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Department of Justice
Executive Office for Immigration Review
DCWtL ctVvu
Donna Carr
Chief Clerk
Enclosure
Panel Members:
Greer, Anne J.
Kendall-Clark, Molly
O'Herron, Margaret M
Lu!s2ges
Userteam: Docket
Files:
-.
Date:
DEC 2 7 2016
IN REMOVAL PROCEEDINGS
APPEAL
ON BEHALF OF RESPONDENTS: Anna Erwin, Esquire
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: Reopening
The respondents, natives and citizens of Honduras, appeal the hnmigration Judge's order
dated June 14, 2016, denying the motion to reconsider the denial of the motion to reopen the
removal proceedings. The Department of Homeland Security (DHS) has not filed an opposition
to the appeal. The appeal will be sustained, proceedings will be reopened and the record will be
remanded.
We review for clear error the Immigration Judge's findings of fact, including the
determination of credibility. 8 C.F.R. 1003.l(d)(3)(i). We review all other issues de novo,
including whether the parties have met the relevant burden of proof and issues of discretion.
8 C.F.R. 1003.l(d)(3)(ii).
At their first Master Calendar proceeding on November 24, 2015, the respondents sought a
continuance for time to file a state court custody petition for their father to ask for sole custody
of the respondents. The respondents intend to seek Special Immigrant Juvenile (SIJ) status. The
respondents were granted until January 20, 2016, to file any applications for relief. At the
January 20, 2016, hearing the respondents sought an additional continuance, as the father had
been unable to hire a custody attorney until shortly before the hearing. The Immigration Judge
denied the request. The custody attorney filed a petition for sole custody to be granted to the
respondent's father on February 26, 2016. The respondent's attorney received a copy of the
petition on April 19, 2016, and filed a motion to reopen with the Immigration Judge on April 22,
2016. The motion was untimely by 2 days. The hnmigration Judge denied the respondent's
motion, noting that the petition was filed in February and therefore there was no excuse for
failing to timely file the motion to reopen. The respondents filed a motion to reconsider,
detailing the communications between the respondents' immigration counsel and custody
counsel, and acknowledging that counsel did not read the communications closely enough and
neglected to request a copy of the custody petition earlier.
Cite as: B-A-M-G-, AXXX XXX 558 (BIA Dec. 27, 2016)
In re:
558 - Atlanta, GA
557
Aa11111ss8 etal.
At the time of the hearing on January 20, 2016, the petition bad not yet been filed. There
.:does :noLappear,-.:ho.w.ev.er, ,to;hav.e.been ;:all,intentional:or,.unwarranted,:delay. The,ondents
presented evidence that the custody attorney had been retained. Under these circumstances, a
continuance toallow for the filing of the petition and submission of evidence of that filing would
have been appropriate. A continuance would also have been consistent with guidance provided
to Immigration Judges by the Chief Immigration Judge, which states that if an unaccompanied
child is seeking SU status, ''the case must be administratively closed or reset for that process to
occur in state or juvenile court." See Memorandum from Brian M. O'Leary, Chief Immigration
Judge, to Immigration Judges (Sept._ 10, 2014) (Docketing Practices Relating to Unaccompanied
Children Cases in Light of New Priorities). We acknowledge the Immigration Judge's reasons
for denying the motion to reopen as untimely, but find that under the circumstances, an exercise
of the Immigration Judge's sua sponte authority would have been warranted.
We will vacate the removal order and remand the record to the Immigration Judge. The
petition for sole custody has been filed and the respondents are awaiting a court date. We will
remand these proceedings to allow the respondents to request a continuance or administrative
closure while they pursue SU status. See Matter of Sanchez Sosa, 25 I&N Dec. 8 07, 8 15 (BIA
2012) ("As a general rule, there is a rebuttable presumption that an alien who has filed a prima
facie approvable application with the USCIS will warrant a favorable exercise of discretion for a
continuance for a reasonable period of time.") (internal citation omitted); Matter of Avetisyan,
25 l&N Dec. 688 (BIA 2012) (discussing the standards for administratively closing
proceedings); Matter ofHashmi, supra.
Accordingly, the following orders will be entered.
ORDER: The respondents' appeal is sustained.
FURTHER ORDER: The Immigration Judge's decision and removal orders are vacated.
FURTHER ORDER: The record is remanded to the Immigration Judge for further
proceedings and the entry of a new decision.
t-f-_
2
Cite as: B-A-M-G-, AXXX XXX 558 (BIA Dec. 27, 2016)
Under the totality of the circumstances presented, we find that reopening is warranted. As an
initial matter, the Immigration Judge should have granted the request for a continuance at the
January 20, 1016, bearing. See 8 C.F.R. 1003.29 and 1240.6.; Matter of Hashmi, 24 I&N
Dec. 785 (BIA 20 09) (discussing the factors to be considered in determining whether good cause
exists to continue proceedings to await adjudication of a family-based visa petition). Absent
evidence of an alien's ineligibility for SU status, an Immigration Judge should, as a general
practice, continue or administratively close proceedings to await adjudication of a pending state
dependency petition.
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Certificate of Service
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Date:
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