U.S.

Department of Justice Executive Office for Immigration Review

Board ofImmigration Appeals Office of the Clerk

5107 Leesburg Pike, Suite 1000 Falls Church, Virginia 1204/

Antwi, William, Esq. Siriboe & Antwi 110 West 40th Street, Suite 2506 New York, NY 10018

OHS/ICE Office of Chief Counsel - NEW P .0. Box 1898 Newark, NJ 07101

Immigrant & Refugee Appellate Center | www.irac.net

Name: NIMAKO, OHENE BOBIE

A 099-311-604

Date of this notice: 7/19/2013

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

DorutL ct1/v\.)
Donna Carr Chief Clerk

Enclosure Panel Members: Manuel, Elise

yungc Userteam: Docket

Cite as: Ohene Bobie Nimako, A099 311 604 (BIA July 19, 2013)

U.S. Department of Justice

Executive Office for Immigration Review Falls Church, Virginia 2204 I

Decision of the Board oflmmigration Appeals

File:

A099 311 604 - Newark, NJ

Date:

JUL 19 2013

In re: OHENE BOBIE NIMAKO

IN REMOVAL P ROCEEDINGS

APPEAL ON BEHALF OF RESPONDENT: APPLICATION: Continuance William Antwi, Esquire

Immigrant & Refugee Appellate Center | www.irac.net

The respondent, a native and citizen of Ghana, appeals from the Immigration Judge's decision dated October 19, 2011, denying his request for a continuance. remanded for further proceedings consistent with this opinion. The record will be

We review an Immigration Judge's findings of fact for clear error, but questions of law, discretion, and judgment, and all other issues in appeals, are reviewed de novo. 8 C.F.R. 1003.l(d)(3)(i), (ii) . Before the Immigration Judge, the respondent indicated an intent to apply for adjustment of status pursuant to section 245(a) of the Immigration and Nationality Act, 8 U.S.C. 1255(a), based on his marriage to a United States citizen, who filed an Alien Relative Petition (Form 1-130) on his behalf. However, the Form 1-130 the respondent's spouse filed on his behalf was denied by United States Citizenship and Immigration Services (USCIS), on the sole basis that she did not submit a written request for a bona fide marriage exemption, as is required when a marriage occurs while the beneficiary is in removal proceedings. At the following removal hearing on October 19, 2011, the respondent asserted that the denial of the visa petition was erroneous, as in fact the bona fide marriage exemption had been timely submitted. The respondent indicated that his wife had filed an appeal of USCIS's decision, and requested a continuance pending adjudication of that appeal. The Immigration Judge denied the continuance request on the basis that petition (I.J. at 2-3). A party seeking a continuance has the burden of demonstrating good cause for the delay. 8 C.F.R. 1003.29, 1240.6. In this matter, while we agree with the Immigration Judge that Hashmi, supra, is not controlling, his decision does not independently analyze whether the respondent established good cause for a continuance. 1 See Matter of Perez-Andrade, 19 I&N Dec. 433 (BIA 1987). In light of our limited fact-finding authority on appeal, remand is necessary to allow the Immigration Judge to further develop the record and evaluate whether the

Hashmi v. Atty Gen. ofthe U.S.,

531 F.3d 256 (3d Cir. 2008), was not

controlling precedent because the respondent was not currently the beneficiary of a pending visa

1 For example, the decision does not address the respondent's evidence and argument that the denial of the visa petition was due to administrative error on the part of USCIS.

Cite as: Ohene Bobie Nimako, A099 311 604 (BIA July 19, 2013)

. .

A099 311 604

respondent established good cause for a continuance.

that "[e]xcept for talcing administrative notice of commonly known facts such as current events or the contents of official documents, the Board will not engage in fact-finding in the course of deciding appeals"); Matter of S-H-, supra, at 465-66. We talce administrative notice that the USCIS website currently lists the visa petition filed on the respondent's behalf as pending rather than
as

See 8 C.F.R.

1003.l(d)(3)(iv) (stating

denied.

Accordingly, the following order will be entered.

Immigrant & Refugee Appellate Center | www.irac.net

ORDER:

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: Ohene Bobie Nimako, A099 311 604 (BIA July 19, 2013)

UNITE D STATES DE PARTMENT OF JU STICE EXECUT IVE OFF ICE FOR IMMIGRATION REVIEW UNITE D STATES IMM IGRATION COURT Newark, File No.: A 099 311 604 New Jersey October 19, 2011

In the Matter of

Immigrant & Refugee Appellate Center | www.irac.net

CHENE BOBIE NIMAKO Respondent CHARGE:

IN REMOVAL

PROCEEDINGS

Removable under Section 237 (a) (1) (B) Immigration and Nationality Act

o f the

A P PLICATIONS:

Adjournment;

no other applications for relief

ON BEHALF OF RES PO N DE NT: William Antwi Siriboe and Antwi 110 West 40th Street, New York, Suite 250 6 New York 10018

ON BEHALF OF Sam A. Dotro

SERV ICE:

Assistant Chie f Counsel Department o f Homeland Security Bureau o f Immigration and Customs Enforcement 9 60 Broad Newark, Street, Suite 1104B New Jersey 07102

ORAL

DECISION OF THE IMMIGRATION

JU DGE The

The respondent is a native and citizen of Ghana.

record shows that he entered the United States on December 27, 2003. The record also shows that the respondent has remained in that day.

the United States beyond

The respondent was placed under proceedings on October 20, 2007. York, He appeared be fore an Immigration Judge in 2009 in New the Honorable Gabriel C. Videla, at which time the

respondent admitted that he was removable as charged and admitted that the charge of removability also applied to him. Ghana was directed as the place that the respondent should be sent if that is needed. Subsequent to that, there was a change of venue motion that Then, after that, the

Immigrant & Refugee Appellate Center | www.irac.net

was considered and granted as well. respondent, because he

is married to a United States citizen,

submitted an application for adjustment of status together with an application for a visa petition, an I-130. more commonly referred to as for the 2011.

The matter was adjourned by this Court

adjudication of that document. At this present time, decision by the that the District

That was on January 19,

the Court has been presented a 201 1, indicating

Director of July 7,

I-130 has been denied.

The respondent also has findings of the

submitted a copy of a perfected appeal on the District Director denying that application. In today's proceedings,

the respondent is asking the Court The Court

to adjourn the matter until that appeal is resolved. does not see any basis for that, and interpreting the

controlling decision by the Third Circuit in Matter of Hamdi it does not appear to the Court that that applies to a situation like the one on the record. If I understand that decision by

the Court of Appeals correctly,

it refers to an adjournment for not a petition

the adjudication of a petition that is pending, that has been denied and on appeal.

A 099 311

604

October 19,

20 11

..

Based on that,

since the respondent is not

applying

for

anything else the Court as charged, entered.

finds that the respondent is removable following order shall be

and accordingly the

It is ordered that the respondent be ordered removed

from the United States to Ghana on the charges that he has previously admitted. October 19; 2011. That will be signed and delivered today,

Immigrant & Refugee Appellate Center | www.irac.net

ALBERTO

J.RIEFK0HL

Immigration Judge

A 099 311

604

October 19,

2011

CERTIFICATE

PAGE

hereby

certify

that

the

attached

proceeding

before

JUDGE ALBERTO J.

R IEFKOHL,

in the matter of:

OHENE BOBIE NIMAKO A 099 311 Newark, is an accurate, by the the Executive verbatim Office 604

Immigrant & Refugee Appellate Center | www.irac.net

New Jersey the recording as provided and of that the this is

transcript of

for Immigration thereof for the

Review file

original

transcript

Exe cu tive

Office for Immigration Review.

Gilliam,

Transcriber Inc.

State Reporting,

'

December 28,

2011

(completion date)

By submission of that a Sony CD, as was and/or

this

CERT IFICATE in

PAGE, C,

the

Contractor certifies or equivalent, of the shown C. 3.3.2

BEC/T-147, described used to

4-channel Section the

transcriber paragraph of Record

contract,

transcribe

Proceeding

in the above paragraph.