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a statute is divisible. it is appropriate for the Cours to apply the modified categorical
approach to determine under which part of a divisible statute the respondent was
convicted. In this instance. the indictment restates the statutor defnition. The cour
would fr wi I fnd. therefre ..that it is unable to determine under which of the
divisible pars of the statute the respondent was convicted. Here the Cour would take
the least culpable one. athat is. that the respondent did intentionally receive, retaine
or dispose& of property consisting of a 2009 Cadillac Escalade with the intention to
deprive the owner of or to appropriate that, believing that the property had been
acquired under circumstances amounting to thef. The Cour would fnd in accordance
with Matter of Cardiel, 25 l&N Dec. 12, 26 (BIA 2009) that the statute in question falls
I within the generic definition of :receiving of stolen propery as that term has been
applied to thef under Section 101 (a)(43)(G) of the INA. Accordingly, the Court finds
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that the respondent is removable based on the first charge.
The respondent has requested a continuance in this case in order to
marry his lawful permanent resident fiancee and in order to give her the opportunity to
file a petition for the respondent. In Matter of Hashmi, 24 l&N Dec. 75 (BIA 2009), the
Board held that "in determining whether good cause exists to continue [removal]
proceedings a variety of factors may be considered, including but not limited to: 1, the
Department of Homeland Security's response to the motion to continue; 2, whether the
underlying visa petition is prima facie approvable; 3, the respondent's statutory eligibility
fr adjustment of status; 4, whether the respondent's application for adjustment merits a
favorable exercise of discretion; and 5, the reason for the continuance and any other
relevant procedural factors. Here, the Cour would find that the respondent is not
currently married to the petitioner. Accordingly, at this juncture the Cour would find.
that the underlying visa petition is not prima facie approvable. Even if the Court were to
determine however that the respondent is soon to marr the petitioner, the Court would
nonetheless deny the application.
The Court notes that the respondent has been convicted of an aggravated
felony. Accordingly, the Court would find that while the respondent may be putatively
statutorily eligible for adjustment of status, that the conviction itself is a significant
adverse factor for the Cour to consider in connection with the application.
Considering all of the discretionary factors in the totality the Cour notes
that the respondent is the father of a United States citizen. The Cour will accept the
respondent's contention that his fiancee is currently pregnant with his child. Inasmuch
as the respondent has been convicted of an aggravated felony however, the Court must
find that the respondent has failed to establish that he would be eligible fr the relief that
I he seeks, adjustment of status, with a waiver under Section 212(h) of the IN.
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Accordingly the Court must find that good cause does not exist for the continuance.
Furher, the Cour would note that at this juncture the respondent's
eligibility for a visa is speculative. The respondent is in fact not married to the petitioner
and the petitioner at this juncture is a lawful permanent resident. The petitioner has
stated that she is in the process of applying for naturalization and in fact that she has
been fingerprinted; however the Court would note that the immediate availabilit of a
visa elibi at this juncture is speculativeEeRiE. Accordingly the Cour will find that
the reason for the continuance, that is so that the respondent can get married and so
that the respondent's fiancee can petition; tYs, so that the respondent would be eligible
for the relief is itself a factor militating iRtR fr against a continuance in this matter.
The respondent has also indicated that he seeks to collaterally attack his aggravated
felony conviction. The Cour notes that, in accordance with Matter of Ponce de Leon
Ruiz, a facially valid conviction remains valid for Immigration purposes even during the
pendency of the collateral attack. No collateral attack has been filed at this juncture;
however, the Cour would find that it is not good cause to continue the matter in order to
allow the respondent to collaterally attack at this point.
Having considered the factors set frth in Hashmi the Cour finds that the
respondent has failed to establish that his application for adjustment of status would
merit a favorable exercise of discretion and the Cour would find that the respondent's
eligibilit for a visa is at this juncture is speculative. Accordingly the Cour must find that
good cause does not exist for a continuance and the Cour must deny that continuance
under the factors set forh in Matter of Hashmi.
The respondent has further indicated that he seeks to continue the matter
in order to apply for cancellation of removal under Section 240A(b) of the INA. The
Cour wou\d fnd \ha\ \n order to be eligible for cancellation of removal that the
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respondent must show that he has been a person of good moral character for the 10
years immediately preceding the application. The Court would find that the
respondent's conviction for receiving stolen propery under 11 Delaware code Section
851 is a crime involving moral turpitude and that the respondent is not eligible to show
good moral character during the statutory period under Section 101 (f)(3) of the INA. It
does not appear that the respondent is eligible for any other relief from removal.
Accordingly, the fllowing is the order of the Court:
ORDER
The respondent's request fr a continuance is denied. The respondent is
ordered removed from the United States to Cameroon based on the charge that was set
forh in the Notice to Appear.
Date: May 6, 2013.
signature
A205-829-470
Please see the next page for electronic
ANDREW R. ARTHUR
Immigration Judge
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May 6, 2013
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