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Fogle, Jr H. Glenn., Esq.

The Fogle Law Firm, LLC


4 Broad Street, N.W., Ste 700
Atlanta, GA 30303
Name: ESHUN, MICHAEL
U.S. Department of Justice
Executive Ofce fr Immigration Review
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Fals C/111rc/1, Vrginia 22041
OHS/ICE Ofice of Chief Counsel - ATL
180 Spring Street, Suite 332
Atlanta, GA 30303
A089-439-806
Date of this notice: 3/11 /2011
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosure
Panel Members:
Cole, Patricia A.
Pauley, Roger
Wendtland, Linda S.
Sincerely,
Donna Car
Chief Clerk
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Cite as: Michael Eshun, A089 439 806 (BIA March 11, 2011)
For more unpublished BIA decisions, visit www.irac.net/unpublished
U.5. Occut0fJu
Ext Ofc fo m guouRe
Domouofte Bo ofmgou
Fals Ch'VQa201
File: A089 439 806 - Atlat GA
In re: MCHAL ESHN
I ROVA PROCEEDINGS
APPEAL
Date:
ON BEHLF OF RESPONDENT: H. Glen Fogle, Jr., Esquire
ON BE OF DHS:
CHAGE:
Jaes McHenr I
Assistat Chief Counsel
N IJ JII
Notice: Se. 237(a)(l)(B), l&N Act [8 U.S.C. 1227(a)(l)(B)] -
I the United States in violaton of law
APPLICATION: Contnuace
The respondent, a native and citien of Ghana who had conceded hs removabilit, appeals fom
the Imgaton Judge's December 7, 2009, deision denying his request fr a contnuac to allow
the adjudicton of a pending Visa Petition (For I-130) by the Depament of Homelad Security,
and ordering mremoved fom the United States. The appeal will be sustained, and the reord w
be remanded to the Imigation Court.
We review the Immigaton Judge's fndings of including creibility determinatons, fr cle
eror. 8 C.F.R 1003. l(d)(3)(i). A other issues, including whether the paes have met the
relevant burden of proot ad issues of discreon, we review d nov. 8 C.F.R 1003.l(d)(3)(ii).
As the respondent's adjustment application was fled afer May 11, 2005, it is govere by the
provisions of the RAL I Act. See Matter of S-B-, 24 I&N Dec. 42 (BIA 2006).
The Imigaton Judge relied on Matter of Velad, 23 I&N Dec. 253 (IA 2002), to deny the
respondent's moton fr a continuace because the respondent faled to establish the bonfds of
his mariage (I.J. at 2). But Matter of Velrd, spra, addressed the standard fr evaluating a motion
to reopen based on a marriage durng removal proceedigs, not a moton fr a contuance on the
sae gounds. Athough the respondent ultimately wl be required to me a simila "clear ad
convincing" standad under setions 204(g) and 245( e) of the Immigation and Naonality Act,
8 U.S.C. l 154(g), 1255(e), to merit approval of his v petition and a gnt of adjustent of
sts, he unot requie to me that standard outrght to establish "good cse" fr a continuace
under Matter of Hahmi, 24 I&N De. 785 (BIA 2009). Rather, the responden mus demonte
that a prima fcie approvable vpettion h ben fled on his behaf ad he is prima fcie eligble
fr adjusment of status (coupled with other releant factors) to establish good case fr a
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Cite as: Michael Eshun, A089 439 806 (BIA March 11, 2011)
A089 439 806
continuance. See Mater of Hahmi, spra; see a/so Mater of Gacia, 16 I&N De. 653, 657 (BIA
1978) ("discreton should, a a gener rle, be fvorably exercised where a prima fe approvable
vpetton ad adjustent applicaon have been sbmitte in the course of a deportaton heg
or upon a moton to reopen").
We wremad to allow the Immigtion Judge to consider the respondent's moton to continue
pursuant to the criteria set frth in Mater of Hahmi, sra. The fllowing orders wbe entered.
ORDER: The respondent's appeal is sustaine.
FT ORDER: The record of proceedings is remanded to the Immigation Cour fr
fher proce gs consistent with the fregoing opinion ad entry of a new decision.
FOR T BOA c:
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Cite as: Michael Eshun, A089 439 806 (BIA March 11, 2011)
U.S. DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
Atlanta, Georgia
File A 089 439 806
In the Matter of
MICHAEL ESHUN,
Respondent
CHARGE: 237 (a) (1) (B).
December 7, 2009
IN REMOVAL PROCEEDINGS
APPLICATIONS: Continuance and, in the alternative, voluntary
departure.
ON BEHALF OF THE RESPONDENT:
H. Glen Fogle, Jr., Esquire
ON BEHALF OF THE DEPARTMENT
OF HOMELAND SECURITY:
James McHenry II, Esquire
ORAL DECISION OF THE IMMIGRATION JUDGE
The respondent is a male, native, and citizen of Ghana
who was admitted to United States at New York, New York on August
26, 2004 as an H and a non-imigrant to attend three weeks
training in the University of Georgia. He stayed beyond the date
that he was supposed to depart without authorization from the
Government. On December 10, 2007 a Notice to Appear was issued
by the adjudications section of Citizenship and Imigration
Services in Atlanta. He was charged with being subject to
removal pursuant to the Section 237(a) (1) (B). This was due to
the fact that his I-130 application that had been filed on his
behalf had been denied following the withdrawal of that I-130 by
the United States citizen spouse, one Erlisa Ellen Banks. Upon
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FOB
.
..
the master calendar on June 24, 2008, the respondent appeared
with counsel, admitted the allegations to the Notice to Appear,
and conceded removability as charged. He sought continuance
because after being placed in proceedings he had remarried and
wished a continuance for the adjudication a subsequent refiled
I-130. However, because he had married while in proceedings, he
o
was not entitled to a Garcia continuance, rather a voazI
re!c\
hearing to determine if the marriage was beneficent since there
was a presumption that it was not. The matter was initially set
for a hearing December 23, 2008 then continued to March 23, 2009

\< |0
and finally continuedr t
'
oday' s date. At a voa+1| hearing both
parties must be present so that the Court may question both of
them about the motive and validity of their marriage. On today's
date the respondent appeared. His wife did not. He said that
his wife was believed to be up in Tennessee. In any event,
inasmuch as his wife has had notice of this hearing since March
of 2009, the Court believes that she has had ample notice and is
--
aware of the fact, more than aware of the fact, that she was
supposed to be here for this hearing today. The fact that she is
not here, and that phe f
9
und other things more important than
-
appearing at the vlidity hearing again raises some questions
about the validity of the respondent's marriage. And the Court
will not grant a Garcia continuance or provide any more
continuances in this matter for the adjudication of the I-130.
The alternative form of relief is that of voluntary departure.
A 089 439 806 2 December 7, 2009
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'OB
The Government was agreeable to 120 voluntary departure if the
respondent waived appeal. However, the respondent is not going
to waive appeal, and wishes to seek only 60 days reserving the
right to appeal. The following orders will thereby be entered.
ORDER
IT IS ORDERED that the respondent be and is found
removable as charged in the Notice to Appear.
IT IS ORDERED that the respondent's application for a
continuance for the adjudication of an I-130, being the same, is
hereby denied.
IT IS ORDERED that the respondent be granted the
privilege of voluntary departing of the United States that period
to run for 60 days until February 5, 2010. The respondent is
ordered to post a $2, 000 voluntary departure bond on or before
December 14 , 2010. If he failed to post that bond or failed to
depart the United States, it is required by this Court or any
Court this will automatically become an order of removal to his
country of nativity and citizenship on the charges contained in
the Notice to Appear. And the subject will be subject to a
$3, 000 civil money penalty for failure to depart.
DONE AND ORDERED this 7th day December 2009.
A 089 439 806 3
GRACE A. SEASE
Imigration Judge
December 7, 2009
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'
(
CERTIFICATE PAGE
1.
(
I hereby certify that the attached proceeding
before GRACE A. SEASE in the matter of:
MICHAEL ESHUN
A 089 439 806
Atlanta, Georgia
was held as herein appears, and that this is the original
transcript thereof for the file of the Executive Office for
Inigration Review.
L :"
llM C 7 O J f I 07
_ 0 ; . -.. .
Francine Baker {Transcriber}
Deposition Services, Inc.
6245 Executive Boulevard
Rockville, Maryland 20852
{301) 881-3344
February 6, 2010
(Completion Date)
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