Elphine Kerubo Marube v. Jefferson Sessions III

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 17-1898 ELPHINE KERUBO MARUBE, Petitioner, v. JEFFERSON B. SESSIONS III, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Submitted: January 25, 2018 Decided: February 16, 2018 Before TRAXLER, KEENAN, and THACKER, Circuit Judges. Petition granted and remanded by unpublished per curiam opinion. Japheth N. Matemu, MATEMU LAW OFFICE P.C., Raleigh, North Carolina, for Petitioner. Chad A. Readler, Acting Assistant Attorney General, Anthony P. Nicastro, Assistant Director, Vanessa M. Otero, Trial Attorney, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Elphine Kerubo Marube, a native and citizen of Kenya, petitions for review of an order of the Board of Immigration Appeals (Board) dismissing her appeal from the immigration judge’s decision denying her motion for a continuance and ordering her removed to Kenya. For the reasons set forth below, we grant the petition for review. On appeal, Marube argues that the immigration judge abused his discretion in denying her motion for a continuance solely based on the length of time it is taking the Department of Homeland Security (DHS) to adjudicate her husband’s I-130 Petition for Alien Relative. She further argues that the immigration judge departed from the factors set forth in In re Hashmi, 24 I. & N. Dec. 785 (B.I.A. 2009), in denying her motion and that she was deprived of a full and fair hearing in violation of her rights to due process. An immigration judge “may grant a continuance for good cause shown.” 8 C.F.R. § 1003.29 (2017). We review the denial of a motion for a continuance for abuse of discretion. Lendo v. Gonzales, 493 F.3d 439, 441 (4th Cir. 2007); Onyeme v. INS, 146 F.3d 227, 231 (4th Cir. 1998). “[W]e must uphold the [immigration judge’s] denial of a continuance ‘unless it was made without a rational explanation, it inexplicably departed from established policies, or it rested on an impermissible basis, e.g., invidious discrimination against a particular race or group.’” Lendo, 493 F.3d at 441 (quoting Onyeme, 146 F.3d at 231). When deciding a motion to continue for the purpose of allowing an I-130 petition to be adjudicated by the DHS, the immigration judge should consider: (1) the Attorney General’s response; (2) prima facie approvability of the visa petition; (3) statutory 2 eligibility for adjustment of status; (4) whether the application for adjustment of status warrants a favorable exercise of discretion; and (5) the reason for the continuance and other procedural factors. In re Hashmi, 24 I. & N. Dec. at 790. The immigration judge “should articulate, balance, and explain all these relevant factors, and any others that may be applicable, in deciding whether to grant . . . a continuance . . . to adjudicate the I-130 or, alternatively, to proceed with the case despite the pendency of the visa petition.” Id. at 794. “Adjudication of a motion to continue ...

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