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Nonhlanhla Guguletha Ngema, A087 948 239 (BIA Feb. 5, 2014)

Nonhlanhla Guguletha Ngema, A087 948 239 (BIA Feb. 5, 2014)

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In this unpublished decision, the Board of Immigration Appeals (BIA) remanded the record for further consideration of a request for a continuance while the respondent appealed a USCIS denial of a visa petition filed on her behalf. The Board stated that any delay by USCIS in forwarding the appeal to the Board is a factor to be considered in favor of a respondent in determining whether to grant a continuance. The decision was written by Member Linda Wendtland.

Looking for IRAC’s Index of Unpublished BIA Decisions? Visit www.irac.net/unpublished/index
In this unpublished decision, the Board of Immigration Appeals (BIA) remanded the record for further consideration of a request for a continuance while the respondent appealed a USCIS denial of a visa petition filed on her behalf. The Board stated that any delay by USCIS in forwarding the appeal to the Board is a factor to be considered in favor of a respondent in determining whether to grant a continuance. The decision was written by Member Linda Wendtland.

Looking for IRAC’s Index of Unpublished BIA Decisions? Visit www.irac.net/unpublished/index

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Published by: Immigrant & Refugee Appellate Center, LLC on Feb 10, 2014
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03/31/2014

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Stroud, W. Randall, Esq.

Araneda & Stroud ILG
4600 Marriott Dr., Suite 350
Raleigh, NC 27612
U.S. Department of Justice
Executive Ofce fr Immigration Review
Board of Immigration Appeals
Qfce of the Clerk
5107 leesburg Pike, Suite 2000
Falls Church, Vrginia 20530
OHS/ICE Ofice of Chief Counsel - CHL
5701 Executive Ctr Dr., Ste 300
Charlotte, NC 28212
Name: NGEMA, NONHLANHLA GUGUL. .. A 087-948-239
Date of this notice: 2/5/2014
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosure
Panel Members:
Wendtland, Linda S.
Sincerely,
Do c t
Donna Carr
Chief Clerk
yungc
Userteam: Docket
For more unpublished BIA decisions, visit www.irac.net/unpublished
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Cite as: Nonhlanhla Guguletha Ngema, A087 948 239 (BIA Feb. 5, 2014)
U.S. Deparment of Justice
_
pxecutive Ofce fr Immigration Review
Decision of the Board oflmmigration Appeals
Falls Chuch, Virgiia 20530
File: A087 948 239 - Chalotte, NC Date:
FEB - 5 2014
In re: NONHLAHLA GUGULETHA NGEMA a.k.a. Nonlanhla Guguletha Alamilla
IN REMOVAL PROCEEDINGS
APPEAL
ON BEHALF OF RESPONDENT: W. Randall Stroud, Esquire
ON BEHALF OF DHS: Susan Leeker
Assistat Chief Cousel
CHARGE:
Notice: Sec. 237(a)(l)(C)(i), l&N Act [
8 U
.
S.C.
§ 1227(a)(l)(C)(i
)] -
Nonimigant - violated conditions of status
APPLICATION: Continuance
The respondent, a native ad citizen of South Afica, appeals the decision of the Immigration
Judge, dated May 3, 2012, denying her request fr a continuance to await the outcome of her
appeal to the Board of te denial by the United States Citizenship and Immigration Services
("USCIS") of a visa petition (Form I-130), fled on her behalf by her spouse. The record will be
remaded fr fher proceedings.
We review the fndings of fct, including deterinations of credibility, made by the
Immigration Judge under a "clearly eroneous" stadad. 8 C.F.R. § 1003. l{d)(3)(i). We review
all oter issues, including issues of law, judgment or discretion, under a de novo standad.
8 C.F.R. §
1003.l(d)(3)(ii).
In Mater of Hashmi, 24 l&N Dec. 785 (BIA 2009), we held, tat in determining whether
good cause exists to continue proceedings fr the adjudication of a pending family-based visa
petition, a vaiety of fctors may be considered, including, but not limited to: (I) the Department
of Homeland Security's response to the motion to continue; (2) whether the underlying visa
petition is prima fcie approvable; (3) the respondent's statutory eligibility fr adjustment of
status; ( 4) whether the respondent's application fr adjustment merits a fvorable exercise of
discretion; ad ( 5) the reason fr the continuance ad any other relevant procedural fctors. The
Immigration Judge corectly noted that the USCIS had denied the visa petition fled on behalf of
the respondent. However, the respondent appealed te USCIS decision. As of yet, the appeal
has not been frwaded to the Board. Any delay by the USCIS in frwarding the appeal to the
Board may be considered by the Immigration Judge as a fctor
(in fvor of the respondent) in
whether or not to gant a continuance. Id. at 793. In any event, the decision is not fnal. We
recogize that the visa petition had been denied; however, where a non-fivolous appeal has been
taken, such a denial is not necessaily a dispositive fctor with respect to the question of good
cause, including the question of prima fcie approvability.
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Cite as: Nonhlanhla Guguletha Ngema, A087 948 239 (BIA Feb. 5, 2014)
s
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A087 948 239
In yiew of te above, we fnd it prudent to remand the record in order to allow the
Immigation Judge to reconsider the respondent's motion fr a continuance. Te Immigration
Judge may aso consider wheter administative closure would be appropriate. See Matter of
Avetisyan, 25 I&N Dec. 688 (BIA 2012). Te fllowing order will be entered.
ORDER: The record is remanded fr fher proceedings and the entry of a new decision.
2
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Cite as: Nonhlanhla Guguletha Ngema, A087 948 239 (BIA Feb. 5, 2014)
UNITE D STATES DEPARTMENT OF JUSTICE
EXECU TIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION CO URT
CHARLOTTE, NORTH CAROLINA
File: A087-948-239
In the Matter of
May 3, 2012
NONHLANHLA GUGULETHA NGEM IN REMOVAL PROCEE DINGS
RESPONDENT
CHARGES: 237{a} (1) (C) (i) - nonimigrant who has failed to
comply with the conditions of status.
APPLICATIONS: Request for a continuance.
ON BEHALF OF RESPONDENT: W. REYNOL DS STRO U D
46 Marriott Drive, Apt. 350
Raleigh, North Carolina 27612
ON BEHALF OF DHS: CAROLYN YO UNGBLADE
Assistant Chief Counsel
ORAL DECISION OF THE IMMIGRATION JUDGE
The respondent is a 29-year-old native and citizen of Sout-
Africa. She was placed in removal proceedings with the filing
of a Notice to Appear on February 11, 2010, at the Charlotte
Immigration Court. While the respondent was represented by
Counsel she admitted that the factual allegations and conceded
her removability. Accordingly, �the Court finds the
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.
(
respondent's removability has been established by clear and
convincing evidence.
The essential facts in this case are that the
respondent's United States citizen husband filed a visa petition
.for her on September 21, 2012. USCIS notified the respondent
that they were intending to deny that visa petition. They did
that by serving her a notice of intent to deny on June 4, 2011.
Ultimately, USCIS denied that visa petition on April 23, 2012,
with a final denial. The basis of the denial is because the
respondent's husband is subject to the Adam Walsh Act. The
respondent and her husband filed an appeal from that decision to
the BIA and that appeal was filed with the Board approximately
March 20, 2012. Those are all the essential facts that are
necessary in this case. Today, at the Master Calendar hearing,
the respondent has requested a continuance to allow for the
appeal of the denial of the visa petition in front of the BIA.
The Court is going to deny that request for a continuance for
the following reasons.
The decision to grant or deny a continuance is within the
Court's broad discretion and good cause must be shown for a
continuance. See in the Matter of Hashmi, 24 I&N Dec. 785, 788
( BIA 2009); 8 C.F.R. Section 1003.29, 1240.6.
In Hashmi, the Board established a framework for
determining whether good cause exists to continue pending final
adjudication of every family-based visa petition filed in
A087-948-239 2 May 3, 2012
#
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conjunction with an application for adjustment of status. See
Matter of Hashmi, supra. The Board concluded that a variety of
factors may be considered, including but not limited to: (1)
DHS's position on the continuous request; (2) whether the
underlying visa petition is pria facie approva1e; (3) the
respondent's statutory eligibility for adjustment of status;
(4) whether the respondent's application for adjustment of
status merits a favorable exercise of discretion; and (5) the
reasons for the continuance and other procedural factors. The
Board stated that these factors are illustrative, not
exhaustive. While all these factors may be relevant to a given
case, the Board in Hashi emphasized that the focus of the
inquiry is the apparent ultimate likelihood of success on
adjustment of status application.
In making its determination, the Court must look at the
threshold issue of whether there is a prima f acie approvable
visa petition. In Hashmi, the visa petition was unadjudicated
by USCIS, and therefore the Board focused on the IJ's role in
determining if a visa petition was viable, i.e., prima facie
approvable so as to warrant a continuance. The IJ in making a
prira facie determination is to look at the underlying visa
petitions and the supporting documents. The present case is
easily distinguishable from Hashmi. The respondent's visa
petition is no longer awaiting adjudication by USCIS; it has
been denied. Thus, the Court need not make a viability
A087-948-239 3 May 3, 2012
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determination on the visa petition as contemplated in Hashmi,
users has already done so and found the visa petition not
approva1e. On these facts, the Court simply cannot conclude
that the respondent's visa petition is prima facie approvable
for purposes of granting a continuance.
The Court finds this one factor - the absence of a prima
facie approvable visa petition ¯ is dispositive of the
respondent's request for a continuance. Accordingly, there is
no need to specifically address all the other relevant factors
mentioned in Hashmi. In sum, absent evidence of a prima facie
approvable visa petition, the Court finds no good cause to grant
a continuance. See Thimran v. Holder, 599 F.3d 841 (8th Cir.
2010) (finding no abuse of discretion at IJ's denial of a
continuance where the case had been continued for two years and
a second visa petition had been denied and was on appeal with
the BIA.
ORDER
IT IS HEREBY ORDERED that the respondent's request for a
continuance is denied.
IT IS FURT HER ORDERED that the respondent is ordered
removed from the United States to South Africa on the.charge
contained in her Notice to Appear.
BARRY J. PE
Imigration
A087-948-239 4 May 3, 2012
¾·
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'
' I
CERTIFICATE PAGE
·�
I
I hereby certify that the attached proceeding before JUDGE
BARRY J. PETTINATOg in the matter of:
NON HLANHLA GUGULETHA NGEM
A087-948-239
CHARLOTTE, NORTH CAROLINA
is an accurate, verbatim transcript of the recording as provided
by the Executive Office for Imigration Review and that this is
the original transcript thereof for the file of the Executive
Office for Imigration Review.
LOIS SAUN DERS (Transcriber)
FREE STATE REPORTING, Inc.
JUNE 25, 2012
(Completion Date)
. �³ =

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