SUSAN FORTINO-BROWN, ESQUIRE

U.S. Departent of Justice

Executive Ofce fr Imgation Review
Board of Immigration Appeals
Ofce of the Clerk
5107 leebur Pik. Sul1e 2000
Falb Chutl. Yri1ia 1101
LW OFFICES OF SUSAN FORTINO-BROWN
531 S. PLYMOUTH COURT, SUITE 103
CHICAGO, IL 60605
DHSnCE Ofice of Chief Counsel CHI
55 East Monroe Street, Suite 1700
Chicago, IL 60603
Name: RANI, SADRUDDIN ALI BHA A07 4-88126
_ate of this notice: 1/122011
Enclosed i a copy of te Boad's deision ad order in te above-referenced case.
Enclosure
Panel Members:
Cole, Patricia A.
Filppu, Lu S.
Pauley, Roger
Sincerly,
Donna Car
Chief Clerk
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Cite as: Sadruddin Ali Bhai Rajani, A074 088 126 (BIA Jan. 12, 2011)
For more unpublished BIA decisions, visit www.irac.net/unpublished
U.S. Deparent of Justce
Executive Ofce fr Imigation Review
Decision of te Boad of Imigion Appals
Falls Chuh, Vinia 22041
File: A074 088 126 - Chicago, I Date:
I r: SADRUDDI AI BHA RA a.k.a. Rajai Ali Bhai Saddin
I REMOVAL PROCEEDIGS
APPEAL
ON BEHALF OF RESPONDEN: Susa Forino-Brow, Esquire
ON BEHALF OF OHS:
CHAR OE:
Patick M. McKenna
Assistat Chief Cousel
Notce: Sec. 237(a)(l)(B), I&N Act [8 U.S.C. 1227(a
)
(l)
(B
)] -
In the United State in volation of law
APPLICATION: Continuace
'
JAN 12 200
The respondent, a native of India ad a citizen of Paistan, appeals te Imigation Judge's
November 19, 2009, decision denying his request fr a continuace. Te Depaent of Homelad
Secuit (OHS) oppss the appeal. Ue record will be remaded.
We rview te fndings of fact, including the deterination of credibility, made by the
Immigation Judge uder a "clealy eroneou sd. 8 C.F .R. 1003 .1 (d)(3)(i). We revew al
other issues, includig whether the paies have met the relevat burden of proof ad issues of
discrton, uder a de novo standard. 8 C.F.R. 1003.l(d)(J)(
ii); Matter of H-l-H- & Z-Y-Z-,
25 I&N Dec. 209, 211 (BIA 2010).
On appeal, te respondent agues his potental eligibility fr adjustent of st conituted
good caue fr a contnuce. I suppor, he asser tha a applicaton fr labor cerifcton wa
fled on his behalf ad that his wife h a approved labor certifcation ad a pnding Pettion fr
Alien Worker (For 1-140). Te rspondent fher asers tat, cont to the Immigtion Judges
asessment that ter would b a fur-ye wait fr visa availability, a visa would be availale i one
yea. Finally, the rspondent agues tat count conditions i Paista should, at a minmum,
justif administtive closu. In opposition_ te DHS ages the Immigration Judge's decision
should b sum aly af ed ador te ap should be dismissed a the Imigation Judge
properly denied the respondent's tenth motion to continue proceedings' where the DHS oppsed the
1 Te rspondent wa previously gtd continuces on Aprl 17, 2003, Jue 15, 2004, Octobr 7,
2004, May 26 2005, April 13, 2006, Jauary 18, 2007, November 1, 2007, July 17, 208, and
Jauar 26, 2009.
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Cite as: Sadruddin Ali Bhai Rajani, A074 088 126 (BIA Jan. 12, 2011)
A074 088 126
moton, the rspondent failed to prove he wa eligble to adjust his status, ad a immignt vs wa
not immediaely available to him.
I detemning wheter good caue exists fr a contnuace, a higation Judge shoud ft
deterine the respondent's place in the employment-baed adjuent of s prcess ad then
consider and balance the Hahmi factors, if applicale, and ay other relevat consideron.
Maller of Raah, 25 I&N De. 127, 130 (BIA 2009) (citing Matter of Hahmi, 24 I&N Dec. 785
(BIA 2009)). Te Hahmi factor include:
( 1) the DHS respnse to the motion; (2) wheter the underlying visa petton is prima facie
apprvable; (3) the rspndent's statutor eligibilit fr adjutent of stts; ( 4) whether te
resondent's appliction fr adjusbent merts a favorble exerise of discreton; ad (5) te
ron fr te contnuce ad oter procedurl factor.
Id (quotng Hashmi, supra, at 790). Te Immigtion Judge h a obligation to weigh all of te
good-cause factors in the case befr rling on the motion to contnue. See Rajah, supra, 137 ("I
evauating good cause fr the continuace premised on a pnding labor cerifcation or 1-140, all the
factors rlevat to the alien's adjustent eligibilit should b considered ad aiculated. Were
applicable, the Imigation Judge should specifcally acknowledge ad consider te rondent's
status as a gdfathered alien fr section 245(i) eligibilit puroses."); Hahmi, supra, 790-93.
When adjusbent of status is not imeiately proximate upon te approval of a visa petition, i.e.,
when adjustent eligbilit depnds on world. wde visa avalability rther tha on the adjudication
of a petton a continuac may not be appropriate. See Rajah, supra, at 136 (explaining, inter alia,
that a rspondent who ha aprimafacie aprovable For 1-140 ad adjutent applicaton may not
b able to show good caue fr a continuce becuse visa avalabilit is too remote).
In his decision, the Immigtion Judge emphasized the may continuce-requests previously
gted (l.J. at 2-4), the DHS's oppsition to the motion (l.J. at 7), ad that the respondent w not
"immediately eligible.
,
fr a immigant visa a "his prorit date [wa] at leat fu yea of
(l.J. at 6). Te Immigtion Judge also speculated about te impact of the domestc economy on the
"fncial viability" of the respondent's employer (.J. at 6-7).
Wit rspet to the import factors,
2
the Immigaton Judge did not make specifc fndings of
fact to suppor a afrace. Te principal adjustent cae appeas to b that of the rspondent's
spouse ad the Immigation Judge did not mae ay fndings of fact a to the spuse's adjustent
eligibilit. Morover, the Imigation Judge's fnding tht the rsondent's ow vis availability
wa 4 yea of appeas to have ben baed on the Immigation Judge's rough compason of a
2 A couple of the factor rlie on by the Immigtion Judge wer non-dispositive. A we stated in
Hahmi, supra, at 794, "[t]he nuber ad leng of pror continuces a not alone deterinve."
Moreover, te state of the domestic economy is not a relevat consideraton. Beaue we aewit
the Imgation Judge that a 4-yea wat would be too rmote t suppor a fndig of good cue,
we would have afed te decision, notwtstding the considertion of these non-dispositve
f, we suh a deterination suppore by sufcient fat-fnding.
2
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Cite as: Sadruddin Ali Bhai Rajani, A074 088 126 (BIA Jan. 12, 2011)
A074 088 126
uifed 2006 priort date wit the November 2009 Visa Bulleti, wthout rega t the historc
progession of visa nuber in the respondent's prference ctegor.
3
Beue the Immigation Judge did not mae sufcient fndings a to these facts, we can ot
detenine upn de novo rview, whether the rspndent car ed his buden of showng good c
fr a contnuance. Accordingly, we will remad this cas to te Immigration Judge fr fer fa
fnding.4 See Mater of S-H-, 23 I&N Dec. 462, 465 (BIA 2002) (given the Boad's limited
fact-fnding fnction, it is "incraingly importnt fr the Imigation Judge to mae clea ad
complete fndings of fact tat a suppored by the record ad in compliace wit contolling law".
To the extent the rspondent also asers that cout conditions in Paist entitle him to rlief,
we note tt he h not indicted a intention t se k rlief i te fr of alu, wtholding of
remova, or benefts uder te Convention Agast Tor. Te respondent desigaed Past a
te cout fr rmova pwoses on Jue 15, 200, at which tme he, tough couel, also indicated
that he would not b seeking asylum.
Te fllowing order will be entere:
ORER: Te record i rmaded to the Immigation Court for fer procedings consistent
with te fregoing opinion ad fr the ent of a new decision.
FOR TIBOA <:
3
We note that, fm the November 2009 Visa Bulletin to te Jaua 2011 Visa Bulletin
(14 months}, the employment-baed t preference categor progessed fom June l, 2002
,
t
Mah 22, 2005 (nealy tee yeas). See Depaent of State Visa Bulletn, Vol. I, No. 28
(Ja. 2011); Depaent of Stte Visa Bulletin, Vol. I, No. 14 (ov. 2010).
4 Becuse we remad the cse fr fher fct-fding, we do not exprss ay opinion on wheter
good caus ha been or may be show (including whether visa availabilit is too remote).
3
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Cite as: Sadruddin Ali Bhai Rajani, A074 088 126 (BIA Jan. 12, 2011)
,_
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
Chicago, Illinois
File No. : A 074 088 126 November 19, 2009
In the Matter of
SADRUDDIN ALI BHAI RAJAN! IN REMOVAL PROCEEDINGS
Respondent
CHARGE: Section 237{A) (1) {B) {i) - remained longer than
allowed.
APPLICATIONS: Motion to continue pursuant to 8 C. F. R. Section
1003.29 {2009) .
ON BEHALF OF RESPONDENT:
Susan Fortino-Brown, Esquire
531 South Plymouth Court
No. 103
Chicago, IL 60605
ON BEHALF OF OHS:
Patrick McKenna, Esquire
Department of Homeland
Security
55 East Monroe
Suite 1700
Chicago, IL 60603
ORAL DECISION OF THE IMMIGRATION JUDGE
The respondent is an adult male, native of India, but
citizen of Pakistan who came to the United States on or about
June 30 of 2000 as a visitor. At the time, he had permission to
remain in the United States for a temporary period not to exceed
December 29 of 2000. Because the respondent was enamored with
the United States, and felt that this was the country of his
future, the respondent remained longer than allowed, as many
folks do. Consequently, when the Department of Homeland Security
1
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got wind that the respondent was still in the United States, they
issued him a Notice to Appear by personally serving the document
on him on March 19 of 2003. See Exhibit 1.
The respondent, through counsel, conceded that he, in fact,
wanted to remain in the United States, and, in part, his wife was
pursuing the labor certification. Consequently, the respondent
did concede removability as charged, agreed to designate Pakistan
as the country of removal, but asked this Judge for additional
time to pursue a labor certification or to be able to derive
somehow from the labor certification filed on behalf of his
spouse.
Beginning with April 17, 2003, the respondent first appeared
before this Judge and asked for additional time to retain
counsel. This Judge, as is usual, is very generous in his
granting of continuances, and reset the matter for about eight
months, to January 15 of 2004.
On January 15, 2004, the respondent returned, and he
returned with Ms. Fortino-Brown, asking for just a little more
time, Judge, and, of course, this Judge granted him in the
exercise of discretion additional time, but admonished the
parties to come back with any and all forms of relief on
October 7 of 2004.
On October 7 of 2004, the respondent and counsel returned,
and informed this Judge that there was a labor certification that
had been filed, or was in the process of being filed, and asked
2 November 19, 2009
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,
this Court for some additional time. This Judge granted
the respondent's request and rescheduled the matter to
May 26 of 2005.
On May 26, 2005, the parties returned, and responded tha
the labor cert and the I-140 were in the process of being
adjudicated, and consequently requested just another year or so.
Understanding that th respondent minimally was a law abiding
individual (other than remaining longer than allowed), and this
Court granted the respondent's request for additional time,
scheduling the matter to April 13 of 2006.
On April 13 of 2006 (a cloudy and raining day), the
respondent returned. On that date, he informed the Court that
his wife had been the beneficiary of the labor certification, and
that the respondent was to file on or about April of 2006, about
a week later, with the respondent's strong assurances that
everything would be fine, and he would be able to adjust his
status within only a few more months. The respondent again asked
for some additional time.
The Court granted the respondent another continuance, again
to January 18 of 2007.
On January 18, 2007, the respondent returned once again, and
informed the Court that we are getting very close, Judge, we need
some additional time. Just a little more, and asked to have the
case rescheduled, which it was to November 1 of 2007.
On November 1, 2007, this Judge was beginning to get the
A 074 088 126 3 November 19, 2009
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, .
impression that the labor certification might not be as ready for
adjustment of status as was being represented, but, nonetheless,
gave some additional time to July 17, 2008.
On July 17 of 2008, this Judge had been informed that the
labor certification had been approved, and that he respondent
had a priority date in 2004, and the Court did give the
respondent some additional time of January 26, 2009, but was
already in the process of contemplating any and all forms of
relief because the respondent's processing was taking a
significant number of years.
Nonetheless, this Court continued the case to
November 19, 2009, at which time the respondent appears with
counsel, and indicates that they have just learned that the I-140
has been approved, and the labor certification has been approved.
However, they informed the Court, the Government that is, that
the respondent has a priority date from 2006, which is
undisputed. However, the Government, for employent based
petitions, the type of which the respondent has filed, are four
years off. In other words, the Government is currently granting
employment based visas to those who have applied in 2002.
Because the respondent applied in 2006, he is four years away
from being in a position to ask for residence through adjustment
of status.
GOOD CAUSE
The regulations do allow for continuances if there is good
A 074 088 126 4 Novemer 19, 2009
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\
cause. See
B C.F.R. Section 1003.29 (2009). The Board has
recently considered the issue of continuances, and whether
there is good cause for additional time in connection with
labor certifications in a case entitled Matter of Rajah,
25 I&N Dec. 127 (BIA 2009). In Rajah, the Board essentially
cites its decision in Hashmi, 24 I&N Dec. 285 (BIA 2009), which
involves the family based visa petition. The Board concludes
that a numer .of factors should be considered in determining
whether good cause exists including listed as the first factor
whether the Department of Homeland Security is opposed to a
motion to continue. If the Department of Homeland Security is
not, then the Board has indicated naturally that the visa
petition and the continuance should "generally be granted" if the
approval of the visa petition would render him prima facie
eligible for adjustment of status. Not that it matters, but this
Judge believes that that is an entirely reasonable position to
take. However, what is to be done in the event that the
Government opposes a continuation of the case, for example, in a
situation such as the one in the instant case.
The Board goes onto determine and hold that other factors
should be taken into account, whether the underlying visa
petition is prira facie approvable; in this case it may be, but
it is four years off.
The Board also considered whether the respondent's statutory
eligibility for adjustment of status is one that merits a
A 074 088 126 5 Novemer 19, 2009
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granting of adjustment. In this case, it may, or may not.
The fourth element the Board would have the Court consider
is whether the respondent's application for adjustment merits a
favorable exercise of discretion. In this one it may. There is
no criminal activity that this Court is aware of, in the instant
case or any undesirable characteristics.
Finally, the Board has considered whether the reason for a
continuance and other relevant procedural factors may play or be
a factor in the case. In this case, it is speculative whether
the respondent ultimately in four years will be eligible for
adjustment of status.
In Rajah, supra, one of the critical factors, in the.view of
this Judge, is whether the respondent is "imediately eligible"
for an imigrant visa based on an employment based visa petition.
In the instant case, it is clear that the respondent is not.
Particularly troublesome to this Judge, despite the fact of
giving the respondent years to have the labor cert and the I-140
adjudicated is the fact that his priority date is at least four
years off. In other words, he will not become eligible to
inediately receive a visa until at least four years from now if
things continue on processing with the priority dates as they
have, day-to-day.
Given the uncertainty of the economy today with many
businesses, both large and small being compromised in their
ability to stay in business, this Court is concerned that the
A 074 088 126 6 November 19, 2009
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respondent's employment based visa petition may not be one
through which he can gain residency for a number of reasons,
including financial viability. Now this Judge can continue to
speculate as to reasons why it is somewhat risky to simply
continue the case for four years, however, given the Government's
objection to additional four years of continuances, and given the
uncertainty of the viability of the respondent's situation, the
company which has petitioned for him, this Judge believes that
under the facts in the instant case, good cause does not exist to
warrant a continuation of proceedings for an additional four
years, when the respondent has had his case continued since 2003.
Consequently, this Judge will deny the respondent's request for
additional time.
Respondent was offered voluntary departure. For reasons
unknown, the respondent has declined. Consequently, the
following order will be entered.
ORDER
IT IS HEREBY ORDERED that the respondent's request for a
continuance will be denied as there is no good cause.
IT IS FURTHER ORDERED that the respondent be removed and
A 074 088 126 7 November 19, 2009
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deported from the United States to Pakistan on the charge
contained in the Notice to Appear.
Date: Novemer 19, 2009
7
\ .. ...
CARLOS CUEVAS
U.S. Imigration Judge
A 074 088 126 8
Novemer 19, 2009
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A
CERTIFICATE PAGE
I hereby certify that the attached proceeding before
JUDGE CARLOS CUEVAS, in the matter of:
SADRUDDIN ALI BHAI RAJAN!
A 074 088 126
Chicago, Illinois
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 Immigration Review.
Lois o. Rush, Transriber
Free State Reporting, Inc.
January 20, 2010
(completion date)
By submission of this CERTIFICATE PAG8, the Contractor certifies
that a Sony BEC/T-147 four-channel transcriber, or equivalent,
and/or CD, as described in Section C, Paragraph C.3.3.2 of the
contract, was used to transcribe the Record of Proceeding shown in
the above paragraph.
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