UNITED STATES DEPARTMENT OF JUSTICE



ATTORNEY

FIRM

ADDRESS

ADDRESS

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

IMMIGRATION COURT

CHICAGO, ILLINOIS

______________________________

IN THE MATTER OF: )

)

CLIENT ) File No: AXXX-XXX-XXX

)

) Next merits hearing:

RESPONDENT ) DATE at TIME

_____________________________ ) before the Honorable JUDGE

MOTION TO CONTINUE

Respondent D. Client (Mr. Client), through counsel ATTORNEY, and the National Immigrant Justice Center, respectfully moves this Court to continue his proceedings in light of his marriage to a U.S. citizen and his recently filed I-130, Petition for Alien Relative. In support of this motion, Respondent states the following:

1. Client entered the United States on DATE with a tourist visa. He subsequently applied for asylum before USCIS and the Asylum Office referred his case to the Immigration Court.

2. On June 8, 2007, this Court granted Mr. Client’s application for asylum. The Department of Homeland Security appealed the Court’s decision and on December 11, 2008, the Board of Immigration Appeals (“Board”) sustained the appeal. The Board then remanded Mr. Client’s case to the Immigration Court for consideration of his applications for relief under the Convention Against Torture and voluntary departure.

3. On April 9, 2009, Mr. Client appeared before the Court with former counsel for a master calendar hearing. The Court then set Mr. Client for another master calendar hearing on June 15, 2009.

4. At the June 15, 2009 hearing, present counsel notified the Court that Mr. Client’s United States citizen fiancé was pregnant and that the couple intended to marry and then file an I-130, Petition for Alien Relative. The Court therefore set Mr. Client for another master calendar hearing on July 23, 2009, so that present counsel could update the Court regarding the status of the marriage and the I-130 petition.

5. Mr. Client married his United States citizen fiancé, P., on July 1, 2009. (See Exhibit F, Marriage Certificate). Ms. P. is currently five months pregnant and the baby is due in November 2009. (See Exhibits L-M, Ultrasound images of M. P. and D. Client’s baby).

6. On July 21, 2009, Ms. P. filed Form I-130, Petition for Alien Relative, with the Chicago Lockbox Facility. (See Exhibit E, Copy of I-130 Petition). Ms. P. has not yet received a receipt notice for the petition.

7. Although Mr. Client’s I-130 petition has not yet been approved, there is no reason to expect that USCIS will not approve the petition. Mr. Client and his wife have been in a relationship for many years and have a child together. As demonstrated by their child, the affidavits from Ms. P. and Mr. Client, and the letter from Mr. Client’s in-laws, Ms. P. and Mr. Client have established the bona fides of their marriage and the I-130 petition filed by Ms. P. is therefore prima facie approvable. (See Exhibits F-Q).

8. As the spouse of a U.S. citizen, Mr. Client falls into the “Immediate Relative” visa category, INA § 201(b)(2)(A)(i), and as such, a visa is “immediately available” to him.

9. Because Mr. Client entered the country legally, he is permitted to adjust his status under INA § 245(a) once the I-130 petition is approved. He has never committed any crimes and is not inadmissible to the United States on any other grounds. He is therefore prima facie eligible for Adjustment of Status.

10. Based on the pending I-130 petition and his wife’s pregnancy, Mr. Client requests that this Court continue his proceedings for at least six months to allow for the adjudication of the petition. In the alternative, as Ms. P. and Mr. Client’s baby is due very soon, in November 2009, Mr. Client requests that the Court continue proceedings at least until after the baby is born.

11. The Court “may grant a motion for continuance for good cause shown.” 8 C.F.R. § 1003.29.

12. In Matter of Hashmi, 24 I&N Dec. 785, 790 (BIA 2009), the Board of Immigration Appeals established five factors that adjudicators should rely on to determine if good cause exists to continue a case based on a pending visa petition: 1) DHS’s response to the motion to continue; 2) whether they 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 merits a favorable exercise of discretion; 5) the reason for the continuance and any other relevant procedural factors. See EOIR Operating Policies and Procedures Memorandum 13-01: Continuances and Administrative Closure (citing with approval, the five Hashmi factors for determining if good cause exists to grant a motion to continue).

13. In Hashmi, the Board noted that the prima facie approvability of the underlying visa petition is a significant factor to consider when deciding whether to continue proceedings. Hashmi, 24 I&N Dec. at 790.

14. This motion is not being brought for the purpose of delay. Rather, Mr. Client brings this motion so he can pursue his I-130 petition based on his marriage to a U.S. citizen, a purpose which the Board has recognized as significant. Id. Furthermore, as described above, Mr. Client meets other Hashmi factors. The evidence included with this motion establishes that his I-130 is prima facie approvable; he is statutorily eligible to adjust his status once the I-130 is approved; and he merits adjustment of status in the exercise of discretion.

WHEREFORE, Mr. Client requests that this Court grant his Motion to Continue and allow sufficient time for U.S. Citizenship and Immigration Services to adjudicate his I-130, Petition for Alien Relative.

Respectfully submitted,

Date: ________________________ ______________________________

ATTORNEY

FIRM

ADDRESS

ADDRESS

PHONE

FAX

CERTIFICATE OF SERVICE

I, ___________________, hereby certify that I delivered a copy of the Motion to Continue to the Office of the Chief Counsel via e-service to chicagooccfilings@ice., on _______________________.

___________________________

ATTORNEY

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

IMMIGRATION COURT

CHICAGO, ILLINOIS

In the Matter of Client Client A Number: XXX-XXX-XXX

ORDER OF THE IMMIGRATION JUDGE

Upon consideration of the Respondent’s Motion to Continue, it is HEREBY ORDERED that the motion be _____ GRANTED _____ DENIED because:

_____DHS does not oppose the motion.

_____ A response to the motion has not been filed with the Court.

_____ Good cause has been established for the motion

_____ The Court agrees with the reasons stated in the opposition to the motion.

_____ Other:

____________________ _______________________

Date Immigration Judge

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