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

Huff, Robert S. Law Offices of Robert S. Huff 555 - 116th Avenue, NE, Suite 254 Bellevue, WA 98004

OHS/ICE Office of Chief Counsel SEA 1000 Second Avenue, Suite 2900 Seattle, WA 98104

Immigrant & Refugee Appellate Center | www.irac.net

Name: DINH, TO NGA THI

A 089-854-183

Date of this notice: 10/25/2013

Enclosed is a copy of the Board1s decision and order in the above-referenced case. Sincerely,

DGnltL CtYVLJ
Donna Carr Chief Clerk

Enclosure Panel Members: Manuel, Elise

yungc Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: To Nga Thi Dinh, A089 854 183 (BIA Oct. 25, 2013)

Executive Office for Immigration Review Falls Church, Virginia 22041

p.S. J?e,artment of usce

Decision of the Board of Immigration Appeals

File:

A089 854 183 - Seattle, WA

Date:

In re: TO NGA THI DINH IN REMOVAL PROCEEDINGS

Otl J5ZOJ3

APPEAL ON BEHALF OF RESPONDENT: ON BEHALF OF DHS: Robert S. Huff, Esquire

Immigrant & Refugee Appellate Center | www.irac.net

Eric Bakken Senior Attorney

CHARGE: Notice: Sec. 237(a)(l)(B), I&N Act [8 U.S.C. Present in violation of law

1227(a)(l)(B)] -

APPLICATION: Continuance; adjustment of status The respondent, a native and citizen of Vie1nam, appeals the Immigration Judge's October 11, 2011, decision denying her request to continue proceedings. The respondent filed a timely appeal of that decision. The Department of Homeland Security (DHS) has filed a brief in opposition to the appeal. The record will be remanded. At the time of the Immigration Judge's decision, the U.S. Citizenship and Immigration Service (USCIS) had already denied the visa petition filed by the respondent's U.S. Citizen (USC) husband (I.J. at 1-2; Tr. at 7-8; Exh. 2). The Immigration Judge denied the respondent's request for a continuance to allow the respondent time to consider an appeal of the USCIS decision denying her visa petition. While this Board has announced numerous factors that should be considered when considering whether removal proceedings should be continued to await a final decision regarding the merits of a pending immigrant visa petition, "the focus of the inquiry is the apparent ultimate likelihood of success on the adjustment application."

Matter of Hashmi, 24

I&N Dec. 785, 790

(BIA 2009). On appeal, the respondent states that an appeal of the visa petition denial has been filed, and she has also provided new evidence that she has given birth to a child fathered by her USC husband. Because this evidence is relevant to the bona tides of the marriage and the likelihood of success on her adjustment application, we find remand warranted. See th Ahmed v. Holder, 569 F.3d 1009 (9 Cir. 2009). ORDER: The record is remanded for further proceedings consistent with the foregoing opinion and for the entry of a new decision.

O;Tim
Cite as: To Nga Thi Dinh, A089 854 183 (BIA Oct. 25, 2013)

UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW UNITED STATES IMMIGRATION COURT Seattle, Washington File No.: A 089 854 183 October 11, 2011

Immigrant & Refugee Appellate Center | www.irac.net

In the Matter of TO NGA THI DINH Respondent CHARGE: APPLICATION: Overstay. Request for a continuance. IN REMOVAL PROCEEDINGS EXECUTIVE FICE IMMIGRATION SEATTLE, RECEIVED

OF FOR IMMlGRATlON REVIEW COURT WSONz_4 ' )

I I

ON BEHALF OF RESPONDENT: Robert Huff Attorney at law

ON BEHALF OF OHS: Eric J. Bakken Attorney at law

ORAL DECISION OF THE IMMIGRATION JUDGE The respondent is a native and citizen of Vietnam. She was

placed in proceedings by the filing of her Notice to Appear on June 25, 2010. This has been designated as Exhibit 1.

This case has been on the docket several times going back to last year and I continued the case so that the respondent would have the opportunity to have a pending I-130 ad j udicated. I have

now been provided with a denial of the I-130. Counsel has indicated that he would like the case continued so as to consider possible forms of requests in terms of a motion to reconsider the denial of the I-130 or an appeal of the denial of the I-130 or possibly a request for prosecutorial discretion. 1

' (

I take note that none of those options are within my jurisdiction. I understand that any motion to continue must be evaluated

Immigrant & Refugee Appellate Center | www.irac.net

under the standards set forth in Matter of Hashmi, 785 (BIA 2009). In my view,

24 I&N Dec.

the case has already been

. significantly continued to afford this respondent the opportunity to have the I-130 adjudicated and now that it has been denied and since there is no other form of a request for relief that I can provide, I believe that the case should be completed at least at

the IJ level given the procedural history as noted above. There is no issue of fact and I take note that the Department has withdrawn other allegations and charges of removability which the respondent denied. ORDERS IT IS HEREBY ORDERED that the motion to further continue be denied. IT IS FURTHER ORDERED that the respondent be given the privilege of voluntary departure by December 12, 2011, upon the

posting of a $500 voluntary departure bond with an alternate order of removal to Vietnam. IT IS FURTHER ORDERED that the voluntary departure advisals are provided herewith and incorporated herein by reference.

' KENNETfi JMEPHS United States Immigration Judge A 089 854 183 2 October 11, 2011

CERTIFICATE PAGE

hereby

certify

that

the

attached

proceeding

before

JUDGE KENNETH JOSEPHSON,

in the matter of: TO NGA THI DINH

Immigrant & Refugee Appellate Center | www.irac.net

A 089 854 183 Seattle, is an accurate, Washington

verbatim transcript of the recording as provided by Immigration Review and that this is the

the Executive Office for original

transcript thereof for the file of the Executive Office

for Immigration Review.

Kristen J. B lotti, Transcri Free State R porting, Inc.

November 29, 2011 (completion date)

By submission of this CERT IFICATE PAGE, the Contractor certifies that a Sony BEC/T-14 7, 4 -channel transcriber or equivalent, and/or CD, as described in Section C, paragraph C. 3. 3. 2 of the contract, was used to transcribe the Record of Proceeding shown in the above paragraph.