You are on page 1of 11

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 22041

DHS/ICE Office of Chief Counsel - KAN


2345 Grand Blvd., Suite 500
Kansas City, MO 64108

Name: NYAGA, FRANCIS NDEGWA

A 205-286-616

Date of this notice: 8/27/2015

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

DOWtL C!

l1JVL)

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Guendelsberger, John

Userteam: Docket

For more unpublished BIA decisions, visit


www.irac.net/unpublished/index/

Cite as: Francis Ndegwa Nyaga, A205 286 616 (BIA Aug. 27, 2015)

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

NYAGA, FRANCIS NDEGWA


1159 OLIVE VILLAGE COURT
OLIVETTE, MO 63132

U.S. Deartmnt of Justile


Executive Office for Immigration Review

Decision of the Board oflmmigration Appeals

Falls Church, Virginia 20530

File: A205 286 616-Kansas City, MO

Date:

In re: FRANCIS NDEGWA NYAGA

APPEAL AND MOTION


ON BEHALF OF RESPONDENT: Pro se
ON BEHALF OF OHS:

Melissa L. Castillo
Assistant Chief Counsel

APPLICATION: Continuance
The respondent, a native and citizen of Kenya, has appealed from the Immigration Judge's
decision dated July 8, 2014, denying his request for a continuance and granting his request for
voluntary departure. The Department of Homeland Security (OHS) opposes the appeal. The
proceedings will be administratively closed.
The Board reviews an Immigration Judge's findings of fact, including findings as to the
credibility of testimony, under the clearly erroneous standard. 8 C.F.R. 1003.l(d)(3)(i). The
Board reviews questions of law, discretion, and judgment and all other issues in appeals from
decisions of Immigration Judges de novo.
The Immigration Judge denied the respondent's motion for a continuance, noting that the
United States Citizenship and Immigration Services (USCIS) had denied the respondent's Form
1-130, Petition for Alien Relative, filed on the respondent's behalf by his United States citizen
wife. The Immigration Judge reasoned that the denial of the 1-130 was dispositive of the
continuance determination. However, the respondent presented evidence that a non-frivolous
appeal was filed in July 2014 from the denial of the 1-130 petition (I.J. at 4). We note that, the
appeal has not yet been forwarded to the Board by the USCIS.
Under these circumstances, and given the respondent's potential eligibility for adjustment of
status under section 245(a) of the Act, we conclude that administrative closure of these
proceedings is warranted until resolution of the pending 1-130 appeal. See Matter ofAvetisyan,
25 I&N Dec. 688, 696 (BIA 2012) (setting forth a non-exhaustive list of factors to be considered
when determining whether to administratively close proceedings, including the responsibility for
either party in contributing to any delay).
If either party to this case objects to the continued administrative closure of these
proceedings, a written request to reinstate the proceedings may be made to the Board. The Board
will take no further action in this case unless a request is received from one of the parties. The
request must be submitted directly to the Board of Immigration Appeals Clerk's Office, without
fee, but with certification of service on the opposing party.
Cite as: Francis Ndegwa Nyaga, A205 286 616 (BIA Aug. 27, 2015)

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

IN REMOVAL PROCEEDINGS

A205 286 616


ORDER:

The proceedings before the Board of Immigration Appeals in this case are

administratively closed.

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

2
Cite as: Francis Ndegwa Nyaga, A205 286 616 (BIA Aug. 27, 2015)

UNITED STATES DEPARTMENT OF JUSTICE


EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
KANSAS CITY, MISSOURI

ln the Matter of
)
)
)
)

FRANCIS NDEGWA NYAGA


RESPONDENT
CHARGES:

IN REMOVAL PROCEEDINGS

Section 237(a)(1)(C)(i) of the Immigration and Nationality Act (Act) after admission as a nonimmigrant respondent failed to maintain or
comply with conditions of nonimmigrant status under which he was
admitted;
Section 237(a)(3)(8)(iii) of the Immigration and Nationality Act (Act)
- alien convicted of a violation of or an attempt or conspiracy to
violate 18 U.S.C. Section 1546 (relating to fraud and misuse of
visas, permits, and other entry documents).

APPLICATIONS:

Motion for continuance; voluntary departure at the conclusion of


proceedings.

ON BEHALF OF RESPONDENT: SUZANNE BROWN, Esquire


ON BEHALF OF OHS: MELISSA L. CASTILLO, Esquire
Assistant Chief Counsel
2345 Grand Boulevard
Suite 500
Kansas City, Missouri 64108
ORAL DECISION OF THE IMMIGRATION JUDGE
The respondent is a 44-year-old married male native and citizen of Kenya.
On April 27, 2012, the Department of Homeland Security (OHS or Department)
1

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

July 8, 2014

File: A205-286-616

personally served a Notice to Appear charging the respondent with deportability under
Section 237(a)(1)(C)(i) of the Immigration and Nationality Act (Act), as noted above.

removal proceedings on May 1, 2012. See Exhibit 1.


At a Master Calendar hearing on May 17, 2012, the respondent appeared before
the Court, his rights were explained to him, and the hearing was continued for the
respondent to obtain representation by an attorney. The respondent was subsequently
represented by Attorney Suzanne Brown.
At a Master Calendar hearing on September 24, 2013, the respondent through
counsel admitted the seven factual allegations in the Notice to Appear and conceded
the charge of deportation as set forth in the Notice to Appear. The respondent
designated Kenya as the country of removal, should that be required.
The Department submitted documents in support of the factual allegations in the
Notice to Appear. See Exhibit 2.
Based on the respondent's admissions and there being no issue as to the factual
allegations or charge in the Notice to Appear, I find removability has been established
by clear and convincing evidence as required by Section 240(c)(3) of the Act; 8 C.F.R.
Section 1240.1O(c).
On October 23, 2013, the Department filed an additional allegation and charge of
deportability on Form 1-261. See Exhibit 1A. At the final hearing on July 8, 2014, the
respondent through counsel admitted factual allegation 8 after amendment and
conceded the additional charge of deportation. Based on the respondent's admissions,
the Court also finds the allegations and charge in Form 1-261 to be established by clear
and convincing evidence. The Department did file the criminal conviction record for the
respondent relating to allegation 8. See Exhibit 5.
A205-286-616

July 8, 2014

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

This Notice to Appear was filed with the Kansas City Immigration Court initiating

The respondent is currently married to a United States citizen who has filed a
visa petition on his behalf. The visa petition was originally filed on August 23, 2012.

has submitted the fee receipt for his visa petition as well as the application to adjust
status in Exhibits 3 and 4. The respondent requested a further continuance for the
completion of the adjudication of the visa petition filed on his behalf.
The Department opposed further continuance for adjudication of the visa petition
because the visa petition was denied by USCIS in a written decision issued on June 20,
2014. See Group Exhibit 6. The respondent now has filed an appeal of the denial of
the 1-130 visa petition with the Board of Immigration Appeals. See Exhibit 7. The
respondent's attorney requests further continuance for adjudication by the Board of
Immigration Appeals of all issues relating to the denied visa petition.
An Immigration Judge may grant a further continuance for good cause shown.
8 C.F.R. Section 1003.29. The Board of Immigration Appeals has held that a
continuance should only be granted upon a showing that the inability to proceed
occurred despite a diligent good faith effort to be ready to proceed, and that any
additional evidence sought is probative, non-cumulative and significantly favorable to
the respondent. Matter of Sibrun, 18 l&N Dec. 354 (BIA 1983).
More recently, the Board decided in Matter of Hashmi, 24 l&N Dec. 785 (BIA
2009), that the Court should consider five factors to determine if good cause exists to
further continue a case involving the application for adjustment of status premised on a
pending visa petition. They are:
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 &ta-t:tt-tefH.y-e-k+e1e-statutory eligibility for adjustment of
A205-286-616

July 8, 2014

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

The respondent requests adjustment of status under Section 245(i). The respondent

status;
4. Whether the respondent's application for adjustment merits a favorable

5. The reason for continuance and any other relevant procedural issues.
After considering the factors set forth in Matter of Hashmi, the Court does not find
good cause for a further continuance. The respondent was placed in removal
proceeding over two years ago. The Court has granted a continuance for adjudication
of the visa petition filed on his behalf. However, the visa petition was denied on the
merits by USCIS. The written decision of USCIS found that the petitioner had not met
her burden of proof in demonstrating the bona fide nature of the marriage to the
beneficiary by a preponderance of evidence.
The respondent's attorney notes that there are arguments to be made on appeal
as to how the decision denying the visa petition was improper and based on conflicting
information. The respondent has appealed the denial of the visa petition to the Board of
Immigration Appeals. The Department does opposea any further continuance. The
respondent is not today statutorily eligible to request adjustment of status because the
underlying visa petition was denied. Whether the respondent's visa petition will be
reversed on appeal by the Board is, at this point, unknown to the Court.
The respondent does have a criminal conviction in the United States District
Court for the Eastern District of Missouri. However, it does not appear this would be a
disqualifying criminal conviction or a Section 212(h) waiver would be required for a
crime involving moral turpitude. However, certainly the criminal conviction could be
considered in the exercise of discretion on any application for adjustment of status.
Based on the underlying denial of the visa petition and the Department's
opposition to any further continuance as well as the procedural history in this case
A205-286-616

July 8, 2014

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

exercise of discretion; and

where the respondent was placed in removal proceedings over two years ago and has
been granted a continuance for adjudication of the visa petition, for all these reasons

continuance will be denied.


The respondent has requested the only other relief that he is eligible for, which is
voluntary departure at the conclusion of proceedings. He has agreed he can post the
$500 voluntary departure bond and will comply with the Court's order. The respondent
will reserve appeal of the Court's decision. The Department has not opposed voluntary
departure at the conclusion of proceedings as a matter of law or in discretion. The
Court will grant this relief and grant the respondent the opportunity to appeal to the
Board of Immigration Appeals.
After considering the record in total, the following orders are entered:
ORDERS
ORDER: The respondent's motion for continuance is denied.
FURTHER ORDER: The respondent is granted voluntary departure from the
United States without expense to the Government within 60 days from the date of this
order to September 8, 2014. The respondent is required to post with OHS a voluntary
departure bond of $500 within five business days from the date of this order. If an
appeal of this decision is taken to the Board of Immigration Appeals, the respondent
must notify the Board within 30 days that the requisite voluntary departure bond was
posted or the Board will not consider voluntary departure in the final order. And the The
respondent will be provided orally and in writing the consequences of failing to depart
and the advisals relating to the motion to reopen.
In the event the respondent fails to comply with the foregoing terms, the grant of
voluntary departure shall automatically terminate and the respondent shall be removed
A205-286-616

July 8, 2014

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

the Court does not find good cause for a further continuance, and the motion for

from the United States to Kenya on the charges contained in the Notice to Appear and
Form 1-261.

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

PAULA V. DAVIS
Immigration Judge

A205-286-616

July 8, 2014

from the United States to Kenya on the charges contained in the Notice to /\ppear and

Form

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

PAUL/\ V. DAVIS

A205-286-616

July 8, 2014

..

/Isl/
Immigration Judge PAULA V. DAVIS

A205-286-616

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

davisp on September 17, 2014 at 4:02 PM GMT

July 8, 2014.