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U.S.

Department of Justice
Executive Office for Immigration Review
Board ofImmigration Appeals
Office of the Clerk
5/07 Leesburg Pike, Suite 2000
Falls Clwrch, Virginia 22041

DHS/ICE Office of Chief Counsel - ATL


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

Name: Jllllil-JIIIII A-

A19
Date of this notice: 3/10/2016

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

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Pauley, Roger

Userteam : Docket

For more unpublished BIA decisions, visit


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Cite as: A-J-J-, AXXX XXX 419 (BIA March 10, 2016)

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Hayes, Anne K. Sanford, Esq.


P.O. Box 716
Rome, GA 30162

'

'-

U.S. Department of Justice


Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 22041

Date:

File: 419-Atlanta, GA

MAR 1 0 2016

In re:

APPEAL AND MOTION


ON BEHALF OF RESPONDENT: Anne K. Banford Hayes
ON BEHALF OF DRS: Kelley Fowler
Assistant Chief Counsel
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: Remand
The respondent, a native and citizen of Guatemala, appeals the Immigration Judge's
April 8, 2015, decision denying the respondent's request for a continuance and ordering him
removed from the United States. During the pendency of the respondent's appeal, he filed a
motion to supplement his appellate brief with new evidence, which we will construe as a motion
to remand the matter to the Immigration Judge. The respondent's motion, to which the
Department of Homeland Security has not responded, will be granted and the record will be
remanded.
The Board reviews an Immigration Judge's findings of fact, including credibility
determinations and the likelihood of future events, under a "clearly erroneous" standard. 8 C.F.R.
1003.l(d)(3)(i); Matter of Z-Z-0-, 26 I&N Dec. 586 (BIA 2015). We review all other issues,
including questions of law, judgment, or discretion, under a de novo standard. 8 C.F.R.
1003.l(d)(3)(ii).
The respondent's motion to remand is based on a Form 1-360 (Petition for Amerasian,
Widow(er), or Special Immigrant), which was approved by the United States Citizenship and
Immigration Services (USCIS) on September 14, 2015. The respondent also submitted proof that
he has properly filed a Form I-485 (Application to Register Permanent Residence or Adjust
Status). Because it appears that the respondent is statutorily eligible to adjust his status, we will
remand the matter to the Immigration Judge to adjudicate the respondent's application.
In his motion, the respondent requested that the Board issue guidance concerning
Immigration Judges' consideration of continuances in cases like the respondent's. However,
because our remand renders moot the issue of the denial of the continuance, we decline to reach
or issue guidance concerning the continuance. Accordingly, the following order will be entered.

Cite as: A-J-J-, AXXX XXX 419 (BIA March 10, 2016)
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IN REMOVAL PROCEEDINGS

19
ORDER: The record is remanded to the Immigration Judge for further proceedings consistent
with this order and for the entry of a new decision.

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

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Cite as: A-J-J-, AXXX XXX 419 (BIA March 10, 2016)
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April 8, 2015

File:19
In the Matter of
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JIIIIIJIIII
RESPONDENT

IN REMOVAL PROCEEDINGS

CHARGES:

Section 212(a)(6}(A)(i) of the INA, as amended, in that he is an


alien present in the United States without being admitted or paroled
or who entered the United States at any time or place other than as
designated by the Attorney General.

APPLICATIONS:

Motion to continue.

ON BEHALF OF RESPONDENT: ANNE K. SANFORD HAYES, Esquire


P.O. Box 716
Rome, GA 30162
ON BEHALF OF OHS: KELLY FOWLER, Assistant Chief Counsel
180 Spring Street, SW, 3rd Floor
Atlanta, GA 30303

ORAL DECISION OF THE IMMIGRATION JUDGE


The respondent is a 17-year-old male, native and citizen of Guatemala, who was
issued a Notice to Appear on February 26, 2014. See Exhibit No. 1. At a Master
Calendar hearing held on March 18, 2015, the respondent appeared, represented by
counsel, and tendered written pleadings conceding proper service of the charging
1

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UNITED STATES DEPARTMENT OF JUSTICE


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

..
document, admitting all allegations, conceding the one charge under 212(a)(6)(A)(i),
and designating Guatemala as the country of removal in the event that that should

On that date, the respondent was given a new notice of hearing in order to come
back to Court today, on April 8, 2015, in order to receive any and all applications for
relief. The respondent, on today's date, has simply asked for a motion to continue. The
circumstances are as follows. The respondent's attorney has indicated that it is
possible that he may be eligible for SIJ status, Special Immigrant Juvenile status. It is
the Court's understand that, in order for a juvenile to meet the qualifications for Special
Immigrant Juvenile status, they cannot be residing with both parents and there has to
be an allegation that either one or both parents have abused, neglected or abandoned
the child. In this particular case, I have nothing in my file to indicate that that is the
case. He is, according to the respondent's counsel, living with both of his parents in
Alabama. Furthermore, counsel did advance an argument that there is a possibility that
he may be eligible under a different particular procedure that may end up having him
assigned to a foster care program. It was a little bit confusing insofar as it is a State
Court, it is not even an issue that I need to address insofar as I do not have jurisdiction
over that. I do have, however, jurisdiction for the motion to continue and I have nothing
in my file to indicate that that motion to continue would be warranted and insofar as I
have nothing to show that he has been abandoned, abused or neglected or that
anything has been filed in State Court to show that that is the case or that there has
been any police report or any complaint or any concern from a Children and Families
Agency in the state of Alabama as to the well-being of this particular child.
I will note that this matter has been pending before the Court since the filing of
the NTA on April 21, 2014. I have nothing to show that he would be eligible for the
419

April 8, 2015

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become necessary.

..

.
underlying application that he wishes to pursue. The Court is also mindful of the fact
that if, in fact, he is able to obtain a dependency order, an 1-360 can and most likely

the respondent would be able to advance on a motion to re-open with the Court or have
the OHS join in a motion to re-open in order to pursue adjustment of status and if he
successful with the 1-360 petition. But as it is right now, we have absolutely nothing to
show that there is good cause to set this case out; it is just mere speculation. As
sympathetic as the Court might be, that is not going to give rise to good cause for a
motion to continue.
At this time, the respondent has opted to accept an order of removal, reserving
the right to appeal, and the Court will issue its order accordingly. Having found the
respondent removable as charged and finding that there is no good cause for a motion
to continue and having received no applications for relief from removal, at this time the
respondent will be ordered removed to Guatemala on the charges contained in the
Notice to Appear.

April 8, 2015

Please see the next page for electronic


signature

MADELINE GARCIA
Immigration Judge

April 8, 2015

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would be adjudicated by the CIS. That does not impede in any way, shape or form that

"'

/Isl/
Irrunigration Judge MADELINE GARCIA

419

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garciama on June 11, 2015 at 12:10 PM GMT

April 8, 2015