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Leonel Amador Aguilar-Morales, A088 091 744 (BIA Dec. 6, 2013)

Leonel Amador Aguilar-Morales, A088 091 744 (BIA Dec. 6, 2013)

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In this unpublished decision, the Board of Immigration Appeals (BIA) vacated the denial of the respondent’s request for a continuance because the immigration judge who presided over his previous hearing did not indicate that he was required to bring witnesses to his next hearing to testify in support of his adjustment application. The decision was written by Member John Guendeslberger and joined by Vice Chairman Charles Adkins-Blanch and Member Elise Manuel.
In this unpublished decision, the Board of Immigration Appeals (BIA) vacated the denial of the respondent’s request for a continuance because the immigration judge who presided over his previous hearing did not indicate that he was required to bring witnesses to his next hearing to testify in support of his adjustment application. The decision was written by Member John Guendeslberger and joined by Vice Chairman Charles Adkins-Blanch and Member Elise Manuel.

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Published by: Immigrant & Refugee Appellate Center, LLC on Dec 16, 2013
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Hew, Maurice, Jr., Esq.

Thurgood Marshall School of Law
3100 Cleburne Avenue
Houston, TX 77004
U.S. Department of Justice
Executive Ofce fr Imigration Review
Board of Immigration Appeals
Ofce of the Clerk
5107 Leesburg Pike, Suite 2000
Fals Church, Virginia 20530
OHS/ICE
606 S. Olive Street, 8th Floor
LOS ANGELES, CA 90014
Name: AGUILAR-MORALES, LEONEL A ... A 088-091-744
Date of this notice: 12/6/2013
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosure
Panel Members:
Guendelsberger, John
Manuel, Elise
Adkins-Blanch, Charles K.
Sincerely,
bc  { t
Donna Carr
Chief Clerk
lulseges
Userteam: Docket
For more unpublished BIA decisions, visit www.irac.net/unpublished
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Cite as: Leonel Amador Aguilar-Morales, A088 091 744 (BIA Dec. 6, 2013)
U.S. Department of Justice
Executive Ofce fr Immigration Review
Board of Immigation Appeals
Ofce of the Clerk
5107 leeshurg Pike, Suite 2000
Fals Church, Vrginia 20530
AGUILAR-MORALES, LEONEL AMADOR
AOSS-091-744
OHS/ICE
606 S. Olive Street, 8th Floor
LOS ANGELES, CA 90014 C/O CUSTODIAL OFFICER
62 CIVIC CENTER
SANTA ANA, CA 92701
Name: AGUILAR-MORALES, LEONEL A ... A 088-091-744
Date of this notice: 12/6/2013
Enclosed is a copy of the Board's decision in the above-refrenced case. This copy is being
provided to you as a courtesy. Your attorey or representative has been served with this
decision pursuant to 8 C.F.R. § 1292.S(a). If the attached decision orders that you be
removed fom the United States or afrms a Immigration Judge's decision ordering that you
be removed, any petition fr review of the attached decision must be fled with ad received
by the appropriate court of appeals within 30 days of the date of the decision.
Enclosure
Panel Members:
Guendelsberger, John
Manuel, Elise
Adkins-Blanch, Charles K.
Sincerely,
Don c f
Donna Carr
Chief Clerk
lulseges
Useream: Docket
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Cite as: Leonel Amador Aguilar-Morales, A088 091 744 (BIA Dec. 6, 2013)
I ¯ � M
U;S. Department of Justce
Executve Ofce fr I gation Review
Decision of te Board of Imgation Apeals
Falls Church, Vigia 20530
File: A088 091 744-Los Angeles, CA Date:
DEC
6 2013
I re: LEONEL ADOR AGUAR-MORAES a.k.a. Leonel Amador Aguila
I RMOVA PROCEEDIGS
APPEAL
ON BEHF OF RSPONDENT: Mauie� Hew, Jr., Esquire
Te respondent, a native ad citizen of Mexico, has appealed fom te Im gation Judge's
decision dted May 15, 2013. We review questons of law, discretion, ad judgent aising in
appeals fom decisions of Imigation Judges de novo, wherea we review fdngs of fct in such
appeas uder a "clealy eroneous" stadad. See 8 C.F.R. § 1003.l(d)(3). The appeal will be
sustaned, ad te record will be remaded.
The respondent challeges the higation Judge's denia of a continuace. A Imgation
Judge may gt a continuace "fr good cause shown," within her sound discretion. See Matter of
Perez-Andrade, 19 I&N Dec. 433 (BI 1987); 8 C.F.R. § 1003.29. "[A]n I  igation Judge's
decision denyng [a] motion fr continuace will not be reversed unless te alien establises tat te
denia caused him actal prejudice ad ha ad materially afected the outcome of his case."
Matter of Vllarreal, 23 I&N Dec. 886, 891 (I 2006).
Applyg a de novo stadad of review, we conclude tat good cause dd exist fr te gtig of
a continuace at te respondent's May 15, 2013, hearng. The Imgaton Judge ordered te
respondent removed afer he infred her that his witnesses were not in cou tat day to suppor hs
pending applicaton fr adjustment of stats uder section 245 of te higration ad Nationalit
Act, 8 U.S.C. § 1255. Te Im igation Judge made no effrt to understand the reasons why his
wtesses were not present until afer issung her order (Tr. at 80-81 ). The respondet ten explaned
tat he did not undestad tat hs witnesses were required to appea at tat heang (Tr. at 81).
A review of the record suppors his claim. Although the substitte I  igation Judge who
presided over the respondent's May 9, 2013, heang ha intially advised te resondent-atig pro
se at tat time -that he was required to have his witesses in cou fr his next appeaance (Tr. at 68-
69), her later instctions could reasonably be interreted not to include that requirement. Once it
becae appaent tat several pending issues remained in the cae, te substitte Im igation Judge
infored te respondent that she would prefr to reset the cae so tat te origal Imigaton
Judge "can addess all of those issues as to what she wats fom you." The substitute Imigation
Judge only added that the respondent should "do [hs] best to get that medical [exa report] taen
cae of' (Tr. at 71-72). At te end of the heang, afer fher discussion of te pendig issues, te
Im igation Judge su  azed fr the respondent: "I'm going to reset you case over to next week.
.. . You'll come back in like you did today ad go over everg wth the Judge, Judge Muoz
who is actally going to be doing te cae obviously, ad all of tose issues, ad I'll wte some
notes in here [as to] what we discussed today so you ca fgue out what fes need to be paid ad
G Mc. . 7W . WºÝ
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Cite as: Leonel Amador Aguilar-Morales, A088 091 744 (BIA Dec. 6, 2013)
A088 091 744
dea wit the oter issues as well" (Tr. at 73). A reasonable person would understad tat the
May 15 heang would be a heag like the May 9 heang ("like you did today'). I was terefre
reasonable fr te pro se respondent to conclude tat it was not imperative fr hs witesses to
appea util Judge Muoz instcted him so.
1
We terefre fnd tat good cause did exist fr te I  igation Judge to reset the heag to
aother date to provide te respondent te opportty to ar age fr hs wtesses to appea in cou.
See Mater of Perez-Andrade, supra.
We fher fnd tat the record establishes tat te respondent sufered prejudice due to te
I  igaton Judge1s denia of a fer continuace, see Matter of Vllarreal, supra, iasmuch as he
is te benefciay of a approved immigat visa petition tat has been pendig may yeas, ad he
has undergone medcal exaiation ad paid substatia flig fes in ferace of his adjustent
application.
On remad te paies will have the opportunity to pursue all other pendg issues.
Accordingly, the fllowing order will be entered.
ORDER: The appeal is sustained, ad the record is remaded fr fer proceedings.
I is ofen a buden fr witesses to appea i cou repeatedly, fr tey may need to mae
aragements to be away fom their employent ad to travel to the cou location.
2
. ¯ . . Y  
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Cite as: Leonel Amador Aguilar-Morales, A088 091 744 (BIA Dec. 6, 2013)
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
LOS ANGELES, CALIFORNIA
File: AOBB-091-7 4
In the Matter of
May 15, 2013
LEONEL AMADOR AGUILAR-MORALES
)
)
)
)
IN REMOVAL PROCEEDINGS
RESPONDENT
CHARGES: 212(a)
(6)(A)
(i
)
, present without being admitted or paroled.
APPLICATIONS: Adjustment of status.
ON BEHALF OF RESPONDENT: PRO SE
ON BEHALF OF OHS: JEAN LIN
ORAL DECISION OF THE IMMIGRATION JUDGE
Respondent is a male native and citizen of Mexico. Removal proceedings
were commenced with the issuance of the Notice to Appear dated December 10, 2012,
which has been marked and admitted as Exhibit 1. Respondent admitted the
allegations and the charge was sustained. The respondent was questioned about his
criminal history, including a conviction fr oral copulation on a person under the age of
18, for which he was sentenced to 364 days. The respondent acknowledged that he
served 220 days. The Government submitted documentation including the police repor
and the conviction documents.
The respondent was, in fact, convicted and the issue was whether or not
the respondent was eligible fr any relief. Respondent requested adjustment of status
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based on a petition by his father, Jose Fernando Aguilar Rico. The petition had
previously b
·
een approved in 1992 and appeared to be current at the time of proceeding
before this Court. Therefore, the matter was reset and the respondent filed the
application for adjustment of status, including the afidavit of support by the petitioner
and a co-affiant. The actual petitioner, Jose Fernando Aguilar Rico, the respondent's
fther, does not have the income suficient to meet the guidelines and therefore another
petition was filed by Rudy Fiona Manza Nero, who the respondent stated is his brother­
in-law, married to the respondent's sister.
The documents 1 through 7, excluding the police repors and the
conviction documents, are Exhibit 2 beca

se the respondent's Notice to Appear is
Exhibit 1. Exhibit 3 is the afidavit of support by the co-afiant Rudy Fiona Manza Nero.
Exhibit 4 is the afidavit of suppor by the petitioner. Exhibit 5 is the adjustment of status
application, 1-485, which has attached to it, Exhibit 5A, the supplement to the 485.
Exhibit 6 is the 601 waiver for the respondent's conviction with regard to whether or not
the respondent needs the waiver. The Court does not need to reach that issue at this
time because the respondent has not been able to produce his witnesses in order to
proceed with the adjustment of status application. The respondent's petitioner is not
present. The respondent's co-afiant to suppor the income requirement, which the
petitioner cannot meet, and the wife of the co-afant, who would also be required to
execute a section of the 1-864 because the income reported on the 1-864 in part relies
on the wife's income. None of the witnesses are here. The mater has been continued
many, many times and at this time, the Court declines to continue the hearing any
longer and will order the respondent removed.
A088-091-744
.W
LORRAINE J. MUNOZ
Immigration Judge
2
. W..... . "
May 15, 2013
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