U.S.

Department of Justice
..

Executive Office for Immigration Review

Board ofImmigration Appeals

Office ofthe Clerk

5107 Leesburg Pike, Sulle 2000

Falls Church. Virg1ma 22041

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

Ortiz, Kati OHS/ICE Office of Chief Counsel - SEA
Ortiz Law Office, PLLC 1000 Second Avenue, Suite 2900
630 SW 149th St Seattle, WA 98104
Ste 102
Burien, WA 98166

Name: GUZMAN-ARROYO, RUBEN A 205-297-496

Date of this notice: 3/5/2018

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

Sincerely,

Donna Carr
Chief Clerk

Enclosure

Panel Members:
Guendelsberger, John

Userteam: Docket

For more unpublished decisions, visit

www.irac.net/unpublished/index

Cite as: Ruben-Guzman Arroyo, A205 297 496 (BIA March 5, 2018)
•

U.S. Department of Justice Decision ofthe Board oflmmigration Appeals

Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A205 297 496 - Seattle, WA Date:

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

MAR -
5 2018
In re: Ruben GUZMAN-ARROYO

IN JIBMOVAL PROCEEDINGS

MOTION

ON BEHALF OF RESPONDENT: Kati Ortiz, Esquire

ON BEHALF OF OHS: Xiao Yan Huang

Assistant Chief Counsel

ORDER:

The Immigration Judge terminated proceedings, without prejudice, on August 28, 2017,
based on an approved provisional waiver of inadmissibility under section 212(a)(9)(B)(v) of the
Immigration and Nationality Act, 8 C.F.R. § 212.7(2)(2013). The OHS had filed an appeal',
with the Board, on September 27, 2017, challenging the Immigration Judge's termination of the
proceedings because OHS has opposed the motion and OHS believed the respondent remained
removable as charged. On December 26, 2017, the respondent filed a motion, with the Board, to
remand due to evidence. The respondent was issued an immigrant visa and was subsequently
admitted to the United States as a Lawful Permanent Resident on November 29, 2017. See INA
§ 212(a)(9)(A). Considering the circumstances, presented, the appeal is dismissed and these
proceedings will remain terminated as so ordered by the Immigration Judge on August 28, 2017.

1 The OHS has now filed a motion, with the Board, to withdraw their appeal. We will consider
this motion to withdraw as moot, as the OHS appeal has been dismissed.

Cite as: Ruben-Guzman Arroyo, A205 297 496 (BIA March 5, 2018)
•

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
SEATTLE IMMIGRATION COURT
SEATTLE, WASHINGTON

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

In the Matter of:
File Number: A205-297-496
Ruben GUZMAN-ARROYO,

Respondent. IN REMOVAL PROCEEDINGS

CHARGE: INA§ 212(a)(6)(A)(i)- Presence in the United States without

Admittance or Parole

APPLICATION: Motion to Re-calendar and Terminate Proceedings

ON BEHALF OF RESPONDENT ON BEHALF OF DHS

Kati Ortiz, Esquire Xiao Yan Huang, Assistant Chief Counsel
Ortiz Law Office, PLLC Department of Homeland Security- ICE
630 SW 149th Street, Suite 102 1000 Second Avenue, Suite 2900
Burien, WA 98166 Seattle, WA 98104

DECISION OF THE IMMIGRATION JUDGE

I. Introduction and Procedural History

The proceedings had been administratively closed on September 3, 2013, upon joint
request by both parties. The respondent has an approved I-601A waiver of inadmissibility and now
moves to terminate proceedings in order to pursue consular processing outside the United States.

The Court finds given the guidance from the Department of Homeland Security's ("DHS")
rules and regulations, the proper remedy here is termination of proceedings. See Provisional
Unlawful Presence Waivers oflnadmissibility for Certain Immediate Relatives, 78 Fed. Reg. 536-
01, (Jan. 3, 2013) ("Rule").

The OHS argues "[t]he I-601A waiver does not waive [the INA§ 212(a)(6)(A)(i)] ground
of inadmissibility and the respondent has not been admitted or paroled. The OHS further argues
the rule states that the Department 'will not create a nonremovability clause or confidentiality
provision to preclude automatic initiation of removal proceedings,' with regard to aliens who have
filed for an I-601A waiver." DHS Second Respondent to Motion to Dismiss Proceedings (quoting
78 Fed. Reg. at 536). However, the Court notes the DHS is relying on a portion of the Rule that
discusses DHS's actions when an I-601A waiver is denied. See id. at 554 ("OHS will follow the
NTA issuance policy in effect at the time ofthe adjudication to determine ifit will initiate removal
proceedings against an applicant whose Form I-601A provisional unlawful presence waiver
application is denied.").

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The OHS also argues the respondent must re-calendar and apply for voluntary departure.
However, the Court notes the Rule discusses comments made during the rulemaking process about
whether the OHS should require aliens whose cases have been administratively closed to pursue
voluntary departure. See id. at 544. Instead, the OHS decided to require aliens who are in removal
proceedings, whose proceedings are administratively closed, and who have an approved I-601A
waiver, to "seek termination or dismissal of the proceedings, without prejudice, by EOIR. The
request for termination or dismissal should be granted before the alien departs for his or her
immigrant visa interview abroad." Id.

The OHS further argues this Court does not have the "authority to terminate removal
proceedings when an I-601A provisional unlawful presence waiver has been approved." OHS
Second Respondent to Motion to Dismiss Proceedings. The Court acknowledges it has no authority
over the Form I-601A. 8 C.F.R. §212.7(e)(l) ("Form I-601A, will be filed only with USCIS even
if an alien is in removal proceedings before EOIR."). However, the respondent filed his Form 1-
601A with USCIS, it was approved, and this Court has the authority to terminate these proceedings.
8 C.F.R. §§ 245.l(c)(8)(ii)(D), (iii)(D).

Lastly, the Court notes the instructions for the Form I-601A waiver state once an alien in
removal proceedings has their provisional unlawful presence waiver approved, they should "obtain
a termination or dismissal order from EOIR." Form I-601A Instructions, I-601A, Application for
Provisional Unlawful Presence Waiver, at 3 (Dec. 23, 2016).

ORDERS

IT IS HEREBY ORDERED that the respondent's motion to re-calendar the proceedings is

GRANTED;

IT IS FURTHER ORDERED that the respondent's proceedings be, and hereby are,
TERMINATED WITHOUT PREJUDICE.1

Immigration Judge

1 The Court further observes it has noticed several unpublished decisions from the Board of Immigration Appeals
that appear to terminate proceedings in similar circumstances to those presented here.

A205-297-496 2