Balducci, Paul V., Esq.

1450 Greene Street, Suite 105

Augusta, GA 30901
Name: URBAN, BIRGIT ESTHER
U.S. Department of Justice
Executive Ofce fr Immigration Review
Board of Immigration Appeals
Ofce of the Clerk
5107 Leesburg Pike, Suite 2000
Fals Church, Vrginia 20530
OHS/ICE Office of Chief Counsel - CHL
5701 Executive Ctr Dr., Ste 300
Charlotte, NC 28212
A 091-397-634
Date of this notice: 8/
13
/
2014
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosure
Panel Members:
Pauley, Roger
Sincerely,
| :t
Donna Car
Chief Clerk
Userteam: Docket
For more unpublished BIA decisions, visit www.irac.net/unpublished
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Cite as: Birgit Esther Urban, A091 397 634 (BIA Aug. 13, 2014)
U.S. Department of Justice
Executive Ofce fr Immigation Review
Decision of the Board oflmmigation Appeals
Falls Chuch, Virginia 20530
File: A091 3 97 63 4 - Chalotte, NC
In re: BIRGIT ESTHER URAN
IN RMOVAL PROCEEDINGS
APPEAL AND MOTION
ON BEHALF OF RESPONDENT: Paul V. Balducci, Esquire
ON BEHALF OF DHS:
CHARGE:
Melissa K. Metz
Assistant Chief Counsel
Notice: Sec. 23 7(a)(l)(B), I&N Act (8 U.S.C. 1227(a)(l)(B)] -
In the United States in violation of law
APPLICATION: Continuace; remand
Date:
AUG
18 2014
The respondent, a native and citizen of Gerany, timely appeals an Immigation Judge's
Januay 2, 2013 , decision. The Immigration Judge fund the respondent to be removable as
charged, denied her request fr a continuace both to pursue an appeal of the denial by
U. S. Citizenship and Immigration Services ("USCIS") of an 1-3 60 Special Immigrant Petition
and to fle a 1-918 Petition fr U Nonimmigrat Status with USCIS, but granted her the privilege
of voluntaily departing the United States under section 240B(b) of the Act, 8 U. S.C. 1229c(b).
The respondent has also fled a motion to remand this matter to the Immigration Judge to await
adjudication of her U visa petition. The motion will be granted, and the record will be remanded
to the Immigration Judge fr fer proceedings and fr the enty of a new decision.
On appeal, the respondent has specifcally indicated that she is not contesting the
Immigration Judge's denial of a continuance insofar as it concers the 1-3 60 petition
(Respondent's Appeal Brief at 5). However, she agues that the respondent presented good
cause fr a continuace to pursue a "U" nonimmigrant visa fr victims of violent crimes. In his
decision, the primay basis upon which the Immigration Judge denied a continuance fr the
U visa was "because her U visa is not prima fcie approvable, " observing that, at that time, the
respondent had not yet fled a U visa petition with USCIS and had not obtained a required law
enfrcement certifcation. See Matter of Sanchez-Sosa, 25 I&N Dec. 807, 814 (BIA 2012)
(stating that, in the absence of an approved law enfrcement certifcation, an alien generally
cannot show good cause fr a continuance to await processing of a U visa); 8 C. F .R.
214.14(c)(2)(i).
However, on appeal the respondent has submited evidence that, subsequent to the
Immigration Judge's decision, she fled a nonimmigrant U visa petition with USCIS, along with
the required approved law enfrcement certifcation (as well as a application fr a waiver of
inadmissibility). She has fled a motion to remad this mater to the Immigation Court to await
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Cite as: Birgit Esther Urban, A091 397 634 (BIA Aug. 13, 2014)
A091 397 634
processing of the petition by USCIS. Motions to remand ae subject to the same substantive
requirements as motions to reopen. Matter of Coelho, 20 I&N Dec. 464 (BIA 1992).
Specifcally, "[a] motion to reopen [or remand] proceedings shall not be ganted unless it appeas
to the Boad that evidence sought to be ofered is material and was not available and could not
have been discovered or presented at the frmer heaing." See 8 C.F . R. 1003 .2( c ). In addition,
motions to reopen to fle a new application fr relief must show prima facie eligibility fr the
relief sought. Matter of Gutierrez, 21 I&N Dec. 479, 482 (BIA 1996) (fnding that a alien must
establish prima facie eligibility fr the relief sought befre a motion to reopen wll be grated);
see also Matter of Coelho, 20 I&N Dec. 464 (BIA 1992) (fnding that the Boad may deny
a motion to reopen proceedings where a prima facie case fr the relief sought has not been
established). Given that the law enfrcement cerifcation post-dates the Immigation Judge's
decision and that the respondent has established prma fcie eligibility fr a nonimmigrant
U visa, we will remand this mater to the Immigration Judge with instructions that this mater be
continued fr a reasonable period of time to allow fr te processing of the respondent's U visa
petition with USCIS. See Mater of Sanchez Sosa, supra (stating that an aien who has fled
a prima fcie approvable petition fr a U visa wit USCIS will ordinarily warrat a fvorable
exercise of discretion fr a continuance fr a reasonable period of time).
Accordingly, the fllowing order will be entered.
ORER: The motion is grated, and the record is remanded to the Immigration Judge fr
fher proceedings consistent with the fregoing opinion and fr the enty of a new decision.
F
ORTHE BOAR
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Cite as: Birgit Esther Urban, A091 397 634 (BIA Aug. 13, 2014)


UNITED STATES DEPATMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRTION REVIEW
United States Immigration Cour
IN THE MATTER OF
5701 Executive Center Drive, Suite 400
Charlotte, NC 28212
) IN REMOVAL PROCEEDIGS
)
URBAN, Birgit Esther ) File No. A 091-397-634
Respondent.
)
) DA TE: January 2, 2013
)
CHARGE: Section 237(a){l)(B) of the Immigration and Nationality Act
APPLICATION: Motion to Grant Continuance
ON BEHALF OF RESPONDENT:
Paul v. Balducci, Esq.
1450 Greene St., Ste. 130
Augusta, GA 30901
ON BEHALF OF THE GOVERMENT:
Susan J. Hiller, Assistant Chef Counsel
Depaent of Homelad Security
5701 Executive Center Drive, Suite 300
Chalote, NC 28212
WRITTEN DECISION OF THE IMMIGRTION JDGE
I. Procedural History
Respondent is a fmale native and citizen of Germany. On October 17, 2007, the
Depatment of Homeland Security ("DHS'') sered Respondent a Notice to Appea. The DHS
alleged, in pa, that Respondent was admitted to the United States on or about October 10, 1981,
a a nonimmigrant visitor authorzed to remain in the United States fr a temporary period not to
exceed six months, and that she overstayed her period of admission without authorization.
Respondent, though counsel, admitted the fctual allegations and conceded the charge of
removability under section 237(a)(l)(B) of the Immigration and Nationality Act ("INA" or
"Act"). Accordingly, the Cour fnds, by clear and convincing evidence, that Respondent is
removable as charged.
On August 28, 2009, Respondent's United States citizen daughter fled an I-130 Petition
fr Alien Relative on her behalf. On December 24, 2009, United States Citizenship and
Immigration Services ("USCIS") approved the visa petition. On October 18, 2010, the
Respondent fled her I-485 Application to Adjust to Permanent Resident Status. On January 4,
2011, the Court held a individual heaing on Respondent's application fr adjustment of status,
at which time it became evident that Respondent had made a flse claim of United States
citizenship on a frearms tansaction record. During the hearing, Respondent testifed that she
was the victim of domestic violence. Respondent's counsel indicated that Respondent would
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like to f
l
e an 1-360 Special Immigrant Petition based on the alleged abuse fom her United States
cfizen husband. The Cour permitted her to do so and continued te matter.
On February 28, 2011, USCIS received Respondent's 1-3 60 petition. On August 27,
2012, USCIS denied the petition, and on September 26, 2012, Respondent fled an appeal. On
November 15, 2012, and November 29, 2012, the Cour held master calendar hearings where
Respondent's denied 1-360 petition and subsequent appeal was discussed. On November 29,
2012, Respondent submitted to the Cour an 1-918 Petition fr U Nonimmigrant Status, witout
the required accompanying certifcation. Respondent has not yet fled this U visa petition with
USCIS. Respondent requested a continuance to fle and allow USCIS to adjudicate the U visa.
II. Continuances in Removal Proceedings
Te decision to grant or deny a continuance is within the Court's broad discretion and
good cause must be shown fr a continuance. See Matter of Sanchez Sosa, 25 I&N Dec. 807,
812 (BIA 2012); Matter of Hashmi, 24 l&N Dec. 785, 788 (BIA 2009); 8 C.F.R. 1003 .29,
1240. 6. "Adjudication of a motion to continue should begin with the presumption . . . that
discretion should be fvorably exercised where a prima fcie approvable visa petition and
adjustment application have been submitted in the course of an ongoing removal hearing. "
Matter of Hashmi, 24 l&N Dec. at 790 (citing Matter of Garcia, 16 l&N Dec. 653, 657 (BIA
1978)).
In Matter of Hashmi, the Board established a famework fr determining whether good
cause exists to continue proceedings pending fnal adjudication of a fmily-based visa pettion
fled in conjunction with an adjustment of status application. Id at 790-94. The Board
concluded that a variety of fctors may be considered, including, but not limited to: (1) the
DHS's position on the continuance request; (2) whether the underlying visa petition is prima
fcie approvable; (3) te respondent's statutory eligibility fr adjustment of status; (4) whether
the respondent's application fr adjustment merits a fvorable exercise of discretion; and (5) the
reason fr the continuance and other procedural fctors. Id at 790. These fctors are illustative,
not exhaustive. Id. While all these fctors may be relevant in a given case, the Board in Hashmi
emphasized that the fcus of the inquiry is the apparent ultimate likelihood of success on the
adjustment application. Id.
The Court has considered the fctors espoused in Hashmi to the present case. In making
its determination, the Court must look at the threshold issue of whether there is a prima fcie
approvable 1-3 60 petition. In Hashmi, te visa petition was unadjudicated by USCIS and
therefre the Board fcused on the Immigration Judge's role in determining if the visa petition
was viable, i.e., prima fcie approvable, so as to warrant a continuance. The Court, in maing a
prima fcie determination, considers the underlying visa petition and supporing documents. The
present case is easily distinguishable fom Hashmi. Respondent's 1-360 petition is no longer
awaiting adjudication; rather, USCIS has denied it. Thus, the Cour need not make a viability
deterination of the 1-360 petition as contemplated in Hashmi. USCIS has already done so and
fund the visa petition was not approvable. On these fcts, the Cour simply caot conclude
2
A 091-3 97-634 January 2, 2013
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.;.
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that Re
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pondent's I-360 petition is prima fcie approvable fr the purose of ganting a
continuance. In so fnding, the Court obseres that, while not binding under the Fourth Circuit,
many other circuit courts have recogized it is appropriate fr an Immigration Judge to deny a
continuance where USCIS ha initially denied the immigrant visa petition. See, e.g., Jayoun Min
Sheehan v. US Atty. Gen., 418 F. App'x. 842 (11th Cir. 2011); Mir v. Holder, 374 F.App'x. 95
(2d Cir. 2010); Thimran v. Holder, 599 F.3d 841 (8th Cir. 2010).
The Court fnds that this one fctor-the absence of a prima fcie approvable 1-360
petition-is dispositive of Respondent's request fr a continuance as it pertains to the appeal of
USCIS's denial of her petition. Accordingly, there is no need to specifcaly address all of the
other relevant fctors mentioned in Hashmi with regard to Respondent's 1-360 petition. In sum,
absent evidence of a prima fcie approvable petition, the Court fnds no good cause to grat a
continuance. See Thimran v. Holder, 599 F.3d 841 (8th Cir. 2010) (fnding no abuse of
discretion in IJ' s denial of a continuance where the case had been continued fr over two yeas,
and a second visa petition had been denied and was on appeal with the Board of Immigration
Appeals).
Te Cour next considers Respondent's 1-918 Petition fr U Nonimmigrant Status. In
Matter of Sanchez Sosa, the Board fund that, when awaiting the adjudication of an alien's
pending U nonimmigrant visa petition, the Court should consider: (1) the DHS's response to te
motion to continue; (2) whether the underlying visa petition is prima fcie approvable; ad (3)
the reason fr the continuance and other procedural fctors. 25 I&N Dec. at 812-13 (citing
Matter of Hashmi, 24 I&N Dec. at 790).
In the instat case, the DHS opposes a continuance based on: (1) Respondent being in
proceedings since 2009; (2) her burglay and assault convictions; (3) her flse claim to United
States citizenship; ad (4) the denial of her 1-360 petition. The Court, though fnding the DHS's
aguments to be persuasive, denies Respondent a continuace because her U visa petition is not
prima fcie approvable. Respondent ha not yet fled her U visa petition with USCIS and has not
submitted the accompanying certifcation (Form 1-918, Supplement B), as required fr the
submission of initial evidence to USCIS. See 8 C. F. R. 214.14(c)(2)(i).
The Court further denies a continuance fr the U visa petition based on the procedural
posture of this case. Respondent has been in removal proceedings since 2007. She attended her
frst heang befre the Court, with counsel, in November 2009. During her individual hearing in
January 2011, Respondent testifed regarding her alleged abuse fom her United States citizen
husbad. The Court thereafer gave Respondent ample opportunity to fle her I-360 petition,
which she fled with USCIS in February 2011. Subsequently, the Court granted Respondent
numerous continuances to await the adjudication by USCIS of the I-360 petition. Respondent's
present counsel, Mr. Balducci, became her attorey in November 2011, afer her I-360 petition
had already been fed with USCIS. Respondent's current counsel thereafer appealed the USCIS
denial of the 1-360 petition in September 2012.
3
A 091-397-634 Janua 2, 2013
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The Cou fnds that Respondent had more than sufcient time to apply fr a U visa. Her
U

visa petition indicates that the abuse occured between approximately 2000 and 2010. Thus,
Respondent had already allegedly sufered abuse while in removal proceedings begining in
2007. The fct that Respondent's counsel did not submit the U visa petition until November
2012, three years afer Respondent's frst master calendar hearing in 2009, strongly suggests that
Respondent is frestalling the conclusion of her removal proceedings. See Matter of Sanchez
Sosa, 25 I&N Dec. at 815 (acknowledging that an alien seeking nonimmigrant status uder
section 101(a)(15)() of the Act should not be granted a continuace "as a dilatory tactic to
frestall te conclusion of removal proceedings" where it is ulikely that the application will be
granted)); see also Taki v. Holder, 398 F.App'x. 860, 861 (4th Cir. 2010). Respondent's case
was continued multiple times in order fr the I-360 petition to be adjudicated. Respondent could
have fled the U visa petition while her J "360 petition was pending with USCIS fr
approximately a year and a half (between February 2011 and August 2012). During this time,
Respondent could have fled te U visa petition based on the same alleged abuse fom her
husband. Her filure to do so is yet another indication that she is frestalling the conclusion of
her removal proceedings.
Notably, Respondent has sat on her rights fr over a yea since obtaining the
representation of her curent counsel. Respondent's counsel had ample time to obtain the
requisite certifcation and fle the U visa petition with USCIS. Instead, he submitted te U visa
petition, without a accompanying certifcation, to the Court a year aer becoming Respondent's
counsel. Respondent's filure to act on her rights, even if it is attributable to her counsel, canot
be excused in order fr her proceedings to be continued. 1
III. Conclusion
Having considered the fctors set frth in Matter of Hashmi and Matter of Sanchez Sosa,
the Court fnds that Respondent has not set frh good cause fr a continuance. See 8 C.F.R.
1003 .29, 1240.6 (stating that a party seeking continuce has the burden of establishing good
cause); see also Matter of Perez-Andrade, 19 I&N Dec. 433, 434 (BIA 1987) (the decision to
grant or deny a continuance fr good cause is witin the Immigration Judge's discretion).
Accordingly, the Court enters the fllowing:
To the extent that Respondent believes she has received inefective assistance of counsel fom her frmer atorey
or cu ent counsel, Respondent is required to comply with the procedural requirements of this type of claim. See
Matter of Lozada, 19 I&N Dec. 63 7 (BIA 1988).
4
A 091 . 397-634 Janua 2, 2013
l
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ORER
IT IS HERBY ORDERED that the Respondent's request fr a continuace is DENIED.
IT IS FURTHER ORDERED that Respondent be granted, in lieu of a order of remova, the
privilege of deparing the United States voluntaily and at her own expense, such depare to
take place on or befre March 4, 2012. Such deparure must take place under such conditions a
may be imposed by the Deparment of Homelad Security.
IT IS FURTHER ORDERED that, should Respondent fil to comply wit any of the above
orders, the voluntay deparure order shall lapse without fher notice or proceedings and this
order shall become efective at once: Respondent shall be removed fom the United States to
Gerany on the charge contained in her Notice to Appear.
IT IS FURTHER ORERED that Respondent shall post a voluntary depaure bond in the
amount of $500 with the Deparment of Homeland Security within fve business days fom the
date of this order to ensure that she depars voluntarily, when and as required. If said bond is not
posted within fve business days, te voluntary departure order shall lapse, and the order of
removal shall take efect the fllowing day.
IT IS FURTHER ORERED that, should Respondent fail to depa voluntarily when and as
required, she shall then each become subject to a fne in the amount of $3,000 and will become
ineligible fr a period of ten years fr any frther relief, cacellation of removal, voluntary
departure, adjustment of status, change of stats and registry.
/, -13
Date Bary J. Petina
United States Imigration Judge
Charlotte, NC
Voluntar Departure Bond Advisal: If you appeal this decision, you are required to submit
sufcient proof of having posted this bond. This proof must be fled with the Boad of
Immigation Appeas within 30 days of fling te appeal. If you fil to do so, the Boad of
Immigation Appeals will not reinstate volunta depare in its fnal order. See 8 C.F.R.
1240.26( c )(3)(ii).
5
A 091-397-634 Januay 2, 2013
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