Professional Documents
Culture Documents
Department of Justice
A206-563-666
1100 N BOWLING RD/P.0. BOX 6900
FLORENCE, AZ 85132
A 206-563-666
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
Cite as: Wilson Humberto Ismatul Cordova, A206 563 666 (BIA March 10, 2015)
-
_s
File:
Date:
MAR 10 2015
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
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."'
Cite as: Wilson Humberto Ismatul Cordova, A206 563 666 (BIA March 10, 2015)
h.....T@.W.HJ&
IN REMOVAL PROCEEDINGS
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
attributable to the USCIS administrative process. "Any delay not attributable to the alien 'augurs
.....__,,'
File: A206-563-666
In the Matter of
)
)
IN REMOVAL PROCEEDINGS
RESPONDENT
CHARGES:
APPLICATIONS:
_ . C.
Gt
4.
Im,
;;;
Lt
$. .m.-
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
_@.&
'J Q
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
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
i:M-4%
.&k..ill44Z
..___j
I,
'-,,."
/Isl/
Immigration Judge SILVIA R.
arellans on December
16,
ARELLANO
2014
at 3:16 PM GMT
A206-563-666
.WX::%.
... '.
N. . .. . ......@i: