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U. S.

Department of Justice

Executive Office for Immigration Review


Board ofIm migration Appeals
Office ofthe Clerk
5107 l eesburg Pike, Suite 2000
Falls Church, Virginia 2204/

Riders:
Date of th is notice: 4/29/2016

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

DortltL C

tVv\)

Donna Carr
Chief Clerk

Enclosure
Panei Members:
Adkins-Blanch , Charles K .
Greer, Anne J.
O'Herron , Margaret M

Usertea m: Docket

For more unpublished BIA decisions, visit


www.irac.net/unpublished/index/
Cite as: L-H-A-, AXXX XXX 320 (BIA April 29, 2016)

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

DHS/ICE Office of Chief Counsel - SNA


Winograd , Benjamin R., Esq.
Immigrant & Refugee Appellate Center, LLC 8940 Fourwinds Drive, 5th Floor
San Antonio, TX 78239
3602 Forest Drive
Alexandria, VA 22302

U.S. Department of Justice

Decision of the Board of Immigration Appeals

Executive Office for Immigration Review


Falls Church, Virginia 22041

Date:

Files:

r_.-i~~

IN REMOVAL PROCEEDINGS
APPEAL
ON BEHALF OF RESPONDENTS:

Benjamin R. Winograd, Esquire

APPLICATION: Asylum; withholding ofremoval; Convention Against Torture

The respondents, natives and citizens of Mexico, appeal the decision of the Immigration
Judge, dated November 10, 2015, deeming the lead respondent's Application for Asylum and for
Withholding of Removal (Form I-589) to be abandoned and ordering their removal from the
United States. The Department of Homeland Security has not replied to the respondents' appeal.
We review Immigration Judges' findings of fact for clear error. 8 C.F.R. 1003.l(d)(3)(i).
We review questions of law, discretion, and judgment, and all other issues in appeals de nova.
8 C.F.R. 1003.l(d)(3)(ii).
Considering the totality of the circumstances presented in this case, we conclude that the lead
respondent should be provided with a renewed opportunity to comply with the biometrics
requirements and present the merits of her Form I-589. See 8 C.F.R. 1003.47(d). However, at
the present time, we express no opinion regarding the ultimate outcome of these proceedings.
The following order is entered.
ORDER: The record is remanded to the Immigration Court for further proceedings
consistent with the foregoing opinion and the entry of a new decision.

c~
Cite as: L-H-A-, AXXX XXX 320 (BIA April 29, 2016)

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

Inre:

APR 2 9 2016

UNITED STATES DEPARTMENT OF JUSTICE


EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
SAN ANTONIO, TEXAS

November 10, 2015

-320

In the Matters of

)
)
)
)

RESPONDENTS

IN REMOVAL PROCEEDINGS

CHARGE:

Section 212(a)(7)(A)(i)(I) of the Immigration and Nationality Act immigrant with no visa.

APPLICATIONS:

Asylum in the United States, withholding of removal to Mexico,


protection under the Convention against Torture.

ON BEHALF OF RESPONDENTS: PRO SE


ON BEHALF OF DHS: WARREN R. KAUFMAN

ORAL DECISION OF THE IMMIGRATION JUDGE


The respondents are a 25-year-old apparently married but estranged female
native and citizen of Mexico and her 6-year-old daughter and 3-year-old son, each of
whom appeared at the port of entry to the United States at San Ysidro, California, on
November 14, 2014, requesting admission. On November 15, 2014, the Department of

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

File: A
A
A

Homeland Security issued a Notice to Appear that was personally served on the adult
respondent for each of the respondents on December 18, 2014, charging each with

Nationality Act as an immigrant not in possession of a valid unexpired immigrant visa.


The respondents have admitted the truth of all factual allegations on the Notice to
Appear when requesting a change of venue and have conceded removability as
charged. I conclude that the record here does establish by clear, convincing and
unequivocal evidence that the respondents were applying for admission to the United
States, have presented no evidence that they are non-immigrants so the presumption
that they are immigrants is controlling and have presented no evidence of a visa or
other document issued by the United States allowing them to enter the United States. I,
therefore, conclude that the respondents have been demonstrated by clear, convincing
and unequivocal evidence to be removable from the United States as charged on their
respective Notices to Appear.
The respondents have presented an application for asylum in the United States
(Exhibit 2). However, the application that was presented is now considered to be
abandoned. The adult respondent was informed at the time of presenting the
application to the Court of the requirement that submit herself for biometrics records
checks. The application presented is in her name and it includes the two minor
children. The respondent did not submit herself for biometric records checks. She was
also informed at the time of submitting the application that it had to be done before the
merits hearing date of November 10, 2015, that if it was not done that the application
would not be considered but would be abandoned and was provided, by counsel for the
Government, with the instructions for submitting the biometrics checks. The respondent
has acknowledged at the merit hearing that she did not process her biometrics records

-320/

November 10, 2015

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

inadmissibility under the provisions of Section 212(a)(7)(A)(i)(I) of the Immigration and

checks as required by regulation and the only reason given was that she forgot. The
respondent requested additional time to do so, however, the respondent has now been

reasonable opportunity, that is from September 23 to November 10, to process the


biometrics checks. I find that the requirements set forth by the Board of Immigration
Appeals in Matter of D-M-C-P-, 26 l&N Dec. 644 (BIA 2015) have been fully complied
with and that the respondents' application is therefore considered abandoned under
Title 8 C.F.R. 1003.47(c) and (d).
I conclude that, therefore, the application for asylum in the United States has
been abandoned since the respondent's forgetfulness would not be good cause and
conclude that there is no other application before the Court. The application for asylum
being abandoned together with the application by regulation for withholding of removal
to Mexico and the notation on the application form that the respondent wished to be
considered for protection under the Convention against Torture, the following orders
shall enter:
ORDER
IT IS ORDERED that each of the respondents be removed from the United
States to Mexico, the country of their nativity and citizenship and the country they are
arriving from, on the charge contained in their respective Notices to Appear.

Please see the next page for electronic


signature

-320/

November 10, 2015

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

in the United States for almost one year, having come in November 15, 2014, and had a

GARY D. BURKHOLDER
Immigration Judge

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

-320/

November 10, 2015

/Isl/
Immigration Judge GARY D. BURKHOLDER

-320/

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

burkholg on January 12, 2016 at 4:45 PM GMT

November 10, 2015

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