Cooner, Douglas H., Esquire Civil & Immigration Law Center 1901 Richard Arrington Blvd So Birmingham, AL 35209-1270

Name: MUGO, VERONICA WAGJTHI

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals Office of the Clerk

5107 Lt•esburg Pike. Suite 2000 Falls Church, Virginia 2:!041

DHS/ICE Office of Chief Counsel· ATL 180 Spring Street, Suite 332 Atlanta, GA 30303

A 093-459·287

Date ofthis notice: 1/18/2013

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

Enclosure

Panel Members: Manuel, Elise L.

Sincerely.

DcrutL c: a.NV

Donna Carr Chief Clerk

schwarzA Userteam: Docket

Imm

igrant & Refugee A

ppellate Center | w

ww

.irac.net

Cite as: Veronica Wagithi Mugo, A093 459 287 (BIA Jan. 18, 2013)

' U.&.DeparhnentofJnstice Decision of the Board of Immigration Appeals Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A093 459 287 - Atlanta, GA Date: JAN 182013 ln. re: VERONICA WAGITHI MUGO

IN REMOVAL PROCEEDINGS

APPEAL AND MOTION

ON BEHALF OF RESPONDENT: Douglas H. Cooner, Esquire

ON BEHALF OF DHS: Morrisl.Onyevvuchu Assistant Chief Counsel

APPLICATION: Continuance; remand

The respondent, a female native and citizen of Kenya, appeals from the Immigration Judge's decision dated July 29, 2011. That decision found the respondent removable, denied a motion for a further continuance, and granted the privilege of voluntary departure. The respondent argues on appeal that the Immigration Judge erred and abused his discretion in denying her motion for a continuance. In response, the Department of Homeland Security (DHS) has moved for summary affirmance. Subsequent to the DRS's reply to the respondent's appeal, the respondent filed a motion seeking a remand to await adjudication of a visa petition filed by her husband on November 7, 2011. The motion was accompanied by evidence confirming the filing of the visa petition on the respondent's behalf and that the respondent and her husband had a child who was born on October 1, 2011. According to the motion, the DHS was served with a copy of it. 1 As the DHS did not submit a response to the motion filed by the respondent, the motion is deemed unopposed. Also, we note that the electronic records maintained by the United States Citizen and Immigration Services indicate that the respondent's husband's visa petition was approved on September 21, 2012. In light of the approved visa petition and the lack of opposition from the DHS to the motion to remand filed by the respondent, we will remand the record to afford the respondent an opportunity to apply for adjustment of status. Accordingly, the following order shall be entered.

ORDER: The record is remanded to the Immigration Judge for further proceedings consistent with this opinion.

' It appears that the certificate of service was cut and pasted from a prior motion filed in this case on September 26, 2011, onto this new motion, as its wording references the prior motion, by name and date of service. However, we do not find this error to mean that the new motion was not properly served.

Imm

igrant & Refugee A

ppellate Center | w

ww

.irac.net

Cite as: Veronica Wagithi Mugo, A093 459 287 (BIA Jan. 18, 2013)

• • UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW UNITED STATES IMMIGRATION COURT

Atlanta, Georgia

File No.: A 093 459 287

In the Matter of ~

VERONICA WAGITHI MUGO

Respondent

) ) ) )

)

June 29, 2011

IN REMOVAL PROCEEDINGS

CHARGE: Section 237(a) (1) (B) of the Immigration and Nationality Act.

APPLICATION: Motion for a continuance.

ON BEHALF OF RESPONDENT:

Douglas Cooner 1901 Richard Harrington Blvd S. Birmingham, AL 35209

ON BEHALF OF DHS:

Morris I. Onyewuchi Assistant Chief Counsel

ORAL DECISION OF THE IMMIGRATION JUDGE

This case carne before the Court as the result of a Notice to

Appear that was issued by the Department of Homeland Security.

The charging document alleges that the respondent is a native and

citizen of Kenya and that she is removable from the United States

pursuant to Section ?37(a) (1) (B) of the Immigration and

Nationality Act.

The respondent has admitted the factual allegations in the

Notice to Appear and has conceded removability. In light of the

foregoing, the Court finds by clear and convincing evidence that

1

Imm

igrant & Refugee A

ppellate Center | w

ww

.irac.net

• • the respondent is removable from the United States as charged.

The Court has designated Kenya as the country of removal should

that become necessary.

The proceedings in this case began back in 2008. The

respondent appeared in Court on May 7, 2008, and submitted

written pleadings, in which she admitted the factual allegations

and conceded removability. The respondent indicated that the

only form of relief that she was requesting is adjustment of

status based on an I-360 visa petition. The petition was filed

at the time. Subsequently, the Court granted continuances for

the adjudication of the I-360. The respondent subsequently

withdraw the I-360 and instead sought to proceed on the basis of

an I-130 that was filed by a United States husband. The Court

has granted various continuances since this case started in 2008.

It is now over three years since the case started. The

respondent's I-130 visa petition was recently denied. According

to the respondent, the United States Citizenship and Immigration

Service denied the I-130 visa petition on May 2nd, 2011. The

respondent seeks another continuance at this point or perhaps

administrative closure. The Court will not grant any further

continuances in this case.

The Court previously granted continuances for the

adjudication of an I-360 and also an I-130. Those were

discretionary grants to allow for an adjudication of an

application that the respondent had pending. A decision has been

A 093 459 287 2 June 29, 2011

Imm

igrant & Refugee A

ppellate Center | w

ww

.irac.net

• • reached on the most recent application. The decision is adverse

to the respondent. The matter presumably will be appealed to the

Board of Immigration Appeals.

The respondent will be granted voluntary departure with an

alternate order of removalcand will have the opportunity to

appeal this case to the Board of Immigration Appeals. At that

juncture, both cases will be before the Board of Immigration

Appeals and that body will be in the best position to resolve any

further continuances in this matter.

In light of the foregoing, the Court will enter the

following order in this case:

ORDER

IT IS HEREBY ORDERED that the respondent's application for

voluntary departure be, and hereby is, granted. The respondent

is granted voluntary departure up to an including August 29,

2011, 60 days from today, upon the payment of a bond of $500

within five business days with an ~lternate order of removal to

Kenya.

Warning to the respondent. Failure to leave the United

States within the time frame set forth by the Court means that

you could be subject to an order of removal, you may be subject

to a civil penalty of between $1,000 and $5,000 and you will be

ineligible for ten years to come from receiving cancellation of

removal, adjustment of status, relief under the registry

provisions, voluntary departure or a change in nonimmigrant

A 093 459 287 3 June 29, 2011

Imm

igrant & Refugee A

ppellate Center | w

ww

.irac.net

' . · • •

status.

The respondent has reserved appeal and the deadline for

filing an appeal in this case is July 29, 2011. If the

respondent files an appeal, she is advised that she must provide

the Board of Immigration Appeals, within 30 days of filing·an

appeal, sufficient proof of having posted the voluntary departure

bond. The Board will not reinstate the voluntary departure

period in its final order if the respondent does not submit

timely proof to the Board that the voluntary departure bond has

been posted.

If the respondent does not appeal and instead files a motion

to re-open or a motion to reconsider during the voluntary

departure period, she is hereby advised that the period allowed

for voluntary departure will not be stayed, tolled or extended,

the grant of voluntary departure will be terminated

automatically, the alternate order of removal will take effect

immediately and the penalties for failing to depart voluntarily

will not apply.

Finally, the civil monetary penalty for failing to depart

within the voluntary departure period has been set in this case

at the presumptive amount of $3,000.

United States Immigration Judge

A 093 459 287 4 June 29, 2011

Imm

igrant & Refugee A

ppellate Center | w

ww

.irac.net

' .

CERTIFICATE PAGE

I hereby certify that the attached proceeding before

JUDGE EARLE B. WILSON, in the matter of:

VERONICA WAGITHI MUGO

A 093 459 287

Atlanta, Georgia

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.

llotti, Trans Free State Reporting, Inc.

August 19, 2011 ("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.

Imm

igrant & Refugee A

ppellate Center | w

ww

.irac.net