Patrick Jonah Kagau, A099 258 131 (BIA Apr. 26, 2012)

8/13/2019 Patrick Jonah Kagau, A099 258 131 (BIA Apr. 26, 2012)

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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For more unpublished BIA decisions, visit www.irac.net/unpublished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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TED STATES RATO COURT00 COMERCE ST ROO 404

DLAS TX 754 \ THE REOVAL CASE OFAU PATRCK OAH

RESPOET

CAS O A099-258

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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

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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

Patrick Jonah Kagau, A099 258 131 (BIA Apr. 26, 2012)

Documents

Transcript of Patrick Jonah Kagau, A099 258 131 (BIA Apr. 26, 2012)