U.S.

Department of Justice
Executive Office for Immigration Review

Board ofImmigration Appeals

Office of the Clerk
5107 Leesburg Pike. Suite 2000
Falls Church. Virginia 20530

Burton, Justin Russell

Name: PATEL, HARDIKKUMAR DIPAK ...

OHS/ICE Office of Chief Counsel - CHI

525 West Van Buren Street
Chicago, IL 60607

A 203-236-986

Date of this notice: 2/23/2015

Enclosed is a copy of the Board's decision and order in the above-referenced case.
Sincerely,

Donna Carr
Chief Clerk

Enclosure

Panel Members:
Creppy, Michael J.

Userteam: Docket

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Cite as: Hardikkumar Dipakkumar Patel, A203 236 986 (BIA Feb. 23, 2015)

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Kriezelman Burton and Associates, LLC

200 West Adams Street, Suite 2211
Chicago, IL 60606

.U.s. Department of Justice

Decision oftbe Board of Immigration Appeals

Executive Office for Immigration Review

Falls Church, Virginia 20530

File:

A203 236 986 - Chicago,IL

Date:

In re: HARDIKKUMAR DIPAKKUMAR PATEL

FEB 2 3 2015

APPEAL AND MOTION

ON BEHALF OF RESPONDENT:
ON BEHALF OF DHS:

Justin Russell Burton, Esquire

Patrick M. McKenna
Assistant Chief Counsel

CHARGE:
Notice:

Sec.

237(a)(l)(C)(i),l&N Act [8 U.S.C. 1227(a)(l)(C)(i)] Nonimmigrant - violated conditions of status (conceded)

APPLICATION: Continuance

The respondent,a native and citizen of India, appeals the Immigration Judge's July 16, 2014,
decision denying his request for a continuance. 1 The respondent also seeks remand of the record
based on developments occurring during the pendency of this appeal.

His appeal will be

dismissed. However,his motion to remand will be granted, and the record will be remanded for
further proceedings consistent with this decision.
We review for clear error the findings of fact, including the determination of credibility,
made by the Immigration Judge. 8 C.F.R. 1003.l(d)(3)(i). We review de novo all other issues,
including issues of law,judgment,or discretion. 8 C.F.R. 1003.l(d)(3)(ii).
The respondent was admitted to the United States as a non-immigrant student on January 18,
2010,and graduated in June 2011 (1.J. at l; Exh. 1; Tr. at 2,4). Accordingly,he concedes that he
is removable as charged because he remained in the United States after he completed his studies
without changing his non-immigrant status (l.J. at l; Tr. at 3-5; Exh. 1). When these removal
proceedings commnced, the respondent was married to a United States citizen, and he was
granted two continuances in February 2013 and December 2013 to await adjudication of a

Petition for Alien Relative (Form I-130) filed by his then-wife on his behalf (I.J. at 1-2). At the
respondent's final merits hearing in July 2014, he testified that he was divorced from his first
wife and that the visa petition she filed on his behalf had been denied (l.J. at 2; Tr. at 15).
1 The Immigration Judge also granted post-conclusion voluntary departure pursuant to section
240B(b) of the Immigration and Nationality Act (Act), 8 U.S.C. 1229c(b), conditioned upon
the payment of a bond. We acknowledge that the respondent submitted proof on appeal that the
requisite bond was posted.

Cite as: Hardikkumar Dipakkumar Patel, A203 236 986 (BIA Feb. 23, 2015)

Immigrant & Refugee Appellate Center | www.irac.net

IN REMOVAL PROCEEDINGS

A203 236 986

Additionally, the respondent reported that he was married to a second United States citizen,
although she had not yet filed a visa petition on his behalf (I.J. at 2; Tr. at 16).
The Immigration Judge determined that the respondent did not demonstrate the bona tides of
his second marriage, as (1) his second wife had not yet filed a visa petition and (2) the couple
had not presented clear and convincing evidence in establishing the validity of their marriage

Matter of Velarde, 23 l&N Dec. 253, 258-59 (BIA 2002) (explaining how the clear

and convincing standard applies to cases involving marriages entered into after proceedings
commenced); 8 C.F.R. 245.l(c)(8)(v).
On appeal, the respondent maintains that the
Immigration Judge erred in denying his continuance request (Respondent's Brief at 3). The
respondent also seeks remand of the record because on October 24, 2014, the pending visa
petition was approved (Respondent's Motion to Remand at 4).
A motion to remand must conform to the same standards as a motion to reopen where the
respondent seeks to present new evidence, but will only be granted if the new evidence "would
likely change the result in the case."

Matter of Coelho, 20 I&N Dec. 464, 473 (BIA 1992). The

respondent's newly submitted evidence may change the outcome of the case, as he appears to be
prima facie eligible to apply for adjustment of status. Id. at 471. Thus,a remand of the record is
warranted.
Lastly, for the reasons stated in the Immigration Judge's decision, which we adopt and
affirm, we agree that the respondent did not establish good cause for his request to continue the
proceedings in order to allow his wife to file a visa petition on his behalf and then to await
adjudication of that visa petition (I.J. at 2-3). However, as the visa petition has now been
approved,we dismiss the respondent's appeal as moot.
We express no opinion as to the respondent's ultimate statutory and discretionary eligibility
for relief. Upon remand, the parties will have an opportunity to present additional evidence to
assist the Immigration Judge with this determination.
ORDER: The respondent's appeal is dismissed.
FURTHER ORDER:

The respondent's motion to remand is granted, and the record is

remanded to the Immigration Judge for further proceedings consistent with the foregoing opinion
and for the entry of a new decision.

Cite as: Hardikkumar Dipakkumar Patel, A203 236 986 (BIA Feb. 23, 2015)

Immigrant & Refugee Appellate Center | www.irac.net

(I.J. at 2-3).

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
CHICAGO, ILLINOIS

July 16, 2014

In the Matter of:

HARDIKKUMAR DIPAKKUMAR PATEL,

RESPONDENT

ON BEHALF OF RESPONDENT:

)
)
)
)

IN REMOVAL PROCEEDINGS

Matther Kiseran
200 West Adams Street Suite 2211
Chicago, Illinois 60606

ON BEHALF OF OHS:

Patrick Makenna, Assistant Chief Counsel

525 West Vanburen Street Suite 701
Chicago, Illinois 60607

ORAL DECISION OF THE IMMIGRATION JUDGE

The respondent is a 26-year-old married male alien, native, and citizen of
India. Respondent entered the United States as a nonimmigrant student and graduated
in June of 2011. At that time, he was placed under removal proceedings. At his
hearing on February 6th, 2013, his attorney admitted the allegations were true and
conceded removability. It appears that initially the attorney suggested the allegations
might not be true because it alleged that the respondent terminated his status. But in
fact, he graduated in June of 2011. Accordingly, the notice to appear was amended,
and the allegations then amended, and removability conceded.
Respondent's attorney sought a continuance on his behalf based upon his

Immigrant & Refugee Appellate Center | www.irac.net

File: A203-236-986

marriage to a citizen of the United States. That request was granted and the continued
hearing was held on December 11th, 2013. At the hearing in December of 2013, the
respondent never revealed to the court that he and his wife were planning to divorce.

When respondent returned to court for his final hearing on July 16th, 2014,
the government attorney advised the court that, in fact, the visa petition had been
denied and that the respondent was divorced from his wife. The respondent appeared
with a new attorney who requested a further continuance to repeat the process all over
again. Respondent's attorney indicated that the respondent has had a civil ceremony
with a United States citizen but has not gone through a religious ceremony. And
therefore, no visa petition has been filed to date. Nevertheless, the respondent's
attorney believes that respondent would be entitled to a continuance should an 1-130 be
filed.
In deciding whether or not the respondent's request for a continuance is
reasonable, the court considers all the evidence of record. Here, the respondent's case
was continued for more than a year and respondent never advised the court when he
returned in December of 2013 that he and his first wife were planning to divorce.
There's no evidence submitted at all as to when the respondent planned to separate or
did separate and when he decided to remarry. The respondent returned to court
without any further evidence showing that his second marriage is not a marriage of
convenience. The evidence suggests that the respondent knew his second wife for a
period of time as a friend.
Under the Board of Immigration Appeals precedent decisions, the burden
of proof is heavier on a respondent to establish that his second marriage is bona fide
when proceedings have already commenced. Here, without any evidence at all, without

A203-236-986

July 16,

2014

Immigrant & Refugee Appellate Center | www.irac.net

The respondent's attorney requested a further continuance which was granted.

the filing of an 1-130 with supporting evidence, I find the respondent's request for a
continuance is unreasonable. Therefore, the request for a continuance will be denied.
The respondent has been advised by his attorney that he has a right to

backlogs before the Board of Immigration Appeals, it may be a year or more before this
decision becomes final. If, during the interim, the respondent becomes the beneficiary
of an approved petition, he may be able to reopen and remand his case. Accordingly,
the following order will be entered:
ORDERS
It is ordered that the respondent be granted voluntary departure if he
departs the United States on or before September 15th, 2014. It is further ordered that
the respondent post a

$2,500 voluntary departure bond with the Department of

Homeland Security within five days of this decision to ensure that he will leave the
United States voluntarily.
It is further ordered that if the respondent fails to depart when and as
required or fails to post the voluntary departure bond, this privilege of voluntary

departure shall be withdrawn without further notice or proceeding and the following
order shall thereupon become immediately effective: respondent shall be deported and
removed from the United States to India on the charge contained in the notice to
appear.

Please see the next page for electronic

signature

A203-236-986

July 16,

2014

Immigrant & Refugee Appellate Center | www.irac.net

appeal the decision to the Board of Immigration Appeals. Because of the large

ROBERT D. VINIKOOR
Immigration Judge

Immigrant & Refugee Appellate Center | www.irac.net

A203-236-986

July 16,

2014

//s//
Immigration Judge ROBERT

D.

vinikoor on November 20,

201 4

VINIKOOR
at 10:42

PM GMT

Immigrant & Refugee Appellate Center | www.irac.net

A203-236-986

July 16,

2014