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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

Name: TORRES RESENDIZ, IVAN

A 200-626-963

Date of this notice: 7/14/2015

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

DOrutL CtVvu
Donna Carr
Chief Clerk
Enclosure
Panel Members:

Grant, Edward R.

Userteam: Docket

For more unpublished BIA decisions, visit


www.irac.net/unpublished/index/
Cite as: Ivan Torres-Resendiz, A200 626 963 (BIA July 14, 2015)

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

OHS/ICE Office of Chief Counsel - SND


880 Front St., Room 2246
San Diego, CA 92101-8834

U.S. Dpartment of Justice

Executive Office'for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 20530

File: A200 626 963 - San Diego, CA

Date:

JUL 14 2015

In re: IVAN TORRES-RESENDIZ

APPEAL
ON BEHALF OF RESPONDENT: Pro se
ON BEHALF OF DHS:

Kathryn Stuever
Senior Attorney

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: Continuance; administrative closure

The respondent appeals the Immigration Judge's February 27, 2014, decision denying the
respondent's request for a continuance. 1 The record will be remanded.
We review Immigration Judges' findings of fact for clear error, but questions of law,
discretion, and judgment, and all other issues, de novo. 8 C.F.R. 1003.l(d)(3)(i), (ii).
The Immigration Judge denied the respondent's motion for a further continuance to file a
new application for Consideration of Deferred Action for Childhood Arrivals (Form 1-8210)
before the United States Citizen and Immigration Services ("USCIS"). The Immigration Judge
noted the prior continuances granted to the respondent pending adjudication of the initially filed
I-8120 and considered the evidence of the respondent's DUI conviction which adverse factor
appears to have been the basis for USCIS denying the initially filed I-812D. See generally
Matter ofAvetisyan, 25 I&N Dec. 688, 696 (BIA 2012) (discussing relevant factors for
administrative closure, including likelihood the respondent will succeed on any application);
Matter of Hashmi, 24 I&N Dec. 785 (BIA 2009) (recognizing that a continuance may be
warranted where an alien has demonstrated that he is the beneficiary of a pending immigrant visa
petition and established a likelihood of success on an application for adjustment of status).
However, during the pendency of the appeal the respondent submitted evidence indicating
that his DUI conviction has since been vacated along with evidence of a newly filed I-812D with
USCIS. In light of the foregoing, the record will be remanded to the Immigration Judge for
1

Removability is not disputed.


Cite as: Ivan Torres-Resendiz, A200 626 963 (BIA July 14, 2015)

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

IN REMOVAL PROCEEDINGS

.......

A200 626 963.


consideration of whether the pendency of the new I-812D before USCIS warrants a continuance
or administrative closure.
Accordingly, the following order will be entered.

FORTBcfARD

Cite as: Ivan Torres-Resendiz, A200 626 963 (BIA July 14, 2015)

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

ORDER: The record will be remanded for proceedings.

File: A200-626-963

February 27, 2014

In the Matter of

IVAN TORRES RESENDIZ


RESPONDENT

)
)
)
)

IN REMOVAL PROCEEDINGS

CHARGES:

Section 212(a)(6)(A)(i) of the Act - as an alien present without


admission or parole.

APPLICATIONS:

Request for a continuance.

ON BEHALF OF RESPONDENT: MARIA ESTELLA DEORDUNA


F. Alexandra Law Group
865 Anchorage Place
Chula Vista, California 91914
ON BEHALF OF OHS: KATHRYN STUEVER
Senior Chief Counsel, ICE
880 Front Street, Suite 2246
San Diego, California 92101

ORAL DECISION OF THE IMMIGRATION JUDGE


The respondent is a native and citizen of Mexico who arrived in the United
States at or near San Ysidro, California on or about January 1, 1999 and was not then
admitted or paroled after inspection by an Immigration Officer. The Government

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

UNITED STATES DEPARTMENT OF JUSTICE


EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
SAN DIEGO, CALIFORNIA

initiated these proceedings against the respondent with the issuance of the Notice to
Appear dated September 23, 2010, charging the respondent with removability under

Exhibit 1.
At a master calendar session on October 25, 2012, the respondent
admitted the allegations and conceded the charge of removability. Based on those
admissions and concessions I find his removability has been established.
As relief from removal, respondent is only eligible in this Court at this time
for pre-conclusion voluntary departure under Section 240B(a) of the Act, but the
respondent is not willing to waive appeal on that which is required for that, so that relief
will be denied. The respondent initially had sought several continuances to apply for
non-permanent resident cancellation of removal under Section 240A(b)(1) of the Act,
and to seek either prosecutorial discretion or DACA, the Deferred Action For Childhood
Arrivals, with the Department of Homeland Security.
On February 25, 2012 the respondent was given time for attorney
preparation and his case was set to October 25, 2012 to plead to the allegations and file
any relief applications in court.
On October 25, 2012, the respondent did admit the allegations and
conceded the charge, indicated that he had a citizen wife who had an approved 1-130
petition, but there was a problem under Section 245(i) and he would be unable to adjust
in the United States. At that time the case was set over to file the 428 application and
an adjustment of status application should that become viable.
On August 15, 2013, the respondent again appeared in court and
indicated that his DACA application was denied by USCIS because of a DUI conviction,
and respondent requested a continuance so they needed three years from the date of

A200-626-963

February 27, 2014

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

Section 212(a)(6)(A)(i) of the Act as an alien present without admission or parole. See

the offense to seek a vacation or expungement in the criminal courts, which the Court
was informed would have been in September of 2013. At that time, because of the age

completed application for cancellation of removal or any other applications for relief and
also to give him the opportunity to have the remedial action done in the criminal courts.
At today's hearing the Court was informed that the respondent is no longer
eligible for cancellation of removal under Section 240A(b)(1) of the Act since he no
longer is married and has no other qualifying relatives, and the attorney informed the
Court that the criminal attorney was still working on getting some remedial action done
in the criminal court with regard to the DUI, but nothing has been done at this point.
Respondent, through his counsel, indicated he had no fear of return to Mexico and,
therefore, as stated earlier, since he wants to reserve appeal, he is not eligible for pre
conclusion voluntary departure. There being no relief available to the respondent and
the fact that his DACA application was already considered once and denied, and there
is no guarantee that there will be any remedial action on a DUI which may have been
the reason his DACA application was denied, and that DACA can be applied for and
sought at any point in time through Citizenship and Immigration Services and has
nothing to do with the Court, I therefore find that the respondent has been given
adequate time to pursue these alternate means outside of the court that would affect his
ability to stay in the United States.
ORDER
I do not see any other reason or good cause to continue these
proceedings for another date since the respondent has been given more than adequate

A200-626-963

February 27, 2014

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

of the case, the respondent was given until today's date to come back with either a

time to pursue these other avenues with OHS, and I, therefore, will deny the request for
a continuance and order his removal from the United States to Mexico.

signature

RENEE L. RENNER
Immigration Judge

This is the written transcript of the oral decision. which was rendered in open court. in the presence of
all parties. Any changes reflected in this document, are made in accordance with OPPM 93-01. The
Digital Audio Recording (DAR) is the official record of the oral decision.

A200-626-963

February 27, 2014

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

Please see the next page for electronic

r ,

/Isl/
Immigration Judge RENEE L. RENNER

A200-626-963

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

rennerr on July 2, 2014 at 2:52 PM GMT

February 27, 2014