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U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals


Office of the Clerk
5107 Leesburg Pike, Suite 2000
Falls Church, Virginia 22041

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Patel, Vinesh OHS/ICE Office of Chief Counsel - DAL
The Vinesh Patel Law Firm PLLC 125 E. John Carpenter Fwy, Ste. 500
2730 North Stemmons Irving, TX 75062-2324
Suite 1103
Dallas, TX 75207

Name: ALVARADO-TURCIO, EDGAR M ... A 201-109-166

Date of this notice: 8/17/2017

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

Sincerely,

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Cynthia L. Crosby
Deputy Chief Clerk

Enclosure

Panel Members:
Adkins-Blanch, Charles K.
Pauley, Roger
Kelly, Edward F.

Userteam: Docket

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Cite as: Edgar Marcelo Alvarado-Turcio, A201 109 166 (BIA Aug. 17, 2017)
..

U.S. Department of Justice Decision of the Board oflmmigration Appeals


Executive Office for Immigration Review

Falls Cburch, Virginia 22041

File: A201 109 166- Dallas, TX Date:


AUG 1 7 2017
In re: Edgar Marcelo ALVARADO-TURCIO

IN REMOVAL PROCEEDINGS

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APPEAL

ON BEHALF OF RESPONDENT: Vinesh Patel, Esquire

ON BEHALF OF DHS: Joshua S. Levy


Assistant Chief Counsel

APPLICATION: Continuance

The respondent, a native and citizen of El Salvador, appeals the decision of the Immigration
Judge, dated March 31, 2017, denying his request for a continuance and ordering his removal from
the United States. 1 The respondent's appeal, which is opposed by the Department of Homeland
Security ("DHS"), will be sustained. The Immigration Judge's decision will be vacated and the
record will be remanded for further proceedings and the entry of a new decision.

We review the findings of fact, including the determination of credibility, made by the
Immigration Judge under the "clearly erroneous" standard. 8 C.F.R. 1003.l(d)(3)(i) (2017). We
review all other issues, including issues of law, discretion, or judgment, under a de novo standard.
8 C.F.R. 1003.l(d)(3)(ii).

The respondent seeks a continuance of these removal proceedings as he pursues an application


for nonimmigrant benefits under section 10l(a)(l5)(U) of the Immigration and Nationality Act,
8 U.S.C. ll0l(a)(l5)(U) (2017), with United States Citizenship and Immigration Services
("USCIS"). In determining whether good cause exists for a continuance, the Immigration Judge
should follow this Board's decision in Matter ofSanchez Sosa, 25 I&N Dec. 807 (BIA 2012), and
consider (1) the response of the DHS to the respondent's motion to continue; (2) whether the
underlying visa petition is prima facie approvable; and (3) the reason for the continuance and other
procedural factors.

With respect to the first factor, the DHS is opposed to the respondent's request for a
continuance (IJ at 3). Upon remand, the Immigration Judge should request that the DHS fully
articulate the basis for its opposition. Matter of Hashmi, 24 l&N Dec. 785, 791 (BIA 2009)
("[DHS] opposition that is reasonable and supported by the record may warrant denial of a
continuance. On the other hand, unsupported opposition does not carry much weight.").

1 The respondent is subject to removal from the United States because he is an alien who is present
in this country without being admitted or paroled by an immigration officer or who arrived at any
time or place other than as designated by the Attorney General (IJ at 1-2). Section 212(a)(6)(A)(i)
of the Act, 8 U.S.C. l182(a)(6)(A)(i). The respondent has withdrawn his claims to asylum and
related forms of relief (IJ at 3).
Cite as: Edgar Marcelo Alvarado-Turcio, A201 109 166 (BIA Aug. 17, 2017)
A201 109 166

With respect to the second factor, the Immigration Judge has not meaningfully addressed the
issue of whether the underlying visa petition is prima facie approvable. Matter ofSanchez Sosa
holds that an alien who has filed a prima facie approvable petition for a U visa with USCIS will
ordinarily warrant a favorable exercise of discretion for a continuance for a reasonable period of
time. This Board has limited fact-finding ability on appeal. Nonetheless, given that the respondent
has presented a very significant amount of evidence to support his U visa claims, we do not believe

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that this is a case where an alien is merely applying for a U visa as a dilatory tactic to forestall the
conclusion of removal proceedings. Id. at 815. The Immigration Judge, upon remand, should
fully consider the strength of the respondent's U visa claims.

Third, with respect to the reason for the continuance and other procedural factors, the
Immigration Judge made several references to the respondent's detention status and current USCIS
processing delays (U at 4). However, if there are issues regarding the respondent's detention
status, such issues should be addressed during the course of separate bond proceedings. 8 C.F .R.
. 1003.19(d). Moreover, while it is critical that a detained docket move efficiently, it is also
essential that Immigration Judges be mindful of an alien's invocation of procedural rights and
privileges. Matter ofC-B-, 25 l&N Dec. 888, 890 (BIA 2012). While we recognize that USCIS
has a significant U visa backlog, processing delays are insufficient, in themselves, to deny an
alien's request for a continuance. Wu v. Holder, 571 F.3d 467, 470 (5th Cir. 2009) (holding that
an Immigration Judge abused his discretion by denying an alien's motion for continuance solely
based on the length of the delay in obtaining approval of his wife's visa petition).

For the reasons set forth above, we will sustain the respondent's appeal as we disagree with
the reasons upon which the Immigration Judge based his instant decision to deny the respondent's
request for a continuance. Upon remand, the Immigration Judge should provide the parties with a
renewed opportunity to present evidence and articulate the basis of their positions. In turn, the
Immigration Judge should issue a new decision in these proceedings addressing the respondent's
request for a continuance. If the Immigration Judge is concerned about the overall backlog in
U visa claims, it may be prudent for him to consider administratively closing these removal
proceedings. Matter ofAvetisyan, 25 l&N Dec. 688 (BIA 2012). The following orders are entered.

ORDER: The respondent's appeal is sustained.

FURTHER ORDER: The Immigration Judge's decision, dated March 31, 2017, is vacated
and the record is remanded to the Immigration Court for further proceedings consistent with the
foregoing opinion and the entry of a new decision.

2
Cite as: Edgar Marcelo Alvarado-Turcio, A201 109 166 (BIA Aug. 17, 2017)
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
DALLAS, TEXAS

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File: A201-109-166 March 31, 2017

In the Matter of

)
EDGAR MARCELO ALVARADO-TURCIO ) IN REMOVAL PROCEEDINGS
)
RESPONDENT )

CHARGES: Section 212(a)(6)(A)(i) of the Immigration and Nationality Act (Act)


as amended in that 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 designated by the Attorney General.

APPLICATIONS: Request for asylum pursuant to Section 208 of the Immigration and
Nationality Act.

Request for withholding of removal pursuant to Section 243(a) of


the Immigration and Nationality Act as amended.

Request for withholding of removal under Article Ill of the


Convention Against Torture pursuant to 8 C.F.R. Section 1208.16.

Request for a continuance.

ON BEHALF OF RESPONDENT: BRIJESH PATEL, Esquire


2730 North Stemmons Freeway, Suite 1103
Dallas, Texas 75207

ON BEHALF OF OHS: JOSH LEVY, Esquire


Assistant Chief Counsel
Dallas, Texas
ORAL DECISION OF THE IMMIGRATION JUDGE

The respondent is a native and citizen of El Salvador. He entered the

United States at or near Hidalgo, Texas on or about March 7, 2011. At that time he was

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not admitted or paroled after inspection by an Immigration officer. Consequently, the

Department of Homeland Security (hereinafter referred to as the Government) charged

the respondent with removal pursuant to Section 212(a)(6)(A)(i) of the Immigration and.

Nationality Act (Act) as amended in that he is 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 designated by the Attorney General. Exhibit 1.

On or about October 24, 2011, the respondent acknowledged receipt of

the Notice to Appear and it was placed in the record as Exhibit number 1.

On or about October 24, 2011, the respondent admitted to the factual

allegations contained in the Notice to Appear and conceded to the charge of removal.

Therefore, removal was established. In case removal became necessary, El Salvador

was designated as the country of removal.

This case has a long history in that the respondent initially sought asylum

before the Court. His application was pretermitted because he did not establish a legal

basis for his claim. The respondent appealed and the case was remanded to the Court

to provide respondent with an opportunity to have a hearing on his application for

asylum, withholding of removal and Convention Against Torture pursuant to the

precedent decision issue by the Board of Immigration Appeals.

The matter was set for a hearing today to consider the respondent's

applications for asylum, withholding of removal and Convention Against Torture. Prior to

the hearing the respondent on or about March 16, 2017, filed a motion to continue his

hearing. The respondent seeks a continuance to allow an adjudication of a U visa that

A201-109-166 2 March 31, 2017


has been filed on his behalf. See respondent's motion to continue and supporting

documents received by the Court on March 16, 2017.

The Court was also informed that the respondent no longer wishes to

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apply for asylum, withholding of removal and the Convention Against Torture. The

respondent's counsel indicated that the respondent was withdrawing these applications

with prejudice. After conversing with the respondent the Court determined that the

respondent had made a knowing voluntary decision to withdraw his application for

asylum, withholding of removal and the Convention Against Torture with prejudice. So

the Court finds that these applications are withdrawn with prejudice.

The respondent seeks a request for a continuance to allow an adjudication

of a U visa. In part the respondent relies on the Matter of Sanchez Sosa, 25 l&N Dec.

807 (BIA 2012).

The Immigration and Nationality Act (Act) does not contain any specific

statute of authority for the adjudication of motions to continue removal proceedings.

Rather, Immigration Judges have broad discretionary authority over motions to continue

as stated in 8 C.F.R. Section 1003.29. The Immigration Judge may grant a motion for a

continuance for good cause shown. See also, 8 C.F.R. Section 1240.6 (providing that

an Immigration Judge may grant a reasonable adjournment either at his or her own

assistance or for good cause shown upon application by the respondent or the

Government.)

Here the respondent seeks a continuance as previously mentioned in

order to seek the approval of a U visa.

In making this determination, the Court has relied on the respondent's

detention status as well as the availability of a U visa and the Government's position.

The Government has opposed the respondent's request for a continuance.

A201-109-166 3 March 31, 2017


In addressing the respondent's request for a continuance as previously

mentioned, the respondent relies on the Matter of Sanchez Sosa. Even assuming that

the Matter of Sanchez Sosa would apply to the respondent's case the Court finds the

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respondent has failed to establish good cause for a continuance in his case. What the

respondent would be requesting the Court to do is practically indefinitely continue his

case to allow a U visa. The Court takes administrative notice that there are only 10,000

U visas available per fiscal year. In reviewing the facts and the evidence in this case it

appears that there are over 150,000 U visa petitions awaiting a decision at the end of

the fourth quarter in 2016. The Court takes administrative notice of this. Here the

respondent's detention status would prevent a U visa from becoming available for him

even if it were approved in the near future. The Court finds it would be unreasonable to

indefinitely continue the respondent's case. Even assuming that a U visa will be

granted it would not change his detention status and that it would be at least several

years if not months before a U visa would become available for the respondent based

on when he filed his request for a U visa.

The Court is not willing to accept the respondent's counsel statement that

there is some type of deferred U visa approval. Even if there were that would not

change the respondent's detention status, that is he will still remain detained and the

Court will find it would be unreasonable to continue a case on someone who is being

detained in light of the Court's decision that the respondent should remain detained.

For the above stated reason the Court finds that the respondent has failed

to establish good cause for a continuance and the Court will deny the respondent's

request for a continuance to await an adjudication of the U visa. As previously

mentioned there is no visa that will be immediately available for the respondent in light

of the 10,000 limit per fiscal year and the number of U visas that are currently pending

A201-109-166 4 March 31, 2017


-

with USCIS.

The respondent is not seeking any other relief from removal.

Accordingly, the following orders shall be entered.

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ORDER

IT IS HEREBY ORDERED that the respondent's application for asylum be

withdrawn with prejudice.

IT IS FURTHER ORDERED that the respondent's application for

withholding of removal pursuant to Section 243(a) of the Immigration and Nationality Act

be withdrawn with prejudice.

IT IS FURTHER ORDERED that the respondent's application for

withholding of removal under Article Ill of the Convention Against Torture pursuant to 8

C.F.R. Section 1208.16 be withdrawn with prejudice.

IT IS FURTHER ORDERED that the respondent's request for a

continuance be denied.

IT IS FURTHER ORDERED that the respondent be removed and deported

from the United States to El Salvador based on the charge contained in the Notice to

Appear.

31st day of March 2017


DEITRICH H. SIMS
United States Immigration Judge
Dallas, Texas

A201-109-166 5 March 31, 2017


I .1 ' I

CERTIFICATE PAGE

I hereby certify that the attached proceeding before JUDGE DEITRICH H. SIMS,

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in the matter of:

EDGAR MARCELO ALVARADO-TURCIO

A201-109-166

DALLAS, TEXAS

was held as herein appears, and that this is the original transcript thereof for the file of

the Executive Office for Immigration Review.

CAROL M. WILLIAMS (Transcriber)

DEPOSITION SERVICES, lnc.-2

MAY 6, 2017

(Completion Date)