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Forsythe, Jordan G.

Forsythe Immigration Law Firm
756 Tyvola Road, Ste. 160
Charlote, NC 28217
U.S. Department of Justice
Executive Ofce fr Immigration Review
Board of Immigration Appeals
Offce of the Clerk
5107 Leesburg Pike, Suite 2000
Fals Church, Virginia 20530
OHS/ICE Ofice of Chief Counsel - CHL
5701 Executive Ctr Dr., Ste 300
Charlotte, NC 28212
Name: PEREZ-SERRANO, ALEJANDRO A 205-394-591
Date of this notice: 9/17/2014
Enclosed is a copy of the Board's decision and order in the above-referenced case.
Enclosure
Panel Members:
Greer, Anne J.
Pauley, Roger
Wendtland, Linda S.
Sincerely,
Do Ca
Donna Carr
Chief Clerk
Userteam: Docket
For more unpublished BIA decisions, visit www.irac.net/unpublished For more unpublished BIA decisions, visit www.irac.net/unpublished
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Cite as: Alejandro Perez-Serrano, A205 394 591 (BIA Sept. 17, 2014)
U.S. Deparment of Justice
Executive Ofce fr Imigation Review
Decision of the Boad of Imigation Appeals
Falls Chuch, Viginia 20530
File: A205 394 591 - Chalotte, NC
I re: ALEJADRO PERZ-SERO
IN REMOVAL PROCEEDINGS
APPEAL
ON BEHALF OF RSPONDENT: Jordan G. Forsythe, Esquire
ON BEHALF OF DHS: Susa Leeker
Assistant Chief Counsel
CHARGE:
Date:
Notice: Sec. 212(a)(6)(A)(i), l&N Act [
8
U
.S.C.
§
1182(a)(6)(
A)(i)] -
Present without being admitted or paoled
APPLICATION: Continuance; adnistative closue
SEP 1 7 2014
Te respondent, a native and citizen of Mexico, appeals the Immigration Judge's May 16,
2013, decision denying the respondent's requests fr a continuace and fr administative
closue. The appeal will be sustained in pa, ad the record will be remaded.
The Boad reviews a Imigation Judge's fdings of fct, including credibility
deterinations and (under the law of the Circuit with jursdiction over this cae) te likelihood of
fture events, under a "clealy eroneous" standad. 8 C.F.R.
§
1003.l(d)(3)(i); see Turkon
v. Holder, 667 F.3d 523, 530 (4th Cir. 2012). We review all oter issues, including questions of
law, judgent, or discretion, under a de novo standad. 8 C.F .R. § 1003 .1 ( d)(3 )(ii).
Because the Imigation Judge ered in fnding that the respondent's request fr
a continuace to perit the respondent to appea in fderal cour on a crminal sentencing matter
wa uneaonable ad not suppored by good cause (l.J. at 2), the record will be remanded to the
Imigation Judge to perit te respondent to seek voluntary deparure. See, e.g., Mater of
Yauri, 25 I&N Dec. 103, 111 n.8 (BIA 2009) ("Tere ca be soud reasons to continue or
adinistatively close proceedings while matters outside te Immigation Judge's jurisdiction ae
resolved, ofen including reasons directly related to administrative effciency ad the best
utilizaton of adjudicative resouces."). However, the Immigration Judge did not comit legal or
clea fctual error in denying the respondent's request fr administative closure (l.J. at 3), which
we agee is not wa  ated uder the circumstaces. Specifcally, we do not fnd that pursuing
a challenge to the local DHS ofce's denial of a request fr prosecutorial discretion or awaitng
the availability of a furh prefrence faily-based visa fom Mexico constitute sufcient
reasons fr administative closure in the respondent's case.
Finaly, we disagee with the Immigration Judge's coments that te respondent's frer
attorey acted fvolously in pursuing requests fr a continuance and fr adinistative closure
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Cite as: Alejandro Perez-Serrano, A205 394 591 (BIA Sept. 17, 2014)
A205 394 591
(I.J. at 4). Rather, we fnd that te respondent's frmer counsel simply attempted to pursue all
reasonable avenues fr the respondent, ad that none of the actions she took on behalf of the
respondent lacked an arguable basis in law or fct or were intended to cause unecessary delay
(1.J. at 4). See 8 C.F.R. § 1003.1020)(1). We caution that rah and infa  atory comments
impuging te motives of a party's attorey ae not appropriate, and that geat cae must be
ten to assure that suffcient justifcation exists fr suggesting that an attorey's conduct has
been unprofessional.
ORDER: Te respondent's appeal is sustained in part, and the record is remanded to te
Immigration Judge fr fher proceedings consistent wit this order and fr the entry of a new
decision.
THE BOARD
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Cite as: Alejandro Perez-Serrano, A205 394 591 (BIA Sept. 17, 2014)
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
CHARLOTTE, NORTH CAROLINA
File: A205-394-591
In the Matter of
May 16, 2013
ALEJANDRO PEREZ-SERRANO
)
)
)
)
IN REMOVAL PROCEEDINGS
RESPONDENT
CHARGES: 212(a)(6)(A)(i), alien present in the United States without having
been admitted or paroled.
APPLICATIONS: Request for a continuance.
ON BEHALF OF RESPONDENT: AMANDA KEAVENY
ON BEHALF OF OHS: SUSAN LECKER
ORAL DECISION OF THE IMMIGRTION JUDGE
The respondent is a native and citizen of Mexico. He was placed in
removal proceedings on July 13, 2013 with the filing of a Notice to Appear in the
Charlotte Immigration Court. While respondent was represented by counsel, he
admitted to factual allegations and conceded his removability. Accordingly, the Court
finds the respondent's removability has been established by clear and convincing
evidence.
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The respondent first appeared at a master calendar on August 28, 2012,
at which time he was unrepresented, and the Court gave him a continuance in order to
seek counsel. The respondent's next appearance in GCourt was on October 30, 2013.
At this hearing, he was represented by his present counsel, Amanda Keaveny. The
respondent's counsel at that time requested that he matter be set over for a six-month
continuance so that he could resolve his criminal matter which was pending. The Cour
granted a continuance until March 14th, 2013.
At the March 14th, 2013 hearing, the respondent at that point had pied to
a misdemeanor charge for failure to register as an alien under 8 U.S. C. 1306(a). He
had not yet been sentenced. The respondent's counsel requested a continuance in
order to resolve his sentencing matter. Additionally, in the course of the proceedings,
counsel had also requested that the Government exercise prosecutorial discretion and
administratively close the case. The Department of Homeland Security denied the
respondent's request to close the case pursuant to prosecutorial discretion. That letter
was sent to the respondent on March 1, 2013. As such, the respondent was aware at
the master calendar on March 14, 2013 that OHS had already declined prosecutorial
discretion. The Court on March 14, 2013. granted one last continuance to respondent,
indicating that it would be the last one and that on May 16th, 2013. the date of today's
hearing, the respondent would be granted voluntary departure.
At +!oday's hearing, the respondent is declining to take voluntary
departure. Instead, he requested a continuance so that he can seek review of DHS's·
local denial of the exercise of prosecutorial discretion so-tfae-GaH-hae-t-e-leGa.
E-nial-Gf··Jf-0&GtF+al-d�SGet�en-.reviewed-·by OHS in Washington, DC.
As a threshold matter, the Court has no authority and no ability to control
DHS's exercise of prosecutorial discretion. That is a matter entirely between the
A205-394-591 2 May 16, 2013
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respondent and OHS. As such, prosecutorial discretion does not involve the Court.
The Court has no authority to intervene faFin that matter.
The Court can find no good cause to grant a continuance so that the
respondent can further plead his request for prosecutorial discretion to higher
authorities in Washington, D. C. It's the Court's view that if the respondent is ultimately
successful in convincing .HS in Wast+RgtGR-Washington, DC that prosecutorial
discretion should be exercised, OHS will take the appropriate steps to resolve the
respondent's case. The Court sees no reason to continue the case because the Court
has no applications pending in front of it and the respondent is not requesting any forms
of relief. There is nothing fr the Court to adjudicate. The Court has indicated that it
was willing to grant the respondent voluntary departure today. The respondent has
declined to accept voluntary departure and instead requests an order of removal.
The respondent has also requested that the Court sua sponte
administratively close the case under Matter of Avetisyan, 25 l&N Dec. 688 (BIA 2012).
In Avetisyan, the court addressed the factual situation where a respondent had a family­
based visa petition pending and where there was significant delay by USCIS in
adjudicating that visa petition. In Avetisyan, the Board concluded that an Immigration
judge would have the authority to exercise its independent judgment and discretion to
administratively close the case in an appropriate circumstance. The facts in Avetisyan
are extremely narrow. The Court, based on the facts it has before us, can see no basis
whatsoever for any good faith argument that this matter falls within the four corners of
the reasoning in Avetisyan.
The Court finds that the respondent's motion has no arguable basis in law
or fact. Respondent essentially is asking the Court to exercise its sua sponte authority
to close his removal proceedings, essentially to aford him an opportunity to remain here
A205-394-591 3 May 16, 2013
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in the United States without lawful status while he pursues further requests for the
exercise of prosecutorial discretion. It is clear to the Court that Matter of Avetisyan is
entirely inapplicable to the respondent's factual circumstances. Further, in Avetisyan,
the respondent was applying for relief from removal while awaiting the adjudication of a
pending visa petition by USCIS.
Finally, the Court finds that, because there is absolutely no basis in law or
fact for wfie-a request for administrative closure under Avetisyan, respondent's
counsel has engaged in frivolous conduct before the Court. A P2ractitioner is subject to
disciplinary sanctions if she engages in frivolous behavior while proceeding before an
Immigration court when she "knows or reasonably should have known that his or her
actions lack an arguable basis in law or in fact, or are taken for an inappropriate
purpose, such as . . . to cause unnecessary delay." See 8 C.F. R. Section
1003.1020)(1 ). Respondent's counsel either knows or reasonably should know that her
motion lacks any arguable basis in fact or law. It appeaftlhe Court finds that she's
merely making this request to have f1e.irespondenfs case administratively closed under
Avetisyan as a subterfuge !delay fthe completion of her client's proceedings. The
Court finds tllat counsel's conduct should subj ect her to sanctions.
In sum, the Cour denies the respondent's motion for a continuance
because there is no good cause for granting said continuance. Additionally, as to the
request that the Court sua sponte close the case under Matter of Avetisyan, the Court
denies that motion to continue as there is no basis in law or in fact aRGunder the
reasoning of that case to do so .
A205-394-591 4 May 16, 2013
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ORDERS
It is hereby ordered that the respondent's request to administratively close
his proceedings is denied.
It is further ordered that the respondent's request for a continuance is
denied.
It is further ordered that the respondent is ordered removed from the
United States to Mexico on the charge contained in his Notice to Appear.
siature
A205-394-591
Please see the next page for electronic
BARRY J. PETTINATO
Immigration Judge
5 May 16, 2013
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. .
//s//
Imigration Judge BARRY J. PETTINATO
pettinab on August 14, 2013 at 11:30 AM GMT
A205-394-591 6 May 16, 2013
W. . . �.
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