Schroeder, Kevin Gerald

Melo & Hurtado PLLC

204 N. Person Street
Raleigh, NC 27601
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
Office of the Clerk
5107 Leesburg Pike. Suite 2000
Falls Church. Virginia 20530
OHS/ICE Office of Chief Counsel - CHL
5701 Executive Ctr Dr., Ste 300
Charlotte, NC 28212
Name: M H , G ... A -060
Date of this notice: 5/29/2014
Enclosed is a copy of the Board's decision and order in the above-referenced case.
Enclosure
Panel Members:
Adkins-Blanch, Charles K.
Sincerely,
DOWtL Ca.AAJ
Donna Carr
Chief Clerk
schw rzA
Userteam: Docket
For more unpublished BIA decisions, visit www.irac.net/unpublished
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
Cite as: G-M-H, AXXX XXX 060 (BIA May 29, 2014)
U.S. Department of Justice
Executive Office for Immigration Review
Decision of the Board of Immigration Appeals
Falls Church, Virginia 20530
File: 060- Charlotte, NC
Date:
MAY 2 9 2014
In re: G M H
IN REMOVAL PROCEEDINGS
APPEAL
ON BEHALF OF RESPONDENT: Kevin Schroeder, Esquire
ON BEHALF OF DHS: Susan Leeker
Assistant Chief Counsel
APPLICATION: Continuance
The respondent, a native and citizen of Mexico, has appealed from the Im.migration Judge' s
decision dated August 1, 2013, denying his request for a continuance and granting his request for
voluntary departure. The Department of Homeland Security (DHS) has filed a motion for
summary affirmance of the Immigration Judge's decision. The proceeding will be
administratively closed.
We review findings of fact, including credibility determinations, under the "clearly
erroneous" standard. 8 C.F.R. 1003.l(d)(3)(i). We review questions oflaw, including whether
the parties have met the relevant burden of proof, and issues of discretion under a de novo
standard. 8 C.F.R. 1003.l(d)(3)(ii).
The Im.migration 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 I-130 was dispositive of the
continuance determination. However, the respondent presented evidence that an appeal was filed
on the denied I-130 petition (I.J. at 2). Where a non-frivolous appeal has been taken, such a
denial is not a final decision and not necessarily dispositive with respect to the question of good
cause or prima facie approvability. We note that, as of yet, the appeal, filed in June of2013, has
not been forwarded to the Board by the USCIS.
Under these circumstances, and given the respondent's apparent eligibility for adjustment of
status under section 245(a) of the Act, we conclude that administrative closure of these
proceedings is warranted until the I-130 appeal is forwarded to the Board and a decision is
rendered on the appeal. See Matter of Avetisyan, 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 of either party in contributing to
any current delay, and the ultimate outcome of removal proceedings when the case is
recalendared before the Immigration Judge).
If either party to this case wishes to reinstate the proceedings, a written request to reinstate
the proceedings may be made to the Board. The Board will take no further action in the case
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
Cite as: G-M-H, AXXX XXX 060 (BIA May 29, 2014)
. .
060
unless a request is received from one of the parties. The request must be submitted directly to
the Clerk's Office, without fee, but with certification of service on the opposing party.
Accordingly, the following order will be entered.
ORDER: The proceedings before the Board of hnmigration Appeals in this case are
administratively closed.

FOR THE BOARD
2
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
Cite as: G-M-H, AXXX XXX 060 (BIA May 29, 2014)