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U.S.

Department of Justice
Executive

Office for Immigration Review

Board ofImmigratio11 Appeals Office of the Clerk


5 IOi Lutlmrg PiJc. S11ite 2fHJO Falls Church, Virginiu :!2041

Morton, Jonathan 4390 N. Federal Hwy, Ste 213 Ft. Lauderdale, FL 33308

OHS/ICE Office of Chief Counsel MIA 333 South Miami Ave., Suite 200 Miami, FL 33130

Immigrant & Refugee Appellate Center | www.irac.net

Narne: FERREIRA, ANDERSON

A099-982743

Date of this notice: 311812011

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

Donna Carr
ChiefCJerk

Enclosure

Panel Members: Cole, Patricia A.

Cite as: Anderson Ferreira, A099 982 743 (BIA Mar. 18, 2011)

U.S. Department of Justice Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 22041

File:

A099 982 743

Miami, FL

Date:

MAR 1 8 2011

In re: ANDERSON FERREIRA IN REMOVAL PROCEEDINGS

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APPEAL ON BEHALF OF RESPONDENT: ON BEHALF OF OHS: Jonathan Morton, Esquire

Patricia B. Kelly Le Bienvenu


Assistant Chief Counsel

CHARGE: Notice: Sec. 237(a)(lXB), I&N Act [8 U.S.C. 1227(a)(l)(B)] In the United States in violation of law
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APPLICATION: Continuance; remand

The respondent, a native and citizen of Brazil, appeals the February 9, 2010, decision of the Immigration Judge denying his request for a continuance in order to await the availability of a visa based on his approved employment-based visa petition (1-140). The Department of Homeland Security has filed an o pposition. The appeal will be dismissed. Upon our de novo review, we agree with the Immigration Judge that the respondent has not shown good cause for a continuance to await the availability of an immigrant visa based on his approved 1-140 petition. See 8 C.F.R. 1003.29, 1240.6 (2010) {stating that a party seeking a continuance has the burden of establishing good cause). The respondent's pri ority date is June 2, 2008. At the time of the respondent's hearing, the cut off date for third-preference employment-based visas was December 15, 2002 (l.J. at 2). 8 C.F .R. 1245 .1(g) {an immigrant visa is available when the app1icant's priority date is earlier than the date shown in the current Department of State Visa Bulletin for the applicant's preference category). Because an immigrant visa was not available and would not be for some time, we agree with the hnmigration Judge that the respondent did not show good cause for a continuance {I.J. at 2). See Chacku v. U.S. All '.Y Gen.,

555 F.3d 1281, 1 286 (11th Cir. 2008) {affirming denial of a continuance where immigrant visa was not immediately available to alien); see also Maller of Rajah, 25 I&N Dec. 127, 13 6 (BIA 2009) (stating that "a respondent who has a prima facie approvable 1-140 and adjustment application may not be able to show good cause for a continuance because visa availability is too remote,,).
The respondent asks that these proceedings be remanded to afford him the opportunity to apply for adjustment of status on the basis of an earlier priority date. See Matter of Coelho, 20 l&N Dec. 464, 47 1 (BIA 1992) {the requirements for a motion to remand are essentially the

Cite as: Anderson Ferreira, A099 982 743 (BIA Mar. 18, 2011)

A099 98 2 743
same as the requirements for a motion to reopen). The respondent exp1ains that he is the beneficiary of two employment-based visa petitions (1-140); one filed by D'Paula Home Services, Inc. wi th a priority date of September 13, 2005("first1-140"), and the other filed by Color Factory, Inc. with a priority date of Jwie 2, 2008("second1-140").1 See Respondent's Brief, Attachments A and B. Regardless ofwhether this documentation was previously unavailable, it does not support reopening.

Although the respondent asserts the first 1-140 is pending, the record reveals that it was denied on December 14, 2007 (Exhs. 4, 5). A denied1-140 cannot confer a priority date. See 8 C.F.R. 204.S(e).

Immigrant & Refugee Appellate Center | www.irac.net

The respondent also seeks reopening to appl y for adjustment of status pursuant to 204G) of the Act, 8 U.S.C. I 154(j). See Respondent's Brief at 4-5. Presumabl y, he seeks to port from

the first1-140 job to the second 1-140 job. Because the first 1 1 40 was denied, it cannot be used to port under section 204(j) of the Act. See Matter ofAl Wazzan, 25 I&N Dec. 359 (AAO 2010)
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{an I-140 that was ultimately denied cannot be deemed "valid" for 2040) purposes).
ORDER:

The respondent's appeal is dismissed.

FOR THE BOARD

The responden t indicates that the priority date for the first 1-140 is May 30, 2007, the date the 1-140 was filed with the United States Citizenship and Immigration Services (USCJS). See Respondent's Brief at 3, Attachment A. However, the date the underlying labor certification is filed with the Department of Labor, here, September 13, 2005, is the priority date. See 8 C.F.R. 204.S(d).

Cite as: Anderson Ferreira, A099 982 743 (BIA Mar. 18, 2011)

U.S. DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT Miami, Florida

File A 099 982

743

Februa r y 9,

2010

Immigrant & Refugee Appellate Center | www.irac.net

In the Matter of

ANDERSON FERREIRA,

R esponde n t

) ) ) )

IN REMOVAL PROCEEDINGS

CHARGE:

Section 237(a) (1) (B) of the Immigrati on N a ti ona lit y Act.

A PPL I CATI O N :

ON BEHALF OF THE RESPONDENT:

ON BEHALF OF THE DEPARTMENT OF HOMELAND SECURITY:


Patricia Kelly-Le Bienvenu,

Jonathan Morton,

Esquire

Esquire

ORAL DECISION OF THE IMMIGRATION JUDGE

The Notice to Appear ha been marked into the record as E xh ib it 1. The a l l e gations have been admitted and re mo va bili ty

was conceded under the single c har ge of removal of 23 7(a) (1) (B)
of the Immigration

Na t ion a l it y Act and Brazil has


So the Court does

been designated

as the cou ntr y of removal.

find that the issue

of removability has been established by evidence that is clear and convincing.


The only i ssu e that has remained pe ndi n g b ef or e

the Court is what relief the respondent would be eligible to

pursue before the Court

The r espo nd en t,

at this time, does appear to have an I-


'\

PRY

140 approved on his behalf and, unfortunately,


inunediately available for the respondent. approval notice,

there is no visa

According to the

the respondent is a skilled worker or

professional and his priority date is June 2, Now at the hearing today,

2008.

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the Court has extensively

argued this or taken argument from both counsels as to how the Court should proceed. Counsel for the respondent understandably

requests from the Court that this matter be continued in order to allow the respondent's visa to become current. The Department of

Homeland Security argues that it is not good cause to continue these proceedings given that the priority date is so far off. The visa bulletin for March of 2010, before it today, category, which the Court does have

does indicate that the employment based

the p riority date for third preference is December 15, as the Court has just indicated, the respondent's

2002 and,

priority date is June 2,

2008.

There is a considerable period of

time before this respondent's priority date will become current and before he is eligible to seek adjustment of status either before the Court or before the Citizenship and Immigration services. Given that there is an extensive period of time before

his visa becomes current,

the Court does agree with the

Department that there is no good cause to continue these proceedings. The respondent has not requested any other relief before the Court, A not even voluntary departure, so the Court has February 9,

099 982 743

2010

'
PRY no choice but to enter an order of removal against the resp ondent from the United Sta tes to Brazil. respondent, through counsel,

The Court fur th e r notes the

argue d th a t there was case law tha t however, there is no

supporte d its p osition of the continuance,

Immigrant & Refugee Appellate Center | www.irac.net

case law that the Court knows of that would find the Court should
continue proceedings for an indefinite period of time in order for relief to be come available.

The case law in the area for

continuances in t he area of labor certifications or I-140s all deal with the issue of whethe r a it is approved, or an I-140,
l ab or certification,

as soon as

as soon as it is adjudicated by
and if tha t was

USCIS,

would make a visa imme diate ly available ,

the circumstance in this case , a con ti nuanc e

the n the Court would gladly grant

However,

th at is not the circumstance in th is it has no choice but to

case and as the Court has indicated,


enter an order of removal.

And the re sponde nt's case having no it, therefore and

other application for relief pending be fore accordingly,

the Court will en ter the following order.

IT IS HEREBY ORDERED that the respondent be ordered removed based on the charges contained in the Notice to Appear from the United States to Brazil.

MARIA LPE i=ENRIEz


Immigration Judge

.. -o
-

A 099

982

743

February 9,

2010

'
CERTIFICATE PAGE
I hereby certify that the attached proceeding

bfore MARIA LOPEZ-ENRIQUEZ in the matter of:

Immigrant & Refugee Appellate Center | www.irac.net

ANDERSON FERREIRA

A 099 982 743

Miami,

Florida

was

held

as

he rei n

appears ,

and

that

his

is

the

original

t.tanscript

thereof

for

the

file

of

the

E x ec u tive

Office

:or

Inunig ra ti on Review.

riber)

Deposition Services, Inc. 6245 Executive Boulevard Rockvil l e, Maryland 20852

(301)

881-3344

March 29.

2010

(Completion Date)