U.S.

Department of Justice
Executive Office for Immigration Review

Board of Immigration Appeals

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

Whiting, Rebecca Marie

OHS/ICE Office of Chief Counsel - CHI

525 West Van Buren Street
Chicago, IL 60607

Chicago, IL 60601

Name: ALI, SALEH FAISAL

A 095-917-975

Date of this notice: 4/15/2015

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

Don.JtL CtVvV
Donna Carr
Chief Clerk

Enclosure

Panel Members:
Mullane, Hugh G.

Userteam: Docket

For more unpublished BIA decisions, visit

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Cite as: Saleh Faisal Ali, A095 917 975 (BIA Apr. 15, 2015)

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Immigration Attorneys, LLP

203 N. La Salle St.
Ste. 1550

U.S.

Department of Justice

Decision of the Board of Immigration Appeals

Executive Office for Immigration Review

Falls Church, Virginia 20530

File:

A095 917 975 - Chicago, IL

Date:

APR 1 5 2015

In re: SALEH FAISAL ALI

IN REMOVAL PROCEEDINGS

ON BEHALF OF RESPONDENT:
ON BEHALF OF DHS:

Rebecca M. Whiting, Esquire

Anastasie M. Senat

Assistant Chief Counsel

CHARGE:
Notice:

Sec.

237(a)(l)(B), I&N Act [8 U.S.C. 1227(a)(l)(B)] In the United States in violation of law

APPLICATION: Remand; adjustment of status

The respondent, a native and citizen of Yemen, has appealed from the decision of the

Immigration Judge dated June 3, 2013, denying his request for a continuance to await the

adjudication of a spousal visa petition and ordering him removed from the United States to

Yemen pursuant to the charge in the Notice to Appear. The respondent has also filed a motion to
remand the proceedings to the Immigration Judge.

The Department of Homeland Security

("DHS") opposes the appeal and the motion to remand. The record will be remanded.

The respondent has submitted evidence that following the Immigration Judge's decision, the

Board sustained the appeal from the denial of the visa petition filed on the respondent's behalf,
and the petition has been approved.

The respondent submitted with the motion Form 1-485,

Application to Register Pennanent Residence or Adjust Status.

The respondent's motion

complies with the regulatory requirements for a motion to remand and will be granted. 8 C.F.R.
1003.2(c); see Matter of Coelho, 20 I&N Dec. 464, 471 (BIA 1992) (stating that the

requirements for a motion to remand are essentially the same as the requirements for a motion to
reopen).
ORDER:

The record is remanded to the Immigration Court for further proceedings

consistent with the foregoing opinion and the entry of a new decision.

FOR THE BOARD

Cite as: Saleh Faisal Ali, A095 917 975 (BIA Apr. 15, 2015)

Immigrant & Refugee Appellate Center | www.irac.net

APPEAL AND MOTION

UNITED STATES DEPARTMENT OF JUSTICE

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

In the Matter of

)
)
)
)

SALEH FAISAL ALI

RESPONDENT

CHARGE:

IN REMOVAL PROCEEDINGS

- the respondent has been charged as being

anytime after admission as a non-immigrant under Section
Section 237(a)(1)(D)

101(a)(15) of the Act, the respondent has remained in the United

States for a longer time than permitted in violation of the Act or any
other law of the United States.

APPLICATION:

Continuance request.

ON BEHALF OF RESPONDENT: REBECCA M. WHITING

Immigration Attorneys LLP
203 North LaSalle St. , Suite 1550
Chicago, Illinois 60601
ON BEHALF OF OHS: ELIZABETH I. TREACY, Assistant Chief Counsel
Department of Homeland Security
Office of Immigration and Customs Enforcement
Chicago. Illinois 60607
ORAL DECISION OF THE IMMIGRATION JUDGE
The respondent is a native and citizen of Yemen who was admitted to the United
States at New York, New York on or about April 19, 2001 as a non-immigrant visitor
with authorization to remain in the United States for a temporary period not to exceed

Immigrant & Refugee Appellate Center | www.irac.net

June 3, 2013

File: A095-917-975

April 18, 2002. Respondent did in fact remain in the United States beyond April 18,
2002 without authorization from the Immigration and Naturalization Service.
On or about December 24, 2002, the Immigration and Naturalization Service

These allegations were all admitted at a hearing begun on February 27, 2003 before
Immigration Judge Cuevas. Subsequently, the present Immigration Judge did in fact
find that removability had been established based upon these admissions, and the
Court designated Yemen as the country of removal

if removal if that were to become

necessary in these proceedings, pursuant to Immigration and Nationality Act Section

241(b).
In lieu of removal, the respondent Aef8 today does seek a continuance.
However, the Court would note that this case has started as long ago as January of
2003 before the Immigration Court, and while the respondent has. through his United
States citizen wife.I. filed three separate 1-130 visa petitions, the respondent does not
currently have an approved visa petition from USCIS and he does not have any other
applications for relief pending before this Court.
The Court will note that there were several continuances provided in this case so
that the respondent could in fact attempt to perfect his ability to adjust his status,
beginning with his initial attorney who represented him in 2003. The previous
Immigration Judge granted no less than twahree motions for continuances aoo one
dated November 25, 2003, another dated August 3, 2004, and another continuance
granted in November of 2005. And in 2006, the motion to substitute counsel was
granted";"and-Gounsel was substituted to Mr. Omar Abuzir.
The Court then granted additional continuances based upon g_new attorney
representing the respondent. Mr. Chelsea. Another continuance was granted on May

A095-917-975

June 3, 2013

Immigrant & Refugee Appellate Center | www.irac.net

placed the respondent into removal proceedings with service of the Notice to Appear.

20, 2009, again based on the pendency of an 1-130 petition. ARG sCounsel for the
respondent at that time submitted additional documentation in support of the
respondent's visa petition filed with USCIS. AAG-eOn March 23, 2010, counsel for the

filing when thffi the undersigned Immigration Judge took over the case, Counsel for
respondentChelsea filed an additional request for a continuance which this Court
granted on June 30, 2011. ARG Mr. Chelsea also filed a request for a continuance in
November of 2011. On December 7, 2011 the Court granted that continuance. Mr.
Chelsea also filed a motion to withdraw in May of 2012, and present counsel moved to
substitute into the Court case on or about May 11, 2012. The Court allowed for the
motion of substitution of counsel and allowed the current counsel to step into the case
at this point. The court aR4 also granted a continuance to current counsel, whiGRen a
continuance request was filed on May 16, 2012:. and this Court granted a continuance
on June 6, 2012. Now, since June 6, 2012, the case has been continued further to April
4, 2013 and finally to today's date, June 3, 2013.
Despite all of these continuances that have been granted by the Immigration
Court since 2003, the respondent still has no viable application for relief pending before
this Court. And counsel for the respondent has indicated that the respondent does
intend to pursue his current visa petition which will be pending on appeal before the
Board of Immigration Appeals. However, based upon the record before this Court and
the pendency of this proceeding for the last ten years, the Court does not find that there
is good cause shown for a continuance in this matter any further. Based upon the
regulations in 8 C.F.R. Section 1003. 29 and based upon Board of Immigration Appeals
precedent decision Matter of Perez-Andrade, 19 l&N Dec. 433 (BIA 1987), the decision
to grant or deny continuances within the discretion of the Immigration Judge if good

A095-917-975

June 3, 2013

Immigrant & Refugee Appellate Center | www.irac.net

respondent submitted those documents to this Court. .'\nd then, sSubsequent to that

cause is shown and if it can be shown that the respondent received a full and fair
hearing. The Court also refers to the Board of Immigration Appeals decision in Matter
of Hashmi. 24 l&N Dec. 785 (BIA 2009). which directs the Court to decide whether or

focus of the inquiry of the Immigration Judge should be on a likelihood of success on

the adjustment application.
In this particular case, the respondent has had three previous visa petitions filed.
One visa petition was withdrawn by the same petitioner. While that has been
apparently refiled and while the Court has been informed that the respondent has been
married since August of 2002 to the same wife, the Court is also mindful that the
respondent has also received three previous denials on his visa petition application
from USCIS. I do not find that the respondent is likely to succeed in his adjustment
process in light of the three previous denials.
However, more importantly, the respondent has had ten years in these
proceedings and numerous continuances to try to rectify his situation here in the United
States. I do not see that there would be any due process violation relating to the
respondent's case, as I do not see any evidence presented to the Court that would
show that there would be a different effect of the outcome of his hearing today. or even
if the Court were to grant a continuance in this matter. See Ambati v. Reno, 233 F.3d
1054, 1061 (7th Cir. 2000). That case states that where an alien does not set forth
evidence that would have been presented or arguments that would have been made.
had counsel been given additional time to prepare his case the alien has failed to
demonstrate that the alleged violation of due process potentially impacted the outcome
of his hearing.
While it is possible that the respondent will be successful on his appeal.I... that is

A095-917-975

June 3, 2013

Immigrant & Refugee Appellate Center | www.irac.net

not to continue removal proceedings to await adjudication of a visa petition, and that the

prospective at this point and in light of three previous l-1301s having been filed and
denied, the Court finds that the respondent has received a-fair and fundamental process
in these proceedings. Therefore, on the basis of the respondenfs previous numerous

upon the fact that the respondent seeks no additional relief before this Court today, the
Court will enter the following order:
ORDER
IT IS ORDERED that the respondent be removed from the United States to
Yemen on the charge in the Notice to Appear. The Court found that the respondent
was removable by clear, convincing and unequivocal evidence and the respondent has
requested no form of relief before this Court today. The Court will sign the order today
in a summary order.

Please see the next page for electronic

signature

SHEILA MCNULTY
Immigration Judge

A095-917-975

June 3, 2013

Immigrant & Refugee Appellate Center | www.irac.net

continuances being granted, the Court will not continue the case any further, and based

"

//s//
Immigration Judge SHEILA MCNULTY
mcnultys on September 12,

2013 at 10:22 PM GMT

Immigrant & Refugee Appellate Center | www.irac.net

A095-917-97 5

June 3, 2013