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 22041

OHS/ICE Office of Chief Counsel - DAL

125 E. John Carpenter Fwy, Ste. 500
Irving, TX 75062-2324

Name: GONZALEZ-CASTANEDA, CARL...

A 204-352-971
Date of this notice: 8/24/2016

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

DorutL c

l1/v'1.)

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Mann, Ana
Grant, Edward R.
Adkins-Blanch, Charles K.

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/
Cite as: Carlos Adrian Gonzalez-Castaneda, A204 352 971 (BIA Aug. 24, 2016)

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

Saenz-Rodriguez, Michelle
Saenz-Rodriguez & Assoc.
13601 Preston Rd.
#W1000
Dallas, TX 75240

U.S. Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals
Office ofthe Clerk
5 /07 Leesburg Pike, Suite 2000
Falls Church, Virginia 2204 I

Name: GONZALEZ-CASTANEDA, CARL...

A 204-352-971
Date of this notice: 8/24/2016

Enclosed is a copy of the Board's decision in the above-referenced case. This copy is being
provided to you as a courtesy. Your attorney or representative has been served with this
decision pursuant to 8 C.F.R. 1292.S(a). If the attached decision orders that you be
removed from the United States or affirms an Immigration Judge's decision ordering that you
be removed, any petition for review of the attached decision must be filed with and received
by the appropriate court of appeals within 30 days of the date of the decision.
Sincerely,

D0'1.ltL C

t1JVL)

Donna Carr
Chief Clerk
Enclosure
Panel Members:

Mann, Ana
Grant, Edward R.
Adkins-Blanch, Charles K.

Userteam:

, . : -

Cite as: Carlos Adrian Gonzalez-Castaneda, A204 352 971 (BIA Aug. 24, 2016)

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

GONZALEZ-CASTANEDA, CARLOS ADRIAN DHS/ICE Office of Chief Counsel - DAL

125 E. John Carpenter Fwy, Ste. 500
A204-352-971
c/o Rolling Plains Detention Center
Irving, TX 75062-2324
118 County Road 206
Haskell, TX 79521

-1

U.S. Department of Justice

Decision of the Board of Immigration Appeals

Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A204 352 971 -Dallas, Texas:

AUG 2 4 2016

In re: CARLOS ADRIAN GONZALEZ-CASTANEDA

APPEAL
ON BEHALF OF RESPONDENT: Michelle Saenz-Rodriguez, Esquire
ON BEHALF OF DHS: Yas Sadri
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 (conceded)

APPLICATION: Continuance

The respondent, a native and citizen of Mexico, appeals from the Immigration Judge's
April 18, 2016, decision denying his request for a continuance, for the purpose of awaiting the
adjudication the respondent's U visa application pending before United States Citizenship and
Immigration Services ("USCIS"). Section 101(a)(l5)(U) of this Immigration and Nationality
Act, 8 U.S.C. 1101(a)(l5)(U). The appeal will be sustained and the record will be remanded to
the Immigration Judge for further proceedings consistent with this opinion and the entry of a new
decision.
The Board reviews an Immigration Judge's findings of fact, including findings as to the
credibility of testimony, and the likelihood of future events, under the "clearly erroneous"
standard. See 8 C.F.R. 1003.l(d)(3)(i); Matter of Z-Z-0-, 26 I&N Dec. 586 (BIA 2015). The
Board reviews questions of law, discretion, judgment, and all other issues in an appeal from an
Immigration Judge's decision de novo. See 8 C.F.R. 1003.l(d)(3)(ii).
The Immigration Judge did not specifically address. the respondent's continuance request,
other than to note the Department of Homeland Security's ("DHS's") opposition to a further
continuance of these proceedings (I.J. at 2), and that the respondent had not sought any other
form of relief that the court could grant (I.J. at 2-3). See generally sections 214(p) and 245(m)
of the Act, 8 U.S.C. 1184(p), 1255(m) (outlining the statutory requirements for obtaining a U
visa and adjusting one's status based upon an approved U visa application); see also 8 C.F.R.
214.14(C)(1)(i)-(ii).

Cite as: Carlos Adrian Gonzalez-Castaneda, A204 352 971 (BIA Aug. 24, 2016)

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

IN REMOVAL PROCEEDINGS

A204 352 971

The regulations expressly contemplate holding pending removal proceedings in abeyance for
adjudication of a U-visa application with the USCIS, as a favorable adjudication would afford
the applicant interim relief from removal. See 8 C.F.R. 214.14(c){l)(i). However, the
Immigration Judge did not indicate that he considered the several factors we identified in Matter
of Sanchez Sosa, supra, in determining if good cause exists for granting a continuance based on
the respondent's pending U-visa application with the USCIS. See id. at 812-13. The
Immigration Judge fails to indicate whether he considered the pending underlying U visa petition
or whether it is prima facie approvable. While the Immigration Judge (I.J. at 2) acknowledges
the DHS's opposition to a further continuance, this is insufficient by itself as he does not identify
the reasons for their opposition. See id at 813 (stating that the DHS's position is a relevant
factor, if it is reasonable and supported in the record).
Therefore, we conclude that a remand of the record is appropriate in this case to allow the
Immigration Judge an opportunity to meaningfully evaluate the respondent's continuance request
and to specifically apply all relevant Matter ofSanchez Sosa, supra, factors. Accordingly, the
following orders will be entered.
ORDER: The respondent's appeal is sustained.
FURTHER ORDER: The record is remanded to the Immigration Judge for further
proceedings consistent with this opinion and for the entry of a new decision.

2
Cite as: Carlos Adrian Gonzalez-Castaneda, A204 352 971 (BIA Aug. 24, 2016)

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

Even though the USCIS has exclusive jurisdiction over the respondent's U visa application,
we explained in Matter of Sanchez Sosa, 25 I&N Dec. 807 (BIA 2012); that continuances to
await the adjudication of a pending U visa application may still be appropriate under certain
circumstances. See section 245(m) of the Act; 8 C.F.R. 245.24(k); Matter of Sanchez Sosa,
supra, at 810-12. In Matter ofSanchez Sosa, supra, we identified several salient factors for the
Immigration Judge to consider in determining if good cause exists for granting a continuance
based on a respondent's potential U visa eligibility, including, but not limited to: (1) the DHS's
position with respect to the request, (2) whether the underlying visa petition is prima facie
approvable, and (3) the reason for the continuance request, along with any other relevant
procedural factors. See id. at 812-13. If the DHS does not oppose the continuance, generally no
further inquiry is required. See id. at 813. However, where, as in this case, the DHS opposes the
continuance, the Immigration Judge should consider the likelihood of the U visa application's
success by (1) first inquiring whether the respondent has demonstrated that he suffered
substantial physical. or mental abuse as the victim of a qualifying crime, and if so, (2) next
exploring whether the respondent has been, is being, or will be helpful to the authorities. See id.
at 813-14.

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
DALLAS,TEXAS

In the Matter of
)
CARLOS ADRIAN GONZALEZ-CASTANEDA )
)
RESPONDENT
)

IN REMOVAL PROCEEDINGS

Section 212(a)(6)(A)(i) of the Act

CHARGES:
APPLICATIONS:

ON BEHALF OF RESPONDENT: MICHELLE SAENZ-RODRIGUEZ

2720 North Stemmons Freeway
Suite 1200
Dallas, Texas 75207
ON BEHALF OF OHS: VAS SADRI, Esquire
Assistant Chief Counsel
U.S. Department of Homeland Security
Office of the Chief Counsel
125 East John Carpenter Freeway
Suite 500
Irving,Texas 75062

DECISION AND ORDER OF THE IMMIGRATION JUDGE

Respondent is a native and citizen of Mexico. The present action
commenced when the Department of Homeland Security issued a Notice to Appear
dated January 5, 2016. The notice was served on respondent on the same date.

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

April 18, 2016

File: A204-352-971

[Exhibit 1].
In the Notice to Appear, the Department alleges that respondent is subject

Act, in that he arrived in the United States at or near an unknown place on or about and
unknown time and date and was not admitted or paroled after inspection by an
immigration officer. This act, according to the Department. makes respondent subject
to removal under Section 212(a)(6)(A)(i) of the Act.
Respondent first appeared before the Court on January 20, 2016. At that
time, respondent's rights were explained to him in his native language of Spanish, as
well as English. 1 At that hearing, respondent's counsel asked for additional time to
study pleadings and seek alternative (extrajudicial) relief in the form of a U visa. The
matter was reset for February 9, 2016.
At the February 9, 2016 hearing, respondent through counsel admitted the
four factual allegations in the Notice to Appear and conceded the charge. Mexico was
designated as the country of removal. After considering the pleadings by respondent,
as well as the submission by the Department [Exhibit 2], the Court found removability
sustained by clear and convincing evidence. Respondent asked for an additional
continuance, after Mexico was designated as the country of removal, to continue to
pursue either an alternative to detention with the Department or the U visa. The matter
came before the Court on February 22 and March 15 while those discussions
continued.
At the hearing on April 18, 2016, respondent was advised by the
Department that the Department would not consider any alternatives to detention in this
case. Also, the U visa has not been granted by the Department of Homeland Security.
1 The proceedings involving respondent were conducted in English at his request.

A204-352-971

April 18, 2016

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

to removal from the United States, being in violation of Section 212(a)(6)(A)(i) of the

Respondent sought no other relief before this Court.

Since it does not appear that respondent is eligible for any relief before

the respondent, the following order is entered:

ORDER
IT IS ORDERED that respondent, having previously been found subject to removal by
clear and convincing evidence, and, in the absence of any viable applications for relief
before this Court, is hereby ordered removed from the United States to Mexico based
on the charge contained in the Notice to Appear.
Dallas, Texas, this 18th day of April 2016.

Please see the next page for electronic

signature

A204-352-971

JAMES A. NUGENT
Immigration Judge

April 18, 2016

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this Court, and, since the Department is unwilling to provide any extrajudicial relief to

.. ,,

,. .

/Isl/
Immigration Judge JAMES NUGENT

A204-352-971

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

nugentj on June 7, 2016 at 6:47 PM GMT

April18,2016