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(
respondent's removability has been established by clear and
convincing evidence.
The essential facts in this case are that the
respondent's United States citizen husband filed a visa petition
.for her on September 21, 2012. USCIS notified the respondent
that they were intending to deny that visa petition. They did
that by serving her a notice of intent to deny on June 4, 2011.
Ultimately, USCIS denied that visa petition on April 23, 2012,
with a final denial. The basis of the denial is because the
respondent's husband is subject to the Adam Walsh Act. The
respondent and her husband filed an appeal from that decision to
the BIA and that appeal was filed with the Board approximately
March 20, 2012. Those are all the essential facts that are
necessary in this case. Today, at the Master Calendar hearing,
the respondent has requested a continuance to allow for the
appeal of the denial of the visa petition in front of the BIA.
The Court is going to deny that request for a continuance for
the following reasons.
The decision to grant or deny a continuance is within the
Court's broad discretion and good cause must be shown for a
continuance. See in the Matter of Hashmi, 24 I&N Dec. 785, 788
( BIA 2009); 8 C.F.R. Section 1003.29, 1240.6.
In Hashmi, the Board established a framework for
determining whether good cause exists to continue pending final
adjudication of every family-based visa petition filed in
A087-948-239 2 May 3, 2012
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conjunction with an application for adjustment of status. See
Matter of Hashmi, supra. The Board concluded that a variety of
factors may be considered, including but not limited to: (1)
DHS's position on the continuous request; (2) whether the
underlying visa petition is pria facie approva1e; (3) the
respondent's statutory eligibility for adjustment of status;
(4) whether the respondent's application for adjustment of
status merits a favorable exercise of discretion; and (5) the
reasons for the continuance and other procedural factors. The
Board stated that these factors are illustrative, not
exhaustive. While all these factors may be relevant to a given
case, the Board in Hashi emphasized that the focus of the
inquiry is the apparent ultimate likelihood of success on
adjustment of status application.
In making its determination, the Court must look at the
threshold issue of whether there is a prima f acie approvable
visa petition. In Hashmi, the visa petition was unadjudicated
by USCIS, and therefore the Board focused on the IJ's role in
determining if a visa petition was viable, i.e., prima facie
approvable so as to warrant a continuance. The IJ in making a
prira facie determination is to look at the underlying visa
petitions and the supporting documents. The present case is
easily distinguishable from Hashmi. The respondent's visa
petition is no longer awaiting adjudication by USCIS; it has
been denied. Thus, the Court need not make a viability
A087-948-239 3 May 3, 2012
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determination on the visa petition as contemplated in Hashmi,
users has already done so and found the visa petition not
approva1e. On these facts, the Court simply cannot conclude
that the respondent's visa petition is prima facie approvable
for purposes of granting a continuance.
The Court finds this one factor - the absence of a prima
facie approvable visa petition is dispositive of the
respondent's request for a continuance. Accordingly, there is
no need to specifically address all the other relevant factors
mentioned in Hashmi. In sum, absent evidence of a prima facie
approvable visa petition, the Court finds no good cause to grant
a continuance. See Thimran v. Holder, 599 F.3d 841 (8th Cir.
2010) (finding no abuse of discretion at IJ's denial of a
continuance where the case had been continued for two years and
a second visa petition had been denied and was on appeal with
the BIA.
ORDER
IT IS HEREBY ORDERED that the respondent's request for a
continuance is denied.
IT IS FURT HER ORDERED that the respondent is ordered
removed from the United States to South Africa on the.charge
contained in her Notice to Appear.
BARRY J. PE
Imigration
A087-948-239 4 May 3, 2012
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' I
CERTIFICATE PAGE
I
I hereby certify that the attached proceeding before JUDGE
BARRY J. PETTINATOg in the matter of:
NON HLANHLA GUGULETHA NGEM
A087-948-239
CHARLOTTE, NORTH CAROLINA
is an accurate, verbatim transcript of the recording as provided
by the Executive Office for Imigration Review and that this is
the original transcript thereof for the file of the Executive
Office for Imigration Review.
LOIS SAUN DERS (Transcriber)
FREE STATE REPORTING, Inc.
JUNE 25, 2012
(Completion Date)
. =
.
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