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ld be approved.
Thus, the Court must consider whether under the full facts and
circumstances of this case whether a further continuance should
be granted to allow respondent to prepare a cancellation of
removal for certain non-permanent resident application, EOIR-
42B. This is because the respondent came to Court for her
individual without having that document prepared even though the
denial of the visa petition was issued 10 days prior to the
A044-943-630 3 June 29, 2012
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individual hearing and there was no written motion for a timely
continuance.
A Immigration Judge may grant a continuance for good
cause show. 8 C.F. R. Sections 1003. 29, 1240.6; Matter of
Hashmi, 24 I&N Dec. 785 (BIA 2009) . A decision to grant or deny
a continuance is within the "sound discretion of the Judge and
will not be overturned except on a showing of clear abuse. " See
Sandoval-Luna v. Mukasey, 526 F. 3d 1243, 1247 (9th Cir. 2008).
In deciding a motion to continue, the Court should consider:
(1) the nature of the evidence that would be excluded as a
result of denial of the continuance; (2) the reasonableness of
the immigrant's conduct; (3) inconvenience to the Court; and (4)
the number of continuances previously granted. Moreover, the
Board of Immigration Appeals has explained that in considering a
motion to continue for a pending visa petition, the Court should
also consider the DHS's response to the motion and whether the
uderlying visa petition is prima facie approvable. See Matter
of Hashmi, at 790.
The Court finds that respondent has failed to
demonstrate good cause for her oral motion to continue and
denies the request for the continuance. First, the Court notes
that this case is distinguishable from Ahmed v. Holder, 569 F. 3d
at 1012. Notably, in Ahmed, the Ninth Circuit noted that the
regulations provide visa applicants with the right to appeal the
denial of an immigrant visa petition to the AO, and it found
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that the Immigration Judge erred in denying the respondent's
motion to continue when his Form I-140 visa petition was pending
before the AO. In this case, respondent had a Form I-130 visa
petition filed on her behalf, not an employment related visa,
Form I-140. Importantly, respondent's marriage, upon which the
I-130 is based, is subject to a presumption that it was entered
into in bad faith. See Malilia v. Holder, 632 F. 3d 598, 604
(9th Cir. 2011) (finding that the Immigration Judge did not make
an error of law in characterizing the respondent's marriage as
presumptively fraudulent and that he was not entitled to
adjustment of status because he married after being placed in
removal proceedings) . No such presumption existed in the
employment related case of Ahmed v. Holder.
It is also important to note that the other reason for
the continuance was for the respondent to file an application
for cancellation of removal for certain non-permanent residents.
Respondent has no application filed, nor was it even indicated
that she had filled out such an application. This is not a
situation where it is just a matter of a continuance to gather
information for an application that has been filed. There is no
application. Moreover, considering the respondent's conviction
records, it appears that the respondent would not be statutorily
eligible to apply for cancellation of removal for certain non-
permanent residents. She is precluded from showing good moral
character and the conviction for at least one of them does
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appear to be a crime involving moral turpitude based upon the
conviction record. Respondent was not able to articulate why
she would not be precluded as a threshold matter of law for
applying for this sort of application. The Court has reviewed
the judgment in the criminal case, the memorandum of plea
agreement and the indictment, and the criminal complaint all set
forth at Exhibit 2. The conviction for count 8 relating to a
scheme to defraud the United States by wire fraud does appear to
be a crime involving moral turpitude. See United States v.
McNeil, 320 F. 3d 1034 {9th Cir. 2003) and cases cited therein.
The offenses ended within the last 10 years. For the scheme to
defraud the United States by wire fraud, the offense ended in
2007 and for the aggravated identity theft the offense is shown
as ending in 2004, all within the last 10 years. The judgment
was entered on February 2, 2009 and respondent was sentenced to
26 months incarceration. The appellate courts have long held
that convictions similar to the respondent's involving
misrepresentations and elements of theft are crimes involving
moral turpitude. Distinguish, Beltran-Triado v. INS, 213 F. 3d
1179 (9th Cir. 2000) ; see, Matter of Barcenas-Barrera, 25 I&N
Dec. 40 (BIA 1009) ; In re Cervantes, 22 I&N Dec. 560 (BIA 1999);
Matter of Adetiba, 20 I&N Dec. 506 (BIA 1992) ; Matter of Correa
Garces, 20 I&N Dec. 451 (BIA 1992) ; Matter of Namio, 14 I& Dec.
412 (BIA 1973) ; Matter of Ngan, 10 I&N Dec. 725 (BIA 1964) .
Thus, the Court comes to the conclusion that even if a
A044-943-630
6 June 29, 2012
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continuance was granted for the filing of the EOIR-42B
application it would be have to pretermitted and denied because
of respondent's recent conviction record.
Inasmuch as the Court has no other application before
it and because the motion to continue is denied, the following
order shall be entered:
ORDER
IT IS HEREBY ORDERED that the respondent be removed
from the United States to the Philippines on the two charges
contained in the Notice to Appear.
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A044-943-630 7 June 29, 2012
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CERTIFICATE PAGE
I hereby certify that the attached proceeding before JUGE
DAYNA BEAER, in the matter of:
BRENDA DUMLAO PURAS
A044-943-630
HONOLULU, HAWAII
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.
-
EVALENA E. CLARK (Transcriber)
DEPOSITION SERVICES, Inc.
AUGUST 10, 2012
(Completion Date)
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