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U.S.

Department of Justice
Executive Office for Immigration Review

Board of Immigration Appeals


Office of the Clerk
5107 Leesburg Pike, Suite 2000
Falls Church, Virginia 20530

OHS/ICE Office of Chief Counsel - LOU


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

Name: ILHEUS, MARIA JOSE

A 200-564-852

Date of this notice: 1/21/2015

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

Donna Carr
Chief Clerk

Enclosure
Panel Members:
Adkins-Blanch, Charles K.

Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: Maria Jose Ilheus, A200 564 852 (BIA Jan. 21, 2015)

Immigrant & Refugee Appellate Center | www.irac.net

Kozoll, Christopher Michael


Kozoll Hash Immigration Law PLLC
332 West Broadway, Suite 1213
Louisville, KY 40202

U.S. Department Mf Justice

Decision of the Board of Immigration Appeals

.. Executive Office for Immigration Review

Falls Church, Virginia 20530

File:

A 2 00 564 852 - Louisville, KY

Date:

JAN 212015

In re: MARIA JOSE ILHEUS

IN REMOVAL PROCEEDINGS

ON BEHALF OF RESPONDENT:
ON BEHALF OF DRS:

Christopher Michael Kozoll, Esquire

Jamee E. Comans
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: None

An appeal from the Immigration Judge's decision in this case is currently pending before this

Board. The respondent, through counsel, has submitted a request to administratively close these
proceedings to allow her the opportunity to pursue applications, including a Form I-601A
provisional waiver of inadmissibility, with the Department of Homeland Security ("DRS").

The

respondent's request includes evidence that she has submitted applications with United States
Citizenship and Immigration Services ("USCIS"), as well as evidence in support of the bona
fides of her marriage to a United States citizen. The DRS has not responded to the respondent's
request or otherwise opposed administratively closing the respondent's removal proceedings.
The motion will be granted, and the proceedings administratively closed.
If either party to this case wishes to reinstate the proceedings, a written request to reinstate
the proceedings may be made to the Board.

The Board will take no further action in the case

unless a request is received from one of the parties. The request must be submitted directly to
the Clerk's Office, without fee, but with certification of service on the opposing party.
Accordingly, the following order will be entered.
ORDER: The proceedings before the Board of Immigration Appeals

this case are

administratively closed.

Cite as: Maria Jose Ilheus, A200 564 852 (BIA Jan. 21, 2015)
1

_N. . .mm:

Immigrant & Refugee Appellate Center | www.irac.net

APPEAL AND MOTION

..

UN ITED STATES DEPARTMENT OF J USTICE


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

In the Matter of

[MARIA JOSE ILHEUS

IN REMOVAL PROCEEDINGS

RESPONDENT

INA Section 212(a)(6)(A)(i)

CHARGES:

alien present in the United States

without being admitted or paroled, or who arrived in the United


States at any time or place other than as designated by the
Attorney General.

APPLICATIONS:

Request for a continuance of proceedings.

ON BEHALF OF RESPONDENT: CHRISTOPHER KOSEL, attorney at law


ON BEHALF OF OHS: JAMEE COMANS, Assistant Chief Counsel

ORAL DECISION AN D ORDER OF THE IMMIGRATION JUDGE


On February 14, 2011, the Department of Homeland Security filed a Notice to
Appear, dated November 16, 2010, with this Court, vesting jurisdiction. 8 C. F . R.
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

Immigrant & Refugee Appellate Center | www.irac.net

March 18, 2013

File: A200-564-852

alien's counsel of record. INA Section 237; 8 C.F.R. 1003.13.


The respondent appeared in Court on September 17, 2012, and acknowledged
proper service of the Notice to Appear. Based upon the respondent's

the Notice to Appear, the Court will find that the Notice to Appear has been properly
served.
The respondent was also afforded ten days following service of the Notice to
Appear prior to appearing before an Immigration Judge, as is required.
The respondent also, in her appearance on September 17, 2012, admitted the
factual allegations contained in the Notice to Appear; that is, she is not a citizen or
national of the United States, is a native and citizen of Brazil, and that she arrived in the
United States and was not admitted or paroled after inspection by an Immigration
officer. The respondent alleged that she entered the United States in May of 2004
through Arizona. The respondent further conceded that she is removable pursuant to
Section 212(a)(6)(A)(i) of the Immigration and Nationality Act as an alien present in the
United States without being admitted or paroled, or who arrived in the United States at
any time or place other than as designated by the Attorney General.
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 alienage has been established, the respondent must
prove by clear and convincing evidence that she is lawfully present in the United States
pursuant to a prior admission or is entitled to be admitted. Section 240(c)(2)(B) of the
Act; 8 C.F.R. 1240.B(c).

Based upon the adm issions of the respondent and her concessions as to
removability, the Court will find that the Department of Homeland Security has
established alienage by clear and convincing evidence and that the respondent has

A200-564-852

March 18, 2013

Immigrant & Refugee Appellate Center | www.irac.net

acknowledgement as to proper service and the certificate of service which is attached to

failed to establish she is present in the United States lawfully or is entitled to be


admitted to the United States. On that basis, the Court has sustained and re-sustaineG
the charge pursuant to the Act.

matter. The respondent has the burden to establish eligibility for any and all forms of
relief requested.
An Immigration Judge may grant a motion for a continuance for good cause
shown. 8 C. F. R. 1003.29. Factors to consider in whether or not a motion should be
granted include whether or not the motion is opposed by the Department of Homeland
Security, whether there was time to gather relevant evidence, whether or not a prior
continuance has been granted, and whether there is any underlying relief available to
the respondent. See Ilic-Lee v. Mukasey, 507 F .3d 1044 (6th Cir. 2007); Subhan v.
Ashcroft, 383 F.3d 591 (7th Cir. 2004); Cordova v. Gonzales, 06-3917, 2007
WL2386488 (6th Cir. 2007); Matter of Sibrun, 18 l&N Dec. 354 (BIA 1983); and Matter
of Hashmi, 24 l&N Dec. 785 (BIA 2009).
In Matter of Sibrun, the Board of Immigration Appeals held that a continuance
should be granted only upon a showing that the inability to proceed occurs despite a
diligent good faith effort to be ready to proceed and that any additional evidence sought
is probative, non-cumulative and significantly favorable to the respondent. An abuse of
discretion in denying a request for a continuance occurs if the denial is made without a
rational explanation, inexplicably departs from established policies or is rested upon an
impermissible basis, such as invidious discretion. Abdul-Jaleel, 436 F.3d 627 (6th Cir.
2006).
In this case, the Court has considered the respondent's arguments, which consist
of the fact that she would like to have a continuance in order to marry her fiance and
then to request a waiver under new procedures outlined approximately two weeks ago

/.

A200-564-852

March 18, 2013

Immigrant & Refugee Appellate Center | www.irac.net

The respondent seeks no form of relief with the exception of a continuance of this

by the Immigration Service for individuals who have been present in the United States
and seek a waiver of inadmissibility due to their unlawful presence in the United States
for more than one year. The respondent's counsel indicates that the respondent is not

the respondent is not married other than that there is no timetable for such marriages.
The Department of Homeland Security objects to a continuance on the basis that the
respondent has been in proceedings for more than two years and objects to any
continuance in the matter. The Court has considered the respondent's request and the
Department's opposition.
The respondent has been in proceedings for more than two years and her first
appearance before the Court was on November 28, 2011. Subsequent to that time, the
respondent, on September 17, 2012, was given an additional continuance for
preparation. The respondent has therefore had two continuances to prepare her case
and to request any and all relief available. She was told to file any and all applications
for relief and that the matter would be moving forward on today's date.
The respondent, despite being in proceedings for almost two years, has failed to
marry and failed to request any relief available. The respondent has had time to marry

if she intended to do so and to file her 1-130 application. The Court will note that, in
Matter of Hashmi, the respondent already had an 1-130 application that was filed and
pending. The Court in this case does not have any 1-130 and it is speculative at this
point as to whether or not the respondent will, in fact, marry since she has provided no
excuse for the reason for not marrying and has simply indicated that she intends to do
so at some point in the future.
Additionally, the Department of Homeland Security opposes a continuance in this
case. Therefore, considering all of the factors as outlined in Matter of Sibrun, Matter of
Hashmi, and the other cases cited, the Court will deny the respondent's request for a

A200-564-852

March 18, 2013

Immigrant & Refugee Appellate Center | www.irac.net

yet married and intends to be married soon, but does not have an explanation for why

continuance in this matter as there is no underlying relief available and it is entirely


speculative at this point as to whether she would be available for relief.
The respondent has indicated that she does not intend to request any relief and

ORDER
Based upon the foregoing, the following orders will enter:

IT IS HEREBY ORDER ED that the respondent's request for a continuance be,


and hereby is, denied.
IT IS FURTHER ORDERED that the respondent be removed to Brazil on the
charges contained in the Notice to Appear.

March 18, 2013

Please see the next page for electronic


signature
REBECCA L. HOLT
Immigration Judge

A200-564-852

March 18, 2013

Immigrant & Refugee Appellate Center | www.irac.net

the Court will therefore order the respondent removed to Brazil.

',

/Isl/
Immigration Judge REBECCA L.
holtr on May 13,

HOLT

2013 at 5:59 PM GMT

Immigrant & Refugee Appellate Center | www.irac.net

A200-564-852

March 18, 2013

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