Noboa, Julio A.

U.S. Department of Justice

Executive Ofce fr Imigration Review
Board of Immigration Appeals
Ofce of the Clerk
5107 leeburg Pike, Suite 2000
Fall Church, Vrginia 20530
The Law Ofice of Rober D. Ahlgren
33 N. LaSalle Street
OHS/ICE Ofice of Chief Counsel CHI
525 West Van Buren Street
Chicago, IL 60607
Suite 1800
Chicago, IL 60602
Name: BARBA ARREAGA, GUSTAVO A 077-772-631
Date of this notice: 6/2/2014
Enclosed is a copy of the Boad's decision and order in the above-refrenced case.
Enclosure
Panel Members:
Grant, Edward R.
Sincerely,
DO cl
Donna Car
Chief Clerk
Trane
Userteam: Docket
For more unpublished BIA decisions, visit www.irac.net/unpublished
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Cite as: Gustavo Barba Arreaga, A077 772 631 (BIA June 2, 2014)
U.S. Department of Justice
Executive Ofce fr Immigration Review
Decision of the Board of Immigation Appeals
Falls Church, Virginia 20530
File: A077 772 631 - Chicago, IL
In re: GUST A VO BARA AREAGA
IN RMOVAL PROCEEDINGS
APPEAL
Date:
ON BEHALF OF RESPONDENT: Julio A. Noboa, Esquire
ON BEHALF OF DHS: Alexandra Kostich
Assistant Chief Counsel
APPLICATION: Continuance; termination
JUN - 2 2014
The respondent, a native and citizen of Mexico, appeals the Immigration Judge's decision,
dated July 11, 2013, which denied his motion to continue to await the adjudication of his
application fr a U-visa. While the respondent's appeal was pending, the United States
Citizenship ad Immigration Serices ("USCIS") approved his U-visa application and placed the
respondent in defrred action until a U-visa becomes available. Under tese circumstances, we
fnd it appropriate to administratively close the respondent's removal proceedings.
If either pary to this case wishes to reinstate the proceedings, a written request to reinstate
the proceedings may be made to the Board of Immigration Appeals ("Board"). The Board will
take no fher action in the case unless a request is received fom one of the paies. The request
must be submited directly to the Clerk's Offce, without fe, but with cerifcation of service on
the opposing pary. Accordingly, the fllowing order will be entered.
ORER: The proceedings befre the B(ard of Immigration Appeals in tis case ae
administratively closed.
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Cite as: Gustavo Barba Arreaga, A077 772 631 (BIA June 2, 2014)
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
CHICAGO, ILLINOIS
File: A077-772-631
In the Matter of
July 11, 2013
GUSTAVO BARBA ARREAGA,
RESPONDENT
IN REMOVAL PROCEEDINGS
CHARGES: Section 212(a)(6)(A)(i) of the INA; Section 212(a)(7)(A)(i)(I) of the
INA-an intending immigrant.
APPLICATION: Motion to continue proceedings pursuant to 8 C.F.R. Section 1003.29.
ON BEHALF OF RESPONDENT: JULIO A. NOVOA, ESQUIRE
105 West Madison Street, Suite 508
Chicago, IL 60602
ON BEHALF OF OHS: ALEXANDRA KOSTICH, ESQUIRE
Department of Homeland Security
525 West Van Buren, Suite 701
Chicago, IL 60607
ORAL DECISION OF THE IMMIGRATION JUDGE
Respondent is an adult male, native and citizen of Mexico whose presence was
discovered by the Department of Homeland Security prior to July 28 of 2011. On July
28 of 2011, the respondent was taken into the custody of the Department of Homeland
Security. He was processed for removal proceedings and given a copy of his Notice to
1
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Appear which he verified receipt of by his signature and fingerprint. See Exhibit 1.
The respondent was scheduled for a hearing, and on July 11 of 2013, the
respondent appeared with counsel, admitted the factual allegations, conceded
removability as charged, designated Mexico as the country of removal, and
consequently removability has been established by clear and convincing evidence. See
8 C.F.R. Section 1240.8 (2012).
The respondent, through counsel, provided this Court with various documents in
support of his having filed an 1-918 petition for U non-immigrant status. The respondent
had submitted various forms, including certification indicating that he was the victim of
an ofense which supports the filing of a U-visa on his behalf. See Exhibit 2.
On this basis, the respondent has requested additional time pursuant to the
regulations in support of his motion to continue.
The regulations do provide for continuances if there is "good cause." See 8
C.F.R. Section 1003.29. In considering the respondent's request for a continuance,
he has also pointed out that the Board of Immigration Appeals in a case entitled
Sanchez-Sosa, 25 l&N Dec. 807 (BIA 2012), supports a continuance.
In reviewing Sanchez-Sosa, supra, this Judge is mindful of the Board's
discussion, particularly those factors which it has cited to as factors relative to a request
for a continuance, also have been discussed by the case cited by the Board in 2009
entitled Matter of Hashmi, 24 l&N Dec. 785 (BIA 2009).
As the Board discussed in Sanchez-Sosa, the Hashmi factors to be considered in
particular are: ( 1) the OHS' response to the motion; (2) whether the underlying visa
petition is prima facie approvable; and (3) the reason for the continuance and other
procedural factors.
Turning to the instant case, the Deparment has expressed its opposition to the
A077-772-631 2 July 11, 2013
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motion to continue as well as to the motion or any potential request for a voluntary
departure. Apparently, the Deparment's decision is premised on the respondent's
having received voluntar departure, having departed the United States pursuant to the
voluntary departure and immediately having returned to the United States despite the
fact that the respondent was of the clear understanding that he was not to return to the
United States unless it was lawul. As the record indicates, the respondent entered the
United States without being admitted or paroled as an intended immigrant.
The second factor as discussed in Sanchez-Sosa is whether the underlying visa
petition is prima facie approvable. Review of the documents appears to support the
fact that the respondent has a signed certification which is the starting point for his
non-immigrant visa. This element apparently has been met by the respondent.
The third prong to be considered by the Board is Sanchez-Sosa is the reason for
the continuance, as well as other procedural factors. In the instant case, the
respondent simply is asking for time to have his U-visa adjudicated. The respondent
initially indicated that he believed he was eligible for non-LPR cancellation of removal.
Afer all, if there were other potential forms of relief that he is eligible for, those frms of
relief might entitle the respondent to a full hearing separate and apart from any type of
non-immigrant status requested. In the instant case, the respondent apparently is not
eligible for non-LPR cancellation of removal because the respondent left the United
States pursuant to a voluntary departure order entered by this Judge on about July 12
of 2001, and reentered the United States sometime in about December of 2001. As
indicated previously, the Notice to Appear was personally served on the respondent on
July 28 of 2011. Working backwards, the respondent needed to establish physical
presence in the United States prior to July 28 of 2001. At that point, the respondent had
just exited this Court before this Judge with an order of voluntary departure in hand,
A077-772-631 3 July 11, 2013
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which had just been given to him about two weeks earlier on about July 12 of 2001. He
had not departed the United States yet. Consequently, once the respondent departed
the United States and reentered in December of 2001, his continuous physical presence
began anew. Consequently, he lacks the ten years' physical presence in order to be
statutorily eligible for non-LPR cancellation of removal pursuant to Section
240A(b)(1)(A) of the Act. Consequently, respondent's only form of relief in the instant
case is a non-immigrant visa pursuant to the U classification.
Given the respondent's prior Immigration violation, his knowingly having
reentered the United States in violation of this Judge's order in the past, this Cour will
deny the motion to continue.
In the exercise of discretion, this Judge has also considered the motion to
continue and has denied that motion.
Alternatively, the respondent has not requested any other forms of relief.
Consequently, the following order will be entered.
ORDER
IT IS HEREBY ORDERED that the respondent's motion to continue will be
denied in the exercise of discretion.
IT IS FURTHER ORDERED that the respondent be removed to and depored
from the United States to Mexico on the charges contained in the Notice to Appear.
Date: July 11, 2013.
A077-772-631
CARLOS CUEVAS
U.S. Immigration Judge
4 July 11, 2013
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