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U.S.

Department of Justice
Executive Office for Immigration Review
Board ofImmigration Appeals
Office of the Clerk
5107 leesburg Pike, Suite 2000
Falls Church, Virginia 22041

DHS/ICE Office of Chief Counsel - LOU


167 North Main St., Room 1036
Memphis, TN 38103

Name: SANCHEZ-GARCIA, HECTOR M ...

A 205-632-066
Date of this notice: 8/26/2015

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

DQn.JtL c

t1/v1.)

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Guendelsberger l John

Userteam: Docket

For more unpublished BIA decisions, visit


www.irac.net/unpublished/index/

Cite as: Hector Manuel Sanchez-Garcia, A205 632 066 (BIA Aug. 26, 2015)

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

Heather A. Hadi, PSC


329 W. Fifth Street
Lexington, KY 40508

Decision of the Board of Immigration Appeals

U.S. Department of Justice


Executive Office for Immigration Review
Falls Church, Virginia 22041

A205 632 066 - Memphis, TN

Date:

AUG 2 6 20,5

In re: HECTOR MANUEL SANCHEZ-GARCIA


IN REMOVAL PROCEEDINGS
APPEAL
ON BEHALF OF RESPONDENT:

Heather A. Hadi, Esquire

APPLICATION: Continuance
ORDER:
The respondent has appealed the Immigration Judge's July 14, 2014, decision to the extent that
the Immigration Judge denied the motion for a continuance. We acknowledge the reasoning for
the Immigration Judge's denial of the motion for a continuance. Nonetheless, the respondent, on
appeal, has submitted evidence of the filing of a visa petition on his behalf by his United States
citizen wife. Under these circumstances, the record is remanded to the Immigration Judge for
further proceedings consistent with the foregoing opinion (including a determination of the
respondent's eligibility for a provisional unlawful presence waiver) and for the entry of a new
decision.

..

Cite as: Hector Manuel Sanchez-Garcia, A205 632 066 (BIA Aug. 26, 2015)

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

File:

,-

July 14, 2014

File: A205-632-066
In the Matter of

HECTOR MANUEL SANCHEZ-GARCIA


RESPONDENT

)
)
)
)

IN REMOVAL PROCEEDINGS

CHARGES:

INA Section 212(a)(6)(A)(i) - alien present without inspection,


admission or parole.

APPLICATIONS:

Motion to continue.

ON BEHALF OF RESPONDENT: KIRBY FULLERTON, ATTORNEY AT LAW


ON BEHALF OF OHS: D. ROOK MOORE Ill, ASSISTANT CHIEF COUNSEL

ORAL DECISION OF THE IMMIGRATION JUDGE


Respondent is a male, who is a native and citizen of Mexico. On January
24, 2013, the Department of Homeland Security filed a Notice to Appear against
respondent with this Court. The filing of this charging document commenced
proceedings and vested jurisdiction with this Court. 8 C.F.R. Section 1003.14 (a). The
Notice to Appear has been marked and admitted into evidence as Exhibit 1. In removal
proceedings, the Notice to Appear shall be served in person on the alien or, if personal
service is not practicable, through service by mail to the alien or the alien's counsel of

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UNITED STATES DEPARTMENT OF JUSTICE


EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
MEMPHIS, TENNESSEE

record. INA Section 239; 8 C.F.R. Section 1003.13. Respondent appeared before the
Court on today's date and acknowledged proper service of the Notice to Appear. Based

Notice to Appear, the Court will find that the Notice to Appear is properly served.
Respondent was also afforded 10 days following service of the Notice to Appear prior to
appearing before an Immigration Judge as is required by regulation. Respondent also
in a motion to change venue filed with the Court, March 4, 2013, and again on today's
date admitted the factual allegations contained in the Notice to Appear, that is, he is not
a citizen or national of the United States, is a native and citizen of Mexico, and that he
entered the United States without admission, parole, or inspection by an Immigration
officer. The respondent alleges that he entered the United States in 2006 through
Nogales, Arizona.
For aliens who are present in the United States without admission or
parole, the Department of Homeland Security must prove by clear and convincing
evidence that the respondent is an alien. Once #le-alienage has been established,
respondent must prove by clear and convincing evidence that he is lawfully present in
the United States pursuant to a prior admission or is otherwise entitled to be admitted.
INA Section 240(c)(2)(B); 8 C.F.R. Section 1240.B(c). Based upon the admissions of
respondent and his confessions admissions as to removability, the Court finds that the
Department of Homeland Security has established respondent's alienage by clear and
convincing evidence, and the respondent has failed to establish that he is present in the
United States lawfully or is entitled to be admitted. Accordingly, the charge of
removability is sustained by the Court. Respondent designated Mexico as the country
of removal should that become necessary.
Respondent applied for no relief before the Court, indicating that there
A205-632-066

July 14, 2014

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

upon respondent's acknowledgement and the certificate of service attached to the

was no relief other than the filing of an 1-130 through a potential marriage that is due to
occur in December 2014. The respondent filed evidence at Exhibit 4 which has been

she is engaged to the respondent. The letter spells out their history as a couple and
she indicates that they met in June 2013, which the Court will note was already after the
respondent had been placed into proceedings in January of 2013. The letter also
indicates that they plan on marrying on December 20, 2014 but there are no documents
established including a marriage license or other documentation establishing that there
is a wedding that has been set up. Respondent also provides copies of his criminal
convictions, which include loitering for prostitution, and a DUI, as well as driving without
a driver's license on perhaps at least two occasions.
The legal standard for continuances is contained in 8 C.F.R. Section
1003.29. That section provides that an Immigration Judge may grant a motion for a
continuance if good cause is shown. In Matter of Sibrun, 18 l&N Dec. 354, the Board of
Immigration Appeals reviewed a request for a continuance then in exclusion
proceedings for the respondent to obtain additional evidence. The Board in that case
held that a continuance should be granted only upon a showing that the inability to
proceed occurred despite a diligent good faith effort to be ready to proceed and that any
additional evidence sought is probative, non-cumulative, and significantly favorable the
respondent. .!Q. at 356. The Board held that it will not reverse in Immigration Judge's
decision denying a motion for continuance unless the respondent establishes that the
denial caused him prejudice and harm and that the denial materially affected the
outcome of his case. Id. at 356-57. The Board noted that bare, unsupported
allegations are insufficient; the alien must specifically articulate the particular facts
involved or evidence which he would have presented and otherwise fully explain how
A205-632-066

July 14, 2014

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

considered by the Court and includes a letter from Melinda Lou Baker, who states that

the denial of his motion fundamentally changes the result reached. .!.Q. at 357. More
recently in Matter of Hashmi, 24 l&N Dec. 785 (BIA 2009), the Board set forth five

application for adjustment of status which was premised upon a pending visa petition.
These factors include whether the Department of Homeland Security opposes the
motion to continue, whether the underlying visa petition is prima facie approvable, the
respondent's statutory eligibility for adjustment of status, and whether the respondent's
application merits favorable exercise of discretion. The Board also held that the Court
may consider the reason for the continuance and any other relevant procedural factors.
The Sixth Circuit has also weighed in on the standard for continuances.
The Sixth Circuit has held that the factors to be considered by the Court include whether
the Department opposes a continuance, whether any continuances have been
previously granted, whether the respondent has been given sufficient time to obtain
additional supporting evidence or documents as well. The Sixth Circuit has held that
the Immigration Judge cannot give an arbitrary reason for denying the request for
continuance and must make a rational explanation, conform to established policies, and
any such denial must not be based on such impermissible bases such as invidious
discrimination. See Ilic-Lee v. Mukasey, 507 F.3d 1044 (6th Cir. 2007); El Harake v.
Gonzales, 210 F. App'x 482 (6th Cir. 2006); Abu-Khaliel, 436 F.3d 627 (6th Cir. 2006);
Kwak v. Holder, 607 F.3d 1140 (6th Cir. 2010).
As noted, in this case the respondent has been in proceedings since
January of 2013. He was first given the opportunity to appear before the Court on
January 13, 2013 and he was given a continuance for attorney preparation. The
respondent was then represented by his current counsel's law firm, albeit another
attorney in that firm. Respondent's case was continued at the attorney's request to
A205-632-066

July 14, 2014

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

factors to determine whether good cause exists to continue a case involving an

February 28, 2013, at which time the respondent had already been released from
custody and his case was transferred to the Court in Memphis. The Court scheduled

respondent was given an opportunity to prepare and to file any and all applications for
relief, however, he appeared at the hearing of today's date and, as noted, simply
requested a continuance so that he might marry his girlfriend that he met just last year.
The respondent has provided no documents concerning the bona tides of the
relationship other than one letter which he submitted from his presumed fiancee
Melinda Lou Baker. There is no documentation showing their relationship, any
documents to show the likelihood of success on any 1-130, and not even any documents
to establish that the parties are planning on marrying December 20, 2014, GfHj'-five
months from now. Further, the respondent has provided no documents to establish any
eligibility for relief before the Court. The respondent admitted that he entered the United
States without inspection and is not eligible for adjustment of status in the United
States. He would therefore have to consular process. The respondent has provided no
documentation to prove any eligibility for an 1-601 a waiver in advance of any consular
processing that would be scheduled. To the contrary, the respondent has provided
evidence that he has been convicted of two serious crimes, including driving under the
influence in 2006 and a FBI report that shows that he was convicted for loitering for
prostitution in 2012, which the respondent's attorney indicated he was convicted of. The
respondent has made no argument that these are not disqualifying crimes and has
provided no evidence to the Court that there is any likelihood that his l-601A waiver
would be granted by the Immigration service. It is the respondent's obligation to provide
proof of eligibility and the respondent has not exercised diligence or good faith in any
efforts to be ready to proceed for today's hearing. He has also failed to provide any

A205-632-066

July 14, 2014

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

the respondent's case for more than one year later on today's date, July 14, 2014. The

evidence that is probative, non-cumulative, and significantly favorable to him. The


respondent has failed to meet any of the five factors that have been set forth in Matter

continuance and requested an order removing the respondent from the United States.
For these reasons, the Court will deny the respondent's request for a continuance.
The respondent has requested no other relief before the Court including
voluntary departure. The respondent will therefore be ordered removed to Mexico. The
Court will also note that it questioned respondent's counsel about whether he was
cognizant of the fact that any order would have a seriously negative impact upon any
ability for him to return to the United States because of the removal order. In spite of
that, the respondent declined to request any relief.
ORDERS
IT IS HEREBY ORDERED that the respondent's request for continuance
be and hereby is denied.
IT IS HEREBY FURTHER ORDERED that the respondent be removed to
Mexico on the charges contained in the Notice to Appear.

Please see the next page for electronic


signature

A205-632-066

REBECCA L. HOLT
Immigration Judge

July 14, 2014

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of Hashmi, and the Court will note that the Department of Homeland Security opposes a

...

/Isl/
Immigration Judge REBECCA L. HOLT

A205-632-066

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

holtr on May 4, 2015 at 1:29 PM GMT

July 14, 2014