U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals Office ofthe Clerk

51071.eesburg Pike. Suite 2000 Falls Church, Virginia 12041

TAMARA A. FRENCH, ESQUIRE Law Office of Tamara A. French 4632 Second Avenue Detroit, Ml 48201

OHS/ICE Office of Chief Counsel - DET 333 Mt. Elliott St., Rm. 204 Detroit, Ml 48207

Immigrant & Refugee Appellate Center | www.irac.net

Name: MROCZKOWSKI, WALDEMAR STANISLAW

A099-657-732

Date of this notice: 1/30/2012

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

Donna Carr Chief Clerk

Enclosure

Panel Members: Pauley, Roger

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: Waldemar Stanislaw Mroczkowski, A099 657 732 (BIA Jan. 30, 2012)

U.S. Department of Justice E.xecutive Office for Immigration Review

Falls Church, Virginia 22041

Decision of the Board oflmmigration Appeals

File:

A099 657 732 - Detroit, MI

Date:

In re: WALDEMAR STANISLAW MROCZKOWSKI IN REMOVAL PROCEEDINGS

JAN B02012

Immigrant & Refugee Appellate Center | www.irac.net

APPEAL ON BEHALF OF RESPONDENT: ON BEHALF OF DHS: Tamara A. French, Esquire

Robert Metzgar Assistant Chief Counsel

CHARGE: Notice: Sec. 237(a)(l)(A), I&N Act [8 U. S.C. 1227(a)(l )(A )] Inadmissible at time of entry or adjustment of status under section

212(a)(6)(C)(i), I&N Act [8 U. S.C. 1182(a)(6)(C)(i)] Fraud or willful misrepresentation of a material fact (withdrawn) Sec.

237(a)(l)(A), I&N Act [8 U. S.C. 1227(a)(l)(A )] Inadmissible at time of entry or adjustment of status under section

212(a)(7)(A)(i)(I) , l&N Act [8 U. S.C. l l 82(a)(7)(A)(i)(I)] Immigrant - no valid immigrant visa or entry document (withdrawn) Sec. 237(a)(l)(B), l&N Act [8 U. S.C. 1227(a)( l )(B)] In the United States in violation of law 237(a)(l)(C)(i), l&N Act [8 U.S.C. 1227(a)( l )(C)(i)] Nonimmigrant - violated conditions of status

Sec.

APPLICATION:

Continuance; motion to remand

The respondent appeals the Immigration Judge's July 15, 2010, decision denying his motion for a continuance. During the pendency of his appeal, the respondent filed a motion to remand. The Department of Homeland Security ("OHS") has not filed an opposition to the motion.1 The motion will be granted, and the record will be remanded to the Immigration Judge for further proceedings consistent with this opinion and for entry of a new decision.

1The DHS did file an opposition to the respondent's appeal and a motion requesting summary affirmance of the Immigration Judge's decision .

Cite as: Waldemar Stanislaw Mroczkowski, A099 657 732 (BIA Jan. 30, 2012)

AQ99 657 732. Through his motion to remand, the respondent has provided evidence that an I-130 visa petition has been filed on his behalf by his United States citizen wife and is currently pending with the DHS . Along with the receipt notice for the filing of the visa petition, the respondent also provided,

inter a/ia, evidence that his first marriage has been terminated by divorce and that he and his current wife

were married thereafter. In this regard, we note that the Immigration Judge previously denied the respondent's motion for a continuance due to the fact that the first visa petition had been denied by the DHS because the respondent was not in fact divorced from his first wife prior to marrying his current United States citizen wife (l.J. at 5-6).

Immigrant & Refugee Appellate Center | www.irac.net

pending the outcome of his visa petition and his potential eligibility for adjustment of status. See, e.g.. Clifton v. Holder, 598 F.3d 486 (8th Cir. 2010) (a motion to reopen should be considered in light of how the new evidence might affect the Immigration Judge's decision to continue the case pending the outcome of a pending visa petition);

Under these circumstances, we will grant the respondent's motion and remand the record to the Immigration Judge for further proceedings regarding the respondent's request for a continuance

24 I &N Dec. 785 (BIA 2009) (an alien's unopposed motion to continue awaiting the outcome of a pending family based visa petition should generally be granted if the approval would render him or her prima facie eligible for adjustment of status). Accordingly, the motion will be granted, and the record will be remanded to the Immigration

see also Matter of Hashmi,

Judge for further proceedings consistent with this opinion and for entry of a new decision. ORDER: The motion is granted, and the record is remanded to the Immigration Judge for further proceedings consistent pinion decision .

l;

FOR THE BOARD

::C D

<:::::

Cite as: Waldemar Stanislaw Mroczkowski, A099 657 732 (BIA Jan. 30, 2012)

UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW U.S. IMMIGRATION COURT Detroit, Michigan File No.: A 099 657 732 July 15, 2010

In he Matter of

Immigrant & Refugee Appellate Center | www.irac.net

WALDEMAR STANISLAW MROCZKOWSKI Respondent CHARGES:

IN REMOVAL PROCEEDINGS

Section 237(a)(1)(B) of the Immigration and Nationality Act (Act), as amended - in that after admission as a nonimmigrant under Section lOl(a)(15) of the Act, you remained in the United States for a time longer than permitted in violation of this Act or any other law of the United States. Section 237(a)(1)(C)(i) of the Immigration and Nationality Act (Act), as amended - in that after admission as a nonimmigrant under Section lOl(a)(15) of the Act, you have failed to maintain or comply with the conditions of the nonimmigrant status under which you were admitted.

APPLICATIONS:

Motion for continuance.

ON BEHALF OF RESPONDENT: Tamara A. French, Esquire 4632 2nd Avenue Detroit, MI 48201

ON BEHALF OF DHS: Robert Metzgar, Assistant Chief Counsel 333 Mt. Elliott Detroit, MI 48207

ORAL DECISION AND ORDERS OF THE IMMIGRATION JUDGE Respondent is an adult, male native and citizen of Poland.

The Department of Homeland Security (hereinafter referred to as "the Government") initiated removal proceedings against respondent pursuant to the authority contained in Section 240 of the Immigration and Nationality Act ("the Act"}. 1 Proceedings

were commenced with this Court by the filing of a Notice to Appear, dated February 26, 2009. The Court would note that

proceedings were initiated in the Immigration Court in Bloomington, Bloomington, through 3, Minnesota. Minnesota, While the proceedings were pending in respondent admitted factual allegations 1 and admitted

Immigrant & Refugee Appellate Center | www.irac.net

denied factual allegations 4 through 6,

factual allegations 7 and 8.

The Court would note that he

initially denied two charges of removability under Section 237(a}(1)(A}; to wit, under Sections 212(a}(6)(C}(i} and He conceded the charge of There was no admission

212(a}(7)(A}(i)(I} of theAct.

removability under Section 237(a){1){B).

or concession as to the 237{a){1)(C}(i) charge. Subsequently, venue of this case was changed to Detroit, Minnesota in an order dated April 28,

Michigan from Bloomington, 2009.

At a subsequent Master Calendar hearing conducted before Michigan, the Government

the Immigration Court in Detroit,

withdrew the charge of removability under Section 237(a){1)(A}; to wit, Section 212{a)(6)(C) {i) of the Act. Respondent, It also withdrew the at that same Master

underlying factual allegation 4. Calendar hearing,

also conceded the charge of removability under Subsequently, the Government

Section 237(a){1}(C}(i) of the Act.

also withdrew the removal charge under Section 237{a) (1){A); to wit, Section 212{a}{7) {A) {i) {I) of the Act. The Government also

withdrew the corresponding underlying factual allegations 5 and 6. Therefore, the only remaining factual allegations (1 through

A 099 657 732

July 15,

2010

3 and 7 and 8) were admitted,

and the only remaining two charges Respondent

of removability were conceded by the respondent.

requested that Poland be designated as the country of removal should such action become necessary.

Immigrant & Refugee Appellate Center | www.irac.net

Respondent had initially requested multiple continuances while the case was both in Bloomington, Minnesota and Detroit,

Michigan based upon his purported marriage to a United States citizen and a pending I-130 petition. counsel, Respondent, through

did submit evidence going to the bona fides of this The Courts in both Bloomington, Minnesota

purported marriage. and Detroit,

Michigan granted multiple continuances to allow

adjudication of the I-130 based upon the respondent's purported marriage to a United States citizen. Ultimately, the matter was continued to a Master Calendar 2010. At that time, the Court inquired as to at that point

hearing on July 15,

the status of the I-130 petition. in time,

The Court was,

notified that the I - 130 petition had been denied by 2010. The basis of that had not been divorced his purported marriage

USCIS in a decision dated June 22, denial was that the respondent,

in fact,

from a prior spouse in Poland; therefore,

to the current United States citizen was not a valid marriage upon which he could proceed forward on an I-130 petition. Both

respondent and his counsel conceded to this Court at the Master Calendar hearing that the respondent, in fact, had not been

divorced from his prior spouse in Poland {although he indicates,

A 099 657 732

July 15,

2010

and the Court does not necessarily doubt,

that he was proceeding

on the good faith basis that a divorce had occurred). Respondent, through his counsel, requested an additional

continuance from this Court to allow the respondent an opportunity to obtain a legal divorce from the prior spouse in Poland, remarry the United States citizen spouse, and then file a

Immigrant & Refugee Appellate Center | www.irac.net

second I-130 petition.

The Court determined that this did not

fall within the parameters for a good cause for a continuance as set forth by the Board in Matter of Hashmi, 2009). Respondent, through counsel, 24 I&N Dec. 785 (BIA

also indicated that he did The Court confirmed all with the respondent.

not wish to request voluntary departure. of this information, Respondent, in fact,

through an interpreter,

indicated that he did not wish to pursue and it was his understanding that his and if that

voluntary departure,

attorney would be requesting a continuance,

continuance would be denied that she would be appealing that denial. Therefore, the Court is issuing the instant decision as

it does not find that the respondent has established good cause for continuance of this matter. The Court notes that at Exhibit No. Appear. Exhibit No. 2 is a Form I-213. 1 was the Notice to Exhibit No. 3 were going to

documents submitted by the respondent,

through counsel,

the bona fides of the purported marriage (which was subsequently determined to be not valid) to the United States citizen.

Exhibit 4 were additional documents regarding the bona fides of

A 099 657 732

July 15,

2010

that relationship.

Admitted as Exhibit No. 5 was the denial of

the I-130 based upon the purported marriage to the United States citizen that was subsequently determined not to be valid. The above constituted the documentary evidence of record in this case. The Court notes that under Matter of Hashmi, the

Immigrant & Refugee Appellate Center | www.irac.net

Board determined that an applicant's unopposed motion to continue removal proceedings for adjudication of a pending family- based visa petition should be generally granted if approval of the visa petition would render the alien prima facie eligible for adjustment of status. The Board stated in Matter of Hashmi in

determining whether good cause exists to continue such proceedings, including, the Court should consider numerous factors, (1) the Government's response to

but not limited to: (2)

the motion to continue;

whether the underlying visa petition (3) a respondent's statutory (4) whether the

is prima facie approvable;

eligibility for adjustment of status;

respondent's application for adjustment of status merits a favorable exercise of discretion or would merit such a favorable exercise; and (5) the reason for the continuance and any other

relevant procedural factors. In considering the circumstances and facts in the instant case, this Court does not find that it has good cause to continue The Court notes that in the instant

this matter any further. case,

unlike the facts present before the Board in Matter of there is no longer any pending I - 130 petition. The I-130

Hashmi,

A 099 657 732

July 15,

2010

petition that was pending was denied. the respondent has,

See Exhibit 5.

Moreover,

in a forthright manner,

indicated that the

marriage to the United States citizen that filed that now-denied I-130 is not valid in that he was never divorced from the prior spouse in Poland. Therefore, this Court does not even have

Immigrant & Refugee Appellate Center | www.irac.net

before it a viable current marriage upon which another I-130 petition could be filed. Under these circumstances, this Court

does not have an underlying visa petition that would even be prima facie approvable because the prior petition was denied. There is no, at this point, viable marriage upon which a second This Court does not find,

I-130 petition could even be filed. therefore,

that it is has good cause to continue this matter It also does

under the parameters set forth in Matter of Hashmi.

not find that it has on its own sufficient factors to establish good cause for a continuance to allow the respondent to divorce, to obtain a divorce from his prior wife in Poland and then enter into a subsequent remarriage to the United States citizen and re-file an I-130 petition. This Court simply does not find any

basis to continue this case further to allow all of these contingent factors to occur. For the foregoing reasons, this Court finds that it does not It has

have good cause to continue this matter any further.

granted the respondent numerous continuances for the adjudication of the prior I-130, which has now been denied. The respondent

has not requested any other forms of relief,

and has

A 099 657 732

July 15,

2010

affirmatively stated on his own,

and through his counsel,

that he

does not wish to file any other forms of relief, voluntary departure. Therefore,

including

this Court has no choice but to

enter an order ordering the respondent removed to Poland. ORDERS OF THE COURT Based upon the foregoing, orders: IT IS, THEREFORE, ORDERED that respondent's motion for the Court issues the following

Immigrant & Refugee Appellate Center | www.irac.net

continuance is denied. IT IS FURTHER ORDERED that based upon admissions and concessions, which st

respondent's prior

lish. his removability by

the requisite clear and convincing be ordered removed removability. 1

K. NETTLES migration Judge

1 The Court notes that the respondent, again, did admit all of the remaining factual allegations (excluding the ones that were withdrawn) and conceded the only two remaining charges of removability under Section 237(a} (1) (B} and 237(a} (1) (C}(i}. Based upon these admissions and concessions, his removability, therefore, has been established by the requisite clear and He requested that Poland be designated as convincing evidence. the country of removal should such action become necessary, and the Court designated Poland.

A 099 657 732

July 15,

2010

CERTIFICATE PAGE

hereby

certify

that

the

attached

proceeding

before

JUDGE MARSHA K.

N ETTLES,

in the matter of:

WALDEMAR STANISLAW MROCZKOWSKI A 099 657 732

Immigrant & Refugee Appellate Center | www.irac.net

Detroit,

Michigan

is an accurate, verbatim transcript of the recording as provided by the Executive Office for Immigration Review and that this is the original transcript thereof for the file of the Executive Office for Immigration Review.

L'nda Dock, Transcri Free State Reporting,

September a. 2010 (completion date)

By submission of this CERTIFICATE PAGE, the Contractor certifies that a Sony BEC/T-147, 4 - channel transcriber or equivalent and/or CD, as described in Section C, paragraph C. 3. 3. 2 of the contract, was used to transcribe the Record of Proceeding shown in the above paragraph.