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motionvisa
motionvisa

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Benslimane v. Gonzales

Facts

The alien, a Moroccan native, admitted removability but asked the IJ to continue his case based upon the fact that his wife, an American citizen, had filed a Form I-130, requesting a legal resident visa for him. As required by 8 U.S.C. 1255(a)(1) and 285 C.F.R. 245.2(a)(3)(ii), the alien had also filed a Form I-485, requesting that his status be adjusted to that of a legal resident. The government inaccurately informed the IJ that the visa petition and adjustment of status applications had not been filed jointly. Based on that information, the IJ denied the alien's motion for a continuance pending resolution of the visa petition. The IJ ordered the alien to be removed after he failed to submit a duplicate I-485 application to the IJ. The BIA affirmed without addressing the fact that the alien's Form I-485 was pending when the removal order was entered.

The alien, a Moroccan native, admitted removability but asked the IJ to continue his case based upon the fact that his wife, an American citizen, had filed a Form I-130, requesting a legal resident visa for him. As required by 8 U.S.C. 1255(a)(1) and 285 C.F.R. 245.2(a)(3)(ii), the alien had also filed a Form I-485, requesting that his status be adjusted to that of a legal resident. The government inaccurately informed the IJ that the visa petition and adjustment of status applications had not been filed jointly. Based on that information, the IJ denied the alien's motion for a continuance pending resolution of the visa petition. The IJ ordered the alien to be removed after he failed to submit a duplicate I-485 application to the IJ. The BIA affirmed without addressing the fact that the alien's Form I-485 was pending when the removal order was entered.

Issue

Whether the immigration judge erred in denying the alien's motion for a continuance and ordering removal despite the pending visa petition and adjustment of status application.

Whether the immigration judge erred in denying the alien's motion for a continuance and ordering removal despite the pending visa petition and adjustment of status application.

Rule

An immigration judge has the discretion to grant continuances in removal proceedings, particularly when an alien has filed a visa petition and adjustment of status application that are pending.

An immigration judge has the discretion to grant continuances in removal proceedings, particularly when an alien has filed a visa petition and adjustment of status application that are pending.

Analysis

The court found that the IJ's denial of the continuance was arbitrary and not justified, as the alien had complied with all necessary requirements for adjustment of status and was merely awaiting action on his wife's visa petition. The IJ's decision to order removal based on the failure to submit a duplicate Form I-485, which was already in the possession of the immigration authorities, was deemed unreasonable and contrary to the intent of Congress regarding the adjustment of status process.

The court found that the IJ's denial of the continuance was arbitrary and not justified, as the alien had complied with all necessary requirements for adjustment of status and was merely awaiting action on his wife's visa petition. The IJ's decision to order removal based on the failure to submit a duplicate Form I-485, which was already in the possession of the immigration authorities, was deemed unreasonable and contrary to the intent of Congress regarding the adjustment of status process.

Conclusion

The court granted the alien's petition for review and vacated the order of removal. It remanded the alien's case back to the BIA and directed the BIA to stay removal pending a ruling on the alien's visa petition and the completion of the adjustment of status proceedings.

The court granted the alien's petition for review and vacated the order of removal. It remanded the alien's case back to the BIA and directed the BIA to stay removal pending a ruling on the alien's visa petition and the completion of the adjustment of status proceedings.

Who won?

The petitioner alien prevailed in the case because the court found that the IJ's denial of the continuance was arbitrary and that the alien had met all requirements for adjustment of status.

The petitioner alien prevailed in the case because the court found that the IJ's denial of the continuance was arbitrary and that the alien had met all requirements for adjustment of status.

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