U.S. Department of .

Justice
Executive Office for Immigration Review
Board ofImmigration Appeals
Office ofthe Clerk
51071.eesburg l'ike. Suite 2000
Falls Church. Virginia 20530

DHS/ICE Office of Chief Counsel - DAL

125 E. John Carpenter Fwy, Ste. 500
Irving, TX 75062-2324

Name: KELLY, JESSY NKECHI OGBUN..

A 099-256-275

Date of this notice: 6/15/2015

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

Don.rtL ca.AA)
Sincerely,

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Mann, Ana

Userteam: Docket

For more unpublished BIA decisions, visit

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Cite as: Jessy Nkechi Ogbunefi Kelly, A099 256 275 (BIA June 15, 2015)

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Wheless, Chester L.
Mark E. Jacobs, PC
5050 Quorum Drive
Suite 140
Dallas, TX 75254

U.S Department of Justice

Decision of the Board of Immigration Appeals

Executive Office for Immigration Review

Falls Church, Virginia 20530

File: A099 256 275 - Dallas, TX

Date:

JUN 16 2015

In re: JESSY NKECHI OGBUNEFI KELLY

APPEAL
ON BEHALF OF RESPONDENT: Chester W. Wheless, Esquire
APPLICATION: Continuance
The respondent, a native and citizen of Nigeria, appeals from the Immigration Judge's
decision dated September 16, 2013, denying her request for a continuance to await adjudication
of the Form 1-130, Petition for Alien Relative, filed on her behalf by her United States citizen
husband. The Department of Homeland Security has not filed an opposition to the appeal. The
record will be remanded.
We review for clear error the findings of fact, including the determination of credibility,
made by the Immigration Judge. 8 C.F.R. 1003.1(d)(3)(i). We review de novo all other issues,
including whether the parties have met the relevant burden of proof, and issues of discretion.
8 C.F.R. 1003. l(d)(3)(ii).
The respondent's United States citizen husband filed an immediate relative visa petition on
her behalf, which was denied by the United States Citizenship and Immigration service (USCIS)
on July 17, 2009 (I.J. at 1). On October 25, 2009, the respondent's husband filed a second visa
petition on her behalf, which was ultimately denied on August 19, 2013 (Tr. at 29). On
September 3, 2013, the respondent requested continuance to await adjudication of the appeal
filed from the denial of the second visa petition (I.J. at 2). The Department of Homeland
Security (DHS) opposed the respondent's request (I.J. at 2). The Immigration Judge concluded
that the respondent did not establish good cause for a continuance and denied the respondent's
request.
In Matter ofHashmi, 24 I&N Dec. 785 (BIA 2009), we held that the factors to be considered
in deciding whether a continuance is warranted in family-based adjustment scenarios include (1)
the DHS's response to the motion; (2) whether the underlying visa petition is prima facie
approvable; (3) the respondent's statutory eligibility for adjustment of status; (4) whether the
respondent's application for adjustment of status merits a favorable exercise of discretion; and (5)
the reason for the continuance and other procedural factors.
Upon review of the record, we are not persuaded that the Immigration Judge erred in denying
the respondent's request for a continuance. Nevertheless, we will remand the record for further
proceedings. The record reflects that the appeal of the denial of the first visa petition was never
forwarded to the Board for adjudication. The record further reflects that USCIS denied the
second visa petition without considering the evidence offered in response to the April 30, 2013,
Notice of Intent to Deny. Citing these problems, the Board issued a decision in visa petition
Cite as: Jessy Nkechi Ogbunefi Kelly, A099 256 275 (BIA June 15, 2015)

Immigrant & Refugee Appellate Center, LLC | www.irac.net

IN REMOVAL PROCEEDINGS

A099 256 275

proceedings, dated May 21, 2015, remanding the record to USCIS for further consideration of
the second petition filed on the respondent's behalf and for the issuance of a new decision on that
petition. 1 In light of the unique circumstances presented by this case, we find it appropriate to
remand the record for additional proceedings and for further consideration of the respondent's
request for a continuance pursuant to the framework set forth in Matter ofHashmi, supra.

ORDER: The record is remanded for further proceedings and the entry of the new decision.

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Cite as: Jessy Nkechi Ogbunefi Kelly, A099 256 275 (BIA June 15, 2015)

Immigrant & Refugee Appellate Center, LLC | www.irac.net

In remanding, we express no opinion on the validity of the respondent's marriage to her

United States citizen husband or on the ultimate outcome of these proceedings. See Matter of
L-0-G-, 21 I&N Dec. 413 (BIA 1996). On remand, the parties may supplement the record and
present additional legal arguments. The following order will be entered.

)
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE OF IMMIGRATION REVIEW
DALLAS IMMIGRATION COURT

File:

A 099-256-275

Immigration Removal Proceedings in the Matter of: Jessy Nkechi Ogbunefi Kelly,
Respondent
Charges:

INA 237(a)(l)(B)

On Behalf of the Respondent: Chester Wheless, Esq., 5050 Quorum Dr., Dallas,
Texas, 75254
On Behalf of the Department of Homeland Security/Immigration and Customs
Enforcement: Heidi Graham, Esq., 125 E. John Carpenter Fwy., Ste. 500, Irving,
Texas 75062-2324
WRITTEN DECISION AND ORDER OF THE IMMIGRATION JUDGE
I.

PROCEDURAL HISTORY

The Respondent is a female, native and citizen ofNigeria. Exhibit 1. She was
admitted to the United States at Houston, Texas, on April 8, 2004, as a nonimmigrant B2
visitor, with authorization to remain in the United States for a temporary period not to
exceed October 8, 2004. Id. She remained in the United States beyond October 8, 2004,
without authorization from the Service. Id.
The Respondent subsequently married USC, Billy Kelly. He filed an 1-130
petition on her behalfand they appeared for their interview before USCIS on the I-130
and 1-485 in 2005. Record ofDeportable/Inadmissible Alien (I-213). The couple was
separated and multiple discrepancies in their testimonies were found. Id. Id. USCIS
issued a Notice oflntent to Deny (NOID) on October 25, 2007. The Respondent
appealed the NOID and stated that Mr. Kelly was drunk during the interview.
Nevertheless, USCIS denied the I-130 petition on July 17, 2009. USCIS Decision, 2013,
p. 2. That same day, the Department ofHomeland Security (OHS or Government)
personally served the Respondent with a Notice to Appear (NTA) charging her with
removal. Id.

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Date: September 16, 2013

Additionally, on May 17, 2011, an outside field investigation was done oftheir
home and conclusive findings of"misrepresentation, tampering/changing information on
an apartment lease contract as well as other documentation" were found. I-213; USCIS
Decision, p. 2. On June 21, 2011, USCIS requested some documents from the
Page 1 of4

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The Respondent appeared before the Court on September 3, 2013, and made an
oral request for a continuance. She argued, through counsel, that a continuance should be
granted in order for her appeal in the I- I 30 denial to USCIS to be adjudicated. The
Government opposed the continuance because the 1-130 process is separate and apart
from the Respondent's immigration case before the Court. It further argued that denying
the continuance would not impeded the 1-130 appeal process.
Allegations: The following allegations have been made against the Respondent:
(1) He is not a citizen or national of the United States;
(2) He is a native of Nigeria and a citizen of Nigeria;
(3) She was admitted to the United States at Houston, Texas, on April 8, 2004, as
a nonimmigrant B2 visitor, with authorization to remain in the United States
for a temporary period not to exceed October 8, 2004.
(4) She remained in the United States beyond October 8, 2004, without
authorization from the Service. Id.
Charges: The Goverrunent charged the Respondent with removability under INA
237(a)(l)(B).
Sustaining of the Charge: In 2010, the Respondent admitted the allegations and
conceded the charge of removal.
Relief: The sole issue before the Court is whether or not the service of the NTA
stopped the Respondent's accrual of continuous presence time in the United States. The
answer to this question will determine his eligibility or ineligibility for Cancellation of
Removal for Certain Nonpennanent Residents relief.
III.

STATEMENT OF THE LAW & APPLICATION

A. Motion for Continuance

The Regulations provide that a motion for continuance may be granted when good
cause is shown. 8 C.F.R. 1003.29. The Board has also held that the decision to grant
or deny a continuance for good cause is within the sound discretion of the Immigration
Judge and will not be overturned unless it is shown that the respondent was denied a fully
and fair hearing. Matter ofPerez-Andrade, 19 I. & N .Dec. 433 (BJ.A. 1987). The
Court finds that no good cause has been shown here.

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Respondent. USCIS Decision, p. 2. The Respondent and her husband were interviewed
a second time in May of 2012. Id. The Service subsequently denied the petition again
because of the "lack of detail provided, inconsistent responses, and conflicting
information" provided by she and her husband. Id. In the decision, USCIS indicated that
it did not receive one of documents it requested in its April 2013 NOID, namely, the deed
of trust. Id. at 4. The Respondent presented evidence to the Court arguing that it did
submit the requested document. Respondent's Response to NOID.

Page 2 of 4

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Court's Finding: Therefore, the Court will deny the Respondent's motion for a
continuance. As the Respondent has no other relief before the Court, and is not seeking
Voluntary Departure, this Court will further order the Respondent's removal from the
United States.
Accordingly, the Court will enter the following orders:

Page 3 of 4

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This case has been before the Court for 3 years. During that time period, there
have been two denials of the Respondent's I-130 petition but no disposition of her case
before the Court. The Court now renders a decision in the Respondent's case before it.
The Court has no jurisdiction over the 1-130 or the Respondent's appeal of its denial. 8
C.F.R. 1003.3. The Respondent argues that her continuance should be granted so that
the Service can consider one piece of evidence it seems to have overlooked. However,
the Denial Decision clearly outlines numerous grounds for the denial, not simply the
perceived lack of the document in question. The presentation of this document to the
Court is not enough evidence to reasonably warrant a continuance-especially when the
Respondent presented no time parameters for the continuance.

IV.

ORDERS

IT IS ORDERED, that the Respondent's Motion to Continue be and is

DENIED.

IT IS FURTHER ORDERED, that the Respondent shall be and is removed from

the United States to Nigeria on the charge contained in the Notice to Appear.
WARNING TO RESPONDENT: An order of removal has been entered
against you. If you fail to appear pursuant to a final order of removal at the time and
place ordered by the Government, other than because of exceptional circumstances
beyond your control, you will not be eligible for VD, cancellation or removal, and any
change of adjustment of status for IO years from the date you are scheduled to appear.
Appeal: This Decision is final unless an appeal is filed with the Board of Immigration
Appeals within 30 days of the issuance of this Decision.
Date: September 16, 2013

Immigration Judge
USDOJ/EOIR
Copy to:
Chief Counsel, DHS/ICE

Page 4 of 4

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IT IS FURTHER ORDERED that voluntary departure is DENIED. The Court

notes that the Respondent did not seek voluntary departure, Section 2408, INA.