Brandes, Barbara J., Esq.

Brandes & Associates

225 Broadway, Suite 900
New York, NY 10007
Name: PATEL, PANKAJKUMAR
U.S. Department of Justice
Executive Offce fr Immigration Review
Board of Immigation Appeals
Ofce of the Clerk
5107 Leesburg Pike, Suite 2000
Falls Church. Vrginia 20530
OHS/ICE Ofice of Chief Counsel - NYC
26 Federal Plaza, 11th Floor
New York, NY 10278
A 088-152-759
Date of this notice: 6/18/2014
Enclosed is a copy of the Board's decision and order in the above-referenced case.
Enclosure
Panel Members:
Creppy, Michael J.
Mann, Ana
Mullane, Hugh G.
Sincerely,
Do Ct
Dona Carr
Chief Clerk
schuckec
Userteam: Docket
For more unpublished BIA decisions, visit www.irac.net/unpublished
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Cite as: Pankajkumar Patel, A088 152 759 (BIA June 18, 2014)
U.S. Deparment of Justce
Executive Ofce fr Imigation Review
Decision of te Board of I igation Appeals
Falls Chuc Vigia 20530
File: A088 152 759 - New York, NY
I re: PANJKUR PATEL
I RMOVAL PROCEEDIGS
APPEAL
Date:
ON BEHALF OF RESPONDENT: Barbaa J. Brades, Esquire
CHARGE:
JUN 18 2014
Notice: Sec. 212(a)(6)(A)(i), I&N Act [8 U.S.C. 1182(a)(6)(A)(i)] -
Present without being admitted or paoled
APPLICATION: Administative closure; continuance
The respondent appeals the Imgration Judge's May 14, 2012, decision denying hs request
fr a continuance, his request fr administative closue, and orderng him removed. Te record
wll be remaded.
We review fr clea eror the fndings of fact includng the deterination of credibilit,
made by the Immigation Judge. 8 C.F.R.

1003.l(d)(3)(i). We review de novo a other issues,
including wheter the paries have met te relevant buden of proof, ad issues of discretion.
8 C.F.R.
1003.l(d)(3)(ii).
I denying te respondent's request fr administative closue, the Immigrton Judge relied
in pat on te Depaent of Homeland Secuty's ("DHS") oppositon (l.J. at 2-3).1 Specifcally,
the DHS stated tat the respondent was not gadftered under secton 245(i) of te
Immigation ad Nationalit Act, 8 U.S.C.

1255(i), a the DHS asserts that te labor
certfcation w not approvable when fled ad tat te respondent has not demonsated that he
was physically present on Deember 21, 2000 (I.J. at 2).
The respondent assers that he is a gandfathered aien fr puoses of section 245(i) of the
Act. I suppor of hs asserion tat he is grandftered under secton 245(i) of te Act, the
respondent has submitted a "Final Deterination" fom the Department of Labor that indicates
that te labor cerfcation that was fled on his behalf on Aprl 27, 2001, ha been approved
under the requirements of te Deparent of Labor pusuant to 20 C.F.R. 656 (see
Respondent's Febrary 22, 2012, Moton at tab B). See Matter of But, 26 I&N Dec. 108,
110-111 (BIA 2013) (an alien may adjust status under section 245(i) of the Act "either by using
the qualifing labor certifcaton or visa petition to adjust or, if he is ajusting tough aother
1 The Imgraton Judge also discussed wheter a fture visa petition had a likelihood of success
(l.J. at 3). Although there wa some confsion i te record (I.J. at 3; Tr. at 33-38, 47-48), te
respondent has submitted proof that he is te benefciar of an approved visa petition (or
1-140) (see Respondent's Februay 2, 2012, Moton at tb B).
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Cite as: Pankajkumar Patel, A088 152 759 (BIA June 18, 2014)
A088 152 759
labo certifcation or visa petition, by establishing tat he is 'grandfthered' by a fling fom
April 30, 2001, or earlier."). Moreover, as the respondent is the benefciary of an approved visa
petition (or 1 .140) with a priority date of May 28, 2012, he requested a continuance or
administrative closue to await the availability of a visa number, so that he may fle an
application fr adjustent of status at that time.
Given the totality of the circumstaces, including the fct that te Immigaton Judge relied
on the DHS 's opposition to administative closue, which was premsed on the fct tat te
respondent was not a gandfathered alien, and the fct tat the Immigation Judge did not have
the beneft of our decision in Matter of But, supra, which was issued aer her rling i the
instant case, in a abWdance of caution, we will remad proceedings to te Imigation Judge
to reconsider te respondent,s request fr adminstrative closure.
On remand, the Immigaton Judge should apply the fctors listed in Matter of Avetisan,
25 I&N Dec. 688 (BIA 2012) to te fct of te instat case, including a examination of te
basis fr any opposition to administative closue, whch may include a determnaton as to
whether te respondent is considered a grandfthered alien fr puroses of section 245(i) of the
Act. As we ae remading proceedings to the Im igation Judge, both parties should have a
oport to present ay additonal aguments or evidence befre te Immigration Judge,
includig ay agments regading admstative closure or a contnuace of proceedings. I
light of ou disposition of this case, we need not reach the respondent's remaining appellate
aguents. Accordingly, the fllowing order will be entered.
ORER: The record is remaded t te Immigration Judge fr fer proceings
consistent wit the fregoing opinion and entry of a new decision.
J)J
OR BOR
2
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Cite as: Pankajkumar Patel, A088 152 759 (BIA June 18, 2014)
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
NEW YORK, NEW YORK
File: A088-152-759
In the Matter of
May 14, 2012
PANKAJKUMAR PATEL IN REMOVAL PROCEEDINGS
RESPONDENT
CHARGES: Removable under Section 212{a) (6) {A) (i) , alien
present in the United States without having been
aditted or paroled
APPLICATIONS: Administrative close
ON BEHALF OF RESPONDENT: BRIAN JOHNSON, ESQUIRE
ON BEHALF OF DHS: AMANDA R. JEANNOPOULOS, ESQUIRE
ORAL DECISION OF THE IMMIGRTION JUDGE
The Respondent is a native and citizen of India. The
Department alleges that the Respondent entered the United States
without inspection at an unknown date and place. The Respondent
alleges entry on May 19, 1998. Respondent has conceded that he
is removable as charged.
Based on the Respondent's adissions and concessions
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the Court finds that removability has been established by clear,
convincing and unequivocal evidence.
As relief, the Respondent seeks adinistrative close.
A labor certification was filed for the Respondent on
April 27, 2001, and certified by the Department of Labor on June
2, 2006. A subsequently filed I-140 was denied because the
employer couldn't pay the prevailing wage.
A second labor certification was filed on a different
basis on May 28, 2010. It was approved and an I-140 was also
approved. However, the priority date for the Respondent's
classification is well behind and his priority date {s May 28,
2010. The Respondent seeks administrative close; see the
Respondent's motion.
The Department of Homeland Security is opposed to it
because they do not believe that the Respondent has demonstrated
eligibility for adj ustment of status under Section 245(i)
because they cannot demonstrate that the labor certification was
approvable when filed and because the Respondent has not
demonstrated that he was physically present in the United States
on December 21, 2000.
The Respondent seeks administrative closure of the
case while he attempts to file another I-140 by a prior employer
so that he could benefit from the earlier priority date.
The Court will consider several factors in determining
whether the case should be administratively closed based on
A088-152-759 2 May 14, 2012
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Matter of Avetisyan, 25 I&N Dec. 688. The Court notes that the
Department is opposed to adinistrative closure and there is
some merit to those bases of opposition. The Court cannot judge
the likelihood of success on another visa petition because none
has been submitted. The Respondent has had his case adjourned
on several occasions. While they are trying to get an I-140
prepared by the employer, there are apparently several
considerations, many of them financial. The Court finds that it
is inappropriate for the Court to administratively close the
case pending receipt of an I-140. The Board has held in
Avetisyan, supra, "that on the other hand it would not be
appropriate for an Imigration Judge or the Board to
adinistratively close proceedings if the request is based on a
purely speculative event or action." The Respondent wishes to
file an I-140. He has made attempts to get an I-140 filed but
so far this has not come to fruition. The Court finds that it
is inappropriate to adinistratively close the case for the
Respondent to continue his negotiations, et cetera, with a prior
employer to have an I-140 filed where there is no assurance that
in fact it will ever be filed.
The Respondent does not seek other relief from
removal. He apparently has no fear of returning to India on
account of any of the enumerated grounds. The Court also notes
that he does not wish to apply for voluntary departure.
Accordingly, the following order will be entered.
A088-152-759 3 May 14, 2012
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(
,
(
CERTIFICATE PAGE
I hereby certify that the attached proceeding before JUDGE
BARBARA A. NELSON, in the matter of:
PANKAJKUMAR PATEL
A088-152-759
NEW YORK, NEW YORK
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.
PATRICIA KOBYLSKI (Transcriber)
YORK STENOGRAPHIC SERVICES, Inc.
JULY 30, 2012
(Completion Date)
PAK/BJN
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