Friday, November 13, 2009

BIA Decision: Standard for Adjudicating Motions for Continuance

The Board of Immigration Appeals has just issued a new decision entitled Matter of Rajah, Interim Decision #3662, 25 I&N Dec. 127 (BIA 2009)

The case involves a native and citizen of Morocco that came to the United States on December 13, 1994 as a visitor. The Respondent was granted six months of visitor status, but did not depart the United States when his status expired. Meanwhile the Respondent was able to find unautorized employment in the United States in order to support himself.

The Respondent’s employer ultimately filed a labor certification on his behalf on April 30, 2001, which would render him eligible to apply for adjustment of status under former 245(i).

On April 22, 2003, almost ten years after his arrival, immigration court proceedings were instituted against the Respondent charging him with removability for overstaying his visitor status. The Respondent’s first hearing before the Immigration Judge was on May 30, 2003.

The Respondent requested and obtained multiple continuances of his case (thirteen) during an 18-month period. The proceedings were continued to enable him to obtain counsel to represent him, to allow the Department to respond to his motion to terminate proceedings, and to enable the Respondent to provide the Court with a status update on the pending labor certification.

Finally, on December 16, 2004, the Respondent sought another continuance based on the pending labor certification, but the Immigration Judge denied his request, and the Board of Immigration Appeals dismissed the appeal. The case then was reviewed by the Second Circuit Court of Appeals who remanded the case back to the Board of Immigration Appeals for the Board to set “standards that reflect various situations of those seeking such continuances.” See Rajah v. Mukasey, 544 F.3d 449 (2d Cir. 2008).

On remand the Board ruled that:

(1) In determining whether good cause exists to continue removal proceedings to await the adjudication of a pending employment -based visa petition or labor certification, an Immigration Judge should determine the alien’s place in the adjustment of status process and consider the applicable factors identified in Matter of Hashmi, 24 I&N Dec. 785 (BIA 2009), and any other relevant considerations;

(2) An alien’s unopposed motion to continue ongoing removal proceedings to await the adjudication of a pending employment-based visa petition should generally be granted if approval of the visa petition would render him prima facie eligible for adjustment of status; and

(3) The pendency of a labor certification is generally not sufficient to warrant a grant of a continuance.

The Board applied these standards to the Respondent's case and dismissed his appeal because despite the fact that his labor certification was ultimately approved while he was fighting to remain in the United States, an I-140 Petition was not filed within 180 days of the certification. The Respondent therefore did not have immediate eligibility to apply for adjustment of status despite the fact that he had been grandfathered in under 245(i).

The Respondent had a new employer who was also willing to sponsor him for his Green Card, but had not taken any steps to begin the process. As a result the Board dismissed the appeal based upon the Respondent’s failure to establish a prima facie case for the relief sought.

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