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Guadalupe Rondin-Nieves, A087 756 633 (BIA Aug. 30, 2013)

Guadalupe Rondin-Nieves, A087 756 633 (BIA Aug. 30, 2013)

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In this unpublished decision, the Board of Immigration Appeals (BIA) granted a DHS motion to administratively close proceedings in the exercise of prosecutorial discretion for a respondent with a lawful permanent resident mother and four U.S. citizen children, who was two months short of establishing eligibility for non-LPR cancellation of removal. The decision was issued by Member Edward Grant.
In this unpublished decision, the Board of Immigration Appeals (BIA) granted a DHS motion to administratively close proceedings in the exercise of prosecutorial discretion for a respondent with a lawful permanent resident mother and four U.S. citizen children, who was two months short of establishing eligibility for non-LPR cancellation of removal. The decision was issued by Member Edward Grant.

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Published by: Immigrant & Refugee Appellate Center, LLC on Sep 06, 2013
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Alexandrovich, Marina N., Esq.

Marina Alexandrovich, Esq., PLLC
405 W. Southern Avenue, Suite 1-24
Tempe, AZ 85282
Name: RONDIN-NIEVES, GUADALUPE
U.S. Department of Justice
Executive Ofce fr Immigration Review
Board of Immigration Appeals
Ofce of the Clerk
5107 Leesburg Pike, S11te 2000
Fals Church, Virginia 22041
OHS/ICE Ofice of Chief Counsel - PHO
P.O.Box 25158
Phoenix, AZ 85002
A 087-756-633
Date of this notice: 8/30/2013
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosure
Panel Members:
Grant, Edward R.
Sincerely,
DC c l
Donna Carr
Chief Clerk
Lulseges
Userteam: Docket
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Cite as: Guadalupe Rondin-Nieves, A087 756 633 (BIA Aug. 30, 2013)
For more unpublished BIA decisions, visit www.irac.net/unpublished
· U.S. Department of Justice
Execu�ive Ofue fr Immigation Review
Decision of the Board of Immigation Appeals
Falls Church, Virginia 22041
File: A087 756 633 - Phoenix, A
In re: GUADALUPE RONDIN-NIEVES
I REMOVAL PROCEEDIGS
APPEAL AND MOTION
Date:
ON BEHALF OF RESPONDENT: Marina N. Alexandrovich, Esquire
ON BEHALF OF OHS: Jenifr I. Ga
Assistant Chief Counsel
AUG 3 0
2013
A appeal fom the Immigation Judge's decision in this case is curently pending befre the
Board of Immigration Appeals ("Board"). The Department of Homeland Security ("OHS") has
now fled a motion to administatively close these proceedings based upon the DHS's exercise of
prosecutorial discretion. The respondent has indicated no opposition to the motion. The motion
will be granted, ad the proceedings administratively closed.
If either party to this case wishes to reinstate the proceedings, a witten request to reinstate
the proceedings may be made to the Board. The Board will take no frther action in the case
unless a request is received fom one of the parties. The request must be submited directly to
the Clerk's Ofce, without fe, but with certifcation of service on the opposing party.
Accordingly, the fllowing order will be entered.
ORDER: The proceedings befre the Board of Immigration Appeals m this case are
administratively closed.
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Cite as: Guadalupe Rondin-Nieves, A087 756 633 (BIA Aug. 30, 2013)
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
PHOENIX, ARIZONA
File: A087-756-633 August 30, 2012
In the Matter of
GUADALUPE RONDIN-NIEVES IN REMOVAL PROCEEDINGS
RESPONDENT
CHARGES: Section 212(a) (6) (A) (i) of the Immigration and
Nationality Act as an alien present in the United States without
being aditted or paroled
APPLICATIONS: Termination of proceedings; voluntary departure
pursuant to Section 240B(b) of the Imigration and Nationality
Act
ON BEHF OF RESPONDENT: MARINA ALEXANDROVICH, ESQUIRE
ON BEHALF OF OHS: JENNIFER I. GAZ, ESQUIRE
ORAL DECISION OF THE IMMIGRATION JUDGE
I. PROCEDURAL HISTORY
The Respondent is a female alien, native and citizen
of Mexico. The Department of Homeland Security (Government)
alleges that the Respondent entered the United States at or near
Naco, Arizona on or about April 10, 2000.- At the time of that
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entry the Respondent was not admitted or paroled after
inspection by an Imigration officer.
On the basis of the foregoing, on February 6, 2010,
the Government issued a Notice to Appear on Respondent charging
her with removability pursuant to Section 212(a) (6) (A) (i). The
Notice to Appear was personally served to the Respondent on
February 5, 2010, in accordance with applicable statutory
requirements (Exhibit 1) .
At a Master Calendar hearing held on October 26, 2011,
the Respondent, by and through counsel, denied all of the
allegations and denied the charge of removability or
inadmissibility, however; designating Mexico as country of
removal if removal became required. The Respondent desired that
these matters be proved-up and the Respondent denied proper
service inasmuch as she received her document one day prior to
the issuance of the Notice to Appear. Nonetheless, based upon
this Court's findings and based upon the documentary evidence
submitted, the Court finds that removability has been
established by clear and convincing evidence pursuant to Section
240(c) (3) (A) of the Act. The Respondent designated Mexico as
the country of removal and she has requested relief from removal
in the form of voluntary departure pursuant to Section 240B(b)
of the Act as well as termination of these proceedings.
At the Individual hearing held on today's date, August
30, 2012, the following items were marked as exhibits and are
A087-756-633 2
Re*
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August 30, 2012
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contained as evidence in the Record of Proceedings. Exhibit 1
is the Notice to Appear. Exhibit 2 is a receipt notice
regarding a I-130 filed by Respondent's LPR mother, four birth
certificates in which the Respondent is named as the mother of
these U. S. citizen children. Exhibit 3 is the Respondent's
Motion to Terminate these proceedings. The basis for that is
the fact that the NTA was issued on February 6 but the
Respondent was served the document on February 5. Exhibit 4 is
the Government's Motion for Extension of Time with I-213, which
was admitted without opposition. Exhibit 5 is Government's
Opposition to Respondent's Motion to Terminate these matters.
In addition to the documentary evidence, the Court considered
oral arguments of the parties with regard to the ruling on the
Motion to Terminate.
II. FACTS
Motion to Terminate
The Respondent has argued, and her argument is
contained in Exhibit 3 regarding the Motion to Terminate, that
the Notice to Appear was defective, incongruent between the
charge and the allegations as to what is contained in the Motion
to Terminate, and that the Government had not met its burden of
proof to prove by clear and convincing evidence. Clear and
unequivocal is what the Respondent has cited under Woodby that
the Respondent is not removable and cites returning LPR cases,
and arguing that the NTA is deficient due to the factual
A087-756-633 3
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August 30, 2012
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impossibility that is that on the 5th of February the NTA was
not in existence. The Government, on the other hand, argues
that this was a clerical error that the Respondent was processed
in the late hours of February 5 and that when the NTA was
formally issued and signed by field operations supervisors it
was February 6; however, a copy had already been provided to the
Respondent in that she effectively was put on notice regarding
the Government's position with regard to her status in this
country that she was in the country without inspection. The
Respondent has requested the Government to reissue the NTA and
the apparent reason for the reissuance of the NTA would then
render the Respondent eligible for the relief of at least
cancellation of removal based upon her entry date of April 10,
2000. If it were after April 10, 2010, the Respondent would
certainly be eligible to pursue the relief of cancellation of
removal. But inasmuch as it was dated February 5 or February 6,
it would cut the Respondent's time short by the stop-time rule
and she would be ineligible for cancellation of removal.
This Court finds that no due process issue has
surfaced and the Respondent's due process rights have been
regarded and complied with, that the Court finds that there was
a clerical error based upon the timing. The Court certainly
adonishes the Government to be vigilant in terms of dates on
documents. However, it does not appear that the date of
February 5 or February 6 is substantive in terms -of impacting
A087-756-633 4 August 30, 2012
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the Respondent's rights or eligibility for relief. If �
February 6 would render her eligible for cancellation of
removal, the Court may actually render a different ruling in
these matters, but inasmuch as the Respondent was several months
away from any kind of eligibility for cancellation, the Court
believes that whether issued February 5 or February 6 it would
not have changed the Respondent's eligibility for cancellation
of removal and would find that this clerical error was de
minimus and harmless error and denies the Motion to Terminate
these matters.
In the alternative, the Respondent has requested that
the matter be continued to allow the Respondent to pursue
prosecutorial discretion with the Government. The Respondent
has been in proceedings now since February of 2010, over two
years. The Respondent does not appear to be eligible for any
forms of relief before this Court and the Court denied any
further motions to continue the matter. However, that does not
impact the Respondent's ability to pursue prosecutorial
discretion, nor does it impact the Board or the Government's
ability to grant prosecutorial discretion. The Court is
cognizant that there are cases that the Board has returned to
this Court that were administratively closed due to
prosecutorial discretion even while the matters were on appeal.
And so the Court certainly does not believe that its decision
here today impacts the Respondent's ability to continue to
A087-756-633
���
5 ��� August 30, 2012
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·. W
pursue the relief of prosecutorial discretion. And the Court
accordingly denied any further motions to continue these matters
and allowed the Respondent to pursue the sole and only relief
that she is seeking before this Court and that is post­
conclusion voluntary departure.
It should be noted that the Court advised the
Respondent regarding the potential for pre-conclusion voluntary
departure. While this is an Individual hearing, if the
Government were agreeable to pre-conclusion voluntary departure
it would certainly double her amount of time for voluntary
departure and there would not be a requirement for a bond.
However, the Respondent's counsel indicated that that had been
considered and strategically decided against. And so the Court
did advise the Respondent regarding pre-conclusion voluntary
departure but that was determined not to be the best avenue for
the Respondent.
With regard to post-conclusion voluntary departure,
the Court believes that as a minimal form of relief and in the
Court's discretion it would be appropriate to grant that form of
relief. The Court will assess a $500 voluntary departure bond.
The Respondent has a duty to post said bond within five business
days to the Department of Homeland Security's Field Office
Director.
If the Respondent fails to post that $500 bond within
five business days or fails to leave when and as required, the
A087-756-633 6 August 30, 2012
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Respondent will be ineligible for a period of 10 years for the
reliefs of voluntary departure, cancellation of removal,
adjustment or change of status and would be subject to a civil
penalty of $3, 000. If the Respondent appeals this decision,
which she has an absolute right to do so, she must provide to
the Board of Immigration Appeals within 30 days of filing such
appeal sufficient proof of having posted the voluntary departure
bond. The Board will not reinstate the voluntary departure bond
in its final orders if they have not received timely proof that
the voluntary departure bond has been posted.
If the Respondent files any Motions to Reopen or
Reconsider during the voluntary departure period, the period
allowed for voluntary departure will not be stayed, tolled or
extended. The grant of voluntary departure will be terminated
automatically. The alternate Order of Removal will take effect
imediately and the penalties for failing to depart voluntarily
will not apply. Accordingly, the following orders are entered
by this Court.
ORDER
IT IS ORDERED that the Respondent's Motion to
Terminate be and hereby is denied.
IT IS FURTHER ORDERED that the Respondent's Motion to
Continue these matters to allow the Respondent the right to
pursue prosecutorial discretion be and hereby is denied�
IT IS FURTHER ORDERED that Respondent
A087-756-633 7 August 30, 2012
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the privilege of departing this country voluntarily without
expense to the Government on or before October 29, 2012, if the
Respondent, within five business days of today or by September
6, 2012, places a $500 bond with the Department of Homeland
Security.
IT IS FURTHER ORDERED that if the Respondent does not
place the $500 bond with the Department of Homeland Security on
or before September 6, 2012, or does not voluntarily depart the
United States when and as required, the privilege of voluntary
departure should be withdrawn without further notice or
proceedings and the Respondent shall be removed from the United
States to Mexico on the charges contained in the Notice to
Appear.
IT IS FURTHER ORDERED that if the Respondent fails to
comply with the orders of this Court or the orders of the Board
of Immigration Appeals, the Respondent will be ineligible for a
period of 10 years for the reliefs of voluntary departure,
cancellation of removal, adjustment of status and the
Respondent will $3,000.
A087-756-633 8 August 30, 2012
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CERTIFICATE PAGE
I hereby certify that the attached proceeding before JUDGE
WENDELL A. HOLLIS, in the matter of:
GUADALUPE RONDIN-NIEVES
A087-756-633
PHOENIX, ARIZONA
is an accurate, verbatim transcript of the recording as provided
by the Executive Office for Inigration Review and that this is
the original transcript thereof for the file of the Executive
Office for Inigration Review.
PAK/BJN
.-P-·r» »»»»
PATRICIA KOBYLSKI (Transcriber)
YORK STENOGRAPHIC SERVICES, Inc.
NOVEMBER 13, 2012
(Completion Date)
W - ²

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