U.S.

Department of Justice
Executive Office for Immigration Review

Board ofImmigration Appeals Office of the Clerk

5107 leesburg Pike, Suite 2000 Falls Church, Virginia 22041

DeVader, Jessica A., Esq. DeVader Law Office, LLC 355 N. Waco, suite 150 Wichita, KS 67202

OHS/ICE Office of Chief Counsel - KA N 2345 Grand Blvd., Suite 500 Kansas City, MO 64108

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Name: MEDRANO-ARIAS, CESAR Riders:201-071-536

A 201-071-535

Date of this notice: 9/17/2013

Enclosed is a copy of the Board's decision and order in the above-referenced case. Sincerely,

Dcrvu... ctVv't.J
Donna Carr Chief Clerk

Enclosure Panel Members: Grant. Edward R.

Lulseges Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: Cesar Medrano-Arias, A201 071 535 (BIA Sept. 17, 2013)

,U.S. Department of Justice

Executive Office for Immigration Review Falls Church, Virginia 22041

Decision of the Board of Immigration Appeals

Files: A201 071 535 -Kansas City, MO 1 A201 071 536

In re: CESAR MEDRANO-ARIAS

Date:

SEP 1 7 2013

ISRAEL MEDRANO-ARIAS IN REMOVAL PROCEEDINGS APPEAL ON BEHALF OF RESPONDENTS: Jessica A. DeVader, Esquire ON BEHALF OF DHS: Jayme Salinardi Deputy Chief Counsel

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APPLICATION: Continuance; administrative closure

The parties have filed a joint motion to administratively close these proceedings based upon the Department of Homeland Security's exercise of prosecutorial discretion with respect to the appeal from the Immigration Judge's decision dated May 1, 2012, filed by the respondent Israel Medrano-Arias, a native and citizen of Mexico. proceedings administratively closed. If either party to this case wishes to reinstate the proceedings with respect to the respondent Israel Medrano Arias, a written request to reinstate the proceedings may be made to the Board. The Board will take no further action in the case unless a request is received from one of the parties. The request must be submitted directly to the Clerk's Office, without fee, but with certification of service on the opposing party. The co-respondent in this case, Cesar Medrano-Arias, also a native and citizen of Mexico, filed a motion for a continuance based solely on his desire to remain in the United States until such time as a ecision was made in the case of his brother, respondent Israel Medrano-Arias, who sought a continuance to wait for the priority date of a visa petition filed on his behalf to become current. Inasmuch as the co-respondent had no independent relief available to him, except for voluntary departure, and sought a delay merely to await the outcome of his brother's proceedings, we agree that good cause was not shown to warrant a continuance. See Matter ofPerez-Andrade, 19 l&N Dec. 433 (BIA 1987) (the decision to grant or deny a continuance for good cause is within the sound discretion of the Immigration Judge and will not be overturned on appeal unless it is shown that the respondent was denied a full and fair hearing); 8 C.F.R. 1003.29 and 1240.6.
1 The parties cross-reference this alien registration number on appeal with the alien registration number 204 407 117, indicating that they belong to the same individual.

The motion will be granted, and the

Cite as: Cesar Medrano-Arias, A201 071 535 (BIA Sept. 17, 2013)

A201 071 535 et al.

Effective January 20, 2009, an Immigration Judge who grants an alien voluntary departure must advise the alien that proof of posting of a bond with the DHS must be submitted to the Board within 30 days of filing an appeal, and that the Board will not reinstate a period of the required bond has been posted. 8 C.F.R. 1240.26(c)(3). See Matter of Gamero, 25 I&N Dec. 164 (BIA 2010). The Immigration Judge provided the co-respondent Cesar Medrano-Arias with the required advisals and granted him a 60-day voluntary departure period, conditioned upon the posting of a $500 bond within five days. The record before the Board, however, does not reflect that this respondent submitted timely proof of having paid the bond. Therefore, the voluntary departure period will not be reinstated, and the respondent will be ordered removed from the United States to Mexico pursuant to the Immigration Judge's alternate order. Accordingly, the following orders will be entered. ORDER: The proceedings before the Board of Immigration Appeals with respect to respondent Israel Medrano-Arias are administratively closed. FURTHER ORDER: The appeal filed by co-respondent Cesar Medrano-Arias is dismissed. voluntary departure in its final order unless the alien has timely submitted sufficient proof that

Immigrant & Refugee Appellate Center | www.irac.net

Cite as: Cesar Medrano-Arias, A201 071 535 (BIA Sept. 17, 2013)

UNITE9 .. STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW UNITED STATES IMMIGRATION COURT KANSAS CITY, MISSOURI

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File:

A201-071-535 A201-071-536

May 1,

2012

In the Matters of

CESAR MEDRANO-ARIAS ISRAEL MEDRANO-ARIAS RESPONDENTS

IN REMOVAL PROCEEDINGS

CHARGE:

Section 237{a) (1) {C) {i) of the Immigration and Nationality Act (Act), after admission as anonimmigrant visitor, remained and failed to comply with conditions of nonimmigrant status under which you were admitted.

APPLICATIONS:

Motion for a continuance; voluntary departure.

post-conclusion

ON BEHALF OF RESPONDENT: ON BEHALF OF OHS:

JESSICA A. HOWARD

DEVADER

JUSTIN W.

ORAL DECISION OF THE IMMIGRATION JUDGE The respondents are brothers who are natives and citizens of Mexico. years old. Israel Medrano is 20 years old. Cesar Medrano is 22

They both arrived in the United States and were

admitted at El Paso, nonimmigrants.

Texas,

on November 2000 as border crosser 2011, the respondents were

On or about May 17, Kansas,

found at Wichita,

a distance of more than 25 miles from The respondents did not

the United States border with Mexico.

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receive permission from an Immigration officer to proceed beyond the 25-mile limit. On June 1, 2011, both respondents were

placed in removal proceedings by the Department of Homeland Security following Notices to Appear dated June 1, 2011. The

respondents were charged with removal pursuant to the section noted above. See Exhibit 1 for each respondent .
.

At a Master Calendar hearing on May 1, respondents, through counsel,

2012,

the

submitted a written pleading conceding the charge of

admitting the factual allegations,

removal and designating Mexico as the country of return should that be required. See Exhibit 2.

Based on the respondents admissions and there being no issue as to the factual allegations or charge of removal, I find

removability in each case has been established by evidence that is clear and convincing as required by Section 240 (c) (3) Act;
8 C. F. R.

of the

1240. lO (c) . both respondents requested a voluntary

In lieu of removal,

departure as the sole relief available to them at the hearing on May 1, 2012.

The respondent Israel Medrano-Arias filed a motion to continue the removal proceeding, requesting that as the

A201-071-535

May 1,

2012

beneficiary of an approved I-130 visa petition filed by his lawful permanent resident mother, a continuance of the hearing

would allow the opportunity for a priority date to be current under the 2-A category. The respondent apparently is accorded

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protection from aging out of the preference category 2-A under the Child Status Protection Act and, therefore, through counsel,

the respondent sought a continuance of the removal proceedings to allow for adjustment of status in the event a visa number become available prior to his age-out date. In the case of Cesar Medrano, this respondent does not have

the same potential relief as his brother and there was no . motion for a continuance f iled for him on the same basis as Israel Medrano. However, this respondent wanted the opportunity to

depart with his brother and wanted to remain in the United States until a decision is made on his brother Israel's case. In addition, the attorney has also requested the Department

consider prosecutorial discretion in the case of Israel Medrano. The Department of Homeland Security opposed a continuance noting that the respondents were arrested on or about May 17, 2011, for aggravated indecent liberties, although the charges

were dropped.

The Department of Homeland Security had indicated

it did not believe prosecutorial discretion would be exercised. In addition, the relief of waiting in the United States until

the preference category becomes current is based on an unknown future date. Therefore, the Department, for all those reasons,

A201-071-535

May 1,

2012

d id not agree to a continuance. An Immigration Judge may grant a continuance for good cause shown.
8 C.F. R. 1003. 29.

After considering the request for the

continuance,

the Court notes f irst of all that the Court does

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not have any jurisdiction over the request for prosecutorial d iscretion submitted by the respondent, Department of Homeland Secur ity. Israel Medrano, to the

In addition,

the Court agrees

with the Department that the preference category is not current .. Therefore, the respondent is not prima facie elig ible for It is unknown at what point in the future

adjtment of status.

a visa number will become available or whether the visa category w ill become current before the respondent ages out. At the f inal hearing the only relief ava ilable to the respondents is voluntary departure. The Department of Homeland The respondents

Security has not opposed voluntary departure.

wanted the opportunity to continue to appeal the Court's denial of the continuance to the Board of Immigration Appeals. Therefore, the Court considered both respondents for post The respondents have agreed to

conclusion voluntary departure.

pay the m inimum $500 voluntary departure bond in each case. After considering their request for post-conclusion voluntary departure, the Court will grant that relief as a matter of law

and in discretion. ORDERS

IT

IS HEREBY ORDERED that the respondents' motions for

A 201-071-535

May 1,

2012

continuing removal proceedings are denied. IT IS FURTHER ORDERED that the respondents are granted voluntary departure from the United States without expense to the Government within 60 days from the date of this order or any extension beyond the time as may be granted in the discretion of Homeland Security. Each respondent is required to post with DHS

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a voluntary departure bond of $500 within five business days of the order. If an appeal of this decision is taken to the Board of Immigration Appeals, the respondents must provide within 30 days

of filing the appeal evidence that they posted the voluntary departure bond or the Board will not consider post-conclusion voluntary departure in the f inal order. The post-conclusion voluntary departure consequences and advisals will be provided in writing. In the event that the respondents fail to comply with the forgoing terms, the grant of voluntary departure shall automatically terminate and the respondents shall be removed from the United States to Mexico on the charge contained in the Notice to Appear.

PAULA V. DAVIS Immigration Judge

A201-071-535

May 1,

2012

CERTIFICATE PAGE

I hereby certify that the attached proceeding before JUDGE PAULA DAVIS, in the matter of:

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CESAR MEDRANO-ARIAS ISRAEL MEDRANO-ARIAS

A201-071-535 A201-071-536

KANSAS CITY,

MISSOURI

is an accurate,

verbatim transcript of the recording as provided

by the Executive Office for Immigration Review and that this is the original transcript thereof for the file of the Executive
. .

Office for Immigration Review.

(Transcriber) FREE STATE REPORTING, JUNE 26, 2012 Inc.

{Completion Date)