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Department of Justice
Executive Office for Immigration Review
A 200-564-852
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
Cite as: Maria Jose Ilheus, A200 564 852 (BIA Jan. 21, 2015)
File:
Date:
JAN 212015
IN REMOVAL PROCEEDINGS
ON BEHALF OF RESPONDENT:
ON BEHALF OF DRS:
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.
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
administratively closed.
Cite as: Maria Jose Ilheus, A200 564 852 (BIA Jan. 21, 2015)
1
_N. . .mm:
..
In the Matter of
IN REMOVAL PROCEEDINGS
RESPONDENT
CHARGES:
APPLICATIONS:
File: A200-564-852
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
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
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
yet married and intends to be married soon, but does not have an explanation for why
ORDER
Based upon the foregoing, the following orders will enter:
A200-564-852
',
/Isl/
Immigration Judge REBECCA L.
holtr on May 13,
HOLT
A200-564-852