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U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals


Office ofthe Clerk

5107 leesburg Pike, Suite 2000


Falls Church, Virgmta 2204 I

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Read, Rosslyn Boyd, Esq. OHS/ICE Office of Chief Counsel • AUR
Trefonas Law, P.C. 12445 East Caley Avenue
P 0 Box 2527
. . Centennial, CO 80111-5663
Jackson, WY 83001

Name: POPOCA TL.JIMENEZ, ENRIQUE... A 208-370-486

Date of this notice: 4/19/2018

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

Sincerely,

Donna Carr
Chief Clerk

Enclosure

Panel Members:
Crossett, John P.
Wendtland, Linda S.
Pauley, Roger

Userteam: Docket

For more unpublished decisions, visit


www.irac.net/unpublished/index

Cite as: Enriqueta Popocatl-Jimenez, A208 370 486 (BIA April 19, 2018)
,

U.S. Department of Justice Decision of the Board of Immigration Appeals


Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A208 370 486-Aurora, CO Date:


APR 19 2018

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In re: Enriqueta POPOCATL-JIMENEZ

IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Rosslyn B. Read, Esquire

ON BEHALF OF DHS: Elizabeth Williams


Assistant Chief Counsel

APPLICATION: Continuance

The respondent, a native and citizen of Mexico, appeals from the Immigration Judge's
October 26, 201 7, decision, finding her removable as charged and denying her request for a
continuance in order to await U.S. Citizenship and Immigration Service's (USCIS's) adjudication
of her U visa application, seeking non-immigrant status as a victim of physical or mental abuse as
outlined at section 10l(a)(l5)(U) of the Immigration and Nationality Act, 8 U.S.C.
§ 1101(a)(l5)(U). The Department of Homeland Security (DHS) opposes the appeal. The
respondent's appeal will be sustained and the record will be remanded for further proceedings
consistent with this opinion and the entry of a new decision.

We review findings of fact, including credibility findings, for clear error. 8 C.F.R.
§ 1003.l(d)(3)(i). We review questions of law, discretion, or judgment, and all other issues
de novo. 8 C.F.R. § 1003.l(d)(3)(ii).

The respondent was charged with being present without first being admitted or paroled, but
she maintained before the Immigration Judge, and she reiterates on appeal, that she was admitted
to the United States in 2001 when she presented a relative's documents to an immigration officer
at a port of entry before being allowed to enter this country (IJ at 1-3; Tr. at 12-19; Respondent's
Br. at 7-13). In sustaining the charge, the Immigration Judge did not make specific findings
regarding the facts and circumstances of the respondent's claimed admission into the United States
(IJ at 1-3). Instead, she concluded that where a foreign national is allowed to pass through a port
of entry after engaging in an act of fraud or deception, such as using another's documents, the
individual is not "lawfully admitted," and therefore, is inadmissible under section
212(a)(6)(A)(i)(I) of the Act, 8 U.S.C. § 1182(a)(6)(A)(i)(I) (IJ at 2; Tr. at 18-19).

Because the respondent admitted that she is a native and citizen of Mexico, she has the burden
of proof to establish her place, time, and manner of entry by clear and convincing evidence, as she
is charged with inadmissibility under section 212 of the Act. See sections 240(c)(2)(B), 291 of the
Act, 8 U.S.C. §§ 1229a(c)(2)(B), 1361; 8 C.F.R. § 1240.8(c).

Cite as: Enriqueta Popocatl-Jimenez, A208 370 486 (BIA April 19, 2018)
'

A208 370 486

As we explained in Matter ofQui/antan, 25 l&N Dec. 285 (BIA 20 I 0), a respondent may carry
her burden of proof to establish that she has been previously admitted to the United States if she
can persuasively demonstrate that the admission was "procedurally regular," which does not
require that she was questioned by the authorities or admitted in any status. See also

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Matter of Areguillin, 17 l&N Dec. 308 (BIA 1980). We have further explained that "procedural
regularity" does not require compliance with substantive legal requirements and only requires a
showing that the applicant for admission presented herself for inspection, was inspected, and then
was granted admission, so long as she made no knowing false claims to United States citizenship.
Matter of Quilantan, 25 I&N Dec. at 287, 289-91, 293; cf Matter of Pinzon, 26 I&N Dec. 189,
190-92 (BIA 2013) (distinguishing a knowing false claim to United States citizenship made at a
port of entry and explaining that where such a claim is made the respondent has not effectuated a
procedurally regular admission, in part, because United States citizens are not subject to the same
level of scrutiny at the port of entry, and thus, are not considered to have "been inspected" (internal
citations omitted)).

Upon de novo review, we conclude as a matter of law that the Immigration Judge erred in
requiring that the respondent's admission be substantively, legally valid before she could establish
that she had been inspected and admitted as required to overcome the charge under section
212(a)(6)(A)(i)(I) of the Act (IJ at 2). Instead, as we explained in Matter of Quilantan, if
procedural regularity required all admissions to satisfy all substantive legal requirements, this
would render void provisions like section 237(a)(l)(H) of the Act, 8 U.S.C. § 1227(a)(l)(H),
allowing an alien to waive prior fraud occurring at time of admission. Matter of Quilantan,
25 l&N Dec. at 292; see also Cordova-Soto v. Holder, 659 F.3d 1029, 1033-34 (10th Cir. 2011)
(citing Matter of Quilantan with approval but distinguishing our definition of the term "admitted"
when used alone, as relevant in Matter of Quilantan, from application of the phrase "illegal
reentry" at issue in Cordova-Soto); Matter of Castillo Angulo, 27 I&N Dec. 194, 196 (BIA 2018)
(clarifying that Matter ofQuilantan interprets the term admission as used at section 10l(a)( l 3)(A)
of the Act).

Thus, we conclude that remand of the record is required to allow the Immigration Judge to
consider whether the respondent's testimony regarding her claimed admission into the
United States is sufficient for her to carry her burden of proof in overcoming the charge of
inadmissibility. See, e.g., Pineda v. Lynch, 656 F. App'x 391, 393 (10th Cir. 2016). Moreover,
because inadmissibility is still at issue, we decline to reach the respondent's arguments regarding
her request for further continuances as it relates to the adjudication of her U visa application
currently pending before USCIS (Respondent's Br. at 13-18).

Accordingly, the following orders will be entered.


ORDER: The respondent's appeal is sustained.

FURTHER ORDER: The record is remanded for further proceedings consistent with this
opinion and for the entry e

C FOR THE BOARD

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Cite as: Enriqueta Popocatl-Jimenez, A208 370 486 (BIA April 19, 2018)
J

U.S. Department of Justice Decision of the Board of Immigration Appeals


Executive Office for Immigration Review

Falls Church, Virginia 2204 l

File: A208 370 486 - Aurora, CO Date: APR 19 2018

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In re: Enriqueta POPOCATL-JIMENEZ

DISSENTING OPINION: John P. Crossett, Temporary Board Member

I respectfully dissent.

The Department of Homeland Security (OHS) has charged the respondent with inadmissibility
under section 212(a)(6)(A)(i)(I) of the Immigration and Nationality Act, 8 U.S.C. §
1182(a)(6)(A)(i)(I). The majority concludes that the respondent can overcome that charge on
remand if she demonstrates that her.fraudulent "admission" to the United States was "procedurally
regular" within the meaning of Matter of Quilantan, 25 l&N Dec. 285 (BIA 2010). I disagree.

Under the plain language of section 240(c)(2)(B) of the Act, 8 U.S.C. § 1229a(c)(3)(B), an
alien who seeks to overcome a section 212(a)(6)(A)(i)(I) charge bears the burden to prove by clear
and convincing evidence that she is "lawfally present in the United States pursuant to a prior
admission." (Emphasis added). This statutory requirement of lawful presence is echoed in
8 C.F.R. § 1240.8(c), which requires such an alien to prove by clear and convincing evidence that
she is "lawfully in the United States pursuant to a prior admission." Thus, the controlling statute
and regulation both require an alien challenging a section 212(a)(6)(A)(i)(I) charge to do more
than establish a mere Quilantan "admission"; such an alien must also show that she is "lawfully
present" or "lawfully in" the United States.

The majority (implicitly) concludes that presence gained by means of a "procedurally regular"
admission must perforce be "lawful." I disagree. An admittedly-fraudulent "admission," even if
"procedurally regular" under Quilantan, does not leave the fraudulent entrant "lawfully present in
the United States" thereafter. On the contrary, a person who procures admission by fraud is both
inadmissible under section 212(a)(6)(C)(i) of the Act and subject to criminal prosecution under
section 275 of the Act, 8 U.S.C. § 1325. In my view, treating a fraudulent entrant as "lawfully
present" in the United States does too much violence to the plain language of section 240(c)(2)(B)
of the Act, and to common sense.

In coming to this conclusion, I concede the superficial oddity of treating a person with a
Quilantan "admission" as inadmissible under section 212(a)(6)(A)(i)(I). I am also mindful that
sustaining such a charge could vitiate the effect of section 237(a)(l)(H) of the Act, 8 U.S.C.
§ 1227(a)(l)(H). Indeed, were there a plausible way to harmonize the Act's various, internally
contradictory, provisions bearing on the effect of fraudulent entries, I would eagerly embrace it.
But the majority proposes none, and I am not persuaded that ignoring the "lawfully present in the
United States" language of section 240(c )(2)(B) is a reasonable price to pay for salvaging section
237(a)(l)(H). Doing so merely robs Peter to pay Paul.

As I conclude that the respondent would remain inadmissible under section 212(a)(6)(A)(i)(I)
of the Act even if her admittedly-fraudulent "admission" were "procedurally regular" within the

Cite as: Enriqueta Popocatl-Jimenez, A208 370 486 (BIA April 19, 2018)
A208 370 486

meaning of Quilantan, I respectfully dissent from the majority's decision to remand the record for
further examination of the Quilantan issue.

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John P. rossett
Temporary Board Member

2
Cite as: Enriqueta Popocatl-Jimenez, A208 370 486 (BIA April 19, 2018)
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT

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AURORA, COLORADO

File: A208-370-486 October 26, 2017

In the Matter of

)
ENRIQUETA POPOCATL-JIMENEZ ) IN REMOVAL PROCEEDINGS
)
RESPONDENT )

CHARGE: Section 212(a)(6)(A)(i) of the INA.

APPLICATIONS: None.

ON BEHALF OF RESPONDENT: ROSSLYN READ


Trefonas Law, PC
PO Box 2527
Jackson, Wyoming 83001

ON BEHALF OF OHS: ELIZABETH WILLIAMS


U.S. Department of Homeland Security
12445 East Caley Avenue
Denver, Colorado 80111

ORAL DECISION OF THE IMMIGRATION JUDGE

I. PROCEDURAL HISTORY

Removal proceedings commenced, and jurisdiction vested with the

Immigration Court (Court) when the U.S. Department of Homeland Security

(Department) filed a Notice to Appear (NTA) with the Court on January 9, 2017. See

Exhibit 1. The NTA alleged that Enriqueta Popocatl-Jimenez (respondent) was not a

citizen or national of the United States, was a native and citizen of Mexico, who arrived

Cite as: Enriqueta Popocatl-Jimenez, A208 370 486 (BIA April 19, 2018)
in the United States at or near El Paso, Texas, in 2001. The Department further alleged

that respondent was not admitted or paroled after inspection by an Immigration Officer.

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On January 25, 2017, respondent appeared in court with counsel and pleaded to the

allegations and charge on the NTA. Respondent through counsel admitted the first

three factual allegations but denied allegation four and denied the charge. The matter

was set over for contested pleadings to give respondent an opportunity to prove her

lawful entry into the United States. On February 22, 2017, the Court considered

respondent's testimony and the evidence provided and determined that respondent had

not proven that she had lawfully entered the United States and the Court sustained the

charge of removability.

The Court then gave respondent a number of continuances to file a U visa

application and also to consider other forms of relief. Eventually, on July 19, 2017,

respondent did file an asylum application with the Court. �Prior to that, respondent

t:iad a filed evidence of her U visa application and that is contained in the record as

Exhibit 2. Included in this exhibit are respondent's criminal conviction records as well.

The asylum application is contained in the record as Exhibit 3. The application was

received by the Court on July 19, 2017.

On October 19, 2017, respondent filed a motion with the Court requesting

that the applications for asylum, withholding of removal, and protection under the

Convention Against Torture be withdrawn and further requested the merits hearing

scheduled for November 2 be vacated. The Court granted that motion, scheduled a

hearing today, and the respondent's counsel has requested the Court continue the case

further and the Court has declined to do so. Respondent's counsel indicated an intent

to appeal the Court's decision to deny another continuance and therefore respondent is

not seeking pre-conclusion voluntary departure. As far as post-conclusion voluntary

A208-370-486 2 October 26, 2017

Cite as: Enriqueta Popocatl-Jimenez, A208 370 486 (BIA April 19, 2018)
departure, respondent does not appear to be eligible for this because she has a fairly

recent possession of a controlled substance offense. Further, even if she were eligible,

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the Court would not be willing to exercise discretion in this matter simply because the

case has been pending so long and the respondent does have a criminal history. So,

the Court enters an order of removal because there are no applications for relief

pending before this Court.

II. FINDING AND ANALYSIS

Based on respondent's admissions to the first three allegations, the Court

determined that the burden fell on respondent to prove her lawful entry into the United

States. The Court considered respondent's testimony and all the evidence provided

and the Court determined that respondent had not met her burden of proof in showing

that she entered the United States lawfully and therefore the Court sustained the charge

of removability.

Respondent has no forms of relief before this Court. Counsel has

indicated she filed a U visa application, has provided evidence of that, and that is

contained in the record as Exhibit 2. However, respondent is detained at Government

expense and not eligible for bond because she has a controlled substance offense.

She is subject to mandatory detention. The Court had advised the respondent and

counsel earlier that the Court would not be willing to simply indefinitely continue

respondent's case for a U visa, that if the Court did not have any applications for relief

pending before it, the Court would have to adjudicate and issue a decision. Eventually,

respondent filed an 1-589 application for asylum in July after her case had been pending

for more than six months with the Court. The Court scheduled an individual hearing to

hear the merits of this asylum application on to be set for November 2. 2017. However,

respondent has now withdrawn the application for asylum and withholding of removal

A208-370-486 3 October 26, 2017

Cite as: Enriqueta Popocatl-Jimenez, A208 370 486 (BIA April 19, 2018)
and protection under the Convention Against Torture and is renewing her request for

additional continuances. According to respondent's counsel, she has communicated with CIS and she

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that respondent apparently has responded to and respondent's counsel is assuring this

Court that it is just a simple item that USCIS is requesting and she is very optimistic that

the U visa will be approved.

However, this Court is not willing to entertain anymore continuances.

Respondent has already received many continuances and had even set an individual

hearing for November 2 which has now been vacated just two weeks in advance. The

fact of the matter is a late vacating of a merits hearing is somewhat costly for the Court.

It is too late for the Court to fit another case in to that date. And the Court does take

that as a consideration in as far as judicial economy. But that is not the determinative

factor. The fact of the matter is the Department has indicated it would not be agreeing

to an administrative closure of the case even if respondent did receive a U visa and is

not likely to terminate proceedings even with an approved U visa because of

respondent's criminal history. Counsel certainly is optimistic that the U visa will be

approved soon. And she is further optimistic that she can convince the Department to

either terminate the case or parole her client out. It is unclear why, but that is just not

enough for this Court to indefinitely continue the U visa. This Court has already told

respondent and counsel of its unwillingness to indefinitely continue the U visa

applications that are pending when a person is detained, particularly subject to

mandatory detention. So, the Court does recognize that in some cases it is appropriate

to grant a respondent continuances to complete and pursue a U visa that is likely to be

approved. However, this Court does not find this fits into one of those cases since

respondent is detained, has already received multiple continuances, and is detained at

Government expense. And it is unclear how long she would sit in detention while the U

A208-370-486 4 October 26, 2017

Cite as: Enriqueta Popocatl-Jimenez, A208 370 486 (BIA April 19, 2018)
visa is pending because even if CIS approves it there is a cap. And it is unclear that

she would be released from custody.

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Furthermore, respondent is not eligible for pre-conclusion voluntary

departure because she is appealing the decision. And furthermore, it does not appear

she is eligible for a post-conclusion voluntary departure because she has not been able

to demonstrate good moral character for the last five years given the controlled

substance offense. Even if she had demonstrated good moral character, the Court

does not see that this is a case that necessarily merits the discretionarv relief of

voluntary departure. And therefore, the Court will issue an order of removal to Mexico.

ORDERS

IT IS HEREBY ORDERED that respondent's request for continuance be

denied;

IT IS FURTHER ORDERED that respondent's application for voluntary

departure be denied;

IT IS FURTHER ORDERED that respondent be removed to Mexico.

Please see the next page for electronic

signature
ELIZABETH H. MCGRAIL
Immigration Judge

A208-370-486 5 October 26, 2017

Cite as: Enriqueta Popocatl-Jimenez, A208 370 486 (BIA April 19, 2018)