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U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals


Qffice ofthe Clerk
5107 Leesburg Pike, Suite 2000
Falls Church, Virginia 20530

ISMATUL-CORDOVA, WILSON HUMBERTO

Name: ISMATUL-CORDOVA, WILSON H...

OHS/ICE Office of Chief Counsel - FLO


P .0. Box 25158
Phoenix, AZ 85002

Immigrant & Refugee Appellate Center | www.irac.net

A206-563-666
1100 N BOWLING RD/P.0. BOX 6900
FLORENCE, AZ 85132

A 206-563-666

Date of this notice: 3/ 10/2015

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

Don.nL C!a.JVt.)
Donna Carr
Chief Clerk

Enclosure
Panel Members:
Wendtland, Linda S.
Cole, Patricia A.
Pauley, Roger

Userteam: Docket

For more unpublished BIA decisions, visit


www.irac.net/unpublished/index

Cite as: Wilson Humberto Ismatul Cordova, A206 563 666 (BIA March 10, 2015)
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_s

U.S. Department of Justice

Decision of the Board of Immigration Appeals

Executive Office for Immigration Review


Falls Church, Virginia 20530

File:

Date:

A206 563 666 - Florence, AZ

MAR 10 2015

In re: WILSON HUMBERTO ISMATUL CORDOVA a.k.a. Wilson Humberto Cordova

APPEAL
ON BEHALF OF RESPONDENT:

Pro se

CHARGE:
Notice:

Sec.

212(a)(6)(A)(i) , I&N Act [8 U.S.C. 1182(a)(6)(A)(i)] Present without being admitted or paroled

Sec.

212( a)(2)(A)(i)(I ), l&N Act [8 U.S.C. 1 182(a )(2)(A)(i)(I)] Crime involving moral turpitude

APPLICATION: Continuance; voluntary departure

The respondent appeals from an Immigration Judge's November 12, 2014, decision denying
his motion for a continuance and ordering. him removed from the United States. The appeal will
be sustained and the record will be remanded.
The respondent, a native and citizen of Guatemala, concedes that he is removable as charged.
The respondent has applied for classification as a U nonimmigrant with United States
Citizenship and Immigration Services ("USCIS") , a component of the Department of Homeland
Security ("DHS") , and USCIS has determined that the respondent is prima facie eligible for that
classification. Accordingly, the respondent requested that his removal proceedings be continued

to await USCIS' final adjudication of his U visa petition. Counsel for the DHS did not oppose
the continuance request (Tr. at 14). Nevertheless, the Immigration Judge denied the continuance,
citing the administrative expense associated with monitoring the status of respondent's U visa
petition and noting that the respondent would not be prejudiced by entry of a removal order since
he can pursue his U visa petition through consular processing from abroad (I.J. at 3). We
reverse.
"As a general rule, there is a rebuttable presumption that an alien who has filed a prima facie
approvable [U visa petition] with the USCIS will warrant a favorable exercise of discretion for a
continuance for a reasonable period of time." See Matter of Sanchez Sosa, 25 l&N Dec. 807,
815 (BIA 2012). Moreover, "[i]f the DHS does not oppose a continuance, 'the proceedings
ordinarily should be continued by the Immigration Judge in the absence of unusual, clearly
identified, and supported reasons for not doing so."'

Id. at 813 (quoting Matter of Hashmi,

24 I&N Dec. 785, 790 (BIA 2009)).

Cite as: Wilson Humberto Ismatul Cordova, A206 563 666 (BIA March 10, 2015)
h.....T@.W.HJ&

Immigrant & Refugee Appellate Center | www.irac.net

IN REMOVAL PROCEEDINGS

A206 563 666

The factors identified by the Immigration Judge-i.e., the administrative "expense"


associated with monitoring the status of the respondent's U visa petition and the potential
availability of consular processing -- are plainly not "unusual" and do not serve to rebut the
presumption in favor of granting the respondent's unopposed request for a reasonable
continuance. There is no indication from the record that the respondent has engaged in dilatory
behavior; rather, the delay associated with the processing of his U visa petition appears to be
in favor of a continuance."' Matter of Sanchez Sosa, supra, at 814 (quoting in part Matter of
Hashmi, supra, at 793); see also Ma/ilia v. Holder, 632 F.3d 598, 606 (9th Cir. 2011) ("[D]elays
in the USCIS approval process are no reason to deny an otherwise reasonable continuance
request.").
In view of the foregoing, we conclude that the respondent has established good cause for a
reasonable continuance of his removal proceedings to await USCIS adjudication of his U visa
petition. Accordingly, the record will be remanded for further proceedings consistent with the
foregoing opinion. In the event the respondent's U visa petition is ultimately denied by USCIS,
the Immigration Judge shall provide the respondent with a reasonable opportunity to apply for
voluntary departure.
ORDER:

The appeal is sustained, the Immigration Judge's removal order is vacated, and

the record is remanded for further proceedings consistent with the foregoing opinion.

Cite as: Wilson Humberto Ismatul Cordova, A206 563 666 (BIA March 10, 2015)
iill5 . 4&.<.....<M.. :.<mM.ii&M

Immigrant & Refugee Appellate Center | www.irac.net

attributable to the USCIS administrative process. "Any delay not attributable to the alien 'augurs

.....__,,'

UNITED STATES DEPARTMENT OF JUSTICE


EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT

Immigrant & Refugee Appellate Center | www.irac.net

File: A206-563-666

November 12, 2014

In the Matter of

WILSON HUMBERTO ISMATUL-CORDOVA

)
)

IN REMOVAL PROCEEDINGS

RESPONDENT

CHARGES:

APPLICATIONS:

ON BEHALF OF RESPONDENT: AYENSA IRAIS MILLAN


ON BEHALF OF OHS: DAVID WHIPPLE

ORAL DECISION OF THE IMMIGRATION JUDGE

The Department of Homeland Security began these proceedings against


the respondent by filing a Notice to Appear, dated June 16, 2014. On July 10, 2014
respondent was given the rights advisals. Thereafter respondent admitted the
allegations and the sole charge, and that occurred on September 2, 2014.
The Court has admitted the following evidence into the record: Exhibit 1 is
the Notice to Appear. Exhibit 2 is respondent's motion to terminate or administratively
close proceedings. Exhibit 3 is a minute entry from the Maricopa County Superior

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4.

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Court, suspension of sentence, probation granted. The Court notes that on June 20,
2013, respondent was convicted of driving or actual physical control under the influence
of intoxicating liquor or drunk, a Class I misdemeanor. Exhibit 5 is the motion to

dated July 13, 2014, indicating that a prima facie determination in a case for U visa has
been made.
The Court notes that this matter has come before the Court for various
hearings, as follows; July 10, July 21, September 2, November 3, and today, November
12. The Court finds that respondent has had notice of, arid provided notice to this
Court, as of July 31, 2014 of his U visa eligibility. Thereafter, with the exception of the
inappropriately set Rodriquez bond hearing, and every appearance before the Court
since that date, respondent has requested a continuance for the purpose of allowing
CIS to adjudicate the U visa.
In addition, the Court notes that respondent has provided to the Court
cases in the matter of Sanchez-Sosa and the Matter of Hashmi. This was
inappropriately marked as Exhibit 12; it should be 6; my apologies; indicating that the
respondent should establish good cause to continue a case involving a U non-immigrant
visa petition. And in Hashmi factors are set forth in the Court's determination of whether
the granting of a motion to continue for that adjudication should be granted, and the
Court does note that generally those requests should be granted in the discretion of the
Court. However, in this case the Court finds, addressing the Hashmi factors specifically,
that the Department of Homeland Security does not oppose a motion to continue; the U
visa petition is prima facie approvable; to the respondent's statutory eligibility for
adjustment there appears to be no impediment; whether the respondent's application
for adjustment merits a favorable exercise of discretion, I am unable to make a

A206-563-666

_@.&

November 12, 2014

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Immigrant & Refugee Appellate Center | www.irac.net

continue master calendar hearing, and Exhibit 4 is an interoffice memorandum from CIS

determination on that; and the fifth factor, the reason for the continuance and other
relevant procedural factors. In this case, the reason for the continuance is that USCIS
has not adjudicated the application.

Vermont office, and has indicated that the matter is "with an adjudicator''; that as of
November 7 USCIS announced a policy change indicating they would adjudicate
applications for detainees. However, the only specific and reliable information that
could be granted to the Court regarding when the U visa may be adjudicated was that it
would be done no later than April 28, 2015. The Court understands that the respondent
would like to remain in the United States, even in a detention facility, until his application
for a U visa is adjudicated. However, the Court will note that respondent has been in
proceedings since June 19, 2014; thus, given the only reliable information as to when
the U visa may be acted upon the Court finds that it is six months from today.
The Court finds that to continue this case and allow respondent to remain
detained at Government expense and require the Court to continually monitor and set
hearings in this matter to determine the status of respondent's U visa petition is expensive, would delay the Court from addressing other matters, would take up the
expense of Court personnel, OHS personnel and most significantly, respondent is in no
way prejudiced from pursuing his U visa from his home country in Guatemala.
Respondent again will not suffer any prejudice, whether he is in the United States or in
his home country, by the Court proceeding with a removal on this date. Therefore, in
the interests of efficiency and given that respondent has been given due process at
every stage of these proceedings, the Court finds that further delay is unnecess.ary, and
good cause does not exist for the continuance.

A206-563-666

November 12, 2014

Immigrant & Refugee Appellate Center | www.irac.net

OHS counsel has advised the Court that he has been in contact with the

ORDER
Accordingly, respondent is ordered removed from the United States to
Guatemala.

signature
SILVIA R. ARELLANO
Immigration Judge

A206-563-666

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November 12, 2014

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Immigrant & Refugee Appellate Center | www.irac.net

Please see the next paae for electronic

I,

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/Isl/
Immigration Judge SILVIA R.
arellans on December

16,

ARELLANO

2014

at 3:16 PM GMT

Immigrant & Refugee Appellate Center | www.irac.net

A206-563-666

November 12, 2014

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