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U.S.

Department of Justice

Executive Office for Immigration Review


Board ofImmigration Appeals
Office of the Clerk
5107 leesburg Pike, Suite 2000
Falls Church, Virginia 2204/

DHS/ICE Office of Chief Counsel - BOS


P.O. Box 8728
Boston, MA 02114

Name: MUHIA, ANTONY MUTHAKA

A 086-914-490

Date of this notice: 8/14/2015

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

DOWU-

ca.AA)

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Creppy, Michael J.

Userteam: Docket

For more unpublished BIA decisions, visit


www.irac.net/unpublished/index/
Cite as: Antony Muthaka Muhia, A086 914 490 (BIA Aug. 14, 2015)

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Bang,Kyung
Tadmor & Tadmor, LLP
340 Main Street
Suite 610
Worcester, MA 01608

...
U.S. Department of Justice

Decision of the Board of Immigration Appeals

Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A086 914 490 -Boston, MA

Date:

AUG 14 2015

IN REMOVAL PROCEEDINGS
APPEAL
ON BEHALF OF RESPONDENT: Kyung Bang, Esquire
CHARGE:
Notice:

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

APPLICATION: Continuance

The respondent, a native and citizen of Kenya, appeals from the Immigration Judge's
August 29, 2014, decision denying his request for a continuance. The record will be remanded
for further proceedings consistent with this decision.
We review findings of fact, including credibility findings, under the "clearly erroneous"
standard. 8 C.F.R. 1003.l(d)(3)(i). We review questions of law, discretion, or judgment, and
all other issues de novo. 8 C.F.R. 1003.l(d)(3)(ii).
The following procedural history and undisputed facts are relevant in this case. The
respondent entered the United States as a nonimmigrant visitor on September 7, 2003 (I.J. at 1;
Tr. at 14, 22; Exhs. 1-2). On January 19, 2006, he married a United States citizen, and she filed
a visa petition on his behalf (1.J. at 2; Tr. at 15-16; Exhs. 4, 5). On July 5, 2011, United States
Citizenship and Immigration Services (USCIS) denied this visa petition (I.J. at 2; Tr. at 25-26;
Exhs. 4, 5). On April 24, 2012, the marriage was terminated by divorce (Exh. 3).
On August 17, 2012, the respondent married a second United States citizen and thereafter,
she filed a visa petition on his behalf (1.J. at 2; Tr. at 15, 29; Exh. 3). On April 23, 2014, USCIS
denied this visa petition, finding that the respondent's prior marriage to a United States citizen
was entered into for the sole purpose of obtaining an immigration benefit, as described in section
204(c) of the Immigration and Nationality Act (Act), 8 U.S.C. 1154(c) (Exhs. 4, 5). The
respondent's wife appealed USCIS's decision to this Board and the respondent requested a
continuance before the Immigration Judge to await the Board's decision (I.J. at 2-3; Tr. at 53;
Exhs. 4, 5). On August 29, 2014, the Immigration Judge denied the respondent's request for a
continuance based on his finding that the visa petition decision was unlikely to be reversed on
appeal (I.J. at 2-3; Tr. at 54).
Cite as: Antony Muthaka Muhia, A086 914 490 (BIA Aug. 14, 2015)

Immigrant & Refugee Appellate Center, LLC | www.irac.net

In re: ANTONY MUTHAKA MUHIA a.k.a. Anthony Muhia a.k.a. Antony Muthaka
a.k.a. Antony Muthaka Muhi

AQ86 914 490

Accordingly, the following order shall be entered.


ORDER: The record is remanded for the Immigration Judge to conduct further proceedings
and for the entry of a new decision consistent with this order.

2
Cite as: Antony Muthaka Muhia, A086 914 490 (BIA Aug. 14, 2015)

Immigrant & Refugee Appellate Center, LLC | www.irac.net

On May 6, 2015, we issued an order in the visa petition proceedings reversing USCIS's
finding that there was substantial and probative evidence of fraud in the respondent's first
marriage (May 6, 2015, Board Decision). Accordingly, in light of our decision to remand the
record to USCIS in the visa petition proceedings, we conclude that it is necessary to remand the
record in these proceedings to the Immigration Judge. As the Board's decision is material
evidence that was previously unavailable, the Immigration Judge should consider the Board's
May 6, 2015, order in the visa petition proceedings in evaluating the respondent's request for a
continuance. See 8 C.F.R. 1003.2(c) (requiring that new, previously unavailable, material
evidence be proffered to support reopening). Further, upon remand, the parties shall have the
opportunity to present any additional evidence that may assist the Immigration Judge in
weighing the propriety of any further continuance requests made regarding the pending visa
petition.

August 29, 2014

File: A086-914-490
In the Matter of

ANTONY MUTHAKA MUHIA


RESPONDENT

)
)

IN REMOVAL PROCEEDINGS

CHARGES:

Section 237(a)(1 )(8) of the Immigration and Nationality Act.

APPLICATIONS:

Continuation of proceedings to pursue appeal at the Board of


Immigration Appeals.

ON BEHALF OF RESPONDENT: KYUNG GUN BANG


ON BEHALF OF DHS: BRANDON LOWY

ORAL DECISION OF THE IMMIGRATION JUDGE


The respondent in these proceedings is an adult male,native and citizen
of Kenya. The respondent was placed into removal proceedings through the issuance
of a Notice to Appear dated July 5, 2011. The respondent, through counsel,has
admitted all four allegations in the Notice to Appear and conceded the one ground of
removability under Section 237(a)(1 )(B) of the Immigration and Nationality Act. This
Court does find that removability has been established by evidence that is clear and
convincing and this Court will designate Kenya as the country for removal purposes.

Immigrant & Refugee Appellate Center, LLC | www.irac.net

UNITED STATES DEPARTMENT OF JUSTICE


EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
BOSTON,MASSACHUSETTS

The only relief that the respondent seeks in these proceedings today is a
continuation of these proceedings so that he may receive the decision of the Board of

Court has considered all of the evidence in this record up through and including Exhibit
6. The Court notes that Matter of Hashmi is the applicable Board of Immigration
Appeals decision here. Specifically, the guidance under which this Court determines
whether or not good cause exists to continue these proceedings. The Board has noted
that a variety of factors may be considered including, but not limited to, whether the
underlying visa petition is prima facie approvable. In this case, the Court finds that that
factor is ultimately dispositive. The Department of Homeland Security in a lengthy and
detailed decision denying the 1-130 visa petition filed on the respondent's behalf has
invoked a 204(c) bar specifically finding that based upon substantial and probative
evidence contained in the record, the previous marriage entered into by the beneficiary
and by a Ms. Ippolito was for the sole purpose of obtaining an Immigration benefit. The
USCIS April 231 2014 decision beginning on page 4 of Exhibit 4,therefore, is ultimately
determinative in this hearing today.
The respondent's underlying visa petition is not prima facie approvable.
Although the respondent argues to the Court that the Government, that is USCIS, erred
in deciding whether the 1-130 should be approved or denied,ultimately denying it based
upon the 204(c) bar, this Court finds the respondent's arguments as to why this Court
should continue these proceedings to await the BIA decision to be ultimately
unconvincing and to not form a good cause basis.
The respondent focuses on his arguments surrounding Ms. lppolito's drug
addictions and the addresses at which they lived. However, the respondent concedes
that these very issues were raised in the Government's Notice of Intent to Deny1 that the
A086-914-490

August 29, 2014

Immigrant & Refugee Appellate Center, LLC | www.irac.net

Immigration Appeals on his 1-130 appeal before this Court completes its hearing. The

respondent was represented by his same counsel during the response to the Notice of

to Deny, the Department of Homeland Security in their very detailed decision was
unconvinced and not only denied the current 1-130 but invoked the 204(c) bar. There is
nothing in any of the filings that convinces this Court, therefore, that a good cause basis
exists to await the BIA's decision on 1-130 appeal.
The Court understands the respondent's arguments in this regard but
simply does not find that they provide good cause in the face of the fact that the
underlying visa petition is not prima facie approvable. This Court does not find it
necessary to engage in further analysis regarding the remaining factors in Matter of
Hashmi. The respondent is not statutorily eligible for adjustment of status where he has
a 204(c) bar invoked against him,and whether or not the respondent merits a favorable
exercise of discretion is irrelevant where he is not statutorily eligible for adjustment. The
Court does not find any other reasons for a continuance or any other relevant
procedural factors that would change this Court's decision that good cause does not
exist to continue the proceedings and, therefore, the respondent's request to continue
the proceedings to await the BIA's decision is denied.
The respondent has withdrawn his request for voluntary departure in
either form, either pre or post-conclusion,that is either under 240B(e) or 240B(b) and,
therefore, the following orders will enter:
ORDERS
IT IS HEREBY ORDERED that the respondent's Motion to Continue these
proceedings be and is hereby denied;

A086-914-490

.&4%4J4.

August 29, 2014

Immigrant & Refugee Appellate Center, LLC | www.irac.net

Intent to Deny, and notwithstanding his response to the Government's Notice of Intent

IT IS FURTHER ORDERED that the respondent be and is hereby

Exhibit 1.

Please see the next page for electronic


signature

A086-914-490

:w.

MATTHEW J. D'ANGELO
Immigration Judge

August 29, 2014

--

- -- ..i&._ ......B -

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removed to Kenya based upon the one charge contained in the Notice to Appear at

/Isl/
Immigration Judge MATTHEW J. D'ANGELO

Immigrant & Refugee Appellate Center, LLC | www.irac.net

dangelorn on December 23, 2014 at 1:09 PM GMT

August29,2014