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Martin Gerardo Velasco-Garcia, A089 850 114 (BIA Nov. 14, 2013)

Martin Gerardo Velasco-Garcia, A089 850 114 (BIA Nov. 14, 2013)

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In this unpublished decision, the Board of Immigration Appeals (BIA) remanded for further consideration of the respondent’s eligibility for voluntary departure because the immigration judge did not consider his length of residence in the country, his marriage to U.S. citizen, or a child who was five months old at the time of the hearing. On remand, the Board also directed the immigration judge to determine whether to administratively close proceedings to permit the respondent, who had previously been convicted of theft and driving under the influence, to seek a provisional unlawful presence waiver (Form I-601A). The decision was written by Member Edward Grant.
In this unpublished decision, the Board of Immigration Appeals (BIA) remanded for further consideration of the respondent’s eligibility for voluntary departure because the immigration judge did not consider his length of residence in the country, his marriage to U.S. citizen, or a child who was five months old at the time of the hearing. On remand, the Board also directed the immigration judge to determine whether to administratively close proceedings to permit the respondent, who had previously been convicted of theft and driving under the influence, to seek a provisional unlawful presence waiver (Form I-601A). The decision was written by Member Edward Grant.

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01/29/2014

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Burton, Justin R., Esq.

U.S. Department of Justice
Executive Ofce fr Immigration Review
Board of Immigration Appeals
Ofce of the Clerk
5107 Leesbwx Pike. Suite 2000
Fois Church. Vrginia 20530
Kriezelman Buron & Associates, LLC
20 N. Clark St., Suite 725
OHS/ICE Ofice of Chief Counsel • CHI
525 West Van Buren Street
Chicago, IL 60607
Chicago, IL 60602
Name: VELASCO-GARCIA, MARTIN GE ... A 089-850-114
Date of this notice: 11/14/2013
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 t
Donna Carr
Chief Clerk
williame
Userteam: Docket
For more unpublished BIA decisions, visit www.irac.net/unpublished
Cite as: Martin Gerardo Velasco-Garcia, A089 850 114 (BIA Nov. 14, 2013)
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U.S. Department of Justice Decision ofthe Boad of Immigration Appeals
Executive Ofce fr Immigration Review
Falls Church, Virginia 20530
File: A089 850 114 - Chicago, IL
In re: MARTIN GERO VELASCO-GARCIA
IN REMOVAL PROCEEDINGS
APPEAL
Date:
ON BEHALF OF RESPONDENT: Justin R. Buron, Esquire
ON BEHALF OF DHS: Sara E. Zeld
Assistant Chief Counsel
APPLICATIONS: Continuance; voluntary depaure
NOV
l 4 2013
The respondent, a native and citizen of Mexico, has appealed fom te Immigration Judge's
February 9, 2012, decision denying his request fr a continuance in order to await adjudication
of a Petition fr Alien Relative (Form 1-130) fled on his behalf by his United States citizen
spouse. The appeal will be dismissed in pa and the record will be remanded to the Immigration
Judge.
We review an Immigration Judge's fndings of fct fr clear error, but questions of law,
discretion, and judgment, and all other issues in appeals, are reviewed de novo. 8 C.F .R.
§§ 1003.l
(d)(3)(i), (ii).
Upon de novo review, we agree with the Immigration Judge that the respondent has not
established that "good cause" existed fr a frher continuance of his proceedings. See 8 C.F .R.
§§ I 003.29, 1240.6; Matter of Perez-Andrade, 19 I&N Dec. 433 (BIA I 987). The respondent
requested a continuace in order to await the adjudication of the Form 1-130 petition fled on his
behalf by his United States citizen spouse. We recognize that under some circumstances, the
pendency of a immigrant visa petition fled on an alien's behalf would warant a continuance of
a alien's removal proceedings, Matter of Hashmi, 24 l&N Dec. 785 (BIA 2009). However, in
making such a determination, one fctor to consider, as the respondent acknowledges on appeal,
is the alien's statutory eligibility fr adjustment of status. I these proceedings, the respondent
conceded that he is removable a charged under section 212(a)(6)(A)(i) of the Act, 8 U.S.C.
§ l l 82(a)(6)(A)(i), and accordingly, the respondent canot demonstrate statutory· eligibility fr
adjustment of status and therefre he did not establish good cause fr a continu. ance in order to
await adjudication of the visa petition. See section 245(a) of the Act, 8 U.S.C. § l 145(a) (stating
that a alien who is inadmissible fom the United States cannot establish eligibility fr
adjustent of stats); cf Matter of Hashmi, supra (recogizing that a continuace may be
warated where a alien has demonstrated that he is the benefciary of a pending immigant visa
petition and established a likelihood of success on an application fr adjustment of status).
With respect to the respondent's application fr voluntary deparure, we note that in
exercising discretion with respect to such an application, an Immigration Judge must careflly
weigh both the positive ad adverse fctors. Matter of Lemhammad, 20 I&N Dec. 3 I 6 (BIA
Cite as: Martin Gerardo Velasco-Garcia, A089 850 114 (BIA Nov. 14, 2013)
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A089 850 114
1991 ). Adverse fctors include the natre ad uderlying circumstaces of the deportation
ground at issue; additional violations of the immigration laws; the existence, seriousness, ad
recency of ay criminal record; and other evidence of bad character. Positive fctors include
long residence in the United States, close family ties in the United States, ad humanitaian
needs. See Matter of Argeles-Campos, 22 I&N Dec. 811, 817 {BIA 1999); Matter of Gamboa,
14 I&N Dec. 244, 248-49 (BIA 1972).
The Immigration Judge denied voluntary deparue in tis case due to the respondent's
criminal history. The record refects that the respondent was convicted in 2010 of driving under
te infuence and thef, ad sentenced to 124 days imprisonment and 100 hous of public serice
(l.J. at 3 ). The respondent testifed, through counsel, that he did not complete the 100 hours of
public service because he moved locations in Illinois, ad accordingly, the probation ofce was
unable to contact him (l.J. at 3; Tr. at 22). The record aso refects that the respondent has been
in the United States since 2004, ad that in addition to his United States citizen spouse, he has a
baby who was fve months old at te time of the heaing. The respondent aso stated, through
counsel, that he was wlling to complete the 100 hours of public service. The Immigration Judge
did not consider this evidence in his decision, and we therefre fnd it appropriate to remand te
record to allow the Imigration Judge to consider once more whether the respondent merits a
grat of volutary depae, either pre-conclusion or post-conclusion, as a matter of discretion.
We will also remand the record to te Immigration Judge to consider wheter administrative
closure of these proceedings is waranted to allow the respondent to request a Provisional
Unlawul Presence Waiver (Form I-601A), which he may be eligible to seek and which would
prevent him fom having to retu to Mexico in order to consular process. See Provisional
Unlawl Presence Waivers of Inadmissibility fr Certain Immediate Relatives, 78 Fed. Reg.
536-01 (Ja. 3, 2013) (efective Mar. 4, 2013). Accordingly, the fllowing order will be entered.
ORER: The record is remanded to the Immigration Judge fr frther proceedings
consistent with the fregoing decision.

2

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Cite as: Martin Gerardo Velasco-Garcia, A089 850 114 (BIA Nov. 14, 2013)
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UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRTION COURT
CHICAGO, ILLINOIS
File: A089-850-114 February 9, 2012
In the Matter of
MARTIN GERARDO VELASCO-GARCIA IN REMOVAL PROCEEDINGS
RESPONDENT
CHARGES: Section 212 (a) ( 6) (A) (i) of the INA, present in
the United States without being admitted or
paroled.
APPLICATIONS: Motion to continue pursuant to 8 C. F. R. Section
1003. 29; voluntary departure pursuant to Section
240B of the INA.
ON BEHALF OF RESPONDENT: TEJAS N. SHAH
ON BEHALF OF OHS: SARA ZELB
ORAL DECISION OF THE IMMIGRATION JUDGE
The respondent is an adult (DOB November 09, 1973) who is a
native and citizen of Mexico whose presence in the United States
was detected by virtue of him being arrested and charged as a
result of the theft and driving under the influence offense in
the State of Illinois.
1
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.. 
The respondent, on about April 5, 2010, was turned over to
the Department of Homeland Security in St. Louis, Missouri, who
issued a copy of the Notice to Appear by personally handing it
to the respondent on April 5, 2010. See Exhibit 1.
The respondent, because he was processed by the Department
of Homeland Security in Missouri, had his case initially venued
in Kansas City, Missouri. After appearing with counsel, the
respondent did submit a motion to change venue in which the
respondent admitted the factual allegations contained in the
Notice to Appear and conceded removability as charged. See
Exhibit 2 - motion for change of venue.
The respondent's case was venued in the Court in Chicago.
The respondent appeared with counsel and requested a motion to
continue based on the fact that the respondent is married to a
United States citizen. Apparently the I-130 was filed on
January 11, 2012 (three weeks ago) . The respondent indicated
that he requested additional time in order to determine whether
he was eligible for a "provisional waiver" which is in the
process of being promulgated by the Department of Homeland
Security to allow for the respondent's unlawful presence in the
United States to be waived in connection with a request for
Consular processing and return to the United States. The
respondent has essentially conceded removability. See 8 C. F. R.
Section 1240. 8 (2011) . He has requested additional time.
Motions to continue may be granted if there is "good
A089-850-114 2 February 9, 2012
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cause." See 8 C. F. R. Section 1003.9. There are circumstances
under which a motion to continue may be denied. That is, if
there is a reason in connection with the respondent's background
or, better stated, the respondent's desirability or
undesirability.
Recall that the respondent brought his presence in the
United States to the attention of the Department of Homeland
Security by virtue of being arrested for driving under the
influence and a theft offense which occurred on or about January
23
,
2010. The respondent ultimately was convicted on or about
March 25, 2010
,
sentenced to 124 days, given credit for
approximately 62 to 64 days in jail. The respondent
additionally was sentenced to 100 hours of public service.
In addition to this driving under the influence and theft
offense, the respondent does have some other traffic related
offenses. However, upon review in determining whether the
respondent should be granted additional time, that is time to
simply allow him to have the I-130 adjudicated so that he can
leave the United States to Consular process, the respondent was
asked about whether he has fully complied with the terms of his
probation, including any type of public service which he was
ordered by the court. Respondent has represented that he moved
addresses within Effingham, Illinois, and consequently the
probation office was unable to contact him to verify with the
respondent where to report and how to conclude the 100 hours of
A089-850-114 3 February 9
,
2012
W W (<
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public service. The respondent appeared in Court in connection
with an offense for which he spent 60 plus days in jail in March
2010. This is approaching 23 months ago. The respondent still
resides in Effingham, Illinois. He has represented that he
moved addresses.
It is not incumbent upon the Criminal Courts to pursue the
respondent in order to ask him or find him so that he may comply
with the 100 hours of community service. This is the
respondent's obligation as ordered by the Court on March 25,
2010. This Judge believes that the respondent has failed to
comply is a significant aspect of this case. This Court will
not give the respondent the wrong impression that he is free to
determine what parts of the Criminal Court order to obey and
which parts to ignore, whether intentional or innocent .
. . ·
Consequently, the respondent's request for additional time will
be denied.
The respondent is not eligible to get residence in the
United States. He is in the United States without being
admitted or paroled. He needs to Consular process. Given the
respondent's offense and his failure to comply, this Judge will
deny voluntary departure and deny a continuance in the exercise
of discretion.
Consequently, the following order will be entered.
ORDER
IT IS HEREBY ORDERED that the respondent's motion to
A089-850-114 4 February 9, 2012
·   Ø M .Æ.? Y ........ B.
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continue will be denied.
IT IS FURTHER ORDERED that voluntary departure will be
denied in the exercise of discretion.
IT IS FURTHER ORDERED that the respondent be removed and
deported from the United States to Mexico on the charge
contained in the Notice to Appear.
. . ·
A089-850-114
W _ ... �... ..c
CARLOS CUEVAS
Immigration Judge
5
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February 9, 2012
.Q • W Ø . . . M
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CERTIFICATE PAGE
I hereby certify that the attached proceeding before JUDGE
CARLOS CUEVAS, in the matter of:
MARTIN GERARDO VELASCO-GARCIA
A089-850-114
CHICAGO, ILLINOIS
is an accurate, verbatim transcript of the recording as provided
by the Executive Office for Imigration Review and that this is
the original transcript thereof for the file of the Executive
Office for Immigration Review.
MELISSA POLANOWSKI (Transcriber)
FREE STATE REPORTING, Inc.
APRIL 19, 2012
(Completion Date)
@
, ª ¶ ¯ Æt Y Ø
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