Unpub. BIA Marriage Fraud Victory: Matter of Kagau

"While the Notice Of Intent to Deny ("NOID") the previous visa petition questioned the validity of the underlying marriage and referenced the fraud provision under section 204(c) of the Immigration and Nationality Act, 8 U.S.c. § 1154(c), neither the NOID nor the subsequent Field Office Director's decision denying the visa actually include a determination that the respondent and his previous wife entered into their marriage for the purpose of evading the immigration laws. Rather, the petition was denied based on the parties' failure to submit sufficient evidence to establish a bona fide marriage. Therefore, the Immigration Judge's finding that there was a previous marriage fraud determination was clearly erroneous. Because the Immigration Judge's denial of the respondent's motion for a continuance rests upon a clearly erroneous factual finding, we find that his decision to deny the continuance was an abuse of discretion. Given the circumstances presented here, we find that a remand is warranted for further proceedings to allow the Immigration Judge to reconsider the respondent's motion for a continuance pending adjudication of the most recent visa petition filed on his behalf, and to also consider any other relief for which the respondent can demonstrate eligibility." - Matter of Kagau, A099-258-131 - Dallas, Apr. 26, 2012, unpublished.  [Hats off to Nick Chavez!]