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Chavez, Nicolas, EsqChavez & Valko LLP10830 N. Centra Expressway Suite 400Dalas, TX 7523
Name: KAGAU, PATRICK JONAH
rm
Executiv Oce r Immigration Revew
B I ppOc Ck
5107 Leslmrg /'ik(, Suite 000Fulf C1c. Vr 204
S/ICE Office of Chief Counse - DAL125 E. John Carpenter Fwy, Ste 5Irving TX 75062-2324
A099-258-131
Date of this notice 4/26/2012
Enclosed s a copy of h Board's decson and order in he above-rernced case.
nclosur
Panel Mbrs:AdknsBlanch, Chale KHoan SharonManuel ls L
Sncrely
Donna CarrChe Clerk
Cite as: Patrick Jonah Kagau, A099 258 131 (BIA Apr. 26, 2012)
For more unpublished BIA decisions, visit www.irac.net/unpublished
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A099 58 3
Immaton and atonaty At 8 USC l 54(} nether the OI nor the suseuent edOe retor's deson denyng the vsa atuay nude a determnaton that the esondent andhs prevous entered nto ther marage the urose o evadng the mmgaton as
Rathe the etton as dened ased on the artes' ure to sumt suent evdene to estasha ona de marrage Theere the Immgraton Judge's ndng that there as a prevous marrageaud detenaton as eary eroneous
Beause the Immgraton Judge's dena o the esondent's moton r a ontnuane rests uona eary eoneous tua ndng e nd that hs deson to deny the ontnuane as a auseo dseton Gven the rumstanes resented hee e nd that a remand s aanted rtheroeedngs to ao the Immgraton Judge to eonsde the resondent's moton a ontnuaneendng adudaton o the most eent vsa petton ed on hs eha and to aso onsder anyother ree r hh the resondent an demonstate egty See 8 CR 40(d)
Aodngy, the aea e sustaned and the eod e retued to the ImmgratonCourt r rthe proeedngs
ORDR The aea s sustaned
URTR ORR The reod s remanded to the Immgraton Judge r rthe atononsstent th the regong opnon
Cite as: Patrick Jonah Kagau, A099 258 131 (BIA Apr. 26, 2012)
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\
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TED STATES RATO COURT00 COMERCE ST ROO 404
DLAS TX 754 \ THE REOVAL CASE OFAU PATRCK OAH
RESPOET
CAS O A099-258
['
ORDERS} is a memandum o e Cots Decision and Odes enteed onJ " : Tis eoandu is soey o teconvenience o the paties Te oal o witten Findings Decisionand Odes is te oicial opinion in tis case Bot paeswaived issance o a oal oal decision in te caseTe yon W< odeed REOVED o te United States to\
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_; -_ - .
CASE BER: 099-258131 RESPONDENT GAU, PATRICK JON. rRespondent Is status was RESCNDED pursuant to the NA section 246 r ) Respondent's motion to WTHDW his application for admission was ( granted ( denied. f the respondent fails to abide by an
the conditions directed by the district director of DHS, then thealternate Ode of removal shall become immeditely effective withoutfurther notice or proceedings the respondent shall be removed fomthe United States toRespondent was MITTED as a until
A a condition of admission, the respondent wasorered to pos a $ ondCase was ( TERMINATED with without prejudice
MNSTATVELY CLOSEDRespondent was orally advised of the MTATION on discretionaryrelief and consequences for failure to depart as ordered J f y fil o voluntarily depart when and as required you shall
be subject to civil money penalty of at least $1000, but not more than$000 and e ineligible for a period of 10 years for any furtherrelief under NA sections 240A 40B 4 and 24 (NA Section 40B(d[ ) f you are under a final order of removal and if you willully failor refuse to 1 deart when and as required 2 make timely applicationin good faith for any documents necessary for departure, or 3 present
yourself for remova at the time and plac required or if you conspireto or take any action designed to prevent or hamper your departue youshall be suect to civil money penalty of up to $00 for each day undrsuch violation (A section 274D(a f you are removable pursuantto IA 237(a then you shall furthe be fined and/or imprisoned for up to 10 years (NA section 43(a(1
c ths _\ f Q' ct',t. , ENC_)-
Date Jun 9 010
APPEAL ( waived ( reserved yq ' \'
DETRC H S S
cX) RespondentDUE BY T J v 1\ PL
CERTFCATE OF SERV DHS Both
THS UMENT WAS SERVEDTO
T ALIENDATE l BY ) MAL PERSONAL SERVCEAliens ATT/R ) ALE toial OfficerCOURT STAFF [GE , - .Y
,. t :ru ' / , t ,. ,
- f. t ,
.
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UNED AE DEPARMEN OF UCEEXECUVE OFFCE FOR GON REVEW
OFFCE OF HE MMGRAON UDGE
Dallas exasFile No A 099 25 ne 9, 200
n the Matter of
PARCK JONAH GAU N REMOVAL PROCEEDNG
CGE
APPLCAON
Responent
ection 27(a) () (B) of the igration anNationality Act (the Act) , as aened - in thatafter adision as noniigrant ner ection
(a) (5) of the Act yo have reane in theUnite tates for a longer tie than peritte inviolation of this Act or any other law of theUnite tates
Reqest for a continance pending the aj icationof a secon -0 petition y a second spose
ON BEHF OF REPONDEN ON BEHALF OF H
Gary Frost Esqire00 N Central Expressway
ite 400Dallas X 752
Rosalin Gonzalez EsqireAsistant Chief Conel
Dalla, X
OR DECON OF HE MMGRAON UDGE
he responent i a native an citizen of Kenya He was
aditte to the Unite tates at or near Hoston exas on or
aot ne , 200 as a noniigrant visitor with athorization
to reain in the Unite tates for a teporary perio not toexceed Deceer 7 200. He reained in the Unite tates
eyon Deceer 7 200 withot athorization fro igration
an Natralization ervice or its sccessor the Departent of
Hoean ecrity Conseqently the Departent of Hoelan
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ecrity (hereto referre to as the Governent) charge
responent with reova prsant to ection 27(a} (} (B} of the
igration an Nationaity Act (Act) , as aene, in that after
aission as noniigrant ner ection (a) (5} of the Act,
yo reained in the Unite tates for a onger tie than
peritte in vioation of this Act or any other aw of the Unite
tates ee Exhiit No
On Noveer 9, 2009, responent acknowege receipt of the
Notice to Appear an it was pace in his record as Exhiit No
On Ferary 22, 200, the responent, via conse, aitte
to the facta aegations containe in the Notice to Appear an
concee to the charge of reova herefore, reova was
estaishe y cear an convincing evience ee ection
240(c} () (A) of the Act ee aso C F R ection 240 a n
case reova ecae necessary, responent designate Kenya
On Ferary 22, 200, responent reqeste this case e
contine for attorney preparation The Cort was infore that
an -0 petition ha een fie on his ehaf an that he was
arrie to a Unite tates citizen an that arriage took pace
on anary , 200 he responents case was contine for
attorney preparation nti March 29, 200
On March 29, 200, responent was presnt wth conse
Responent inicate that he was arrie, again, to a Unite
tates citizen an that the 0 petition that was fie on his
A 099 25 2 ne 9, 200
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ehalf was filed on Ferary 2, 2 he respondent reqested
his case e contined he Cort contined the case ntil April
26, 2
On April 26 2, the respondent was present He asked
that his case e contine in order for hi to seek consel he
Cort granted the respondents reqest and infored hi that his
case wold e contined t there wold e no frther
continances in this atter, that the Cort wold proceed with or
withot consel
he atter was contined fro April 26, 2, ntil ne 7,
2
he Cort wold note that the respondent had previosly een
represented y a ner of attorneys One of the attorneys was
Michael gwe, and he was the attorney that was present on
Ferary 22, 2, when respondent pled to the factal
allegations and to the charge here is also an E2 fro a
oloon Msyii that was filed with the Cort on March 29, 2,
and apparently those attorneys withdrew fro the case or did not
appear, and Mr Frost sseqently entered his appearance on ne
7, 2 for the first tie
On ne 7, 2, the respondent reqested his case e
contined in orer for an - petition to e adj dicated
n spport of his reqest for a continance, the respondent
ha previosly sitted on March 29, 2, the For -797C,
which indicates that an - petition had een filed y a
A 99 25 ne 9, 2
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petitioner y the nae of Ophelia Kaga and the respondent was
the eneficiary of this petition his petition indicates that
it was received on Ferary 2 200 and the notice date was
March 200 See Exhiit No 2
Also on March 29 200 the respondent sitted additional
evidence to spport his reest for a continance hat evience
consists of the -0 petition the G-25 evidence of the
petitioners United States citizenship a copy of the arriage
license etween the petitioner and the respondent and a copy of
a divorce ecree and evidence where the respondent prports to
estalish the ona fides of the arriage which incldes
photographs etween the petitioner and the eneficiary
he Governent opposes the respondents reqests for a
continance priarily ecase an -0 petition had een filed on
the respondent at a prior tie prior to the -0 petition eing
filed y the petitioner Ophelia Kaga Specifically the
Governent infored the Cort throgh the sission of a
decision dated Jne 0 2009 of the following A -0
petition was file y a petitioner y the nae of Swykia Kaga on
aot or aot Ferary 24 2005 he Governent on or aot
Janary 2 2005 issed a notice of intent to deny the visa
petition n general that notice of intent to den the visa
petition infors the petitioner that the Governent has serios
concerns aot the validity of the arriage, in other words,
whether or not the arriage was entered into for igration
A 099 25 4 Jne 9 200
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prposes Base on that notice of intent to eny a visa petition
file y the petitioner wykia Kaga, the Governent on ne 0
2009, isse a ecision enying the visa petition an, in enying
the visa petition fining that the petitioner faile to respon
to the notice of intent to eny the visa petition within the tie
frae he Governent also concle that the arriage that was
entere into etween the responent an the petitioner, wykia,
was entere into for prposes of otaining an igration
enefit n other wors, the Governent ae a 204(c) fining
n eciin whether or not a continance shol e grante
in this atter, the Cort looke at the Matter of Hssain Hashi,
24 & Dec 75, which states that the factors that the Cort
shol consier are the Departent of Hoelan ecritys
response to the otion for a continance, whether the nerlying
visa petition is pria facie approvale, the responents
stattory eigiility for astent of stats, whether
responents application for astent of stats erits a
favorale exercise of iscretion, an the reasons for the
continance an any other relevant proceral factors ee
Matter of Hashi
he Cort concldes that responent has faile to estalish
goo case for a frther continance As a atter of law, the
Cort notes that the secon 0 petition file pon
responents ehalf y his present wife, which is a ifferent
petitioner than the first petitioner, cannot e approve as a
A 099 25 5 ne 9 200
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matter of law. Section 204(c) states n part notwithstanding the
provisions of subsection (b) no petition shall be approved if (1)
the alien has previously been accorded, or has sought to be
accorded, an immedate relative or preference status as the
spouse of a ctizen of the Unted States or the spouse of an
alien lawfully admitted for permanent residence by reason of a
mariage determined by the Attorney General to have been entered
nto for the purposes of evading the Immigrationration laws; or
(2) the Attorney General has determined that the alien has
attempted or conspired to enter into a marriage for the purpose
of evading the mmigration laws See Section 204(c) of the Act
Based on the evidence in this record and the Government's
opposition based on a 204(c) finding, the Cort finds that any
subseqent petition filed on bealf of respondent by a different
spouse than his original spouse of Swkia Kagau cannot be
approved as a matter of law The Court would also note that
petitioner Skia is the appropriate party to appeal the denial
of an -130 pettion filed by her on behalf of respondent on or
about February 2005 and that, apparently, was not done Nor was
tere any response to the notice of intent to deny the -130
filed by the petitoner Swykia in a timely maner Therefore,
te Court finds that the decision of the Government dated June
0, 2009, based on the notice of intent to deny the visa petition
is final and, therefore, there oud be no merit or reason to
continue this case to allow adj udication of a second 130
A 099 258 131 6 une 9, 2010
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petitio filed te espondets peset wife Opelia ecause
it canot e appoed as a matte of law ad teefoe tee
would e o pupose i cotinuig tis case I additio te
Cout fids that te visa petition that is the secod I-30
petitio is ot pima facie appoale we filed ased on te
pior 204(c finding In addition te Cout finds te
espondet is ot eligile fo adj ustmet of status ased o te
204(c findig
Additionall te Cout finds tat te espondent would not
meit is applicatio eig gated as a matte of discetion fo
the following easos Fist te espondet has een in the
Uited tates ulawfully since approximately Deceme 17 200
we e overstaed is oimmigant isa. That is appoximatl
nine ad a alf eas and teefoe te espodet as sow no
espect fo te Immigatio laws of tis couty. Tee is alsoeidence in te ecod tat the respodent as ee employed in
te United tates and tee is o eidence i the ecod tat te
espondet as ad autoization to wok in the Uited tates.
Te espodets emploent i te Uited tates is ased on te
espondets eidece Exiit No 3
The Cout also fids tat te 204(c fidig would also
waant agaist te espodents equest fo a continuace eing
anted as a matter o discetion.
Tee ae some positive factos in te espondets case
tat te Cout as cosideed f couse is maiage to is
A 099 258 3 7 June 9 200
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preset wife ad the fact that the respodet does ot appear to
hae ay crimial record Howeer these positie factors do ot
outweigh the egatie factors that the Court has stated aboe
Based o the totality of circumstaces balacig positie
ad egatie factors i his case ad the fact that the
Goermet has made a prior 204(c fidig based o a petitio
filed by his first wife Swykia the Court fids that a
cotiuace should be deied as a matter of discretio
Accordigly for the aboe-stated reasos the respodet's
request for a cotiuace is deied
Respodet is seekig o other relief from remoal
Accordigly the followig order shall be etered
ORDER
T S HEREBY ORDERED the respodets request for a
cotiuace be deied
T S FUTER ORDERED that respodet shall be remoed ad
deported from the Uited States to eya based o the charge
cotaied upo the Notice to Appear
DETRC SMSU S mmigratio Judge
A 099 258 8 Jue 9 200
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CERTFCATE PAGE
I herey certify that the attached proceeding efore
JDGE DETRCH H SMS in the matter of:
PATRCK JONAH GA
A 0 258
Dallas Texas
is an accurate eratim transcript of the recording as proided y
the Executie Office for mmigration Reiew and that this is the
original transcript thereof for the file of the Executie Office
for mmigration Reiew
1Z Ann M Nau TranscribFree State Reporting c
July 29 2010completion date)
By sumission of this CERTFCATE PAGE the Contractor certifiesthat a Sony BEC/T 7 -channel transcrier or equialent asdescried in Section C paragraph C 2 of the contract was usedto transcrie the Record of Proceeding shown in the aoe
paragraph