King-Hammond, Annette, Esq. 2100 Parklake Drive, Suite D Atlanta, GA 30345

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals Office of the Clerk

5107 Leesburg Pike, Suite 2000 Falls Church, Virginia 20530

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

Name: KINYANJUI, ESTHER WANGARI A 097-632-790

Date of this notice: 3/26/2014

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

Enclosure

Panel Members: Grant, Edward R.

Sincerely,

DOrutL c aAAJ

Donna Carr Chief Clerk

Lulseges Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished

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Cite as: Esther Wangari Kinyanjui, A097 632 790 (BIA Mar. 26, 2014)

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

Decision of the Board of Immigration Appeals

Falls Church, Virginia 20530

File: A097 632 790 - Atlanta, GA

In re: ESTHER W ANGARI KINY ANJUI

IN REMOVAL PROCEEDINGS

APPEAL

Date:

ON BEHALF OF RESPONDENT: Annette King-Hammond, Esquire

ON BEHALF OF DHS: Kelley N. Sydnor Assistant Chief Counsel

APPLICATION: Continuance; adjustment of status

MAR 2 G 2014

The respondent, a native and citizen of Kenya, has appealed from the Immigration Judge's June 20, 2012, decision. The record will be remanded to the Immigration Judge.

The Immigration Judge, in his decision, noted that he had granted several continuances, that the case was 8 years old, that the initial visa petition filed on behalf of the respondent had been denied, that an appeal of that decision was pending, and that the second visa petition filed on behalf of the respondent had not yet been adjudicated (I.J. at 2-3). However, the record does not reflect that the Immigration Judge addressed the factors set forth in Matter of Hashmi, 24 l&N Dec. 785 (BIA 2009), in his consideration of the continuance request. Under these circumstances, and in an abundance of caution, the record will be remanded. We note that the record does not contain the decision denying the initial visa petition, so the reasons for the denial are not known. We also note that our administrative records indicate that any appeal of that initial visa petition has not yet been forwarded to the Board for adjudication. In addition, we note that the administrative records of the United States Citizenship and Immigration Service (USCIS) reflect that the second visa petition is still awaiting adjudication.

Accordingly, the following order will be

ORDER: The record is remanded to the igration Judge for further proceedings consistent with this opinion and for the entry of a new decis1 n.

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Cite as: Esther Wangari Kinyanjui, A097 632 790 (BIA Mar. 26, 2014)

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UNITED STATES DE PARTMENT O F JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

UNITED STATES IMMIGRATION COURT ATLANTA, GEORGIA

File: A097-632-790 June 20, 2012

In the Matter of

ESTHER WANGARI KINYANJUI IN REMOVAL PROCEEDINGS

RES PONDENT

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

A PPLICATION: Continuance.

ON BEHALF OF RESPONDENT: ANNETTE KING-HAMMOND

ON BEHALF OF DHS: KELLEY N. SYDNOR

ORAL DECISION OF THE IMMIGRATION JUDGE

This case came 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 237 of the Immigration and

Nationality Act. The respondent admits the factual allegations

in the Notice to Appear and concedes removability. In light of

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the foregoing, the Court finds by clear and convincing evidence

that the respondent is removable from the United States as

charged. The Court will sustain the charge of removal and

designate the country of removal should that become necessary.

This case has been pending since the Notice to Appear

was issued in March of 2004. In the interim, the Court has

granted many continuances for the purposes of the respondent's

adjudication of an I-130 filed on her behalf. At the last

hearing in this case, which was held on December 21, 2011, the

Court granted a continuance to allow the respondent's

application to be adjudicated. Following the last year, the

application for an I-130 was denied. The respondent has

subsequently filed an appeal of that denial, and a new I-130 was

filed on her behalf by her same spouse.

Respondent asked the Court to continue the case

further for one of two things to happen. Either for the Board

to adjudicate the appeal of the I-130 that was filed or for the

United States Citizenship and Immigration Services to adjudicate

a second I-130 filed by her same spouse. The Court does not

find that there has been good cause for a further continuance in

this case. There is no evidence or indication that the

decisions that were reached by the agencies are likely to be

overturned. The Court has granted several continuances for the

purposes of adjudication of the application. This case has been

pending before the Court for approximately eight years. The

A097-632-790 2 June 20, 2012

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Court has granted the respondent ample time to have a fair

hearing on her I-130 visa petition. A hearing has been held and

a determination has been reached. The respondent has filed an

appeal but the respondent can seek to stay the Court's order

should she choose to do so when she seeks review of the Court's

decision that would be entered today. Procedurally probable,

this Court's order of removal and the respondent's I-130 visa

petition will be pending at the appellate agencies and they will

make the appropriate decision in the case.

At the present time, the Court will not grant any

further continuances, having found that the respondent has been

given ample time to pursue the I-130 visa petition. The Court

will deny a motion for a continuance.

The respondent is removable and the Court will enter

an order of removal. The Court will also grant the respondent's

request of voluntary departure. The Court will grant the

respondent's request for voluntary departure for the maximum

amount of time and impose the minimum amount of bond. The Court

will enter the following order in this case.

ORDER

IT IS HEREBY ORDERED the respondent's application for

voluntary departure be, and is hereby is, granted. Respondent

is granted voluntary departure up to and including August 20,

2012, which is 60 days from today, from the posting of a $500

bond within five business days, with an alternate order of

A097-632-790 3 June 20, 2012

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removal to Kenya.

Warning to respondent. Failure to leave the United

States as required means that you could be removed from this

country, you may have to pay a civil penalty of between $1,000

and $5, 000, and you will be ineligible for 10 years to receive

cancellation of removal, adjustment of status, change of status,

voluntary departure, or relief under the registry provisions.

The respondent has reserved her right to appeal. The

deadline for filing an appeal is July 20, 2012. If respondent

files an_ appeal, she is hereby advised that she must provide the

Board of Immigration Appeals within 30 days of filing an appeal

sufficient proof of having posted a voluntary departure bond.

The respondent is advised that the Board will not reinstate the

voluntary departure period in this final order if she does not

submit timely proof to the Board that the voluntary departure

bond has been posted.

If respondent does not appeal and instead files a

motion to reopen 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 period allowed for voluntary departure will be terminated

automatically, the alternate order will take effect immediately,

but the penalties for failing to depart voluntarily will not

apply.

Finally, the respondent is advised that the Court has

A097-632-790 4 June 20, 2012

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set the civil monetary penalty of failing to depart within the

voluntary departure period at the presumptive amount of $3, 000.

A097-632-790

EARLE B WILSON Immigration Judge

5 June 20, 2012

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. .

CERTIFICATE PAGE

I hereby certify that the attached proceeding before JUDGE

EARLE B WILSON, in the matter of:

ESTHER WANGARI KINYANJUI

A097-632-790

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.

MEGHAN M. GOURLEY (Transcriber)

DEPOSITION SERVICES, Inc.

AUGUST 19, 2012

(Completion Date)

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