The Board of Immigration Appeals has issued an important decision on the issue of when a continuance should be granted by an Immigration Judge when an alien is in removal proceedings but who has a pending family-based visa petition (an I-130) that makes him or her prima facie eligible to adjust his or her status to permanent residency. The case is Matter of Ajmal Hussain Shah Hashmi and the case was decided on April 22, 2009.
The Board decided that an alien’s unopposed motion to continue ongoing removal proceedings to await the adjudication of a pending family-based visa petition should generally be granted if approval of the visa petition would render him prima facie eligible for adjustment of status. Matter of Garcia, 16 I&N Dec. 653 (BIA 1978), followed.
In determining whether good cause exists to continue such proceedings, a variety of factors may be considered, including, but not limited to:
(1) the Department of Homeland Security’s response to the motion to continue;
(2) whether the underlying visa petition is prima facie approvable;
(3) the respondent’s statutory eligibility for adjustment of status;
(4) whether the respondent’s application for adjustment merits a favorable exercise of discretion; and
(5) the reason for the continuance and any other relevant procedural factors.