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 - ATL

180 Ted Turner Dr., SW, Ste 332
Atlanta, GA 30303

Name: tm-R-, J-C-

Date of this notice: 9/29/2015

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

o {!a.;vu
Sincerely,

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Holmes, David 8.

Userteam: Docket

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Cite as: J-C-D-R-, AXXX XXX 705 (BIA Sept. 29, 2015)

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Pugh, April Lenore

Bingham at Law, LLC
218 16th Street North
Bessemer, AL 35020

U.S. Department of Justice

Decision of the Board of Immigration Appeals

Executive Office for Immigration Review

Falls Church, Virginia 22041

File: 705 - Atlanta, GA

In re:

Date:

SEP 2 9 2015

IN REMOVAL PROCEEDINGS
APPEAL
ON BEHALF OF RESPONDENT: April L. Pugh, Esquire
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

APPLICATION: Continuance; remand

The respondent, a native and citizen of Guatemala, appeals from the Immigration Judge's
May 13, 2015, decision denying her request for a continuance and ordering her removal from the
United States. The record will be remanded.
We review findings of fact, including credibility findings and determinations as to the
likelihood of future events, under the "clearly erroneous" standard.
See 8 C.F.R.
1003.l(d)(3)(i); Matter of Z-Z-0-, 26 I&N Dec. 586 (BIA 2015); Matter of S-H-, 23 l&N
Dec. 462 (BIA 2002). We review questions of law, discretion, or judgment, and all other issues
de novo. See 8 C.F.R. 1003.l(d)(3)(ii).
In October 2014, the respondent, who was then 12 years old, appeared before the
Immigration Judge and indicated that she did not know where her father was living (I.J. at 2;
Tr. at 2). Through counsel, she admitted the factual allegations contained in the Notice to
Appear (Form 1-862) and conceded removability as charged (I.J. at 1; Tr. at 2; Exh. 1). The
Immigration Judge granted the respondent several continuances in order to pursue a petition for
guardianship or dependency in state court (1.J. at 2; Tr. at 3-6, 9, 13-14; I.J. Order dated
November 14, 2014). However, on May 13, 2015, the Immigration Judge concluded that the
respondent had not demonstrated good cause for a further continuance, after she had requested to
continue the proceedings in order to file a new petition in state court (1.J. at 2-3; Tr. at 17).
On appeal, the respondent asserts that the Immigration Judge should have granted her
continuance request because she was eligible for Special Immigrant Juvenile (SIJ) status and had
been actively pursuing a dependency petition in state court (Respondent's Brief at 4-6). 1 To that
1

A necessary precondition to SIJ status is the declaration of a juvenile court that the respondent
is deserving of protection because reunification with one or both of her parents was not viable
due to abuse, neglect, or abandonment. See section 10l(a)(27)(J) of the Immigration and
Nationality Act, 8 U.S.C. 1101(a)(27)(J).
Cite as: J-C-D-R-, AXXX XXX 705 (BIA Sept. 29, 2015)

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-c-RIIIIIIII

705
end, the respondent contends that counsel encountered administrative difficulties in her efforts to
file a petition in state court (Respondent's Brief at 2-6). The respondent further asserts that the
denial of her continuance request resulted in prejudice because it deprived her of the opportunity
to seek a form of relief for which she is eligible (Respondent's Brief at 5-6).

Generally, the Board does not consider evidence that is presented for the first time on appeal.
See 8 C.F.R. 1003.l(d)(3)(iv); Matter of Fedorenko, 19 I&N Dec. 57, 74 (BIA 1984) ("The
Board is an appellate body whose function is to review, not to create, a record."). However, in
the instant matter, we conclude that the dependency petition provided on appeal constitutes
previously unavailable evidence that is material to the respondent's eligibility for SIJ status
under section 101(a)(27)(J) of the Act (Respondent's Brief, Attached Exh. G). Moreover, we
conclude that the facts set forth in the dependency petition, if taken as true, suffice to show that
the respondent is prima facie eligible for classification pursuant to section IOl (a)(27)(J) of the
Act (Respondent's Brief, Attached Exh. G). See Matter of L-0-G-, 21 I&N Dec. 413, 419
(BIA 1996). Therefore, we conclude that the respondent's appellate submission satisfies the
substantive requirements of a motion to remand, and we will grant the respondent's request to
remand the record (Respondent's Brief at 6). See 8 C.F.R. 1003.2(c)(l); Matter of Coelho,
20 l&N Dec. 464, 472 (BIA 1992).
In light of the foregoing, we will remand the record for further proceedings to await
adjudication of the pending dependency petition. On remand, the parties should be provided the
opportunity to supplement the record with evidence relevant to the respondent's eligibility for
SIJ status. Given our disposition of this matter, we need not reach the respondent's arguments
contesting the denial of her continuance request. See Matter ofS-H-, supra, at 465.
Accordingly, the following order will be entered.
ORDER: The record is remanded to the Immigration Court for further proceedings
consistent with the foregoing opinion and for the entry of a new decision.

FOR THE BOARD

2
Cite as: J-C-D-R-, AXXX XXX 705 (BIA Sept. 29, 2015)

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With her appeal,. the respondent has submitted evidence to support the assertion that,
subsequent to the Immigration Judge's decision, a dependency petition was filed with the
appropriate state court (Respondent's Brief at 5, Attached Exh. G). The respondent requests that
the case be remanded in view of her assertions and the supporting evidenc proffered
(Respondent's Brief at 6).

UNITED STATES DEPARTMENT OF JUSTICE

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

May 13, 2015

In the Matter of

JENNIFER CATINA DIAZ-RAMOS

RESPONDENT

)
)
)
)

IN REMOVAL PROCEEDINGS

CHARGE:

Section 212(a)(6)(A)(i) of the Immigration and Nationality Act

APPLICATION:

Motion for a continuance

ON BEHALF OF RESPONDENT: Ellis Bingham

218 South 16th Street North
Bessemer, Alabama 35020
ON BEHALF OF OHS: Najaray Maldonado, Assistant Chief Counsel

ORAL DECISION OF THE IMMIGRATION JUDGE

This case came before the court as the result of a Notice to Appear that
was issued by the Department of Homeland Security. The charging document alleges
that the respondent is a native and citizen of Guatemala and that she is removable from
the United States based on Section 212 of the Immigration and Nationality Act. The
respondent admits the factual allegations in the Notice to Appear and concedes
removability. Based on the foregoing, the court finds by clear and convincing evidence

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File: A-705

that the respondent is removable from the United States as charged. The court
sustains the charge of removability and designates Guatemala.

reasons discussed below, the court denies the continuance. The government does not
agree to a continuance in this case.
The respondent appeared in the court on October 3, 2014, and indicated
to the court that a petition had been filed. The court noted that the respondent lived with
her mother and that she was 12 years old. She said that her father's whereabouts was
unknown. The matter was continued to November 25, 2014. On November 25, 2014,
the respondent again appeared in court and requested a continuance which the court
granted. The matter was reset to January 13th, 2015, to allow the respondent to have
the petition adjudicated. At the hearing on January 13th, 2015, the respondent again
indicated that she was waiting for a decision on the petition. The matter was reset
again to February the 24th, 2015. On February 24th, 2015, the respondent appeared in
court and again indicated that the matter was still being adjudicated by the state court.
The court granted a further continuance of about two months for the matter to be
completed by the state court. The case was reset to April 29th, 2015. On April 29th,
2015, the respondent seemed to indicate that there was an issue that she was pursuing
guardianship and believed that that was the same as a dependency petition. The
respondent was asked to submit a brief on the issue by May 11th, 2015.
At today's hearing, the respondent indicated through counsel that the brief
has not been filed. She wants a further continuance in order to now file a new petition
of some sort. The court finds that the respondent has not demonstrated good cause for
a further continuance. There have been several continuances in this case and this
matter has been pending with the court for over six months. The respondent now seeks
705

May 13, 2015

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The respondent requested a further continuance in this case. For the

to file something which she has indicated that she had filed about six months ago.
Under the circumstances, and given the government's nonagreement to a further

The respondent is removable as charged. The respondent states that she

wants an order of removal, and will reserve her right to appeal the court's decision. The
court will enter the following order:
ORDER
It is hereby ordered the respondent be removed from the United States
based on the charge set forth in the Notice to Appear and that she be deported to
Guatemala.

Please see the next page for electronic

signature

705

EARLE 8 WILSON
Immigration Judge

May 13, 2015

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continuance, the court will deny any further continuance in this case.

/Isl/
Immigration Judge EARLE B WILSON

705

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wilsone on July 8, 2015 at 4:33 PM GMT

May 13, 2015