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Rosa Lidia Alfaro, A088 966 288 (BIA Feb. 20, 2014)

Rosa Lidia Alfaro, A088 966 288 (BIA Feb. 20, 2014)

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In this unpublished decision, the Board of Immigration Appeals (BIA) remanded the record because the immigration judge failed to provide the warnings required under 8 CFR 1003.47(d) regarding the failure to submit biometrics before deeming the respondent's application for Temporary Protected Status (TPS) to be abandoned. The decision was written by Member Roger Pauley and joined by Member Patricia Cole and Member Linda Wendtland.

Looking for IRAC’s Index of Unpublished BIA Decisions? Visit www.irac.net/unpublished/index
In this unpublished decision, the Board of Immigration Appeals (BIA) remanded the record because the immigration judge failed to provide the warnings required under 8 CFR 1003.47(d) regarding the failure to submit biometrics before deeming the respondent's application for Temporary Protected Status (TPS) to be abandoned. The decision was written by Member Roger Pauley and joined by Member Patricia Cole and Member Linda Wendtland.

Looking for IRAC’s Index of Unpublished BIA Decisions? Visit www.irac.net/unpublished/index

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Published by: Immigrant & Refugee Appellate Center, LLC on Mar 04, 2014
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Klock, Rober D.

, Esq
Robert D. Klock PA
P. Ü. Box 1968
Bentonville, AR 72712-1968
Name: ALFARO, ROSA LIDIA
Î.b. Ü6g8Itm6ut 0ÍJH5tÎC6
Executive Ofce fr Imigation Review
BoardofImmigrationAppeals
O¿ceofthe C|erk
5107 Leeburg Pike, Suite 2000
Falls Church, Virginia 20530
OHS/ICE Ofice of Chief Counsel - MEM
167 N. Main St., Suite 737A
Memphis, ¯N 38103
A 088-966-288
Date of this notice: 2/20/2014
Enclosed is a copy of the Board's decision and order in the above-referenced case.
Enclosure
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LOÌB, |Bl||C|B P.
|BUÌBy, ¯OgB|
VBHUÍÌBDC, L|HUB Ü.
Sincerely,
Dí c t
Donna Carr
Chief Clerk
wìIIìame
U5Cf|CdD' LOCKBl
For more unpublished BIA decisions, visit www.irac.net/unpublished
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Cite as: Rosa Lidia Alfaro, A088 966 288 (BIA Feb. 20, 2014)
Í.b. Ü6§BM6B¡ 0ÍJ08¡Í66
Executive Ofce mrImmigation Review
Decision of the Board of Immigation Appeals
Falls Church, Virginia ZÛð3Û
File: A088 966 288 - Memphis, T Date:
l|b 30 2014
In re: ROSA LIDIA ALFARO a.k.a. Rosa Lidia Castaneda de Alfaro; Rosa Lidia Castaneda;
Rosalidia Alfaro
IN RMOVAL PROCEEDINGS
APPEAL
ON BEHALF OF RESPONDENT: Richad D. Klock, Esquire
ON BEHALF OF DHS:
CHARGE:
Jonathan M. Larcomb
Assistant Chief Counsel
Notice: Sec. 212(a)(6)(A)(i), I&N Act [8 U.S.C
.
§
Ì182(a)(6)(A)(i)] -
Present without being admitted or paoled
APPLICATION: Temporay Protected Status; continuance
The respondent appeals te Immigration Judge's August 3, 2012, decision, in which he
denied te respondent's application fr Temporary Protected Status (TPS), as abandoned, based
on the fct tat the respondent failed to comply wit 8 C.F.R. §1003.47(c), and be fngerprinted.
He also denied the respondent's request fr a continuance. We will sustain the appeal.
On appeal, te respondent agues that te Immigration Judge erred in granting the DHS'
motion to teat her application fr TPS as abandoned, as she did not have an opportunity to
remedy the biometcs issue. She also contends tat she showed good cause fr her proceedings
to be continued, and assers that the Immigation Judge's denial of her motion to continue was
arbitar and capricious.
We note that 8 C.F.R. § 1003.47(b)(2005), titled "Identity, law enfrcement or secuity
investigations or examinations relatng to applications fr immigration relief, protection, or
restictions on removal," provides tat failure to provide biometrics within the time allowed by
the Immigation Judge's order constitutes abandonment of the application and the Immigration
Judge may enter a appropriate order dismissing the application unfess the applicant
demonstates that such filure wa the result of good cause. ò66 8 C.F.R. § 1003.47(c).
Pusuant to 8 C.F.R. § 1003.47(d), in order to deem an application abandoned fr failing to
timely comply with a fngerprnting directive, the Immigration Judge must wa the alien of the
consequences, i.e., that the application may be deemed abandoned fr filure to comply with the
fngerrinting requirement. Tis regulation provides that the Immigration Judge shall specify fr
the record when the respondent receives te biometrics notice and instctions and the
consequences fr failing to comply with the requirements of this section. In this case, the
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Cite as: Rosa Lidia Alfaro, A088 966 288 (BIA Feb. 20, 2014)
A088 966 288
Immigration Judge failed to provide the required waings on the record. Moreover, te only
notifcation was a scribbled statement on a Notice of Heaing that contained no waings.
We fnd, fr the fregoing reasons, that the record does not support the Immigration
Judge's decision that the respondent's application fr TPS relief was properly denied as
abandoned.
The appeal will be sustained, as the Immigration Judge ered in deeming the respondent's
TPS application abandoned fr failing to comply with the fngerprinting directive, since he did
not comply wit 8 C.F.R. §1003.47(d).
ORER: Te appeal is sustained.
FURTHER ORDER: The case is remaded fr fher proceedings consistent WIH this
decision.
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Cite as: Rosa Lidia Alfaro, A088 966 288 (BIA Feb. 20, 2014)

(
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
MEMPHIS, TENNESSEE
File: AOSS-966-288
In the Matter of
August 3, 2012
ROSA LIDIA ALFARO
)
)
)
)
IN REMOVAL PROCEEDINGS
RESPONDENT
CHARGES: Section 212 (a) (6) (A) (i) - alien present without
being admitted or paroled.
APPLICATIONS: Temporary protected status.
ON BEHALF OF RESPONDENT: ROBERT KLOCK
ON BEHALF OF OHS: SCOTT BEARUP
ORL DECISION AND ORDER OF THE IMMIGRATION JUDGE
Respondent is a 40-year-old woman, native and citizen of
El Salvador. Based on admissions made at a previous Master
Calendar hearing, the Court sustained the charge.
Statement C1 the Case
A Notice to Appear was issued on June 27, 2007 by the
Vermont Service Center, and subsequently the Court granted a
motion to administratively close the case after denying a motion
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to adinistratively close on March 17, 2008. By order dated
April 23, 2008, the Court administratively closed the case,
noting that respondent was statutorily eligible for temporary
protected status.
On March 16, 2010, the Department moved to re-calendar this
matter, noting that the application for temporary protected
status, Form I-821, was denied. Accordingly, the matter was put
back on the active docket in the Memphis Imigration Court.
Respondent filed documents at Exhibit 2 which appear to
have been available for examination by CIS when the matter had
been administratively closed.
On April 7, 2011, the parties gathered for the hearing, and
because of scheduling conflicts, the Court had to continue the
case. However, the Court marked on the hearing notice for· the
next setting of the case, Septemer 9, 2011, Please fingerprint
this respondent, which is a commonly agreed-upon mechanism by
which an applicant for certain forms of relief can go to the
local CIS office, in this case Ft. Smith, Arkansas, and be
fingerprinted.
Respondent through counsel moved for a continuance of the
case, and the Court granted that. At Exhibit 3, respondent
states that she was pregnant and unable to travel, and her due
date was Septemer 27, 2011. The Court granted a continuance at
Exhibit 5. That case was continued to July 20, 2012, and then
the Court at its own motion at Exhibit 6 continued the case to
A088-966-288 2 August 3, 2012
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accomodate priority cases. That would be an expedited asylum
case, in all likelihood.
At the beginning of the hearing today, Department counsel
moved for an order finding that the respondent had abandoned her
application since she has not been fingerprinted since 2008.
Respondent's counsel argues that good cause has been shown based
upon respondent's pregnancy for the failure to have fingerprints
taken. Respondent, for her part, states that nobody told her
that she needed to be fingerprinted.
Analysis
Regulations found at 8 C.F.R. Section 1003.47(b) include
within the amit of requirements for biometrics, any application
for relief in Imi. gration proceedings. The regulations spell
out certain particular forms of relief for which they are
required, that is, for which the completion of biometrics is
required, including the taking of fingerprints, but Section
1003.47 (b) does not limit the forms of relief for which
fingerprints must be taken. Thus, the Immigration Judge
concludes that respondent was required to be fingerprinted for
an application for temporary protected status.
At 8 C.F.R. Section 1003.47(c), the regulations state that
failure to comply with a requirement to be fingerprinted will
lead to a conclusion that the respondent has abandoned her
application. The Immigration Judge then is to enter an
appropriate order dismissing the application, "unless the
AOSS-966-288 3 August 3, 2012
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applicant demonstrates that such failure was the result of good
cause."
The term "good cause" is used throughout the relevant
regulations to describe the standard which a respondent must
demonstrate in order for a case to be continued. See, for
example, Kwak v. Holder, 607 F.3d 1140 (6th Cir. 2010); and
Ukpabi v. Mukasey, 525 F.3d 403 (6th Cir. 2008).
The Board of Imigration Appeals recognizes the broad
discretion of Imigration Judges to conduct and control ·
: .
Imigration proceedings. Matter of Interiano-Rosa, 25 I&N Dec.
2 64 (BIA 2010) .
In turn, the Board and the court of appeals the denial of a
motion to continue for abuse of discretion. An abuse of
discretion occurs if the denial was made without a rational
explanation, inexplicably departed from established policies, or
rested on an impermissible basis. Factors to consider include
whether or not the motion was opposed by the Department, whether
there have been prior continuances, and whether there has been
time to gather the requested relevant evidence.
In this case, the Department opposes any continuance,
noting that it was the Government that moved for a finding that
the application was abandoned. The Imigration Judge has given
respondent a continuance based on her medical condition, and
then sua S]ODTG continued the case to acconodate an expedited
asylum matter. Finally, respondent has had ample opportunity to
A088-966-288 4 August 3, 2012
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� �.

be fingerprinted. She was put on notice of the requirement to
be fingerprinted when the Court issued the hearing notice found
at Exhibit 4 on April 4, 2011, saying to CIS, please fingerprint
this respondent.
While respondent through counsel argues that she has not
abandoned her application because she is in court today, there
is more to the case than simply showing up in court. Respondent
and counsel are to remain in comunication, and respondent is to
be apprised of the requirement of having her fingerprints taken
so the matter can go forward in an expeditious manner that still
protects her rights. It is a minimal requirement for someone
seeking temporary protected status to have their fingerprints
taken in a timely manner. While respondent did have a pregnancy
that was high risk, her child was safely delivered in September
2011, which means that the child is now almost a year old, and
so respondent has had ample opportunity to get in touch with her
lawyer and to be fingerprinted.
In the absence of valid fingerprints, the Court does not
know if there are any disqualifying conversations, and so does
not know if the respondent has met her burden of showing
eligibility for voluntary departure. Accordingly, the Court
enters this order:
ORDER
Respondent's application for temporary protected status is

.
denied as abandoned;
A088-966-288 5 August 3, 2012
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 �
Respondent's request for continuance is denied;
Respondent's implicit request for voluntary departure is
denied;
Respondent is ordered removed to El Salvador.
Immigration Judge

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A088-966-288 6 August 3, 2012
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CERTIFICATE PAGE
I hereby certify that the attached proceeding before JUDGE
CHARLES E. PAZAR, in the matter of:
ROSA LIDIA ALFARO
A088-966-288
MEMPHIS, TENNESSEE
is an accurate, verbatim transcript of the recording as provided
by the Executive Office for Immigration Review and that this is
the original transcript thereof for the file of the Executive
Office for Imigration Review.
JOSEPH PARENT (Transcriber)
FREE STATE REPORTING, Inc.
SEPTEMBER 14, 2012
(Completion Date)
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