Professional Documents
Culture Documents
Department of Justice
Executive
Morton, Jonathan 4390 N. Federal Hwy, Ste 213 Ft. Lauderdale, FL 33308
OHS/ICE Office of Chief Counsel MIA 333 South Miami Ave., Suite 200 Miami, FL 33130
A099-982743
Enclosed is a copy of the Board's decision and order in the above-referenced case. Sincerely,
Donna Carr
ChiefCJerk
Enclosure
Cite as: Anderson Ferreira, A099 982 743 (BIA Mar. 18, 2011)
File:
Miami, FL
Date:
MAR 1 8 2011
CHARGE: Notice: Sec. 237(a)(lXB), I&N Act [8 U.S.C. 1227(a)(l)(B)] In the United States in violation of law
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The respondent, a native and citizen of Brazil, appeals the February 9, 2010, decision of the Immigration Judge denying his request for a continuance in order to await the availability of a visa based on his approved employment-based visa petition (1-140). The Department of Homeland Security has filed an o pposition. The appeal will be dismissed. Upon our de novo review, we agree with the Immigration Judge that the respondent has not shown good cause for a continuance to await the availability of an immigrant visa based on his approved 1-140 petition. See 8 C.F.R. 1003.29, 1240.6 (2010) {stating that a party seeking a continuance has the burden of establishing good cause). The respondent's pri ority date is June 2, 2008. At the time of the respondent's hearing, the cut off date for third-preference employment-based visas was December 15, 2002 (l.J. at 2). 8 C.F .R. 1245 .1(g) {an immigrant visa is available when the app1icant's priority date is earlier than the date shown in the current Department of State Visa Bulletin for the applicant's preference category). Because an immigrant visa was not available and would not be for some time, we agree with the hnmigration Judge that the respondent did not show good cause for a continuance {I.J. at 2). See Chacku v. U.S. All '.Y Gen.,
555 F.3d 1281, 1 286 (11th Cir. 2008) {affirming denial of a continuance where immigrant visa was not immediately available to alien); see also Maller of Rajah, 25 I&N Dec. 127, 13 6 (BIA 2009) (stating that "a respondent who has a prima facie approvable 1-140 and adjustment application may not be able to show good cause for a continuance because visa availability is too remote,,).
The respondent asks that these proceedings be remanded to afford him the opportunity to apply for adjustment of status on the basis of an earlier priority date. See Matter of Coelho, 20 l&N Dec. 464, 47 1 (BIA 1992) {the requirements for a motion to remand are essentially the
Cite as: Anderson Ferreira, A099 982 743 (BIA Mar. 18, 2011)
A099 98 2 743
same as the requirements for a motion to reopen). The respondent exp1ains that he is the beneficiary of two employment-based visa petitions (1-140); one filed by D'Paula Home Services, Inc. wi th a priority date of September 13, 2005("first1-140"), and the other filed by Color Factory, Inc. with a priority date of Jwie 2, 2008("second1-140").1 See Respondent's Brief, Attachments A and B. Regardless ofwhether this documentation was previously unavailable, it does not support reopening.
Although the respondent asserts the first 1-140 is pending, the record reveals that it was denied on December 14, 2007 (Exhs. 4, 5). A denied1-140 cannot confer a priority date. See 8 C.F.R. 204.S(e).
The respondent also seeks reopening to appl y for adjustment of status pursuant to 204G) of the Act, 8 U.S.C. I 154(j). See Respondent's Brief at 4-5. Presumabl y, he seeks to port from
the first1-140 job to the second 1-140 job. Because the first 1 1 40 was denied, it cannot be used to port under section 204(j) of the Act. See Matter ofAl Wazzan, 25 I&N Dec. 359 (AAO 2010)
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{an I-140 that was ultimately denied cannot be deemed "valid" for 2040) purposes).
ORDER:
The responden t indicates that the priority date for the first 1-140 is May 30, 2007, the date the 1-140 was filed with the United States Citizenship and Immigration Services (USCJS). See Respondent's Brief at 3, Attachment A. However, the date the underlying labor certification is filed with the Department of Labor, here, September 13, 2005, is the priority date. See 8 C.F.R. 204.S(d).
Cite as: Anderson Ferreira, A099 982 743 (BIA Mar. 18, 2011)
U.S. DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT Miami, Florida
743
Februa r y 9,
2010
In the Matter of
ANDERSON FERREIRA,
R esponde n t
) ) ) )
IN REMOVAL PROCEEDINGS
CHARGE:
A PPL I CATI O N :
Jonathan Morton,
Esquire
Esquire
The Notice to Appear ha been marked into the record as E xh ib it 1. The a l l e gations have been admitted and re mo va bili ty
was conceded under the single c har ge of removal of 23 7(a) (1) (B)
of the Immigration
been designated
The r espo nd en t,
'\
PRY
there is no visa
According to the
professional and his priority date is June 2, Now at the hearing today,
2008.
argued this or taken argument from both counsels as to how the Court should proceed. Counsel for the respondent understandably
requests from the Court that this matter be continued in order to allow the respondent's visa to become current. The Department of
Homeland Security argues that it is not good cause to continue these proceedings given that the priority date is so far off. The visa bulletin for March of 2010, before it today, category, which the Court does have
the p riority date for third preference is December 15, as the Court has just indicated, the respondent's
2002 and,
2008.
time before this respondent's priority date will become current and before he is eligible to seek adjustment of status either before the Court or before the Citizenship and Immigration services. Given that there is an extensive period of time before
Department that there is no good cause to continue these proceedings. The respondent has not requested any other relief before the Court, A not even voluntary departure, so the Court has February 9,
2010
'
PRY no choice but to enter an order of removal against the resp ondent from the United Sta tes to Brazil. respondent, through counsel,
case law that the Court knows of that would find the Court should
continue proceedings for an indefinite period of time in order for relief to be come available.
continuances in t he area of labor certifications or I-140s all deal with the issue of whethe r a it is approved, or an I-140,
l ab or certification,
as soon as
as soon as it is adjudicated by
and if tha t was
USCIS,
However,
IT IS HEREBY ORDERED that the respondent be ordered removed based on the charges contained in the Notice to Appear from the United States to Brazil.
.. -o
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A 099
982
743
February 9,
2010
'
CERTIFICATE PAGE
I hereby certify that the attached proceeding
ANDERSON FERREIRA
Miami,
Florida
was
held
as
he rei n
appears ,
and
that
his
is
the
original
t.tanscript
thereof
for
the
file
of
the
E x ec u tive
Office
:or
Inunig ra ti on Review.
riber)
(301)
881-3344
March 29.
2010
(Completion Date)