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Noe Jesus Ascencio-Hernandez, A200 819 649 (BIA Aug. 6, 2013)

Noe Jesus Ascencio-Hernandez, A200 819 649 (BIA Aug. 6, 2013)

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In this unpublished decision, the Board of Immigration Appeals (BIA) denied the respondent's request for a remand upon finding the grant of relief under the Deferred Action Childhood Arrivals (DACA) program to the respondent's son did not provide a valid basis for administrative closure. The Board stated that the respondent could seek a favorable exercise of prosecutorial discretion from the Department of Homeland Security. The decision was written by Member Edward Grant.
In this unpublished decision, the Board of Immigration Appeals (BIA) denied the respondent's request for a remand upon finding the grant of relief under the Deferred Action Childhood Arrivals (DACA) program to the respondent's son did not provide a valid basis for administrative closure. The Board stated that the respondent could seek a favorable exercise of prosecutorial discretion from the Department of Homeland Security. The decision was written by Member Edward Grant.

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Published by: Immigrant & Refugee Appellate Center, LLC on Aug 09, 2013
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02/14/2014

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Davies, Catharine A., Esq.

Bull & Davies P.C.
1634 Downing St.
Denver, CO 80218
U.S. Department of Justice
Executive Ofce fr Immigration Review
8oacdof I»»|gcat|onnppeals
upceoft/ecleck
5107 Leesb1rg Pike, S11i1e 2000
Fals Ch11rch, Virginia 220. I
OHS/ICE Ofice of Chief Counsel - DEN
12445 East Caley Avenue
Centennial, CO 80111-5663
Name: ASCENCIO-HERNANDEZ, NOE J ... A 200-819-649
Date of this notice: 8/6/2013
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosure
Panel Members:
Grant, Edward R.
Sincerely,
D6 Ct
Donna Carr
Chief Clerk
Lulseges
Userteam: Docket
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Cite as: Noe Jesus Ascencio-Hernandez, A200 819 649 (BIA Aug. 6, 2013)
U.S. Department of Justice
Executive Ofce fr Immigation Review
Falls Church, Virginia 22041
File: A200 819 649 - Denver, CO
In re: NOE JESUS ASCENCIO-HERANDEZ
IN REMOVAL PROCEEDINGS
APPEAL AND MOTION
Decision of the Board oflmmigation Appeals
Date:
ON BEHALF OF RESPONDENT: Catharine A. Davies, Esquire
ON BEHALF OF DHS: Aminda B. Katz
Assistant Chief Counsel
APPLICATION: Administative closure; voluntary depaure; remand
The respondent, a native and citizen of Mexico, appeals the decision of the Immigation
Judge, dated November 21, 2012, concluding these removal proceeding by entering a volunta
departre order under the provisions of section 240B(b) of the Immigration and Nationality Act,
8 U.S.C. § 1229c(b).
1
The respondent has also fled a motion to remand. Te Department of
Homelad Security ("DHS") is opposed to the rspondent's appeal ad his motion to remad.
We will dismiss the respondent's appeal and deny his motion to remad. However, a the
respondent has presented evidence that he posted the requisite voluntary departure bond, we will
provide him with an additional 60 days to voluntarily depart this country, the maximum period
allowed by section 240B(b )(2) of the Act.
We review Immigation Judges' fndings of fct fr clear eror, but questions of law,
discretion, and judgent, ad all other issues in appeals, de novo. 8 C.F.R. § 1003.l(d)(3).
We affr the Immigration Judge's decision. Given that the claims raised by the respondent
do not potentially aount to a basis to administratively close these proceedings, we decline to
remad the record to the Immigration Judge in order to prepare a fll decision. See Matter of
Rodrigez-Carrillo, 22 l&N Dec. 1031 (BIA 1999). We conclude that the Immigation Judge's
sumary volunta departure order is sufcient to allow fr a meaningfl appellate review of the
issues presented on appeal.
1
Befre the Immigration Judge, the respondent, through counsel, conceded that he is subject to
removal fom the United States because he is an alien who is present i this count without
being admitted or paroled or who arrived at any time or place other tha a designated by the
Atorey General (Tr. at 3; Exh. 1). See section 212(a)(6)(A)(i) of the Act, 8 U.S.C.
§ 1182(a)(6)(A)(i). He does not allege that he has established that he is eligible fr any frm of
relief fom removal which can be ganted by an Immigration Judge or this Board and would
perit him to remain in this country. See section 240(c)(4)(A) of the Act, 8 U.S.C.
§ 1229a(c)(4)(A); 8 C.F.R. § 1240.S(d); see also 8 C.F.R. § 1240.11 (enumerating many of the
frms of relief fom removal which can be ganted to aliens in removal proceedings). The record
refects that the respondent resered his appeal rights (Tr. at 9, 12-13).
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Cite as: Noe Jesus Ascencio-Hernandez, A200 819 649 (BIA Aug. 6, 2013)
''
A200 819 649
. The respondent's desire to remain in the United States does not amount to a basis to
administatively close these removal proceedings. See Matter of Avetisyan, 25 I&N Dec. 688
(BIA 2012). While the alien described in Avetisyan sought to administatively close removal
proceedings fr a limited period of time while United States Citizenship ad Immigation
Serices adjudicated a imigt visa petition fled on his behalf, the respondent appeas to
assert that the Immigration Judge should have unilaterally administratively closed these
proceedings to allow him to continue to reside in the United States in violation of law. Moreover,
the alien described in Avetisyan sought to eventually pursue a claim to adjustment of status, a
frm of relief which can be granted to an alien in removal proceedings. While the respondent
apparently seeks immigration benefts fom the DHS under the so-called "Moron Memo,"
2
neither an Immigration Judge or this Board can grant the respondent benefts under an interal
and non-binding OHS memo. Thus, administatively closing these proceedings would not result
in any convenience to the Immigation Court or this Board. See Matter of Gutierrez, 21 l&N
Dec. 479, 480 (BIA 1996). In short, it is not appropriate fr an Immigration Judge or the Board
to administratively close proceedings in the present case as the respondent's desire to remain in
this country does not afect the course of these proceedings. Matter of Avetisyan, supra, at 696.
Regardless of the respondent's ability to procure immigration benefts under the Morton Memo,
he remains subject to removal fom the United States and has not established even potential
eligibility fr any fr of relief fom removal which can be gated by an Immigation Judge or
this Boad and would permit him to remain in this county.
We decline to remad the record to the Immigration Judge fr fher proceedings. In
support of his motion to remand, the respondent has presented a copy of his child's Mexican
birth certifcate and evidence that his child has been granted immigration benefts under DHS's
Defered Action fr Childhood Arrvals progam. However, this new evidence does not
establish a prima fcie cae that these removal proceedings should be unilaterally
administratively closed. See Matter of Coelho, 20 I&N Dec. 464, 471 (BIA 1992).
Finally, under the Morton Memo, the DHS may exercise prosecutorial discretion at ay stage
of an enfrcement proceeding. Thus, the entry of this order does not prevent the respondent
fom pursuing such immigration benefts directly fom the DHS. See Matter of Quintero,
18 I&N Dec. 348, 350 (BIA 1982). If the OHS elects to grant the respondent defred action (or
other immigration benefts as a matter of prosecutorial discretion), the parties are not precluded
fom fling a joint motion to reopen in the ftre. See 8 C.F.R. § 1003.2(c)(3)(iii). However, as
we decline to disturb the Immigration Judge's decision to enter a voluntary departure order in
these proceedings, the fllowing orders are entered.
ORDER: The respondent's appeal is dismissed.
FURTHER ORDER: The respondent's motion to remand is denied.
FURTHER ORDER: Pursuant to the Immigration Judge's order and conditioned upon
compliace with conditions set frth by the Immigration Judge and the statute, the respondent is
peritted to voluntaly depar the United States, without expense to the Goverent, within
2
Joh Morton, Director, United States Immigration & Customs Enfrcement, Eercising
Prosecutorial Discretion Consistent With the Civil Immigration Enforcement Priorities of the
Agenc for the Apprehenion, Detention, and Removal of Aliens (June 17, 2011), available at
http://ww .ice.gov/doclib/secure-communities/pdf/prosecutorial-discretion-memo.pdf.
2
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Cite as: Noe Jesus Ascencio-Hernandez, A200 819 649 (BIA Aug. 6, 2013)
A200 819 649
60 days fom the date of this order or any extension beyond that time as may be granted by the
Department of Homeland Security ("DHS"). See section 240B(b) of the Immigration and
Nationality Act, 8 U.S.C. §.1229c(b); see also 8 C.F.R. §§ 1240.26(c), (f. In the event the
respondent fils to voluntarily depart the United States, the respondent shall be removed a
provided in te Immigation Judge's order.
NOTICE: If the respondent fils to voluntarily depart the United States within the time
period specifed, or any extensions granted by the OHS, te respondent shall be subject to a civil
penalty as provided by the regulations and the statute and shall be ineligible fr a period of 10
years fr any frther relief under section 240B and sections 240A, 245, 248, and 249 of the Act.
See section 240B(d) of the Act.
WARNIG: If the respondent fles a motion to reopen or reconsider prior to the expiration
of the voluntary departure period set frth above, te gant of voluntary departure is
automatically terminated; the period allowed fr voluntary departure is not stayed, tolled, or
extended. If the gat of voluntary departure is automatically terminated upon the fling of a
motion, the penalties fr failure to depart under section 240B(d) of the Act shall not apply. See
8 C.F.R. § 1240.26(e)(l).
WARNIG: If, prior to departing the United States, the respondent fles any judicial
challenge to this administratively fnal order, such as a petition fr review pursuant to
section 242 of the Act, 8 U.S.C. § 1252, the grant of voluntary departure is automatically
terinated, and the alterate order of removal shall immediately take efect. However, if the
respondent fles a petition fr review and then departs the United States within 30 days of such
fling, the respondent will not be deemed to have departed under an order of removal if the alien
provides to the OHS such evidence of his or her deparure that the Immigation and Customs
Enfrcement Field Ofce Director of the OHS may require and provides evidence DHS deems
sufcient that he or she has remained outside of the United States. The penalties fr failure to
depart under section 240B(d) of the Act shall not apply to an alien who fles a petition fr review,
notwithstanding any period of time that he or she remains in the United States while the petition
fr review is pending. See 8 C.F.R. § 1240.26(i).
3
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Cite as: Noe Jesus Ascencio-Hernandez, A200 819 649 (BIA Aug. 6, 2013)

v
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,, , • �1 -• ' '
0 '
U.S. DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRTION REVIEW
IMMIGRTION COURT
621 17TH STREET, SUITE 300
DENVER, CO 80293
In the Matter of: Case No.: A200-819-649
ASCENCIO-HERNANDEZ, NOE JESUS
.
RESPONDENT
d
IN REMOVAL PROCEEDINGS
ORDER OF THE IMMIGRATION JUDGE
Upon the basis of respondent's admissions, I have determined that the
Respondent is subject to removal on the charge(s/ in the Notice to Appear. The
respondent has made application solely for voluntary departure in lieu of
removal.
It is HEREBY ORDERED that the respondent be GRNTED voluntary departure in
lieu of removal, without expense to the Government on or before
1/22/2013 or any extensions as may be granted by the
District Director, Department of Homeland Security, and under whatever
conditions the District Director may direct.
It is FURTHER ORDERED:
[ ]
that the respondent post a voluntary depirture bond in the amount of
with the Department of Homeland Security on or
before
[ ]
that the respondent shall provide the Department of Homeland
Security travel documentation sufficient to assure lawful entry into the
country to which the alien is departing within 60 days of this order,
or within any time extensions that may be granted by the Department of
Homeland Securi
�r
It is FURTHER ORDERED that if any of the above ordered conditions are not met
as required, the above order shall be withdrawn without further notice or
proceedings and the following shall thereupon become immediately effective:
respondent shall be removed to MXICO
on the charge(s) in the Notice to Appear.
It is FURTHER ORDERED that if respondent fails to depart as required, the above
order shall be withdrawn without further notice or proceedings and the
following order shall become imediately effective: respondent shall be
removed to MXICO on the charge(s) in the Notice to Appear.
Pursuant to section 240B(d) of the INA, 8 U.S.C. section 1229c(d), if the
respondent fails to voluntarily depart the United States within the time
specified, or any extensions granted by the Department of Homeland Security, the
respondent shall be subject to a civil penalty of not less than $1,000.00 and not
more than $5,000.00, and shall be ineligible for a period of ten (10) years for
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