U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office of the Clerk

5107 Leesburg Pike, Suite 2000

Falls Church, 1'1rgm1a 22041

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Musinguzi, Martin OHS/ICE Office of Chief Counsel - SOC
Musinguzi Law Group 146 CCA Road, P.O.Box 248
1977 J. N. Pease Place Lumpkin, GA 31815
Suite 101
Charlotte, NC 28262

Name: TSHIMANGA, LUASA A 209-012-271

Date of this notice: 9/25/2017

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

Sincerely,

Cynthia L. Crosby
Deputy Chief Clerk

Enclosure

Panel Members:
Grant, Edward R.

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index

Cite as: Luasa Tshimanga, A209 012 271 (BIA Sept. 25, 2017)
...

'ir.s. Department of Justice Decision of the Board oflmmigration Appeals

Executive Office for Immigration Review
'

Falls Church, Virginia 22041

File: A209 012 271 -Lumpkin, GA Date:

SEP 2 5 2017
In re: Luasa TSHIMANGA

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IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Martin Musinguzi, Esquire

ON BEHALF OF OHS: James C. Graulich

Assistant Chief Counsel

APPLICATION: Continuance

The respondent, a native and citizen of Congo, has appealed from the Immigration Judge's
decision dated April 19, 2017. The Immigration Judge found the respondent removable and denied
a continuance to await adjudication of a visa petition (Form 1-130) filed on his behalf. The record
will be remanded.

This Board reviews an Immigration Judge's findings of fact, including findings as to the
credibility of testimony, under the "clearly erroneous" standard. See 8. C.F .R. 1003.1(d)(3 )(i).
This Board reviews questions of law, discretion, and judgment, and all other issues raised in an
Immigration Judge's decision de novo. See 8 C.F.R. 1003.l(d)(3)(ii).

The respondent marri ed on August 8, 2014. He is allegedly the father of two United States
citizen children and stepfather to two United States citizen children. On April 21, 2016, the
respondent was charged with Domestic Assault against a woman (not his wife) who, according to
the arrest warrant, he was allegedly "dating" (Exh. 2). The respondent was placed in removal
proceedings on February 21, 2017.

On April 19, 2017, the respondent requested a continuance to await adjudication of a visa
petition that had been filed by his wife on April 13, 2017. The Department of Homeland Security
(OHS) objected to the continuance. The Immigration Judge denied the requested continuance
because it was not requested before the hearing, because the respondent is detained at government
expense, and because the respondent's wife filed the visa petition shortly before the hearing, more
than 2 years after their marriage (U at 2-5). The respondent challenges denial of the continuance
on appeal.

An Immigration Judge may grant a continuance where good cause is shown. See 8 C.F.R.
1003.29, 1240.6. The standards for continuances are outlined in Matter of Hashmi, 24 I&N
Dec. 785 (BIA 2009). It is not evident from her decision that the Immigration Judge applied those
standards, particularly in light of the substantial evidence (birth to the couple of twin children) that

Cite as: Luasa Tshimanga, A209 012 271 (BIA Sept. 25, 2017)
A209 012 271

the m.ariiage is bona fide. We find that remand is necessary to reconsider the request for
continuance under the Hashmi standards.

Accordingly, the following order will be entered.

ORDER: The record will be rmanded to the Immigration Judge for further proceedings

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consistent with the foregoing opinion - entry of a new decision.

2
Cite as: Luasa Tshimanga, A209 012 271 (BIA Sept. 25, 2017)
 ( (

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
LUMPKIN, GEORGIA

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File: A209-012-271 April 19, 2017

In the Matter of

)
LUASA TSHIMANGA ) IN REMOVAL PROCEEDINGS
)
RESPONDENT )

CHARGES:

APPLICATION: Motion for continuance.

ON BEHALF OF RESPONDENT: Martin Musinguzi, Esquire

ON BEHALF OF OHS: Steven Fuller, Assistant Chief Counsel

Department of Homeland Security

ORAL DECISION OF THE IMMIGRATION JUDGE

Respondent is a male native and citizen of the People's Republic of

Congo.

Respondent was placed into removal proceedings by the Department of

Homeland Security (Department) through the issuance of a Notice to Appear (NTA) on

February 21, 2017.

The Department charged the respondent with removability under Section

237(a)(1)(C)(i) of the Immigration and Nationality Act (Act), as amended, in that after

admission as a nonimmigrant and subsequent change to another nonimmigrant status

pursuant to Section 248 of the Act, you failed to maintain or comply with the conditions

of your change of status.

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Respondent is currently detained by the Department.

On March 27, 2017, respondent appeared via counsel for his initial master

hearing. At that time, admissions and concessions were entered by respondent's

counsel. Admitted and conceded are the following. The respondent is not a citizen or

national of the United States; the respondent is a native of Congo and a citizen of

Congo; the respondent was born in the People's Republic of the Congo.

The respondent was admitted to the United States at Washington, D.C. on

August 29, 2012, as an F1 student.

Respondent's status was changed to that of terminated on January 16,

2014.

The respondent failed to maintain status or to comply with the conditions

of his change of status in that he failed to maintain his F1 student status at Central

Piedmont Community College in Charlotte, North Carolina.

Based on the evidence before the court and the admissions and

concessions of respondent by and through his attorney, the court found that the

respondent was removable by clear and convincing evidence to his native country of

Congo.

Exhibit number 2 was a complaint for a warrant or summons based on

domestic violence.

During that master calendar initial the court also learned that the

respondent married a United States citizen in 2014; however, the assault on a female

was assault on a different female than his wife. The respondent has two children, and

no documents have been filed since his marriage in 2014 or his termination of student

A209-012-271 2 April 19, 2017

status with any agency of the government that could have given him any form of relief.

At that time, his attorney identified the filing of an 1-130 to be done in the future. The

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court put both counsel on notice that the case was reset for April 19, 2017, and most

especially that the respondent's attorney was to be ready to identify what relief would be

available over which this court had jurisdiction April 19, 2017.

The court would note that no written motion for continuance has been filed

with the court.

Today, April 19, 2017, respondent appeared with his counsel. At this time,

the court requested the counsel notify the case the court with exactly what relief is

available before this court. Respondent's counsel answered that the 1-130 had been

filed and feed in, allow it was not yet approved. It had recently been filed. The

respondent's counsel is an officer of the court. The court accepts his statement that the

1-130 has been filed, but the court notes that it has not been approved.

The respondent has no jurisdiction over USCIS and no jurisdiction over

how timely anything might go through their system.

After numerous conversations, wherein respondent, through counsel,

argued the same form of relief, this court explained that not only was the respondent

working without permission, they had not been filing taxes and there were a number of

issues that would have to be ferreted out as far as adjustment of status, which is a

discretion of grace decision before the court.

The respondent's attorney was given time to speak to his client. The

court, with no objection from the government, offered 60 days' voluntary departure

under safeguards. That would give the respondent time to see what he could do with

his 1-130.

A209-012-271 3 April 19, 2017

 The court believes that the respondent's counsel, having been denied 120

days' voluntary departure, thereafter asked for a continuance in order to be able to file

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an appeal with the Board of Immigration Appeals to extend the amount of time that the

respondent would remain in the United States.

The court will not sanction that tactic, although the respondent's counsel is

clearly representing his client zealously.

The motion for a continuance is herein denied.

The court has considered Matter of Sibrun, 18 l&N Dec. 354 (BIA 1983).

It has also considered Matter of Cezareo Sanchez Sosa, et al., 25 l&N Dec. 807

(Interim Dec. 3753, 29012 WL 2068680 BIA).

And in addition, Matter of Hashmi, 24 l&N Dec. 284 (BIA 2009).

The court has considered the respondent's request for a continuance, and

has also considered the lack of evidence in this case. However, the court has taken

respondent's counsel's word that the 1-130 has been filed.

The court notes and accepts the assertion of the respondent's counsel

that the respondent has relief through adjustment of status. However, based on the

totality of the evidence in the record, the court is unwilling to continue this case for an

indefinite time.

As stated, the respondent conceded removability March 27, 2017. He is

married to a United States government; however, he has filed for a form of relief that is

not available for this court in removal proceedings. The granting or denying of an 1-130

is outside the jurisdiction of an immigration judge. The court has no jurisdiction to

adjudicate an 1-130 and approval of said document is actually beyond this court's

purview. Furthermore, continuances should not be granted as a dilatory tactic to

A209-012-271 4 April 19, 2017

forestall the conclusion of removal proceedings. Matter of Abreu, 24 l&N Dec. 795, 802

(BIA 2009).

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The court has considered first, that the Department of Homeland Security

has objected to the motion for continuance.

The court has also considered whether or not the underlying visa petition

is prima facie approvable, and this court has no idea whether or not that 1-130 filed three

years late, will be approved or is approvable before USCIS, and the court has no

jurisdiction over that issue.

And finally, the reason for the continuance is simply to delay, delay, delay,

until USCIS, which is as overburdened as all courts are in the Department of Homeland

Security, that there is no way of knowing when that 1-130 would be approved by USCIS.

Respondent is held in detention by the Department of Homeland Security,

and bond has been denied to him.

The court considers that the government opposition is reasonable and

supported by the record, and therefore is a significant consideration in that it is the

Department that is holding the respondent at government expense.

As the court is denying the motion for continuance, the court would note

that it has focused the inquiry on the likelihood of success of the visa petition. Matter of

Rajah, 25 l&N Dec. at 130; Matter of Hashmi, 24 l&N Dec. at 790-791. The court,

having absolutely no way of knowing whether or not the 1-130 will ever be approved,

therefore finds it is unreasonable to continue this case any further, especially in light of

the fact that the respondent doesn't have another form of relief, which would be

voluntary departure under safeguards for 60 days, during which time he could pursue

the 1-130 approval and file for a 485. As none of this has been properly done before the

court, the court herein makes the final decision.

A209-012-271 5 April 19, 2017

 ( (

Accordingly, the court will deny the respondent's request for a

continuance. It is herein ordered that the respondent, not requesting preconclusion

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voluntary departure and having no fear of return identified to his native country is herein

removed to the Democratic Republic of Congo.

SAUNDRA D. ARRINGTON
Immigration Judge

A209-012-271 6 April 19, 2017

 (

CERTIFICATE PAGE

I hereby certify that the attached proceeding before JUDGE SAUNDRA D.

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ARRINGTON, in the matter of:

LUASA TSHIMANGA

A209-012-271

LUMPKIN, GEORGIA

was held as herein appears, and that this is the original transcript thereof for the file of

the Executive Office for Immigration Review.

PHYLLIS SULLIVAN (Transcriber)

NATIONAL CAPITOL CONTRACTING

June 12, 2017

(Completion Date)