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2655 Le Jeune Road, Suite 1001
Coral Gables, FL 33134-0000
Name: ABELLA, ELENA
U.S. Department of Justice
Executive Ofce fr Immigation Review
Board of Immigration Appeals
Ofce of the Clerk
J0Zc0u@k, ui/c2000
PhrChurch, Irgiuio 20JJ0
OHS/ICE Ofice of Chief Counsel MIA
333 South Miami Ave., Suite 200
Miami, FL 33130
A 087 -184-034
Date of this notice:
6/2/2014
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosure
Panel Members:
Manuel, Elise
Sincerely,
DO c D
Donna Carr
Chief Clerk
Trane
Userteam: Docket
For more unpublished BIA decisions, visit www.irac.net/unpublished
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Cite as: Elena Abella, A087 184 034 (BIA June 2, 2014)
w 8
U.S. Department of Justce
Executive Ofce fr Imgration Review
Decision of te Boad of Imgration Appeals
Fal Cuch Virginia 20530
File: A087 184 034 - Miai, FL
I re: ELENA ABELLA
I RMOVAL PROCEEDIGS
APPEAL
Date:
ON BEHALF OF RSPONDENT: Emilio C. Pastor, Esquire
APPLICATION: Continuace
JUN 2 2014
The respondent, a native ad citizen of Moldova, appeals fom the Imigaton Judge's
decision dated September 27, 2012, denying her motion fr a continuace to await te Boad's
adjudication of her visa petition (or I-130) denial appeal that was fled by her citizen spouse.
1
The record will be remaded.
The Boad defers to te fctual fndings of a Imigation Judge, unless tey ae clealy
eroneous, but it retans independent judgent ad discretion, subject to applicable governg
stadads, regading pue questions of law ad the application of a pacula stadad of law to
those fcts. 8 C.F.R. 1003.l(d)(3).
A fer evaluation of te respondent's motion fr a continuace is wd ted. See 8 C.F .R.
1003.29; Mater of Perez-Andrade, 19 I&N Dec. 433 (BIA 1987) (the decision to gat or deny
a continuace is within the discretion of the Imigation Judge, if good cause is shown, ad that
decision will not be overued on appeal unless it appeas that the respondent was derived of a
fll ad fair heang). See also Matter of Hashmi, 24 I&N Dec. 785 (BIA 2009) (setting frh
fctors fr when deciding whether to gat a motion fr a continuace based on a pendng visa
petition). Te Imigation Judge fund tat the respondent was ineligible to adjust her stats to
a lawfl peraent resident pusuant to section 204(c) of te Im gation ad Nationality Act,
8 U.S.C. 1154(c), inasmuch as the United States Citizenship ad Im igation Services (CIS)
had deterined that her prior maiage was a sha (I.J. at 3). However, section 204(c) of te
Act does not directly ba the respondent fom establishing eligibility fr adjustent of status, ad
it only bas the CIS fom approving a visa petition fled on behalf of an alien who has engaged in
a prior sha maiage. In addition, the CIS is required to independently decide whether a pror
sha maiage exists, ad it may not rely exclusively on the existence of a prior fnding of a
sha mar age. See Matter of Tawfk, 20 I&N Dec. 166 (BI 1990). I light of the fregoing,
the record will be remaded to reevaluate the respondent's motion fr a continuace. On remad,
the paries shall be given a oppority to submit additional evidence such as te status of te
visa petition or the outcome of an appeal.
I her appellate brief, te respondent indicates that she fled her appeal with te CIS on
September 24, 2012, ad the CIS has not yet fraded her appeal to te Boad.
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Cite as: Elena Abella, A087 184 034 (BIA June 2, 2014)
.+
.
:
i' ( :..
.
AOB?-184-034
& +
5
Septemer 27, 2012
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CERTIFICATE PAGE
I hereby certify that the attached proceeding before JUDGE
LOURDES MARTINEZ-ESQUIVEL, in the matter of:
ELENA ABELLA
A087-184-034
MIAMI, FLORIDA
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.
DANIEL CHARLTON (Transcriber)
DEPOSITION SERVICES, Inc.
NOVEMBER 29, 2012
(Completion Date}
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