enforcement (“ICE”) is authorized to enforce the Immigration and Nationality Act and other immigration-related laws. Attorneys from ICE’s Office of the Principal Legal Advisor represent the DHS in removal proceedings.
2 In this decision, we refer to the ICE attorney as the “DHS attorney.”
on July 30, 2003. When he first appeared before the Immigration Judge on September 25, 2003, the respondent, through counsel, admitted the allegations of fact and conceded the charges of removability in the Notice to Appear. He informed the Immigration Judge that he intended to apply for adjustment of status based on his marriage to a United States citizen and the pending Petition for Alien Relative (Form I-130) filed by his wife on his behalf. The Immigration Judge granted the respondent a 4-month continuance to allow time for the United States Citizenship and Immigration Services (“USCIS”) of the Department of Homeland Security (“DHS”)1 to adjudicate the visa petition.
When the parties reconvened on February 5, 2004, the respondent reported that the I-130 was still pending. He explained that the USCIS interviewed him on November 25, 2003, and the following month he submitted the additional documentation requested by the USCIS. The DHS attorney2 advised that he did not have the respondent’s file because it was with the Cherry Hill USCIS office where the respondent had been interviewed. The Immigration Judge granted the respondent a second continuance to give the USCIS additional time to adjudicate the I-130. The parties reconvened on May 24, 2004, and again reported that the I-130 remained pending. This time the DHS attorney had the respondent’s file. The Immigration Judge granted a third continuance to wait for the USCIS to adjudicate the I-130. On August 26, 2004, the Immigration Judge continued the proceedings for a fourth time for the same reason.
At the final removal hearing on March 29, 2005, counsel for the respondent reported that the Cherry Hill USCIS office could not adjudicate the I-130 because the DHS attorney had the file. The respondent sought another continuance, which the DHS did not oppose. The Immigration Judge denied the fifth continuance request. He observed that despite numerous continuances over an 18-month period, the I-130 was still pending and unadjudicated. The Immigration Judge explained that he was expected to complete cases in a reasonable period of time by meeting certain “case completion goals” set by the Department of Justice. The Immigration Judge recognized that the case completion goals are not mandatory, but they are intended to provide case management guidance to Immigration Judges. The respondent appealed.
On July 31, 2006, we adopted and affirmed the Immigration Judge’s decision denying the respondent’s motion to continue. We agreed with the Immigration Judge that a further continuance was unwarranted in light of the numerous continuances already granted. We also found that the respondent failed to establish that his case was prejudiced because, at the time of our decision, he had yet to proffer an approved I-130. Citing Matter of Sibrun, 18 I&N Dec. 354 (BIA 1983), we recognized that an Immigration Judge’s discretionary decision denying a continuance will not be reversed on appeal unless the respondent establishes that the denial caused him actual prejudice and harm, and it materially affected the outcome of his case. Moreover, we found that the adjudication of the I-130 was delayed, in part, because of the respondent’s failure to disclose a prior marriage, as well as doubts that were cast on the authenticity of his divorce decree.
The respondent filed a petition for review of our decision with the Third Circuit. First, the court found that the Immigration Judge’s denial of the respondent’s final continuance request was arbitrary and an abuse of discretion because it was “based solely on case-completion goals,” rather than the specific facts and circumstances of the case. Hashmi v. Att’y Gen. of U.S., supra, at 261. Next, the court concluded that our finding that the respondent contributed to the delay in the I-130 adjudication constituted impermissible fact-finding on appeal. See 8 C.F.R. § 1003.1(d)(3)(iv) (2008) (“[T]he Board will not engage in factfinding in the course of deciding appeals.”). The case was remanded to us for further proceedings consistent with the court’s opinion.
II. ISSUE
In this case, the respondent sought multiple continuances to afford the USCIS the time and opportunity to adjudicate his I-130, which, if approved, would render him prima facie eligible for adjustment of status. The question presented is what factors should be considered in determining whether the respondent should be allowed to continue ongoing removal proceedings pending the final adjudication of an I-130, which is a prerequisite for adjustment of status. This is a difficult question because of the inherent tension between the conflicting needs to bring finality to the removal proceedings and to give the respondent an opportunity to apply for relief, especially where the respondent may be eligible for lawful permanent resident status through a family-based petition.
3 Matter of Garcia predates the enactment of time and number limits on motions to reopen under section 240(c)(7) of the Act, 8 U.S.C. § 1229a(c)(7) (2006).
III. ANALYSIS
A. Motions for Continuances
The Immigration and Nationality Act does not contain specific statutory authority for the adjudication of motions to continue removal proceedings. Rather, Immigration Judges derive their broad discretionary authority over continuances from the regulations, which state that “[t]he Immigration Judge may grant a motion for continuance for good cause shown.” 8 C.F.R. § 1003.29 (2008); see also 8 C.F.R. § 1240.6 (2008) (providing that the Immigration Judge may grant a reasonable adjournment either at his or her own instance or, for good cause shown, upon application by the respondent or the DHS).
The regulations do not contain a definition of what constitutes good cause.We have defined the parameters of “good cause” in different ways depending on the facts and circumstances presented. For example, in Matter of Sibrun, supra, we set a high standard for adjudicating motions to continue to give the respondent more time to prepare and the opportunity to obtain additional evidence. Under Sibrun, these motions must be accompanied, at a minimum, by a “reasonable showing that the lack of preparation occurred despite a diligent good faith effort to be ready to proceed and that any additional evidence [the alien] seeks to present is probative, noncumulative, and significantly favorable to the alien.” Id. at 356; cf. Matter of Silva-Rodriguez, 20 I&N Dec. 448 (BIA 1992) (holding that good cause was not shown where the respondent sought a continuance to have more time to establish rehabilitation in furtherance of his application for a waiver of inadmissibility under former section 212(c) of the Act, 8 U.S.C. § 1182(c) (Supp. II 1990)).
Pertinent to the matter before us, in Matter of Garcia, 16 I&N Dec. 653 (BIA 1978), modified on other grounds, Matter of Arthur, 20 I&N Dec. 475 (BIA 1992), we considered whether a respondent should be granted reopening or a continuance for the adjudication of a pending I-130. We held “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 or upon a motion to reopen.” Id. at 657. In Garcia, the respondent requested reopening of his deportation proceedings pending adjudication of a visa petition filed by his United States citizen wife simultaneously with his application to pursue adjustment of status before the Immigration Judge, who had jurisdiction over that application.3 Garcia aimed to allow a respondent, as the likely beneficiary of a visa petition conferring immediate eligibility for adjustment of status, an opportunity to await the outcome of the visa petition decision before proceedings concluded. Our decision focused on the likelihood of success of the visa petition on the merits, which would result in “a substantial claim to relief from deportation under section 245 of the Act.” Matter of Garcia, supra, at 656. The circuit courts reacted favorably to Garcia, supporting its presumption that discretion should be favorably exercised in appropriate cases to await resolution of the ancillary visa petition. The circuit courts also recognized that Garcia “did not create an inflexible rule, requiring an [Immigration Judge] to continue deportation proceedings, regardless of the merits of the pending visa petition.” Onyeme v. U.S. INS, 146 F.3d 227, 233 (4th Cir. 1998); see also
Pedreros v. Keisler, 503 F.3d 162, 166 (2d Cir. 2007); Hassan v. INS, 110 F.3d 490 (7th Cir. 1997); Oluyemi v. INS, 902 F.2d 1032, 1034 (1st Cir. 1990).
B. Motions to Continue for Adjustment of Status
1. Adjustment of Status Process
A two-step process underlies a family-based adjustment of status. First, the United States citizen or lawful permanent resident petitioner files an I-130 with the USCIS on behalf of his or her qualifying family member, who is the beneficiary of the visa petition and later becomes the respondent in removal proceedings. The petitioner must establish his or her own United States citizenship or lawful permanent resident status and the bona fides of the claimed relationship to the beneficiary and must also show that the family relationship meets the statutory requirements. See 8 C.F.R. §§ 204.1-204.2 (2008) (providing filing and adjudication procedures for certain family-based immigrant visa petitions).
Once the I-130 is approved and an immigrant visa is immediately available, the respondent may apply for adjustment of status under section 245(a) of the Act, 8 U.S.C. § 1255(a) (2006). The burden is on the respondent to establish his adjustment eligibility. See 8 C.F.R. § 1240.8(d) (2008). To establish eligibility for adjustment of status under section 245(a) of the Act, the respondent must demonstrate that he has been inspected and admitted or paroled into the United States; is eligible to receive an immigrant visa and has a visa immediately available to him; is not statutorily barred from adjustment; and is admissible to the United States within the meaning of section 212(a) of the Act or, if inadmissible, is eligible for a waiver of inadmissibility.
Regarding the requirement that a visa be immediately available, immediate relatives, who are defined as parents, spouses, and children of United States citizens in section 201(b)(2)(A)(i) of the Act, 8 U.S.C. § 1151(b)(2)(A)(i) (2006), are not subject to numerical limits on immigrant visas, meaning that visa availability is immediate. On the other hand, aliens in the preference categories under section 203(a) of the Act, 8 U.S.C. § 1153(a) (2006) (e.g., the spouse of a lawful permanent resident), are subject to numerical limits on visas. The Department of State tracks visa availability in its monthly Visa Bulletin. A visa is immediately available when the alien’s priority date is earlier than the date for the specified preference category shown on the current Visa Bulletin. See 8 C.F.R. §§ 245.1(g)(1), 1245.1(g)(1) (2008). The alien’s priority date is fixed when the I-130 is filed with the USCIS. See 8 C.F.R. §§ 245.1(g)(2), 1245.1(g)(2).
2. Appropriate Factors for Consideration of a Motion To Continue for Adjustment of Status
After evaluating the respondent’s place in the adjustment of status process, the Immigration Judge must determine whether to grant a continuance request. This brings us to the precise issue before us, namely, what factors should be considered in determining whether to continue removal proceedings pending final adjudication of an I-130 filed in conjunction with an adjustment application.
Adjudication of a motion to continue should begin with the presumption stated in Matter of Garcia, supra, at 657, that discretion should be favorably exercised where a prima facie approvable visa petition and adjustment application have been submitted in the course of an ongoing removal hearing.
This presumption is reasonable given the significant interest at stake—the chance to acquire lawful permanent resident status through a family-based visa petition. At the same time, it is well established that Garcia does not require the Immigration Judge to grant a continuance in every case where there is a pending visa petition. Although the focus of the inquiry is the likelihood that the adjustment application will be granted, we find that there are a number of factors that may be relevant to evaluate and weigh in deciding whether a continuance is warranted in family-based adjustment scenarios.
In determining whether to continue proceedings to afford the respondent an opportunity to apply for adjustment of status premised on a pending visa petition, a variety of factors may be considered, including, but not limited to:
(1) the DHS response to the motion; (2) whether the underlying visa petition
is prima facie approvable; (3) the respondent’s statutory eligibility for
adjustment of status; (4) whether the respondent’s application for adjustment
merits a favorable exercise of discretion; and (5) the reason for the continuance
and other procedural factors. These factors are illustrative, not exhaustive. While all these factors may be relevant in a given case, the focus of the inquiry is the apparent ultimate likelihood of success on the adjustment application.
4 In appropriate circumstances, such as where there is a pending prima facie approvable visa petition, we urge the DHS to consider agreeing to administrative closure of the case. See generally Matter of Gutierrez, 21 I&N Dec. 479 (BIA 1996) (stating that administrative closure is used to temporarily remove the case from the court’s docket and that a case may not be administratively closed if opposed by either party). Administrative closure is an attractive option in these situations, as it will assist in ensuring that only those cases that are likely to be resolved are before the Immigration Judge. This will avoid the repeated rescheduling of a case that is clearly not ready to be concluded. Notably, either party can move to have the case recalendered once the visa petition has been adjudicated or some other factor has arisen indicating that the case is ready for a hearing. Id. 791
See Pede v. Gonzales, 442 F.3d 570, 571 (7th Cir. 2006) (stating that the
denial of a continuance was not an abuse of discretion, given the “ultimate hopelessness” of the adjustment application). First, the Immigration Judge should consider the DHS’s position. If the DHS affirmatively expresses a lack of opposition, the proceedings ordinarily should be continued by the Immigration Judge in the absence of unusual, clearly identified, and supported reasons for not doing so.
Government opposition that is reasonable and supported by the record may warrant denial of a continuance. On the other hand, unsupported opposition does not carry much weight. The Immigration Judge should evaluate the Government’s objection, considering the totality of the circumstances. See Badwan v. Gonzales, 494 F.3d 566, 568 (6th Cir. 2007) (stating that the DHS’s lack of opposition “underscores the importance of the [Immigration Judge’s] offering a coherent explanation as to why, from the perspective of the immigration courts, the motion should be denied”).4
If the DHS does oppose a continuance or further analysis is warranted, the Immigration Judge may need to evaluate whether the respondent is the beneficiary of a prima facie approvable I-130. It is well established that Immigration Judges do not have jurisdiction to decide visa petitions. See Matter of Perez Vargas, 23 I&N Dec. 829, 831 (BIA 2005). However, in the context of deciding a motion to continue for the USCIS to adjudicate the petition, it is useful for the Immigration Judge to evaluate the viability of the underlying I-130. See, e.g., Afzal v. Holder, 559 F.3d 677, 679 (7th Cir. 2009) (finding that the denial of a continuance was not an abuse of discretion where the respondent “could not point to any prospect of success regarding the reinstatement of his visa”).
Submission of the visa petition to the Immigration Judge assists in determining the viability of the underlying I-130. If needed, the respondent’s request for a continuance should be supported by particularized facts and evidence, including a copy of the I-130 visa petition packet that the respondent filed with the USCIS, along with the USCIS Notice of Action (Form I-797)
5 In this case, the respondent did not submit any evidence of the pending I-130 and did not specify the date it was filed, although it appears to have been filed prior to the initiation of his removal proceedings.
showing the date of receipt.5 Cf. Ilic-Lee v. Mukasey, 507 F.3d 1044, 1048 (6th Cir. 2007) (noting that the respondent failed to provide evidence, such as a copy of the pending I-130 petition).
If other visa petitions filed on the respondent’s behalf have been denied, those petitions and the USCIS’s determinations could also be presented and considered. These prior filings or other evidence of potential fraud or dilatory tactics may impact the viability of the visa petition underlying the motion. See, e.g., Pedreros v. Keisler, supra, at 166 (finding that it was not an abuse of discretion to deny a continuance where there was “no basis to conclude that the denial of the I-130 petition had any likelihood of being overturned on appeal”); Morgan v. Gonzales, 445 F.3d 549, 552 (2d Cir. 2006) (finding no abuse of discretion in the denial of a continuance for adjudication of a second visa petition when the first I-130 filed by the same petitioner was denied by the USCIS for failure to establish a bona fide marriage).
Third, the Immigration Judge may evaluate the respondent’s statutory eligibility for adjustment of status. We held in Matter of Garcia, supra, that a continuance request could be denied based on a determination that the respondent is statutorily ineligible for adjustment. See also Ilic-Lee v. Mukasey, supra, at 1048 (finding no obligation to continue where it was unlikely that an adjustment application would be approved); Pedreros v. Keisler, supra, at 166 (finding no obligation to continue “when there is a reliable basis to conclude that the visa petition or the adjustment of status will ultimately be denied”); Oluyemi v. INS, supra, at 1034 (finding no obligation to continue when the Immigration Judge “believed that the adjustment petition eventually would be denied”).
To determine the likelihood of success of the adjustment application, the
Immigration Judge needs some basis to examine the merits of the application. Therefore, the respondent may be required to submit evidence establishing prima facie eligibility for adjustment, including the Application to Register Permanent Residence or Adjust Status (Form I-485), the required supporting documentation, and the USCIS fee receipts. See section 245(a) of the Act (requiring that the alien make an application for such adjustment). If warranted, the respondent should provide evidence establishing his admissibility or his eligibility for a corresponding waiver of inadmissibility. See 8 C.F.R. §1245.1(f) (2008) (providing that an application for a waiver of inadmissibility should be filed concurrently with an adjustment application).
If a waiver of inadmissibility is required, the appropriate application for a waiver may also be submitted to the Immigration Judge, along with the required supporting documentation. See Onyeme v. U.S. INS, supra (finding that a respondent who failed to demonstrate eligibility for a waiver of inadmissibility could not establish a prima facie case for adjustment of status).
Similarly, a respondent who is present in this country without having been inspected and admitted or paroled, or who is barred from adjustment under section 245(c) of the Act, would need to establish eligibility for adjustment of status under section 245(i) of the Act. This would include proof that a labor certification or visa petition was properly filed on the respondent’s behalf on or before April 30, 2001, and was approvable when filed. See Matter of Jara Riero and Jara Espinol, 24 I&N Dec. 267 (BIA 2007); 8 C.F.R. § 1245.10 (2008).
Fourth, the Immigration Judge may consider whether the respondent warrants adjustment of status in the exercise of discretion. See Matter of Garcia, supra, at 657 (stating that a continuance may be denied based on a determination that adjustment is not warranted in the exercise of discretion, notwithstanding the approval of the visa petition); see also Malik v. Mukasey, 546 F.3d 890 (7th Cir. 2008) (finding that it is not an abuse of discretion to deny a continuance based on the determination that the alien does not merit adjustment in the exercise of discretion). Factors relevant to determining whether a favorable exercise of discretion is warranted include, but are not limited to, the existence of family ties in the United States; the length of the respondent’s residence in the United States; the hardship of traveling abroad; and the respondent’s immigration history, including any preconceived intent to immigrate at the time of entering as a nonimmigrant. See generally Matter of Blas, 15 I&N Dec. 626 (BIA 1974; A.G. 1976); Matter of Arai, 13 I&N Dec. 494 (BIA 1970); see also Oluyemi v. INS, supra, at 1033-34 (stating that an alien must establish that adjustment is warranted as a matter of discretion). A respondent’s criminal history is an additional consideration. See Abu-Khaliel v. Gonzales, 436 F.3d 627, 634 (6th Cir. 2006).
Fifth, the Immigration Judge may consider the reasons for the continuance and other relevant procedural factors. In some cases, both parties may require additional time. See, e.g., Badwan v. Gonzales, supra (noting that the DHS needed time to complete the required background check and the respondent needed time to prove the validity of his divorce). In other cases, however, a critical inquiry will revolve around which party is most responsible for the delay in the proceedings. In the instant case, the continuance was predicated on the USCIS’s delay in processing the I-130. The delay was exacerbated by the movement of the respondent’s file back and forth between the offices of the USCIS adjudicator and the DHS trial attorney. Delay that is not attributable to the respondent augurs in favor of a continuance. The Immigration Judge may also consider any other relevant procedural factors. Compliance with an Immigration Judge’s case completion goals, however, is not a proper factor in deciding a continuance request, and Immigration Judges should not cite such goals in decisions relating to continuances. See Hashmi v. Att’y Gen. of U.S., supra, at 261. The number and length of prior continuances are not alone determinative. However, a history of continuances being granted by the Immigration Judge for the adjudication of a pending I-130, coupled with other relevant factors, may support a decision to move forward with the case. See, e.g., Abu-Khaliel
v. Gonzales, supra (finding that the denial of a continuance was not an abuse of discretion where the Immigration Judge considered the number and length of prior continuances, the recently filed second I-130 by the respondent’s second wife, and the respondent’s criminal history).
Finally, as with other discretionary determinations, the Immigration Judge should articulate, balance, and explain all these relevant factors, and any others that may be applicable, in deciding whether to grant the respondent a continuance for the USCIS to adjudicate the I-130 or, alternatively, to proceed with the case despite the pendency of the visa petition. See Subhan v. Ashcroft, 383 F.3d 591 (7th Cir. 2004) (finding an abuse of discretion where the Immigration Judge offered no reason for denying the continuance).
IV. CONCLUSION
The record will be remanded to the Immigration Judge so that he can consider the aforementioned factors to determine whether a continuance is warranted in this case. In considering the facts and circumstances of this particular case, he should evaluate the following five factors, as relevant:
(1) the DHS’s position on the motion to continue; (2) whether the underlying visa petition is prima facie approvable; (3) the respondent’s statutory eligibility for adjustment of status; (4) whether the respondent’s application for adjustment merits a favorable exercise of discretion; and (5) the reason for the continuance and any other relevant procedural factors. He may also consider any other facts that he deems appropriate. The parties will be afforded the opportunity to satisfy the evidentiary requirements described above.
ORDER: The respondent’s appeal is sustained.
FURTHER ORDER: The record is remanded to the Immigration Judge for further proceedings consistent with the foregoing opinion and for the entry of a new decision.
Sunday, November 1, 2009
My Spouse Left the US to Avoid Paying Child Support - International Enforcement of Child Support
Failure to pay court-ordered child support carries criminal consequences under both the state and federal statutes. In addition, non-paying parent may encounter severe immigration ramifications for avoiding payment of child support obligations.
Jun 25, 2008
Currently every state has an in-state child support enforcement mechanisms that allow a state to garnish income, hold non-paying spouse in contempt or revoke his/her license. Income withholding encompasses deduction of money from the income of the non-custodial parent (including wages, overtime pay, worker's compensation, unemployment compensation, retirement benefits, etc.) A person found in contempt may be ordered to pay a lump sum of money. The person also can be sent to jail (incarcerated) until a certain sum of money is paid. Finally, if a court finds the non-custodial parent failed to obey the court order, it may order his or her driver's license, professional, occupational license, or recreational license suspended after 30 days.
If the non-custodial parent moves out of state and the state Support Enforcement Services Unit is already enforcing the case, the Unit will take the steps to collect child support from the out-of-state parent. Some of the available interstate enforcement tools include:
* Direct income withholding (the filing of an income withholding with an out-of-state employer)
* Registering a custodial parent order in a new state to give the new state authority to enforce the order
* Interstate real property liens
* Seizure of financial assets
* Referral to the U.S. Attorney for federal prosecution under the Child Support Recovery Act and Deadbeat Parents Punishment Act, 18 U.S.C. Section 228.
However, there are circumstances when a non-custodial parent may attempt to leave the US in order to avoid payment of the child support. Luckily for a custodial parent, if a non-paying spouse left the US in hoping to avoid paying the child support, there might be a relief available. In 1996, the United States government joined international convention concerning enforcement of child support. If a non-paying spouse resides in a country where US has a bilateral agreement, the child support obligations are easier to enforce. At this moment, such countries are Australia, Canada. Czech Republic, El Salvador, Finland, Hungary, Ireland, Netherlands, Norway, Poland, Portugal, Slovak Republic, Switzerland, The United Kingdom of Great Britain and Northern Ireland.
In addition, State of Connecticut signed separate child support agreements with the following countries: Australia, Bermuda, Canadian Provinces: Alberta, Nova Scotia, British Columbia, Ontario, Manitoba, Saskatchewan, New Brunswick; Czech Republic, France, Germany, Hungary, Ireland, Mexico (the following 27 of 32 states): Aguascalientes, Nayarit, Baja California, Nuevo Leon, Campeche, Puebla, Chiapas, San Luis Potosi, Chihuahua, Queretaro, Coahuila, Quintana Roo, Colima, Sonora, Distrito Federal, Tabasco, Guanajuato, Tamaulipas, Guerrero, Tlaxcala, Hidalgo, Veracruz, Jalisco, Yucatan, Michoacan, Zacatecas, Morelos; Norway, Poland, Slovak Republic, United Kingdom: England, Wales, Scotland, Northern Ireland.
Immigration Consequences of Failure to Pay Child Support
A Legal Permanent Resident (green card holder), who is applying for the US citizenship must demonstrate good moral character. Fulfilling one's child support obligations is crucial to satisfy this requirement. Hence, failure to pay child support may prevent a non-paying non-US citizen parent from becoming a U.S. Citizen.
Changing country of residence may have dire immigration ramifications even on the U.S. Citizens. Although U.S. passports cannot be denied based on requests from private individuals, nonetheless the Secretary of State must deny issuance of a passport to a person who is in arrears of child support of more than $5,000 based upon a certification to that effect by the Secretary of Health and Human Services (HHS). (42 U.S.C. 652 (k)). Needless to say that the restoration of a U.S. passport or even obtaining the limited validity passport for the purpose of entering the U.S. is a complicated bureaucratic process.
Frequently, non-custodial parents fall behind their child support payments due to the change in their financial circumstances and assume that there is nothing can be done to fix the problem. They may decide to leave the country, work"under the table" to avoid have their wages garnished or undertake other ill-advised decisions. Fortunately, most of the child support issues could be avoided by a timely consultation with an attorney who has experience in child support modifications.
Alex Meyerovich - M.C. Law Group, LLP is an immigration lawyer in Bridgeport, Connecticut.
To learn more, visit www.uslegalvisa.com
The information presented is a general information only and should not be construed to be a formal legal advice nor the formation of a lawyer/client relationship. Contact an experienced licensed attorney to discuss circumstances of your case.
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M.C. Law Group, LLP is a full service immigration law firm handling cases in all areas of immigration law. Our attorneys also provide representation in the areas of family, criminal & business law with particular attention to the consequences on our clients' immigration status.
Jun 25, 2008
Currently every state has an in-state child support enforcement mechanisms that allow a state to garnish income, hold non-paying spouse in contempt or revoke his/her license. Income withholding encompasses deduction of money from the income of the non-custodial parent (including wages, overtime pay, worker's compensation, unemployment compensation, retirement benefits, etc.) A person found in contempt may be ordered to pay a lump sum of money. The person also can be sent to jail (incarcerated) until a certain sum of money is paid. Finally, if a court finds the non-custodial parent failed to obey the court order, it may order his or her driver's license, professional, occupational license, or recreational license suspended after 30 days.
If the non-custodial parent moves out of state and the state Support Enforcement Services Unit is already enforcing the case, the Unit will take the steps to collect child support from the out-of-state parent. Some of the available interstate enforcement tools include:
* Direct income withholding (the filing of an income withholding with an out-of-state employer)
* Registering a custodial parent order in a new state to give the new state authority to enforce the order
* Interstate real property liens
* Seizure of financial assets
* Referral to the U.S. Attorney for federal prosecution under the Child Support Recovery Act and Deadbeat Parents Punishment Act, 18 U.S.C. Section 228.
However, there are circumstances when a non-custodial parent may attempt to leave the US in order to avoid payment of the child support. Luckily for a custodial parent, if a non-paying spouse left the US in hoping to avoid paying the child support, there might be a relief available. In 1996, the United States government joined international convention concerning enforcement of child support. If a non-paying spouse resides in a country where US has a bilateral agreement, the child support obligations are easier to enforce. At this moment, such countries are Australia, Canada. Czech Republic, El Salvador, Finland, Hungary, Ireland, Netherlands, Norway, Poland, Portugal, Slovak Republic, Switzerland, The United Kingdom of Great Britain and Northern Ireland.
In addition, State of Connecticut signed separate child support agreements with the following countries: Australia, Bermuda, Canadian Provinces: Alberta, Nova Scotia, British Columbia, Ontario, Manitoba, Saskatchewan, New Brunswick; Czech Republic, France, Germany, Hungary, Ireland, Mexico (the following 27 of 32 states): Aguascalientes, Nayarit, Baja California, Nuevo Leon, Campeche, Puebla, Chiapas, San Luis Potosi, Chihuahua, Queretaro, Coahuila, Quintana Roo, Colima, Sonora, Distrito Federal, Tabasco, Guanajuato, Tamaulipas, Guerrero, Tlaxcala, Hidalgo, Veracruz, Jalisco, Yucatan, Michoacan, Zacatecas, Morelos; Norway, Poland, Slovak Republic, United Kingdom: England, Wales, Scotland, Northern Ireland.
Immigration Consequences of Failure to Pay Child Support
A Legal Permanent Resident (green card holder), who is applying for the US citizenship must demonstrate good moral character. Fulfilling one's child support obligations is crucial to satisfy this requirement. Hence, failure to pay child support may prevent a non-paying non-US citizen parent from becoming a U.S. Citizen.
Changing country of residence may have dire immigration ramifications even on the U.S. Citizens. Although U.S. passports cannot be denied based on requests from private individuals, nonetheless the Secretary of State must deny issuance of a passport to a person who is in arrears of child support of more than $5,000 based upon a certification to that effect by the Secretary of Health and Human Services (HHS). (42 U.S.C. 652 (k)). Needless to say that the restoration of a U.S. passport or even obtaining the limited validity passport for the purpose of entering the U.S. is a complicated bureaucratic process.
Frequently, non-custodial parents fall behind their child support payments due to the change in their financial circumstances and assume that there is nothing can be done to fix the problem. They may decide to leave the country, work"under the table" to avoid have their wages garnished or undertake other ill-advised decisions. Fortunately, most of the child support issues could be avoided by a timely consultation with an attorney who has experience in child support modifications.
Alex Meyerovich - M.C. Law Group, LLP is an immigration lawyer in Bridgeport, Connecticut.
To learn more, visit www.uslegalvisa.com
The information presented is a general information only and should not be construed to be a formal legal advice nor the formation of a lawyer/client relationship. Contact an experienced licensed attorney to discuss circumstances of your case.
# # #
M.C. Law Group, LLP is a full service immigration law firm handling cases in all areas of immigration law. Our attorneys also provide representation in the areas of family, criminal & business law with particular attention to the consequences on our clients' immigration status.
Now That You Have Your Social Security Number, Don’t Miss Out On Your Tax Refund With EITC!
Now That You Have Your Social Security Number, Don’t Miss Out On Your Tax Refund With EITC!
Dated: Sep 05, 2009
If you recently changed your immigration status from illegal to a legal and you have been paying income taxes in the past you might be entitled to a TAX REFUND!
EITC is Earned Income Tax Credit. It is a refundable federal income tax credit for low- to moderate-income working individuals and families. With EITC, you can pay fewer taxes and sometimes even get a refund from the government. Working individuals and families like you will be able to spend less money paying for taxes and will be able to keep more of the money that you earn.
What is even more exciting is that you can get refunds for past years when you did not even apply for the EITC. For example, if you have been working and paying taxes in the United States for 3 years, but only got your Social Security Number (SSN) this year, you can now apply for the EITC. Not only can you get a tax credit or refund for this year, but you can also get the credit or refund that you would have gotten for the past 3 years.
In order to be eligible for the EITC, you need to meet certain qualifications. You have to have a valid SSN. You have to have been a U.S. citizen or a resident alien the whole year (or if you live abroad, but are married to a U.S. citizen or resident alien, you have to file a joint return). You must have earned income from employment or from self-employment. Your filing status cannot be “married, filing separately”. You cannot be a qualifying child of another person. If you do not have a qualifying child and do not qualify as a dependent of another person, you have to be older than 25, but younger than 65 at the end of the year, and you have to live in the U.S. for more than half the year. Other restrictions may apply.
If you do meet all the qualifications for the EITC, you have to file a claim to get your tax credit or refund for previous years. You have to file the claim within 3 years from when the tax return was originally filed or within 2 years from the time the tax was paid, whichever is later.
Alex Meyerovich - M.C. Law Group, LLP is an immigration lawyer in Bridgeport, Connecticut. Elina Stelman co-authored this press release.
To learn more, visit www.uslegalvisa.com
The information presented is a general information only and should not be construed to be a formal legal advice nor the formation of a lawyer/client relationship. Contact an experienced licensed attorney to discuss circumstances of your case.
###
About M.C. Law Group: Full service immigration law firm handling cases in all areas of immigration law. Our attorneys also provide representation in the areas of family, criminal & business/tax law with particular attention to the consequences on our clients' immigration status. For more information please visit us at www.uslegalvisa.com
Dated: Sep 05, 2009
If you recently changed your immigration status from illegal to a legal and you have been paying income taxes in the past you might be entitled to a TAX REFUND!
EITC is Earned Income Tax Credit. It is a refundable federal income tax credit for low- to moderate-income working individuals and families. With EITC, you can pay fewer taxes and sometimes even get a refund from the government. Working individuals and families like you will be able to spend less money paying for taxes and will be able to keep more of the money that you earn.
What is even more exciting is that you can get refunds for past years when you did not even apply for the EITC. For example, if you have been working and paying taxes in the United States for 3 years, but only got your Social Security Number (SSN) this year, you can now apply for the EITC. Not only can you get a tax credit or refund for this year, but you can also get the credit or refund that you would have gotten for the past 3 years.
In order to be eligible for the EITC, you need to meet certain qualifications. You have to have a valid SSN. You have to have been a U.S. citizen or a resident alien the whole year (or if you live abroad, but are married to a U.S. citizen or resident alien, you have to file a joint return). You must have earned income from employment or from self-employment. Your filing status cannot be “married, filing separately”. You cannot be a qualifying child of another person. If you do not have a qualifying child and do not qualify as a dependent of another person, you have to be older than 25, but younger than 65 at the end of the year, and you have to live in the U.S. for more than half the year. Other restrictions may apply.
If you do meet all the qualifications for the EITC, you have to file a claim to get your tax credit or refund for previous years. You have to file the claim within 3 years from when the tax return was originally filed or within 2 years from the time the tax was paid, whichever is later.
Alex Meyerovich - M.C. Law Group, LLP is an immigration lawyer in Bridgeport, Connecticut. Elina Stelman co-authored this press release.
To learn more, visit www.uslegalvisa.com
The information presented is a general information only and should not be construed to be a formal legal advice nor the formation of a lawyer/client relationship. Contact an experienced licensed attorney to discuss circumstances of your case.
###
About M.C. Law Group: Full service immigration law firm handling cases in all areas of immigration law. Our attorneys also provide representation in the areas of family, criminal & business/tax law with particular attention to the consequences on our clients' immigration status. For more information please visit us at www.uslegalvisa.com
Friday, October 30, 2009
Washington State pair sentenced to prison on immigration fraud charges - Steven Mahoney
October 23, 2009
Washington State pair sentenced to prison on immigration fraud charges
SEATTLE - The former owner of an immigration consulting business in King County, Wash., and his ex-wife were sentenced Oct. 23 in federal court on charges of conspiracy to commit immigration fraud, following an investigation by U.S. Immigration and Customs Enforcement (ICE.)
Steven Mahoney, 41, of Kent, Wash., was sentenced to 18 months in prison and three years of supervised release. Helen Mahoney, 39, also of Kent, was sentenced to six months in prison and two years of supervised released for her role in the conspiracy.
Steven Mahoney owned Mahoney and Associates where he counseled, advised and prepared immigration applications for immigrants seeking legal status to live in the United States. Helen Mahoney assisted in completing and submitting the applications to the federal government.
According to court documents, from October 1998 until June 2007, Steven Mahoney filed up to 99 false asylum claims on behalf of immigrants. The applications falsely stated that these individuals would be abused because they were homosexual, or they held religious or political views that would result in torture in their home countries.
Once the fraudulent applications were completed, Helen Mahoney submitted them to U.S. Citizenship and Immigration Service (USCIS), the federal agency that processes these documents. Court documents show that the Mahoneys knew these statements were not true for certain applicants, but still filed the claims.
The Mahoneys coached applicants on how to pursue immigration status based on these false claims. They were paid between $1,000 and $4,000 for each falsified application.
"Our nation's immigration laws are intended to provide benefits to individuals who meet certain criteria - not opportunists who manipulate the system for personal financial gain," said Leigh Winchell, special agent in charge of ICE's Office of Investigations in Seattle. "ICE will continue to investigate those involved in these types of criminal schemes."
At sentencing, U.S. District Judge John C. Coughenour said, "I want to get the message out to the community that this type of behavior will not be tolerated."
ICE was joined in this investigation by USCIS.
Washington State pair sentenced to prison on immigration fraud charges
SEATTLE - The former owner of an immigration consulting business in King County, Wash., and his ex-wife were sentenced Oct. 23 in federal court on charges of conspiracy to commit immigration fraud, following an investigation by U.S. Immigration and Customs Enforcement (ICE.)
Steven Mahoney, 41, of Kent, Wash., was sentenced to 18 months in prison and three years of supervised release. Helen Mahoney, 39, also of Kent, was sentenced to six months in prison and two years of supervised released for her role in the conspiracy.
Steven Mahoney owned Mahoney and Associates where he counseled, advised and prepared immigration applications for immigrants seeking legal status to live in the United States. Helen Mahoney assisted in completing and submitting the applications to the federal government.
According to court documents, from October 1998 until June 2007, Steven Mahoney filed up to 99 false asylum claims on behalf of immigrants. The applications falsely stated that these individuals would be abused because they were homosexual, or they held religious or political views that would result in torture in their home countries.
Once the fraudulent applications were completed, Helen Mahoney submitted them to U.S. Citizenship and Immigration Service (USCIS), the federal agency that processes these documents. Court documents show that the Mahoneys knew these statements were not true for certain applicants, but still filed the claims.
The Mahoneys coached applicants on how to pursue immigration status based on these false claims. They were paid between $1,000 and $4,000 for each falsified application.
"Our nation's immigration laws are intended to provide benefits to individuals who meet certain criteria - not opportunists who manipulate the system for personal financial gain," said Leigh Winchell, special agent in charge of ICE's Office of Investigations in Seattle. "ICE will continue to investigate those involved in these types of criminal schemes."
At sentencing, U.S. District Judge John C. Coughenour said, "I want to get the message out to the community that this type of behavior will not be tolerated."
ICE was joined in this investigation by USCIS.
Ahmed v. Ashcroft, 286 F.3d 611 - Abandonment of an LPR (Legal Permanent Resident) Status
Remarks: subjective intent of an alien is irrelevant in analyzing LPR abandonment cases. Burden of proof is on the government (clear and convincing evidence). See Matadin v. Mukasey, 546 F.3d 85 - Abandonment of LPR - Burden of Proof
286 F.3d 611
Ali Zain AHMED, Petitioner,
v.
John ASHCROFT, Attorney General of the United States,* Respondent.
Docket No. 98-4105.
United States Court of Appeals, Second Circuit.
Argued: March 7, 2002.
Decided: March 29, 2002.
Robert D. Kolken, Sacks & Kolken, Buffalo, NY, for petitioner.
Megan L. Brackney, Assistant United States Attorney, for Mary Jo White, United States Attorney for the Southern District of New York; Kathy S. Marks and Jeffrey S. Oestericher, Assistant United States Attorneys, on the brief, for respondent.
Before CALABRESI and CABRANES Circuit Judges, and AMON, District Judge.**
PER CURIAM.
1
Petitioner Ali Zain Ahmed appeals a decision of the Board of Immigration Appeals (BIA). The BIA ordered his removal on the grounds that Ahmed had abandoned his lawful permanent resident status during a nine-year absence from the United States. As a result of the abandonment, the BIA found, pursuant to Section 212(a)(7)(A)(i)(I) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1182(a)(7)(A)(i)(I), that petitioner was excludable from the United States as an immigrant who did not possess a valid entry document.1 Ahmed argues on appeal (1) that the BIA erred in finding that he had abandoned his lawful permanent resident status and (2) that the court erred in refusing to consider his conduct subsequent to his return to the United States in 1991 as objective evidence corroborating his subjective intent to retain his lawful permanent resident status.
2
On petition for review of a BIA judgment, "findings of facts, if supported by reasonable, substantial, and probative evidence on the record considered as a whole, shall be conclusive." 8 U.S.C. § 1105a(a)(4) (1988); see also Osorio v. I.N.S., 18 F.3d 1017, 1022 (2d Cir.1994). To reverse under the substantial evidence standard, "we must find that the evidence not only supports that conclusion, but compels it." I.N.S. v. Elias-Zacarias, 502 U.S. 478, 481 n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992); see Osorio, 18 F.3d at 1022.
3
Generally, in order to gain admission into the United States, an immigrant must present a valid, unexpired immigrant visa as well as a valid, unexpired passport or other travel document. 8 U.S.C. § 1181(a). If a person fails to produce such documents, § 1182(a)(7)(A)(i)(I) requires that he or she be excluded. An immigrant seeking admission who is a "returning resident," however, may be readmitted into the United States without entry documents. 8 U.S.C. § 1181(b). A returning resident is a lawful permanent resident returning from a "temporary visit abroad." 8 U.S.C. § 1101(a)(27)(A). The determinative issue here is whether the nine year period during which Ahmed lived and worked in Bahrain and Yemen after receiving lawful permanent resident status in the United States qualifies as a "temporary visit abroad."
4
Our cases establish that a temporary visit abroad requires that "the intention of the departing immigrant must be to return within a period relatively short, fixed by some early event." United States ex rel. Lesto v. Day, 21 F.2d 307, 308-09 (2d Cir.1927). When the length of the visit is not fixed by some early event but instead relies upon an event with a reasonable possibly of occurring within a short period of time, what constitutes a temporary visit "cannot be defined in terms of elapsed time alone." United States ex rel. Polymeris v. Trudell, 49 F.2d 730, 732 (2d Cir.1931). "Then the intention of the visitor, when it can be determined, will control." Id. In such a case, however, the intention of the visitor must still be "to return within a period relatively short, fixed by some early event." Id.
5
At the outset, we reject Ahmed's contention that the BIA's finding that Ahmed "probably never formed the subjective intent of abandoning his lawful permanent residence in the United States" precludes it, as a matter of law, from finding that he abandoned his lawful permanent resident status. The dispositive question in this case is whether Ahmed intended "to return within a period relatively short, fixed by some event," not whether he actually intended to abandon his status.
6
Turning to that dispositive question, we find that, despite Ahmed's application for a reentry permit prior to his departure from the United States in 1982 and his effort in 1983 to secure a duplicate copy of his reentry, and assuming arguendo that we should consider his conduct subsequent to reentering the United States in 1991, overwhelming evidence supports the BIA's decision that while Ahmed was abroad, he lacked the requisite intent to return to the United States within a relatively short period of time. Ahmed, a native of Yemen, left the United States in 1982, nearly three years after being laid off from work. He accepted a position with the Bahrain Police Department and kept this job for the next eight years. While abroad, Ahmed traveled a number of times to Yemen, where he has family, property, and business ties. During this time, Ahmed did not maintain ties with his relatives in the United States nor owned property or assets in this country. Finally, while Ahmed claims that his return to the United States was contingent upon being rehired by his former employer, this was not an event that was likely to occur within a reasonably short period of time. This fact along with the many indications of Ahmed's intended permanence abroad, make the BIA's finding that Ahmed lacked intent to return to the United States within a relatively short period unassailable. Accordingly, Ahmed is ineligible for relief as a returning resident.
7
Having reviewed all of petitioner's claims and finding them to be without merit, we DENY the petition for review of the judgment of the Board of Immigration Appeals ordering the petitioner deported but permitting his voluntary departure.
Notes:
*
John Ashcroft became the United States Attorney General effective February 2001, to succeed Janet Reno. Under Fed.R.Civ.P. 25(d)(1), Ashcroft is automatically substituted as a defendant in this action
**
The Honorable Carol Bagley Amon of the United States District Court for the Eastern District of New York, sitting by designation
1
Ahmed's petition falls within former Section 106(a) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1105a(a), which was repealed by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub. L. No. 104-208, § 306(b), 110 Stat. 3009-546, 3009-612. Because Ahmed's deportation proceedings began before April 1, 1997 and his order of deportation became final after October 30, 1996, this case is governed by IIRIRA's transitional provisions. SeeHenderson v. I.N.S., 157 F.3d 106, 117 (2d Cir.1998). Under these provisions, this court has the authority to review final orders of deportation. See 8 U.S.C. § 1105a(a) (repealed 1996); IIRIRA § 309(c)(1)(B), 110 Stat. at 3009-625 ("proceedings (including judicial review thereof) shall continue to be conducted without regard to [the] amendments"); see also Yang v. McElroy, 277 F.3d 158, 160 n. 1 (2d Cir.2002). Deportation proceedings against Ahmed were commenced on December 8, 1995. The BIA rendered its final decision on February 20, 1998.
286 F.3d 611
Ali Zain AHMED, Petitioner,
v.
John ASHCROFT, Attorney General of the United States,* Respondent.
Docket No. 98-4105.
United States Court of Appeals, Second Circuit.
Argued: March 7, 2002.
Decided: March 29, 2002.
Robert D. Kolken, Sacks & Kolken, Buffalo, NY, for petitioner.
Megan L. Brackney, Assistant United States Attorney, for Mary Jo White, United States Attorney for the Southern District of New York; Kathy S. Marks and Jeffrey S. Oestericher, Assistant United States Attorneys, on the brief, for respondent.
Before CALABRESI and CABRANES Circuit Judges, and AMON, District Judge.**
PER CURIAM.
1
Petitioner Ali Zain Ahmed appeals a decision of the Board of Immigration Appeals (BIA). The BIA ordered his removal on the grounds that Ahmed had abandoned his lawful permanent resident status during a nine-year absence from the United States. As a result of the abandonment, the BIA found, pursuant to Section 212(a)(7)(A)(i)(I) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1182(a)(7)(A)(i)(I), that petitioner was excludable from the United States as an immigrant who did not possess a valid entry document.1 Ahmed argues on appeal (1) that the BIA erred in finding that he had abandoned his lawful permanent resident status and (2) that the court erred in refusing to consider his conduct subsequent to his return to the United States in 1991 as objective evidence corroborating his subjective intent to retain his lawful permanent resident status.
2
On petition for review of a BIA judgment, "findings of facts, if supported by reasonable, substantial, and probative evidence on the record considered as a whole, shall be conclusive." 8 U.S.C. § 1105a(a)(4) (1988); see also Osorio v. I.N.S., 18 F.3d 1017, 1022 (2d Cir.1994). To reverse under the substantial evidence standard, "we must find that the evidence not only supports that conclusion, but compels it." I.N.S. v. Elias-Zacarias, 502 U.S. 478, 481 n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992); see Osorio, 18 F.3d at 1022.
3
Generally, in order to gain admission into the United States, an immigrant must present a valid, unexpired immigrant visa as well as a valid, unexpired passport or other travel document. 8 U.S.C. § 1181(a). If a person fails to produce such documents, § 1182(a)(7)(A)(i)(I) requires that he or she be excluded. An immigrant seeking admission who is a "returning resident," however, may be readmitted into the United States without entry documents. 8 U.S.C. § 1181(b). A returning resident is a lawful permanent resident returning from a "temporary visit abroad." 8 U.S.C. § 1101(a)(27)(A). The determinative issue here is whether the nine year period during which Ahmed lived and worked in Bahrain and Yemen after receiving lawful permanent resident status in the United States qualifies as a "temporary visit abroad."
4
Our cases establish that a temporary visit abroad requires that "the intention of the departing immigrant must be to return within a period relatively short, fixed by some early event." United States ex rel. Lesto v. Day, 21 F.2d 307, 308-09 (2d Cir.1927). When the length of the visit is not fixed by some early event but instead relies upon an event with a reasonable possibly of occurring within a short period of time, what constitutes a temporary visit "cannot be defined in terms of elapsed time alone." United States ex rel. Polymeris v. Trudell, 49 F.2d 730, 732 (2d Cir.1931). "Then the intention of the visitor, when it can be determined, will control." Id. In such a case, however, the intention of the visitor must still be "to return within a period relatively short, fixed by some early event." Id.
5
At the outset, we reject Ahmed's contention that the BIA's finding that Ahmed "probably never formed the subjective intent of abandoning his lawful permanent residence in the United States" precludes it, as a matter of law, from finding that he abandoned his lawful permanent resident status. The dispositive question in this case is whether Ahmed intended "to return within a period relatively short, fixed by some event," not whether he actually intended to abandon his status.
6
Turning to that dispositive question, we find that, despite Ahmed's application for a reentry permit prior to his departure from the United States in 1982 and his effort in 1983 to secure a duplicate copy of his reentry, and assuming arguendo that we should consider his conduct subsequent to reentering the United States in 1991, overwhelming evidence supports the BIA's decision that while Ahmed was abroad, he lacked the requisite intent to return to the United States within a relatively short period of time. Ahmed, a native of Yemen, left the United States in 1982, nearly three years after being laid off from work. He accepted a position with the Bahrain Police Department and kept this job for the next eight years. While abroad, Ahmed traveled a number of times to Yemen, where he has family, property, and business ties. During this time, Ahmed did not maintain ties with his relatives in the United States nor owned property or assets in this country. Finally, while Ahmed claims that his return to the United States was contingent upon being rehired by his former employer, this was not an event that was likely to occur within a reasonably short period of time. This fact along with the many indications of Ahmed's intended permanence abroad, make the BIA's finding that Ahmed lacked intent to return to the United States within a relatively short period unassailable. Accordingly, Ahmed is ineligible for relief as a returning resident.
7
Having reviewed all of petitioner's claims and finding them to be without merit, we DENY the petition for review of the judgment of the Board of Immigration Appeals ordering the petitioner deported but permitting his voluntary departure.
Notes:
*
John Ashcroft became the United States Attorney General effective February 2001, to succeed Janet Reno. Under Fed.R.Civ.P. 25(d)(1), Ashcroft is automatically substituted as a defendant in this action
**
The Honorable Carol Bagley Amon of the United States District Court for the Eastern District of New York, sitting by designation
1
Ahmed's petition falls within former Section 106(a) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1105a(a), which was repealed by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub. L. No. 104-208, § 306(b), 110 Stat. 3009-546, 3009-612. Because Ahmed's deportation proceedings began before April 1, 1997 and his order of deportation became final after October 30, 1996, this case is governed by IIRIRA's transitional provisions. SeeHenderson v. I.N.S., 157 F.3d 106, 117 (2d Cir.1998). Under these provisions, this court has the authority to review final orders of deportation. See 8 U.S.C. § 1105a(a) (repealed 1996); IIRIRA § 309(c)(1)(B), 110 Stat. at 3009-625 ("proceedings (including judicial review thereof) shall continue to be conducted without regard to [the] amendments"); see also Yang v. McElroy, 277 F.3d 158, 160 n. 1 (2d Cir.2002). Deportation proceedings against Ahmed were commenced on December 8, 1995. The BIA rendered its final decision on February 20, 1998.
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