This part of the latest issue of the AILA Georgia-Alabama and Central and South Florida Chapter 11th Circuit Litigation Newsletter summarizes unpublished BIA decisions from Alabama and Georgia. The summarized cases are for April and May 2016.
This is a group effort of a number of attorneys – John Gihon, Marshall Cohen, Roberta Cooper, Kathleen Schulman, Mariana Munoz-Parsons and myself. I would like to commend everyone for their hard work. Any feedback from members may be sent to me, Bruce Buchanan of Sebelist Buchanan Law PLLC at firstname.lastname@example.org or John Gihon of Shorstein, Lasnetski & Gihon at John@slgattorneys.com.
Julio Lopez-De Dips, A206 011 402 (BIA Mar. 1, 2016) (2016 WL 1084489) – The BIA remanded the matter to the IJ for reconsideration of the respondent’s motion to continue in light of the respondent’s marriage to a U.S. citizen and the U.S. citizen spouse’s plans to file an I-130 for respondent. The IJ had previously denied respondent’s motion to continue holding that the respondent had failed to show good cause because any relief based on the marriage was speculative. The BIA noted that the IJ had made a clear error in its factual determination of the respondent’s marital status. The BIA also interpreted respondent’s introduction of new evidence, including evidence of the filing of a visa petition for respondent, as a motion to remand. The Board explained that while the respondent was not eligible to adjust status under INA § 245(a), he could potentially qualify for a stateside provisional waiver if his petition was approved and proceedings were administratively closed. On remand, the BIA ordered the IJ to determine whether there was good cause to continue the proceedings, to consider the new evidence presented on appeal, to reasonably allow respondent to submit additional evidence, and to adjudicate the motion to continue in accordance with Matter of Hashmi, 24 I&N Dec. 785 (BIA 2009).
Delores Flores, A094 026 278 (BIA Mar. 2, 2016) (2016 WL 1084484) – Respondent appealed the IJ’s oral decision, but the BIA returned the record to the Immigration Court for preparation of a complete transcript and certification to the BIA thereafter. The BIA returned the record because the IJ’s oral order was indiscernible at key points of the oral decision and a complete decision was necessary for the record.
Delfino Nunez-Ruiz, A208 210 246 (BIA Mar. 7, 2016) (2016 WL 1084470) – The BIA dismissed respondent’s appeal and affirmed the IJ’s order of removal and denial of the respondent’s motion for a continuance. The BIA agreed with the IJ and held that the respondent failed to establish good cause for a continuance based on his desire to pursue a request for a nonimmigrant U-Visa. The BIA noted that respondent failed to establish a prima facie claim for U-nonimmigrant status warranting a continuance given his failure to show that (1) a U-Visa had been filed with USCIS, (2) the form was prima facie approvable, or that (3) a law enforcement agency would sign off on the Supplement B law enforcement certification. In reaching its conclusion, the BIA compared Matter of Sanchez Sosa, 25 I&N Dec. 807, 815 (BIA 2012), recognizing that a respondent reeking a U-Visa was not entitled to a continuance for dilatory purposes where it was unlikely that the respondent’s U-Visa application would be approved, with Matter of Hashmi, 24 I&N Dec. 785 (BIA 2009), recognizing that a continuance may be warranted where the respondent is the beneficiary of a pending visa petition and where it is likely that the respondent would be successful on an adjustment of status application.
Andres Juan-Juan, A206 444 419 (BIA Mar. 10, 2016) (2016 WL 1358001) – The BIA remanded the record to the IJ for adjudication of respondent’s I-485 application. The respondent appealed the IJ’s denial of his motion to continue and order of removal. The respondent submitted new evidence along with a supplemental appeals brief, which included an approved I-360 petition and proof of a properly filed I-485. The BIA concluded that respondent was statutorily eligible to adjust status and ordered the IJ to adjudicate respondent’s application.
Miguel Alejandro Brito-Roman, A073 743 637 (BIA Mar. 11, 2016) (2016 WL 1357980) – The BIA dismissed respondent’s appeal and affirmed the IJ’s denial of respondent’s motion to amend his pleadings and order of removal. The BIA affirmed the IJ’s denial of respondent’s motion to amend the pleadings pursuant to 8 C.F.R. § 1003.1(e)(5). The respondent filed written pleadings admitting to the factual allegations in the NTA and conceding removability, but in a subsequent hearing sought to withdraw his pleadings. The respondent argued that the pleadings had not altered the course of the proceedings or affected strategic decisions by either party and that the IJ had not expended undue resources as based on the pleadings. The BIA agreed with the IJ’s finding that respondent was not entitled to amend the pleadings because he failed to establish that the pleadings were uninformed or that the NTA allegations were factually or legally deficient. Additionally, the BIA noted that DHS had relied on respondent’s pleadings and would have altered its strategy had respondent not conceded removability.
Megan Ruth Atkins, A037 235 310 (BIA Mar. 15, 2016) (2016 WL 1357963) – The BIA dismissed respondent’s appeal of the IJ’s decision denying respondent’s motion to terminate proceedings and holding that the respondent committed an aggravated felony. The respondent, a long-time lawful permanent resident, was convicted under Georgia law (O.C.G.A. § 16-8-2) of one count of felony theft and was sentenced to 5 years to be served on probation. The Board agreed with the IJ and determined that the Georgia conviction was an aggravated felony theft offense for which a term of imprisonment was at least 1 year under INA § 101(a)(43)(G). The Board employed the categorical approach focusing on the “minimum conduct that has a realistic probability of being prosecuted under the statute of conviction, rather than on the facts underlying the respondent’s particular violation of the statute” (citing Moncrieffe v. Holder, 133 S. Ct. 1678, 1684-85 (2013)). The BIA concluded that a conviction under the Georgia statute satisfied the intent requirement of a theft offense under section 101(a)(43)(G) of the INA, specifically the intent to take property without the owner’s consent.
Deuk Su Kim, A098 156 260 (BIA Mar. 23, 2016) (2016 WL 1722609) – The BIA granted respondent’s motion to reopen proceedings, vacated the IJ’s in absentia order, and remanded the record to the Immigration Court. The BIA concluded that reopening was warranted because respondent’s inadvertent failure to appear was based on a good faith mistake and had not intended to avoid the hearing. The Board also recognized that respondent had diligently pursued relief, had an approved I-130, and appeared to be eligible for adjustment of status.
Jefferson Candido Lopes, A206 841 461 (BIA Apr. 21, 2016) (2016 WL 2848978) – The BIA affirmed the IJ’s decision denying the respondent’s request for a continuance because he had recently retained new counsel and wanted to file a request for an exercise of prosecutorial discretion with DHS. The BIA explained that the decision to grant or deny a continuance is within the discretion of the IJ, if good cause is shown, and that decision will not be overturned on appeal unless it appears that the respondent was deprived of a full and fair hearing. Matter of Perez- Andrade, 19 I&N Dec. 433 (BIA 1987). Given that the respondent’s attorney informed the IJ that the respondent was not eligible for any form of relief from removal, the BIA concluded that there is no basis for overturning the IJ’s decision, and the proceedings were fundamentally fair to the respondent.
Jose Martinez Echavarria, A089 954 168 (BIA Mar. 7, 2016) (2016 WL 1084471) – The respondent appealed the IJ’s denial of his motion to reopen and the BIA remanded the record to the IJ for preparation of a more complete decision. The BIA concluded that the IJ’s order was factually and legally insufficient. Specifically, the BIA noted that if the IJ’s intention was to deny the respondent’s motion because it was filed after the respondent’s voluntary departure period, then the IJ failed to make important findings of fact regarding (1) the filing date of the respondent’s motion; (2) whether the respondent had been properly advised of the penalties for failing to depart voluntarily; and (3) whether the respondent voluntarily failed to depart within the required period of time.
Diego Morales Gomez, A204 516 457 (BIA Mar. 14, 2016) (2016 WL 1357973) – The respondent appealed the IJ’s order of removal and denial of his request for a continuance pending adjudication his request for post-conviction relief. The BIA affirmed the IJ’s decision asserting that the pursuit of post-conviction relief is a collateral attack and does not impact the validity of the respondent’s conviction for immigration purposes. The IJ based its decision on the respondent’s failure to demonstrate that he had suffered prejudice as a result of the denial of the continuance, as well as his failure to provide evidence that the conviction had been vacated or materially modified. The BIA noted that only the overturning of a conviction by a court would affect its finality for immigration purposes, and mere speculations as to the validity of a conviction were insufficient. The BIA concluded that even if the respondent obtained post-conviction relief, he was still subject to inadmissibility under INA § 212(a)(6)(A)(i). The BIA also noted that neither the BIA nor the IJ had jurisdiction over the respondent’s potential claim for DACA. Because USCIS has exclusive jurisdiction over DACA claims, the respondent would have to proceed with his claim for DACA through USCIS. A final order of removal would not prevent the respondent from obtaining DACA and he could request a stay of removal pending review of his DACA request under 8 C.F.R. §§ 241.6(a) and 1241.6(a).
Jose Fernando Castillo, A093 022 401 (BIA Mar. 28, 2016) (2016 WL 1722570) – The BIA sustained the respondent’s appeal of the IJ’s order denying the respondent’s motion to reopen proceedings, and remanded the case to the IJ. The BIA exercised its sua sponte authority in vacating the IJ’s order of removal and found that reopening was warranted based on the totality of the evidence presented, including the vacating of the respondent’s conviction on constitutional grounds, which had been the basis of his removability. The BIA noted that while the respondent should have filed his motion to reopen with the BIA, which still had jurisdiction over the proceedings rather than with the Immigration Court, the BIA sustained the appeal as an exercise of discretion.