U.S.

Department of Justice
Executive Office for Immigration Review

Board of Immigration Appeals

Office of the Clerk
5107 Leesb11rg Pike, S11ite 2000
Falls Church. Virginia 20530

Name: IBRAHIM, ANDRE LUCKMAN

A 097-680-747

Date of this notice: 1/28/2015

Enclosed is a copy of the Board's decision and order in the above-referenced case.
Sincerely,

Donna Carr
Chief Clerk

Enclosure
Panel Members:
Pauley, Roger
Wendtland, Linda S.
Cole, Patricia A.

Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: Andre Luckman Ibrahim, A097 680 747 (BIA Jan. 28, 2015)

Immigrant & Refugee Appellate Center | www.irac.net

OHS/ICE Office of Chief Counsel - DAL

Mugambi, Irene G., Esq.
125 E. John Carpenter Fwy, Ste. 500
Law Office of Irene Mugambi, P.C.
2720 N. Stemmons Frwy S. Tower, Suite 711 Irving, TX 75062-2324
Dallas, TX 75207

U.S. Department of Justice

Decision of the Board of Immigration Appeals

Executive Office for Immigration Review

Falls Church, Virginia 20530

Date:

File: A097 680 747 - Dallas, TX

'JAN 28 2015

In re: ANDRE LUCKMAN IBRAHIM

APPEAL AND MOTION

ON BEHALF OF RESPONDENT:

Irene G. Mugambi, Esquire

CHARGE:
Notice: Sec.

237(a)( I )(C)(i), I&N Act. [8 U.S.C. l 227(a)( I )(C)(i)] Nonimmigrant - violated conditions of status (found)

Lodged: Sec.

237(a)(2)(A)(i), l&N Act [8 U.S.C. 1227(a)(2)(A)(i)] Convicted of crime involving moral turpitude (found)

Sec.

237(a)(l )(B), I&N Act [8 U.S.C. 1227(a)( 1)(B)] In the United States in violation of law (found)

APPLICATION: Continuance; adjustment of status; waiver of inadmissibility; remand

The respondent, a native and citizen of Gabon, appeals from the Immigration Judge's
June 11, 2013, decision pretermitting his application for adjustment of status under section
245(a) of the Immigration and Nationality Act (Act), 8 U.S.C. 1255(a), based on an approved
Alien Relative Petition (Form I-130) filed on his behalf by his United States citizen wife and
filed in conjunction with a waiver of inadmissibility under section 2 l 2(h) of the Act, 8 U.S.C.
1182(h). He also maintains that the Immigration Judge erred in denying his request for
a continuance made at his final hearing. His appeal will be sustained and the record will be
remanded for further proceedings consistent with this decision.
We review findings of fact, including credibility findings, for clear error. See 8 C.F.R.
1003.l(d)(3)(i); see also Matter of J-Y-C-, 24 I&N Dec. 260 (BIA 2007); Matter of S-H-,
23 l&N Dec. 462 (BIA 2002). We review questions of law, discretion, or judgment, and all
other issues de novo. See 8 C.F .R. 1003 .1 (d)(3 )(ii).
The Immigration Judge pretermitted the respondent's application for adjustment of status
because he concluded that the respondent did not carry his burden of proof in establishing that
the medical and public charge grounds of inadmissibility have been overcome in this case
(l.J. at 5-6, 8-9). See section 212(a)(l) of the Act (outlining the health-related grounds of
inadmissibility); section 212(a)(4) of the Act (explaining when the public charge ground of
inadmissibility is triggered). Specifically, the Immigration Judge concluded that the respondent
did not submit a complete Affidavit of Support from his sponsor and joint sponsor, as these
forms were not supported by the sponsor's and joint-sponsor's federal tax returns from the three
Cite as: Andre Luckman Ibrahim, A097 680 747 (BIA Jan. 28, 2015)

Immigrant & Refugee Appellate Center | www.irac.net

IN REMOVAL PROCEEDINGS

A097' 680 747

tax years immediately preceding the respondent's final hearing (1.J. at 5-6; Resp. October 26,

The Immigration Judge also denied the respondent's request to continue the case in order to
address the purported deficiencies in the adjustment application as identified by the Immigration
Judge at the respondent's final hearing (1.J. at 6-8). Although the respondent was not represented
by counsel before the Immigration Judge, the Immigration Judge concluded that the respondent's
status as an unrepresented alien did not form good and sufficient cause to continue the matter as
(1) the case had previously been continued, (2) a continuance would delay completion of the case
until 2015, and (3) the respondent had sufficient time to retain counsel in ensuring that the
respondent presented complete applications for relief (I.J. at 6-8; Tr. 1, 49-51, 64, 80-86, 89, 96,
101-02, 110-11, 113, 125, 134, 140-41, 145, 147, 157-58, 160, 169-70, 178, 192-99).
On appeal, the respondent maintains that he did establish good cause for a further
continuance (Resp. Brief at 10-11 ). Specifically, he asserts that he timely filed relevant tax
documents and a medical examination in compliance with the Immigration Judge's verbal
instructions (Resp. Brief at 11-12; Notice of Appeal). However, thereafter, the Immigration
Judge continued the matter on his own motion several times over a period of approximately
3 years, causing this documentary evidence to become stale (Resp. Brief at 13-14). In addition,
the respondent contends that, as a pro se respondent, he was unaware of his continuing obligation
to update the financial and medical materials previously filed (Resp. Brief at 11-12; Notice of
Appeal). Also, he asserts that the Immigration Judge erred in relying on the length of time that
the case was pending in concluding that the continuance request was unsupported by good cause
(Resp. Brief at 14).
The decision to grant or deny a continuance is discretionary, and a continuance request must
be supported by good cause. See Matter of Perez-Andrade, 19 I&N Dec. 433 (BIA 1987);
Matter of Sibrun, 18 l&N Dec. 354 (BIA 1983); 8 C.F.R. 1003.29. Here, unlike the
Immigration Judge, we conclude that the respondent's continuance request is supported by good
cause because, as a pro se respondent, he substantially complied with the verbal instructions
from the Immigration Judge in preparation for his originally scheduled, final hearing on
August 11, 2010 (I.J. at 6-8; Resp. October 26, 2009, Documentary Submission). However, the
respondent's case was continued on the Immigration Judge's own motion as follows thereafter:
(I) from August 11, 2010, to November 12, 2010; (2) from November 12, 2010, to March 17,
2011; (3) from March 17, 2011, to January 8, 2012; (4) from January 8, 2012, to September 16,
2012; and (5) from September 16, 2012, to June 11, 2013 (l.J. at 7). During the nearly 3 years in
which the Immigration Judge continued this matter, the respondent was not required to appear
before the Immigration Court, and the record contains no evidence establishing that, either
before or during this period, the respondent was notified of the need for submitting updated
financial and/or medical information.

2 A097 680 747 (BIA Jan. 28, 2015)

Cite as: Andre Luckman Ibrahim,

Immigrant & Refugee Appellate Center | www.irac.net

2009, Documentary Submission). See section 2 l 3A(f)(6)(A)(i) of the Act (outlining what tax
records must be appended to an affidavit of support in overcoming the public charge ground of
inadmissibility), 8 U.S.C. 1183a(f)(6)(A)(i); see also 8 C.F.R. 213a.2(c)(2)(i)(A)-(B). In
addition, the Immigration Judge concluded that the medical examination (Form 1-693) submitted
by the respondent had "expired" as the form was completed in January 2010, but the
respondent's final hearing on the merits of his adjustment application occurred in June 2013
(l.J. at 6).

A097 680 7'+7

In defining the scope of 8 C.F.R. 245.5, United States Citizenship and Immigration
Services (USCIS) issued a Policy Memorandum, in effect at the time of the respondent's final
hearing before the Immigration Court, explaining that where an unexpired medical examination
denoting no Class A or B medical condition is filed with an adjustment application, that medical
will remain valid until the adjustment application is ultimately adjudicated. See Extension of
Validity of Medical Certifications on Form 1-693 (December 20, 2012) (valid through September
30, 2013); see also Policy Memorandum, Extension of Validity of Medical Certification on
Form 1-693 (September 4, 2013) (valid until May 31, 2014); Policy Memorandum, Extension of
Validity of Medical Certification on Form 1-693 (December 29, 2011) (valid until January 1,
2013); Policy Memorandum, Extension of Validity of Medical Certifications on Form
1-693 (December 16, 2010) (valid until January 1, 2012); Memorandum from Donald Neufeld,
Extension of Validity of Medical Certifications on Form 1-693 (December 30, 2009) (valid until
January 1, 2011); Memorandum from Michael Aytes, Extension of Validity of Medical
Certifications on Form 1-693 (January 7, 2008) (valid until January 1, 2009); Memorandum from
Michale Aytes, Extension of Validity of Medical Certifications on Form 1-693 (January 3, 2007)
(valid until January 1, 2008); Memorandum from Michael Aytes, Extension of Validity of
Medical Certifications on Form 1-693 (January 11, 2006) (valid until January l, 2007);
Memorandum from William R. Yates, Extension of Validity of Medical Certification on Form
1
1-693 (December 2, 2004) (valid until January 1, 2006).
As a result, we conclude that the USCIS policy that existed at the time of the respondent's
final hearing provides persuasive support for finding that the respondent's adjustment application
was supported by a sufficient medical exam and that the Immigration Judge should have afforded
the respondent a continuance if he felt an additional exam was warranted in this specific
instance. In other words, in the absence of USCIS guidance or instruction from the Immigration
Court putting the respondent on notice regarding the need to update his medical exam, as a pro se
alien, there was good cause for continuing the matter to allow the respondent to complete an
updated medical exam.
However, considering the extensive period of time that has elapsed since the adjustment
application was initially filed and a change in policy announced by USCIS on May 30, 2014, we
1

Although not binding on the Board, the USCIS memoranda cited provide useful, practical
guidance that is not contradicted by section 212(a)(l) of the Act or its implementing regulations.

Cite as: Andre Luckman Ibrahim, A097 680 747 (BIA Jan. 28, 2015)
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Immigrant & Refugee Appellate Center | www.irac.net

Moreover, with respect to the medical examination, although the Immigration Judge
correctly notes that a respondent must not be inadmissible on health-related grounds in order to
prevail on his adjustment application, we are unpersuaded that the Immigration Judge was
permitted to pretermit the respondent's adjustment application where, as here, he found the
previously submitted medical examination was "expired" (I.J. at 6). Specifically, although
8 C.F.R. 245.5 and 1245.5 indicate that a medical exam must be completed no more than
1 year prior to the filing an adjustment application, the pertinent regulation does not further
define whether a medical exam may expire during the pendency of an adjustment application if
the medical was unexpired when submitted but the underlying adjustment application remains
under review for a period of more than a year from the date that the medical was completed.

'~

..

'

A09? 680 747

conclude that, upon remand, it is appropriate for the Immigration Judge to require a new medical
and to set appropriate deadlines for filing such documentation.
See Policy Alert,
Validity Period of Medical Certification on the Report of Medical Examination and Vaccination
Record (Form 1-693) (May 30, 2014) (explaining that as of June 1, 2014, a new medical
examination will be required if the application for adjustment of status is not adjudicated within
a year of the medical exam's completion).

In addition, because the respondent's applications for relief are continuing ones, upon
remand, the parties are invited to present any additional testimonial and documentary evidence
pertinent to the respondent's applications in assisting the Immigration Judge with adjudication of
the same, including but not limited to an updated medical exam, new financial records relevant
to the affidavit of support, and evidence related to the hardship that the respondent's wife and
child may experience should he be removed from the United States. See Matter of Alarcon,
20 I&N Dec. 557, 562 (BIA 1992). To the extent that any documentary evidence is sought
but cannot be obtained, the parties may further assist the Immigration Judge by explaining
what efforts were undertaken and why any such efforts were unsuccessful. See Matter of
Interiano-Rosa, 25 I&N Dec. 264 (BIA 2010) (finding that although a failure to timely file a
document may result in waiver of the opportunity to provide the same, it does not prevent the
respondent from otherwise attempting to carry his burden of proof with respect to the
information purportedly contained in the document in question).
Accordingly, the following orders will be entered.
ORDER: The respondent's appeal is sustained.
FURTHER ORDER: The record is remanded to the Immigration Judge for further
proceedings consistent with this order and for the entry of a new decision.

4
Cite as: Andre Luckman Ibrahim, A097 680 747 (BIA Jan. 28, 2015)
Lill

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Immigrant & Refugee Appellate Center | www.irac.net

Because we conclude that the respondent's continuance request was supported by good
cause, we need not reach the merits of his motion to remand other than to note that it is
accompanied by Affidavits of Support from the respondent's wife and joint sponsor dated
July 16, 2014, and December 11, 2013, respectively, and supported by the petitioner's 2011,
2012, and 2013, tax returns, and the joint sponsor's 2010, 2011, and 2012, tax returns
(Resp. Motion to Remand at Tabs A-B).

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
DALLAS. TEXAS
I

June 11, 2013

In the Matter of

)
)
)
)

ANDRE LUCKMAN IBRAHIM

RESPONDENT

IN REMOVAL PROCEEDINGS

CHARGES:

Section 237(a)(1)(C)(i) of the Immigration and Nationality Act (INA).

as amended -- in that after admission as a non-immigrant under
Section 101 (a)(15) of the Act you failed to maintain or comply with
the conditions of the non-immigrant status under which you were
admitted.
Section 237(a){1)(B) of the Immigration and Nationality Act (INA),
as amended -- in that after admission as a non-immigrant under
Section 101(a)(15) of the Act you have remained in the United
States for a longer time than permitted in violation of this Act or any
other law of the United States.
Section 237(a)(2)(A)(i) of the Immigration and Nationality Act (INA},
as amended -- in that you have been convicted of a crime involving
moral turpitude committed within five years after admission for
which a sentence of one year or longer may have been imposed.

APPLICATIONS:

Request for adjustment of status pursuant to Section 245(a) of the

Immigration and Nationality Act (INA), as amended.
Request for waiver of inadmissibility pursuant to Section 212(h) of
the Immigration and Nationality Act (INA), as amended.

Immigrant & Refugee Appellate Center | www.irac.net

File: A097-680-747

ON BEHALF OF RESPONDENT: PRO SE

ON BEHALF OF OHS: LYNN JAVIER

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ORAL DECISION OF THE IMMIGRATION JUDGE

The respondent is a native and citizen of Gabon. He was admitted to the

immigrant student to attend ELS Language Centers in Louisville, Kentucky. He

transferred to Grayson County College in Sherman, Texas on January 14, 2005. He did
not attend Grayson County College from August 20, 2005 to November 19, 2005. His
status was terminated in SEVIS by Grayson County College for failure to enroll on
November 19, 2005. He was employed for wages or other compensation on June 20,
2006 at Snellings Personnel Service without authorization of Immigration and Customs
Enforcement. Consequently, the Department of Homeland Security (the Government)
charged the respondent with removal pursuant to Section 237(a)(1 )(C)(i) of the Act, as
amended, in that after admission as a non-immigrant under Section 101 (a)(15) of the
Act he failed to maintain or comply with conditions of the non-immigrant status under
which he was admitted; Section 237(a)(1 )(8) of the Act, as amended, in that after
admission as a non-immigrant under Section 101 (a)(15) of the Act, he remained in the
United States for a longer time than permitted in violation of this Act or any other law of
the United States; and Section 237(a)(2)(A)(i) of the Act, as amended, in that he has
been convicted of a crime involving moral turpitude committed within five years after
admission for which a sentence of one year or longer may be imposed.
The Government has the burden to establish the respondent's removal by
clear and convincing evidence.
To establish the respondent's removal, the Government submitted
documents as part of Government's evidentiary submission, Exhibit 5. Specifically, the
Government submitted a document dated December 3, 2008 indicating that the
respondent, Andre Ibrahim, worked for Weaver Aircrafts starting August 4, 2008. And

A097-680-747

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United States at New York, New York on or about December 9, 2004 as an F-1 non-

at the time, he currently earned $10.25 an hour. The Government also submitted a
copy of the employment verification form, Form 1-9, signed by the respondent, relating
to employment in the United States. Exhibit 5. The Government also submitted a copy

2008 for forgery financial instrument, a state jail felony. The offense was committed on
September 4, 2007 under Texas Penal Code! Section 32.21 (b) of the Texas Penal
Code. He was given a sentence of 180 days state jail sentenced by court, four years
deferred adjudication. Restitution to be designated. The respondent also has a
conviction also dated December 15, 2008 for forgery of a financial instrument with the
offense occurring on September 4, 2007 under Section 32.21 (d) of the Texas Penal
Code, also a state jail felony. See Exhibit 5.
The respondent admitted that he is not a citizen or national of the United
States. That he is a native and citizen of Gabon. That he was admitted to the United
States at New York, New York on or about December 9, 2004 as an F-1 non-immigrant
student to attend ESL Language Centers in Louisville, Kentucky. That he transferred to
Grayson County College in Sherman, Texas on January 14, 2005. That he did not
attend Grayson County College from August 20, 2005 to November 19, 2005. That his
student status was terminated in SEVIS by Grayson County College for failure to enroll
on November 19, 2005. However, respondent denied that he was employed for wages
or other compensation on June 20, 2006 at Snelling Personnel Services.
The Court also received a computer printout from the SEVIS Eligibility
Center indicating that the respondent's F-1 status was terminated. See Exhibit 3.
Based upon the evidence in this case, the Court finds that the charges of
removal contained upon the Notice to Appear under Section 237(a)(1 )(C)(i) of the Act
have been established

by clear and convincing evidence in that the respondent violated

A097-680-747

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Immigrant & Refugee Appellate Center | www.irac.net

of the respondent's conviction records that consist of a conviction dated December 15,

his student status by working at Snelling Personnel Service. See Exhibit 5. The Court
also finds that the corresponding allegation number 7 has also been established by
clear and convincing evidence based upon the evidence submitted by the Government

The Court finds that the Government has met his burden in establishing
the two charges of removal contained upon the 1-261 in that the respondent has
remained in the United States for a longer time than permitted in violation of this Act or
any other law of the United States when his student status was terminated for failing to
attend Grayson County College as required by law. See Exhibits 3 and 5. The Court
also finds that the respondent's convictions for forgery of financial instruments pursuant
to Section 32.21 (d) of the Texas Penal Code relates to a crime involving moral
turpitude. They relate to fraud. And therefore, the Court finds that it does relate to a
crime involving moral turpitude. The next issue that the Court is going to resolve is
whether or not the crimes involving moral turpitude were committed within five years
after the respondent was admitted. And the Court finds the Government has met its
burden in this regard in that the respondent was admitted to the United States on
December 9, 2004. The offenses for forgery of financial instruments were committed on
September 4, 2007, within the five year period. See Group Exhibit 5. The next issue
the Court is going to resolve is whether or not the respondent's sentence of one year or
more could be imposed. In this regard, the Court refers to Section 12.35 of the Texas
Penal Code, a state jail felony. An individual adjudged guilty of a state jail felony shall
be punished by confinement in a state jail for any term of not more than two years or
less than 180 days. Therefore a sentence of one year or longer may have been
imposed upon the respondent pursuant to Section 12.35 related to his conviction for
forgery of a financial instrument under Section 32.21 (d) of the Texas Penal Code.

A097-680-747

June 11, 2013

Immigrant & Refugee Appellate Center | www.irac.net

at Group Exhibit 5.

.....-...

Therefore the charge of removal pursuant to Section 237(a)(2)(A)(i) of the Act has been
established by clear and convincing evidence for the reasons stated above.
In case removal becomes necessary, the Court designates Gabon. the

The respondent seeks relief from removal in the form of an application for
adjustment of status. The evidence in this case indicates that respondent is married to
a United States citizen, Kimberly Ibrahim, and that the marriage took place in 2008.
Kimberly filed an 1-130 petition on behalf of the respondent, which was approved on or
about June 1, 2009. Pursuant to that approval notice, the respondent submitted an
application for adjustment of status, Form 1-485. Because the respondent has been
convicted of two crimes involving moral turpitude that make him inadmissible under
Section 212(a)(21), respondent needed a waiver under Section 212(h) of the Act and he
has to show extreme hardship for a qualifying relative.
At today's hearing. the Court found deficiencies in the respondent's
application for adjustment of status. Those deficiencies included the affidavit of support
from the sponsor and co-sponsor. Specifically, the affidavit of support from Kimberly.
Kimberly has submitted three affidavits of support, along with tax returns for 2008 and
2007. The Court finds that pursuant to the regulations, respondent is required to submit
the sponsor's most recent tax returns. That would be, at a minimum, for the years 2012
or 2011. Respondent failed to do so. The Court would also note that it has concerns
about the tax return submitted by Kimberly in 2008. The tax return submitted to the
Court in 2008 on Kimberly's behalf does not list the respondent as a spouse, but more
importantly, Kimberly claimed that she is head of household even though Kimberly was
married to the respondent in 2008. Notwithstanding the respondent's being in the
detention facility located in Haskell. Texas for approximately two months, the Court finds

A097-680-747

June 11,

2013

Immigrant & Refugee Appellate Center | www.irac.net

country which the respondent is a citizen of.

that the respondent and Kimberly would be considered living together as husband and
wife and therefore Kimberly's tax return for 2008 does not reflect her true filing status.
But nevertheless, the major concern that the Court has is that it does not have the

Additionally, the co-sponsor's tax returns, because of Kimberly's low

income and to overcome the poverty guidelines, have also not been properly submitted
in that the co-sponsor. Lakeisha, has submitted tax returns for 2007 and 2009. The
Court does not have the proper affidavit of support completed for Lakeisha, but more
importantly, the most recent tax returns for Lakeisha as a co-sponsor for either 2012 or
2011. And therefore, the Court finds that respondent has failed to meet his burden of
proof that he is not inadmissible under the poverty guidelines as a public charge.
The Court also finds that pursuant to an application for adjustment of
status under Section 245 of the Act. respondent is required to submit to a medical
examination, a physical examination. The Court finds that he does have a medical
examination in the file, but that medical examination is outdated. The date on the
medical examination is dated sometime in January 2010. The Court finds that pursuant
to the regulations the medical examination is only valid for one year. And therefore, the
medical examination submitted to the Court that has the date of January 2010 is
outdated. Therefore, the respondent has failed to meet his burden of proof that he is
not inadmissible on medical grounds.
To address these deficiencies, the respondent has requested a
continuance in this case. The Government opposes the respondent's request for a
continuance, arguing that the respondent has not demonstrated good cause in that the
respondent has had several years to prepare his case.
After reviewing the evidence in this case, the Court finds that the

A097-680-747

June 11, 2013

Immigrant & Refugee Appellate Center | www.irac.net

properly completed affidavit of support with the most recent tax returns.

respondent has failed to establish good cause for a further continuance in this matter.
As previously mentioned, the respondent has been in removal proceedings since
approximately November 2009. On or about February 5 2009, the respondent was
1

On June 1, 2009, the Court was informed that the 1-130 petition had been
filed. The respondent requested a further continuance to allow his probation officer to
testify. The matter was continued until July 6, 2009.
On July 6, 2009, there was no evidence from the probation officer, either
through testimony or documentary evidence. Nonetheless, the Court continued the
case until October 26, 2009 to allow the respondent to submit the 1-485 application and
a fee receipt and the 1-601 waiver.
On October 26, 2009, the respondent did not have the fee receipt for the 1485. At the respondent's request, the case was continued until January 25, 201 O to
submit the appropriate documents.
On January 25, 2010, the matter was once again continued for the merits
hearing of August 11, 201 O for the respondent's application for adjustment of status.
The respondent on January 25, 201 O was given the 1-601 application.
The case did not go forward on August 11, 2010. The matter was
continued several times by the Court because of expedited cases. It was continued
from the date of August 11, 201 O to November 12, 2010. It was continued from
November 12, 2010 to March 17, 2011. It was continued from March 17, 2011 to
January 8, 2012. Then it was continued from that date until September 16, 2012. And
then from that date, it was continued to June 11, 2013.
The Court recognizes that the respondent is pro se and has taken that into
consideration of whether or not a continuance should be granted in this matter. And the

A097-680-747

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Immigrant & Refugee Appellate Center | www.irac.net

granted a continuance in this case to allow his wife to file an 1-130 petition.

Court finds that the respondent has not demonstrated that being represented prose
warrants a further continuance of this case. As previously mentioned, the respondent
has had approximately two years to gather all the documentation necessary to proceed

request with the Court requesting an expedited hearing. That request was denied by
the Court because of the Court's docket. The Court finds, again! the respondent has
been given sufficient enough time, approximately two years, to prepare his case to
submit the proper documents to the Court to meet his burden of proof. Additionally, the
Court finds respondent has been given sufficient enough time to find an attorney or
someone else to represent him who is qualified pursuant to the Board's regulations. but
has not. Based upon the facts and evidence in this case, the Court finds respondent
has failed to establish good cause warranting a further continuance in this case. The
Court also takes into consideration that if it continued the case, the next available date
would be 2015. That would mean more than approximately five years would have
passed since respondent should have been ready to go forward on this case. For the
above stated reasons, the Court finds that a continuance is not warranted and
respondent has failed to establish good cause. Therefore, his request for a continuance
is denied as a matter of discretion.
The next issue is whether or not the respondent's application for
adjustment of status should be granted.
The Court previously mentioned that the respondent's application for
adjustment of status has not been completed properly in that the Court does not have
the affidavit of support properly completed with the most recent tax returns for the
sponsor and co-sponsor. And therefore the respondent has failed to meet his burden of
proof to show that he is not inadmissible as a public charge. The Court also finds

A097-680-7 47

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with his application for adjustment of status. In fact. in 2011, the respondent filed a

respondent has failed to meet his burden of proof that he is not inadmissible on the
medical grounds because the medical examination that he submitted is over two years
old and it is only valid for approximately one year pursuant to regulations at 245 of the

Therefore, the Court finds the respondent's application for adjustment of

status should be pretermitted and denied.
The next issue the Court looks at is whether or not the respondent will
qualify for voluntary departure. The Court finds the respondent would not qualify for
voluntary departure because the Court is considering the respondent's request
departure at the conclusion of proceedings. Therefore the respondent has to establish
that he has been a person of good moral character during the required period of time.
In this case, the respondent has two convictions for forgery of a financial instrument on
December 15, 2008, which the Court has previously found relates to crimes involving
moral turpitude and the Court will find that the respondent cannot establish during the
required five year period of time that he has been a person of good moral character for
five years. And therefore the Court would pretermit any application for voluntary
departure. Additionally, the Court would also note that the maximum period of time that
the Court may grant a person for voluntary departure at the conclusion of removal
proceedings is 60 days. Respondent indicated to the Court that he could not depart the
United States within that 60 day period of time. Therefore the Court also finds
respondent has failed to establish that he would obey an order granting him voluntary
departure within the required period of time. So any application for voluntary departure
would have been denied by the Court for the reasons stated above.
Respondent is seeking no other relief from removal.
Accordingly, the following orders shall be entered:

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June 11,

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Immigrant & Refugee Appellate Center | www.irac.net

Act.

~I

ORDER
IT IS HEREBY ORDERED that respondent's request for a continuance be
denied.

of status pursuant to Section 245 of the Immigration and Nationality Act be pretermitted
and denied.
IT IS FURTHER ORDERED that respondent shall be removed and
deported from the United States to Gabon based upon the charge contained in the
Notice to Appear and the two charges contained on the Form 1-261.
DATED: June 11, 2013

DEITRICH H. SIMS
Immigration Judge

A097-680-7 47

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Immigrant & Refugee Appellate Center | www.irac.net

IT IS FURTHER ORDERED that respondent's application for adjustment

2013

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