U.S.

Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals
Office of the Clerk
5107 Leesburg Pike, Suile 2000
Falls Church. Virginia 20530

OHS/ICE Office of Chief Counsel - ATL

180 Spring Street, Suite 332
Atlanta, GA 30303

Name: sis R J-

Date of this notice: 6/30/2015

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

DonrtL c
Sincerely,

WlA)

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Holmes, David B.

Use rteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/
Cite as: J-S-R-, AXXX XXX 304 (BIA June 30, 2015)

,)

Immigrant & Refugee Appellate Center, LLC | www.irac.net

Daman, Jessica
The Latin American Association
2750 Buford Highway NE
Atlanta, GA 30324

Decision of the Board of Immigration Appeals

U.S. Department of Justice

Executive Office for Immigration Review

Falls Church, Virginia 20530

File: 304 - Atlanta, GA

Date:

'JUN 302015

In re: J-a.k.a.

APPEAL
ON BEHALF OF RESPONDENT: Jessica Daman, Esquire
Kelley Fowler
Assistant Chief Counsel

ON BEHALF OF DHS:
CHARGE:
Notice: Sec.

212(a)(6)(A)(i), I&N Act [8 U.S.C. l 182(a)(6)(A)(i)] Present without being admitted or paroled

APPLICATION: Continuance

The respondent appeals from the Immigration Judge's December 9, 2014, decision denying
his request for a continuance and ordering him removed. Section 212(a)(6)(A)(i) of the
Immigration and Nationality Act, 8 U.S.C. 1182(a)(6)(A)(i); 8 C.F.R. 1003.29. The record
will be remanded.
We review for clear error the Immigration Judge's findings of fact, including determinations
of credibility. 8 C.F.R. 1003.l(d)(3)(i). We review all other issues de novo, including whether
the parties have met the relevant burden of proof and issues of discretion. 8 C.F.R.
1003.l(d)(3)(ii).
The respondent appeared at a November 13, 2014, master calendar hearing, with counsel and
admitted the factual allegations and conceded the removal charge set forth in the Notice to
Appear. The respondent's counsel advised that the respondent would be seeking Special
Juvenile Immigrant Status ("SIJS") and requested a continuance of a few months to allow the
state court to hold a hearing (Tr. at 23). The Immigration Judge granted the respondent a
continuance until December 9, 2014, because he needed "to see that something's been filed" and
to "receive any and all applications for relief." (Tr. at 24). On December 9, 2014, the respondent
appeared before a different Immigration Judge, who demanded a copy of the dependency petition
itself, rather than the proffered cover letter and tracking receipt. 1 The Immigration Judge issued
a decision ordering the respondent removed to Guatemala.
1

On appeal, the respondent filed a copy of the notice of a preliminary hearing date with the
Juvenile Court, scheduled for April 6, 2015. This notice is dated March 11, 2015.
Cite as: J-S-R-, AXXX XXX 304 (BIA June 30, 2015)

Immigrant & Refugee Appellate Center, LLC | www.irac.net

IN REMOVAL PROCEEDINGS

' t

304

In view of the recurring nature of the issues raised in this case as evident from the
Immigration Judge's decision and the arguments presented, we note that we find it was error to
have denied a continuance in this case where there was no dispute that a dependency petition had
been filed in the appropriate state court. As evidenced in this case, aside from other issues
presented, denial of the continuance was not a good utilization of Immigration Court and Board
resources. Absent compelling reasons, an Immigration Judge should continue proceedinfs to
await adjudication of a pending state dependency petition in cases such as the one before us.
Accordingly, the following orders will be issued.
ORDER: The Immigration Judge's December 9, 2014, decision and removal order
are vacated.
FURTHER ORDER: The record is remanded to the Immigration Court for further
proceedings consistent with the foregoing opinion and for entry of a new decision.

FOR THE BOARD

We separately note that guidance provided to Immigration Judges by the Chief Immigration
Judge states that if an unaccompanied child is seeking SIJ status, "the case must be
administratively closed or reset for that process to occur in state or juvenile court."
See
Memorandum from Brian M. O'Leary, Chief Immigration Judge, to Immigration Judges
(Sept. I 0, 20 I 4) (Docketing Practices Relating to Unaccompanied Children Cases in Light of
New Priorities).
2

2
Cite as: J-S-R-, AXXX XXX 304 (BIA June 30, 2015)

Immigrant & Refugee Appellate Center, LLC | www.irac.net

. We will vacate the removal order and remand the record to the Immigration Judge. An
Immigration Judge must evaluate a host of factors in deciding whether good cause supports a
requested continuance. See Matter ofHashmi, 24 I&N Dec. 785, 790-93 (BIA 2009). We agree
with the respondent that he demonstrated the requisite good cause to a continuance when he
provided the Immigration Court with evidence that his dependency petition under GA. CODE
ANN. 15-11-2(22) had been filed. See 8 C.F.R. 1003.29. Additionally, considering the new
evidence that the respondent has been granted a hearing date in Juvenile Court on his
dependency petition, we will remand these proceedings to allow the respondent to request a
continuance or administrative closure while he pursues SIJ status. See Matter of Sanchez Sosa,
25 I&N Dec. 807, 815 (BIA 2012) ("As a general rule, there is a rebuttable presumption that an
alien who has filed a prima facie approvable application with the USCIS will warrant a favorable
exercise of discretion for a continuance for a reasonable period of time.") (internal citation
omitted); Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012) (discussing the standards for
administratively closing proceedings); Matter of Hashmi, 24 I&N Dec. 785 (BIA 2009) (setting
forth a framework to analyze whether good cause exists to continue proceedings to await
adjudication by USCIS of a pending family-based visa petition).

-UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
ATLANTA, GEORGIA

In the Matter of
)
)
)
)

J_S__R_
RESPONDENT
CHARGE:

212(a)(6)(A)(i).

APPLICATION:

Continuance.

IN REMOVAL PROCEEDINGS

ON BEHALF OF RESPONDENT: JONATHAN ELOFF, Esquire

ON BEHALF OF GOVERNMENT: KELLY FOWLER, Esquire

ORAL DECISION OF THE IMMIGRATION JUDGE

The respondent is a juvenile native and citizen of Guatemala who was placed in
removal proceedings with the filing of a Notice to Appear with the Court charging
removability pursuant to the provisions of 212(a)(6)(A)(i) of the INA (Exhibit 1).
Respondent filed written pleadings (Exhibit 4) acknowledging proper service of the
Notice to Appear, admitting the factual allegations, conceding removability. The Court
finds removability has been established by clear and convincing evidence. The case
was reset for today's date for identification of relief.

Immigrant & Refugee Appellate Center, LLC | www.irac.net

December 9, 2014

File: 304

Respondent indicates that he has filed for a dependency petition in the juvenile
court. The Court requested, as it does in all of these cases, a copy of the filing with the

indicates that there is a privacy consideration, that it cannot be released to outside

individual agencies. The state law certainly indicates that it cannot be released to other
state agencies.
This Court is not bound by state law. The refusal to file a prima facie showing of
eligibility for relief does not meet the standard for "good cause." The Court can continue
a case for good cause. Good cause was offered. The Court offered respondent the
opportunity to establish good cause; he declined such opportunity.
ORDER
Therefore, in the absence of other relief requested, the Court orders removal
from the United States to Guatemala on the charge contained in the Notice to Appear.

J. DAN PELLETIER
United States Immigration Judge

304

December 9, 2014

Immigrant & Refugee Appellate Center, LLC | www.irac.net

juvenile court. All counsel in the past generally file this with the Court. Counsel today

CERTIFICATE PAGE
I hereby certify that the attached proceeding before JUDGE J. DAN PELLETIER,

304
ATLANTA, GEORGIA
was held as herein appears, and that this is the original transcript thereof for the file of
the Executive Office for Immigration Review.

BARBARA CULLITON (Transcriber)

FREE STATE REPORTING, lnc.-2
JANUARY 30, 2015
(Completion Date)

Immigrant & Refugee Appellate Center, LLC | www.irac.net

in the matter of: