U.S.

Department of Justice Executive Office for Immigration Review

Board ofImmigration Appeals Office qf the Clerk

5 /07 Leesburg Pike, Suite 2000 Falls Church. Virginia 20530

Wynn,Darryl L,Esq. Law Office of Darryl Wynn 75 Maiden Lane Suite 229 New York,, NY 10038

OHS/ICE Office of Chief Counsel - NYD 201 Varick, Rm. 1130 New York,NY 10014

Immigrant & Refugee Appellate Center | www.irac.net

Name:KENDE,ELHADJIMBAYE

A 093-439-866

Date of this notice: 2/12/2014

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

Doruu.., ctVVt.J
Donna Carr Chief Clerk

Enclosure Panel Members: Guendelsberger, John

Lulseges Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: Elhadji Mbaye Kende, A093 439 866 (BIA Feb. 12, 2014)

U.S. Department of Justice Executive Office for Immigration Review

Board ofImmigration Appeals Office of the Clerk

5 /07 Leesburg Pike, Suite 2000 Falls Clrurc/J, Virginia 20530

KENDE,ELHADJIMBAYE A093-439-866 ORANGE COUNTY JAIL 110 WELLS FARM ROAD GOSHEN, NY 10924

OHS/ICE Office of Chief Counsel - NYD 201 Varick, Rm. 1130 New York, NY 10014

Immigrant & Refugee Appellate Center | www.irac.net

Name:KENDE , ELHADJIMBAYE

A 093-439-866

Date of this notice: 2/12/2014

Enclosed is a copy of the Board's decision in the above-referenced case. This copy is being provided to you as a courtesy. Your attorney or representative has been served with this decision pursuant to 8 C.F.R. 1292.S(a). If the attached decision orders that you be removed from the United States or affirms
an

Immigration Judge's decision ordering that you

be removed, any petition for review of the attached decision must be filed with and received by the appropriate court of appeals within 30 days of the date of the decision. Sincerely,

Dowu... CtVvV
Donna Carr Chief Clerk

Enclosure Panel Members: Guendelsberger, John

Lulseges Userteam: Docket

Cite as: Elhadji Mbaye Kende, A093 439 866 (BIA Feb. 12, 2014)

U.S. Department of Justice

Executive Offie for Immigration Review Falls Church, Virginia 20530

Decision of the Board of Immigration Appeals

File:

A093 439 866 - New York, NY

Date:

In re: ELHADJI MBA YE KENDE a.k.a. Elhadje Kende IN REMOVAL PROCEEDINGS

FEB 12 2014

Immigrant & Refugee Appellate Center | www.irac.net

APPEAL ON BEHALF OF RESPONDENT: APPLICATION: Continuance Darryl L. Wynn, Esquire

The respondent, a native and citizen of Senegal, appealed a decision from the Immigration Judge dated October 9, 2013, denying his request for a motion to continue. The Department of Homeland Security has not filed a brief or other response. further proceedings. We review the findings of fact under a "clearly erroneous" standard. 1003.l(d)(3)(i). 1003.l(d)(3)(ii). The Board articulated factors to be considered in evaluating a motion to continue pending final adjudication of the Petition for Alien Relative (Form I-130), filed in conjunction with an adjustment application. relevant burden of proof, and issues of discretion, under a de novo standard. The record will be remanded for

See See

8 C.F .R.
8 C.F .R.

We review all other issues, including whether the parties have met the

See Matter of Hashmi, 24

l&N Dec. 785 (BIA 2009). While some or all Id. at 790. In this case, the determining F.3d 67 (2d
8 C.F.R.

of the listed factors may be relvant in a given case, "the focus of the inquiry is the apparent ultimate likelihood of success on the adjustment application." Immigration Judge did not consider the factors set forth in whether good cause exists to continue the proceedings. for the preparation of a new decision in light of 1003.l(d)(3);

Matter of Hashmi in See Freire v. Holder, 647

Cir. 2011). Consequently, we find it appropriate to remand the record to the Immigration Judge

Matter of S-H-,

Matter of Hashmi, supra. See

23 I&N Dec. 462 (BIA 2002). Further, given the passage of time,

we remand the record to the Immigration Judge to give the parties an opportunity to present evidence regarding the status of the respondent's visa petition and his adjustment of status eligibility. Accordingly, the following order will be entered. ORDER: The record is remanded to the Immigration Judge for further proceedings consistent with the foregoing opinion and entry of a new decision.

Cite as: Elhadji Mbaye Kende, A093 439 866 (BIA Feb. 12, 2014)

U NITED STATES DEPARTME NT O F J USTICE EXE C UTIVE O F FICE FOR IMMIGRATIO N REVIEW IMMIGRATIO N CO URT 20 1 VAR ICK STREET NEW YORK, NEW YORK, 100 14

Immigrant & Refugee Appellate Center | www.irac.net

File: A093-439-866 In the Matter of

October 9, 2013

) ELHADJI M BAYE KENDE RESPO NDE NT ) ) ) I N REMOVAL PROCEEDI NGS

CHARGE:

Immigration and Nationality Act, Section 212(a)(7)(A)(i).

APPLICATIO NS: None, other than deferment.

ON BEHALF OF RESPO NDENT: DANIEL G. A N NA Anna and Anna, P.C. 533-A Darlington Road Media, PA 19063 ON BEHAL F OF OHS: MELE MORENO, Assistant Chief Counsel New York District

ORAL DEC IS IO N OF THE IMMIGRAT IO N J UDGE The respondent is a native and citizen of Senegal who was paroled into the United States on or about March 6, 2006, for a temporary period for adjudication of an adjustment application. The parole was valid until March 5, 2007. The respondent is before this proceeding on issuance of an NTA dated July 30, 2013, marked into evidence as Exhibit 1.

The respondent admitted the first three factual allegations and denied Allegation 4 that he was not in possession of a valid entry document. The respondent was unquestionably paroled in. It would appear there has been an ongoing request before

Immigrant & Refugee Appellate Center | www.irac.net

Citizenship and Immigration Services to adjudicate a previously filed application, 1- 130 and 1-485. There has been a Notice of Intent to Deny, to which respondent's counsel has replied based upon representations made to the Court. The respondent has chosen not to apply for any other relief before this Court. The respondent has requested that the case be further adjourned for adjudications. But given that it does not appear I would have authority over that application, the Court does not deem it appropriate to grant a further continuance. ORDER Therefore, the Court having found the respondent removable as charged, I enter an order that he be removed from the United States to Senegal on that sole charge of 212(a)(7)(A)(i)(I). This order is entered today, October 9, 20 14, by Immigration Judge Noel Ferris sitting at Varick Street.

Please see the next page for electronic signature

NOEL A. FERRIS Immigration Judge

A093-439-866

October 9, 20 13

//s// Immigration Judge NOEL A. FERRIS ferrisn on December 3, 2013 at 2:28 PM GMT

Immigrant & Refugee Appellate Center | www.irac.net

A093-439-866

October 9, 2013