Zachary Makworo Mogeni v. Eric H. Holder, Jr. ( 2015 )

United States Court of Appeals
For the Eighth Circuit
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No. 13-3597
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Zachary Makworo Mogeni
lllllllllllllllllllllPetitioner
v.
Eric H. Holder, Jr., Attorney General of the United States
lllllllllllllllllllllRespondent
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: November 10, 2014
Filed: March 9, 2015
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Before MURPHY, MELLOY, and BENTON, Circuit Judges.
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MELLOY, Circuit Judge.
Zachary Mogeni is a Kenyan citizen who entered the United States as a
non-immigrant visitor authorized to stay for six months. After Mogeni remained in
the United States for longer than authorized, the Department of Homeland Security
placed Mogeni into removal proceedings. From 2007 to 2012, an immigration judge
granted Mogeni twelve continuances. The IJ rejected a thirteenth continuance and
ordered Mogeni to be removed from the United States. Mogeni appealed, and the
Board of Immigration Appeals affirmed the IJ's order. For the reasons stated below,
we affirm.
I.
Mogeni is a native Kenyan citizen. In December 2002, Mogeni entered the
United States as a non-immigrant visitor authorized to stay for six months. On June
11, 2003, Mogeni married Georgette Byers, a U.S. citizen. Byers filed an I-130
Petition for Alien Relative on Mogeni's behalf. The Department of Homeland
Security denied the petition, finding that the marriage was a sham entered into for an
immigration benefit. Neither Byers nor Mogeni appealed the DHS's decision. Byers
and Mogeni divorced in December 2004.
In March 2005, approximately three months after his divorce from Byers,
Mogeni married Tracy Gullie, another U.S. citizen. In November 2006, Gullie filed
an I-130 petition on Mogeni's behalf. Because the DHS previously found Mogeni
had entered into a sham marriage to obtain an immigration benefit, the DHS denied
the second I-130 petition. Mogeni appealed the DHS's decision. The record does not
contain the results of the appeal. Irene Gatere, Mogeni's daughter from a previous
marriage in Kenya, also filed an I-130 petition on Mogeni's behalf.1
In December 2006, the DHS initiated removal proceedings against Mogeni.2
The DHS charged Mogeni as an alien who remained in the United States for longer
than authorized under § 237(a)(1)(B) of the Immigration and Nationality Act, 8
U.S.C. § 1227(a)(1)(B). Mogeni appeared with the assistance of counsel before the
IJ and conceded removability. However, Mogeni requested a continuance of the
1
Gatere was naturalized in November 2010.
2
Mogeni's non-immigrant visitor status authorized him to remain in the United
States until May 31, 2003.
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removal proceedings pending the results of his I-130 petitions. Between 2007 and
2012, the IJ granted Mogeni twelve continuances.
On February 12, 2012, the IJ denied Mogeni's thirteenth request for a
continuance, finding that Mogeni did not demonstrate "good cause." See 8 C.F.R.
§ 1003.29. The IJ noted that because of the DHS's sham marriage determination,
§ 204(c) of the INA—intended to prohibit the approval of a petition for an alien
whose prior marriage was determined to have been entered into for the purpose of
evading immigration laws—diminished Mogeni's likelihood of success on either
pending I-130 petition. 8 U.S.C. § 1154(c). Mogeni appealed the IJ's order to the
BIA.
The BIA affirmed the IJ's denial of a continuance, finding that Mogeni failed
to demonstrate good cause. Like the IJ, the BIA noted that a "key consideration" in
deciding a motion for a continuance based on a pending I-130 petition is the
likelihood of success. And because of the DHS's sham marriage determination, the
marriage fraud statute, § 204(c), significantly "hinders the likelihood of the [I-130]
petition's success." The BIA therefore concluded that it was unlikely Mogeni's
pending applications would be approved. Mogeni timely filed this appeal,
challenging the denial of his request for a thirteenth continuance.
II.
We review the BIA's denial of a motion to continue for an abuse of discretion.
See Thimran v. Holder, 599 F.3d 841, 845 (8th Cir. 2010). During removal
proceedings, an IJ may grant a motion to continue for good cause. 8 C.F.R.
§ 1003.29.
We hold that the BIA did not abuse its discretion when it affirmed the IJ's
denial of Mogeni's motion to continue. Mogeni asked the IJ and the BIA to grant a
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continuance of the removal proceedings pending the resolution of his I-130 petitions.
An important consideration in determining whether to grant a stay of removal
proceedings pending the resolution of an I-130 petition is the likelihood of the
petition's success. See Thimran, 599 F.3d at 845; In re Hashmi, 24 I. & N. Dec. 785,
790 (BIA 2009) (finding that the focus of the inquiry as to whether an IJ should grant
a continuance of removal proceedings is based on the likelihood that the adjustment
of immigration status will be granted). Because the DHS determined Mogeni
previously entered into a sham marriage, § 204(c) substantially hinders the likelihood
of success.
Section 204(c) states in relevant part:
no petition [for adjustment of status] shall be approved if (1) the alien
has previously been accorded, or has sought to be accorded, an
immediate relative or preference status as the spouse of a citizen of the
United States or the spouse of an alien lawfully admitted for permanent
residence, by reason of a marriage determined by the Attorney General
to have been entered into for the purpose of evading the immigration
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 immigration laws.
Mogeni did not appeal the DHS's sham-marriage determination. Thus, it is likely
Mogeni's pending I-130 petitions will be denied as a result of Mogeni's previous
sham marriage.
Moreover, "[t]he IJ traditionally has discretion to avoid unduly protracted
proceedings." Thimran, 599 F.3d at 845 (internal quotation marks omitted). In
Thimran, this Court found that it was not an abuse of discretion for an IJ to deny a
continuance "after multiple I-130 petitions were denied, the case had been continued
for over two years, and Mr. Thimran presented no obviously meritorious grounds for
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appeal." Id. In our case, Mogeni was granted twelve continuances over a span of five
years and has failed to present any meritorious grounds for appeal.
We affirm. The BIA did not abuse its discretion.
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