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Esau Lara, A097 322 982 (BIA Dec. 16, 2013)

Esau Lara, A097 322 982 (BIA Dec. 16, 2013)

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In this unpublished decision, the Board of Immigration Appeals (BIA) upheld the denial of an application for Temporary Protected Status (TPS) upon finding the respondent could not benefit from the imputation of his mother’s residence and presence in the United States. The decision was written by Member Hugh Mullane.
In this unpublished decision, the Board of Immigration Appeals (BIA) upheld the denial of an application for Temporary Protected Status (TPS) upon finding the respondent could not benefit from the imputation of his mother’s residence and presence in the United States. The decision was written by Member Hugh Mullane.

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01/28/2014

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U.S.

Department of Justice Executive Office for Immigration Review

Board ofImmigration Appeals Office ofthe Clerk
5107 Leesburg Pike, S1'ite 2000 Falls Church, Virginia 20530

Ortiz, Raquel Smith, Esq. Smith Ortiz PC 4309 W Fullerton Chicago, IL 60639

OHS/ICE Office of Chief Counsel - CHI 525 West Van Buren Street Chicago, IL 60607

Immigrant & Refugee Appellate Center | www.irac.net

Name: LARA, ESAU

A 097-322-982

Date of this notice: 12/16/2013

Enclosed is a copy of the Board's decision and order in the above-referenced case. Sincerely,

DoruuL Ct11VU
Donna Carr Chief Clerk

Enclosure Panel Members: Mullane, Hugh G.

Lulseges Usertea m: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: Esau Lara, A097 322 982 (BIA Dec. 16, 2013)

.•

U.S. Department of Justice
Executive Office for Immigration Review Falls Church, Virginia 20530

Decision of the Board oflmmigration Appeals

File: A097 322 982 - Chicago, IL In re: ESAU LARA IN REMOVAL PROCEEDINGS CERTIFICATION ON BEHALF OF RESPONDENT: ON BEHALF OF DHS:

Date:

DEC 16 2013

Immigrant & Refugee Appellate Center | www.irac.net

Raquel Smith Ortiz, Esquire

Geoffrey P. Gilpin Assistant Chief Counsel

APPLICATION: Temporary Protected Status; voluntary departure; stay of removal

On July 17, 2013, the Immigration Judge certified this record to the Board pursuant to our June 28, 2013, decision remanding the case for inclusion of a separate written or oral decision. The Immigration Judge prepared a written decision dated April 4, 2012. The respondent, a native and citizen of Honduras, 1 appeals from that portion of the Immigration Judge's decision dated April 4, 20 12, which found the respondent ineligible for Temporary Protected Status ("TPS") pursuant to section 244 of the Immigration and Nationality Act, 8 U.S.C. § 1254a. The respondent also appeals the denial of voluntary departure and a stay of removal. The appeal will be dismissed. The respondent, through counsel, conceded that he is ineligible for TPS because he entered the United States after the cut-off date for eligibility (l.J. at 2; Tr. at 10-11). On appeal, the respondent contends that the Immigration Judge should have allowed him to apply for TPS as a derivative beneficiary. He contends that he is a child of a TPS registrant, his mother, who he alleges is a TPS registrant. The respondent presents this argument for the first time on appeal, and thus, it is not properly before us. Even if construed as a motion to remand, however, we would not grant the motion. The respondent has not submitted proof of his mother's registration, and does not show why he could not have submitted his application for TPS at any. time during the years his case was before the Immigration Judge. Moreover, because he has not shown that he independently satisfies all initial registration requirements for TPS as a late registrant, there is no basis to remand to apply for TPS. Matter of Echeverria, 25 I&N Dec. 512, 5 16 (BIA 2011) (holding that a late initial registrant for TPS under 8 C.F.R. § 1244.2(f)(2) must independently meet all initial registration requirements of TPS, including presence in the United Sates on the date the foreign state was designated for TPS).

1 The Immigration Judge's written decision incorrectly identifies the respondent as a citizen and national of Mexico, and orders him removed to Mexico. However, the errors are harmless, as the Immigration Judge's order properly grants voluntary departure, and alternatively orders him removed to Honduras.

Cite as: Esau Lara, A097 322 982 (BIA Dec. 16, 2013)

A097 322 982

In addition, the respondent cannot impute his mother's residence and presence to meet the late registration requirements. See Castillo-Enriquez v. Holder, 690 F.3d 667 (5th Cir. 2012) (holding that a child cannot impute his parent's eligibility for TPS); De Leon-Ochoa v. Atty Gen. of the U.S., 622 F.3d at 355 (holding that aliens were statutorily ineligible for TPS, even though they were minors, where they failed to personally meet the continuous residence and continuous physical presence requirements; the continuous residence of aliens' parents could not be imputed to the minor applicants.); Cervantes v. Holder, 597 F.3d 229, 237-38 (4th Cir. 2010) (Traxler, C.J., concurring) (same)); see also Celaya-Martinez v. Holder, 493 Fed.Appx. 934 (10th Cir. 2012) (same). Further, the same derivative-residence requirement has been rejected in other similar immigration contexts. See, e.g., Matter of Montoya-Silva, 26 I&N Dec. 123 (BIA 2013) (rejecting imputation of a parent's lawful permanent resident status and residence in the United States to an unemancipated minor for purposes of establishing the child's eligibility for cancellation of removal under section 240A(a) of the Act); Matter of Escobar, 24 I&N Dec. 231 (BIA 2007); and Matter of Ramirez-Vargas, 24 l&N Dec. 599 (BIA 2008); Celaya-Martinez v. Holder, supra. In Montoya-Silva, supra, at 126, we noted that the Supreme Court in Holder v. Martinez Gutierrez, U.S. 132 S. Ct. 2011 (2012) held that the Board reasonably construed the statute addressing eligibility for cancellation of removal to require that each alien must satisfy the statutory requirements regarding lawful permanent resident status and continuous residence, without imputing a parent's period of lawful permanent resident status or residence to a child. Thus, the respondent has not established his eligibility for TPS.
_ _,

Immigrant & Refugee Appellate Center | www.irac.net

The respondent's argument that the Immigration Judge abused his discretion in not permitting him additional time to seek a stay of removal or prosecutorial discretion from the Department of Homeland Security ("DHS") is not persuasive. The respondent had been granted continuances to investigate any potential forms of relief he might qualify for. In addition, the DHS notified the Immigration Judge that it declined prosecutorial discretion. Neither the Immigration Judge nor this Board can provide the respondent with relief from removal on the basis of humanitarian or equitable concerns or otherwise provide him an indefinite stay of removal in order to allow him to remain in this country. See Matter of Yauri, 25 I&N Dec. 103, 109 (BIA 2009); Matter of Medina, 19 I&N Dec. 734 (BIA 1988). The Immigration Judge properly denied the respondent's request for voluntary departure under 240B(a) of the Act, 8 U.S.C. § 1229c(a). The respondent's case had been pending for more than two years (I.J. at 2). The Immigration Judge may not grant voluntary departure beyond 30 days after the master calendar hearing at which the case is initially calendared for a merits hearing without a stipulation from the DHS attorney. See 8 C.F.R. § 1240.26(b)(2). As the DHS did not stipulate to the 120-day period requested by the respondent, the Immigration Judge properly granted the respondent voluntary departure for 60 days, which the respondent understood permitted him to file the instant appeal (Id.; Tr. at 15-16). As the respondent is subject to removal from the United States and has not established eligibility for any form of relief from removal which can be granted to him during the course of these proceedings, the Immigration Judge properly entered an order of voluntary departure and alternatively, removal in this case. Nonetheless, the respondent is not precluded from filing a 2
Cite as: Esau Lara, A097 322 982 (BIA Dec. 16, 2013)

A097 322 982

request for a stay of removal directly with the DHS. See 8 C.F.R. § 241.6. Likewise, we deny the respondent's motion to remand so that he may request "Deferred Action" from the DHS. ORDER: The appeal is dismissed. FURTHER ORDER: Pursuant to the Immigration Judge's order and conditioned upon compliance with conditions set forth by the Immigration Judge and the statute, the respondent is permitted to voluntarily depart the United States, without expense to the Government, within 60 days from the date of this order or any extension beyond that time as may be granted by the 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 fails to voluntarily depart the United States, the respondent shall be removed as provided in the Immigration Judge's order.
·

Immigrant & Refugee Appellate Center | www.irac.net

NOTICE: If the respondent fails to voluntarily depart the United States within the time period specified, or any extensions granted by the DHS, the respondent shall be subject to a civil penalty as provided by the regulations and the statute and shall be ineligible for a period of I 0 years for any further relief under section 240B and sections 240A, 245, 248, and 249 of the Act. See section 240B(d) of the Act. WARNING: If the respondent files a motion to reopen or reconsider prior to the expiration of the voluntary departure period set forth above, the grant of voluntary departure is automatically terminated; the period allowed for voluntary departure is not stayed, tolled, or extended. If the grant of voluntary departure is automatically terminated upon the filing of a motion, the penalties for failure to depart under section 240B(d) of the Act shall not apply. See 8 C.F.R. § 1240.26(e)(l). WARNING: If, prior to departing the United States, the respondent files any judicial challenge to this administratively final order, such as a petition for review pursuant to section 242 of the Act, 8 U.S.C. § 1252, the grant of voluntary departure is automatically terminated, and the alternate order of removal shall immediately take effect. However, if the respondent files a petition for review and then departs the United States within 30 days of such filing, the respondent will not be deemed to have departed under an order of removal if the alien provides to the DHS such evidence of his or her departure that the Immigration and Customs Enforcement Field Office Director of the DHS may require and provides evidence DHS deems sufficient that he or she has remained outside of the United States. The penalties for failure to depart under section 240B(d) of the Act shall not apply to an alien who files a petition for review, notwithstanding any period of time that he or she remains in the United States while the petition for review is pending. See 8 C.F.R. § 1240.26(i).

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Cite as: Esau Lara, A097 322 982 (BIA Dec. 16, 2013)

, ·

· ..

UNITED STATES DEPARTMENT OF .JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT CHICAGO, ILLINOIS

File #: A097 322 9 82

Date:

April 4, 2012

Immigrant & Refugee Appellate Center | www.irac.net

In the Matter of: Esau LARA Respondent.

) ) )
) )

IN REMOVAL PROCEEDINGS

CHARGE:

Section 2 l 2(A)(6)(A)(i) of the Immigration and Nationality Act, 8 U.S.C.

§ 1 1 82 - Alien present in the United States without being admitted or
paroled, who arrived in the United States at any time or place other than as designated by the Attorney General. APPLICATIONS: Voluntary departure, Prosecutorial Discretion, Stay of Removal;

ON BEHALF OF THE RESPONDENT: Raquel Smith Ortiz 4309 W. Fullerton Chicago, II 60639

ON BEHALF OF THE SERVICE: Geoffrey Gilpin, Asst. District Counsel 525 W. VanBuren St. Suite 701 Chicago, Illinois 60607

DECISION OF THE IMMIGRATION JUDGE I.
BACKGROUND

The Respondent, a male native and citizen of Mexico, entered the United States without inspection in approximately the year 2000. He came to the attention of DHS after he was arrested on a criminal charge of possession of cannabis. The respondent was initially detained and served with
a

Notice to Appear ("NTA") dated April 26, 2010. After posting bond, he was

scheduled for a master calendar hearing on September 21, 2011. At his first hearing, the respondent admitted, through counsel, the factual allegations contained in the NTA and conceded his removability. The respondent sought a continuance to apply for cancellation of removal under Section 240A(B)(l). The respondent alleged that his father lived in Florida and was a LPR. The respondent also testified that his mother is a TPS beneficiary. Therefore, the Court continued the respondent case to the individual calendar for the respondent to establish a prima

facie

case for cancellation of removal and to tum in his application. At the final hearing held on

the individual calendar of April 4, 2012, the respondent, through counsel, conceded that he was


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not able to apply for cancellation of removal because he did not have a qualifying relative. Counsel for the respondent also conceded that the respondent was ineligible for TPS because he entered the United States after the cut-off date for statutory eligibility. Counsel for the respondent also requested prosecutorial discretion, but the government attorney denied this request. Therefore, the respondent requested 4 months voluntary departure and his attorney agreed to waive appeal. However, the government attorney opposed the 4 months period for pre-conclusion voluntary departure citing the fact that the respondent case had been pending for more than two years and that the respondent's case had been scheduled on the individual calendar so that he could establish eligibility for cancellation of removal. Under Section 240B(a) of the INA an immigration judge may not grant voluntary departure beyond 30 days after the master calendar hearing at which the case is initially calendared for a merits hearing without a stipulation by the DHS attorney. See 8· CFR 1240.26(b)(2). Because·theDHS attorney would not,stipulate to.the 4 month voluntary departure period requested by the respondent, the court granted the respondent 60 days to depart with a requirement that he post a $500.00 bond within 5 days.1

Immigrant & Refugee Appellate Center | www.irac.net

II. Voluntary Departure
Voluntary departure under Section 240B(b) of the INA requires the balancing of both favorable and unfavorable factors to determine whether the applicant merits the relief as a matter of discretion . Given the positive factors presented by the respondent including his long residence in the United States and family ties, I find that he merits the relief as a matter of discretion. Therefore, the following orders will be entered: IT IS ORDERED that in lieu of an order of removal, the respondent be granted voluntary departure without expense to the Government if he departs on or before June 4, 2012, or any extension beyond such date as may be granted by the Department of Homeland Security and under such conditions
as

they shall provide.

IT IS FURTHER ORDERED that in order to qualify for voluntary departure, the respondent post a $500.00 bond with the Department of Homeland Security within 5 days of this decision. IT IS FURTHER ORDERED that if respondent fails to depart when and as required, or fails to post the required departure bond, then the privilege of voluntary departure shall be withdrawn without further notice of proceedings and the following order shall thereupon becom immediately effective: the respondent shall be removed from the Unit d charge contained in the Notice to Appear.

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OBERT D. VINIKOOR

7 V�/

tates to Mexico on th

IMMIGRATION JUDGE

1The respondent has taken advantage of the OHS' attorney's refusal to stipulate to 4 months voluntary departure by filing an appeal with the BIA. relief that can be granted by the BIA. -2The respondent's appeal seeks no

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