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Mogeni v. Holder

United States Court of Appeals, Eighth Circuit

March 9, 2015

Zachary Makworo Mogeni, Petitioner
v.
Eric H. Holder, Jr., Attorney General of the United States, Respondent

Submitted November 10, 2014

Petition for Review of an Order of the Board of Immigration Appeals.

For Zachary Makworo Mogeni, Petitioner: Virginia Lum, U.S. DEPARTMENT OF JUSTICE, Civil Division, Office of Immigration Litigation, Washington, DC; Jamie B. Naini, Memphis, TN.

For Eric H. Holder, Jr., Attorney General of the United States, Respondent: Scott Baniecke, U.S. IMMIGRATION & NATURALIZATION SERVICE, Bloomington, MN; Karen Yolanda Drummond, Carl H. McIntyre, Arthur Leonid Rabin, U.S. DEPARTMENT OF JUSTICE, Civil Division, Office of Immigration Litigation, Washington, DC.

Before MURPHY, MELLOY, and BENTON, Circuit Judges.

OPINION

Page 848

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 removal proceedings pending the results of

Page 849

his I-130 petitions. Between 2007 and 2012, the IJ granted Mogeni ...


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