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U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals


Office ofthe Clerk

5107 leesburg Pike, SuiJe 2000


Falls Church, Virginia 22041

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Rios, Arturo Rafael DHS/ICE Office of Chief Counsel - ELP
Law Office of Arturo R. Rios, P.A. 11541 Montana Ave, Suite 0
2929 Fifth Avenue North El Paso, TX 79936
Saint Petersburg, FL 33713

Name: PATEL, DIRAV DOLATBHAI A 201-183-819

Date of this notice: 9/15/2017

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

Sincerely,

Cynthia L. Crosby
Deputy Chief Clerk

Enclosure
Panel Members:
Grant, Edward R.

Userteam: Docket

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Cite as: Dirav Dolatbhai Patel, A201 183 819 (BIA Sept. 15, 2017)
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 2204 I

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PATEL, DIRAV DOLATBHAI DHS/ICE Office of Chief Counsel - ELP
A201-183-819 11541 Montana Ave, Suite O
c/o IRWIN COUNTY DETENTION CENTER El Paso, TX 79936
132 COTTON DRIVE
OCILLA, GA 31774

Name: PATEL, DIRAV DOLATBHAI A 201-183-819

Date of this notice: 9/15/2017

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,

J
u
,')

/l
._,

Cynthia L. Crosby
Deputy Chief Clerk

Enclosure
Panel Members:
Grant, Edward R.

Userteam:

Cite as: Dirav Dolatbhai Patel, A201 183 819 (BIA Sept. 15, 2017)
: . u.s.. Department of Justice Decision of t}le Board of Immigration Appeals
' Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A201 183 819 - El Paso, TX Date:


SEP 1 5 2017

In re: Dirav Dolatbhai PATEL

IN REMOVAL PROCEEDINGS

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APPEAL

ON BEHALF OF RESPONDENT: Arturo Rafael Rios, Esquire

ON BEHALF OF DHS: Judith F. Bonilla


Assistant Chief Counsel

APPLICATION: Continuance

Pursuant to our authority at 8 C.F.R. 1003.2(a) (2017), providing that the Board may at any
time reopen or reconsider on its own motion any case in which it has rendered a decision, we will
reopen this matter sua sponte and remand the record to the Immigration Judge for the limited
purpose of determining if termination of proceedings without prejudice is warranted.

This matter was last before the Board on November 23, 2015, when we dismissed an appeal
of an Immigration Judge's order, dated May 19, 2014, denying the respondent's motion for a
continuance. Subsequent to that order, the respondent filed a motion to reopen with the
Immigration Judge. The motion was incorrectly characterized as a motion to reopen an in absentia
order issued by an Immigration Judge. The Immigration Judge, in a decision dated May 4, 2017,
pointed out in a footnote that the motion was not a motion to reopen an in absentia order, but rather
a motion to sua sponte reopen proceedings under 8 C.F.R. 1003.23(b )(1). See Immigration Judge
Decision, May 4, 2017, at 2, n. 1. The Immigration Judge denied the motion on the basis that the
asserted fact that the respondent had a pending U visa application with USCIS did not amount to
an exceptional or compelling circumstance that would justify reopening his removal proceedings.
See Immigration Judge Decision, May 4, 2017, at 2, citing Matter of G-D-, 22 I&N Dec. 1132,
33-34 (BIA 1999). The respondent filed a timely appeal.

Subsequent to the filing of the appeal, the respondent filed an "Emergency Motion to Remand,"
asserting that, on July 26, 2017, the USCIS informed him that he had met all the requirements to
be granted U-1 non-immigrant status. 1 The "information letter" submitted as Exh. B indicates that
the sole reason the respondent was not granted the status in question immediately is the "fiscal
year limits." Letter from USCIS, St. Albans, Vermont, dated July 26, 20 I 7. The respondent noted
that the Immigration Judge had stated that the type of evidence the respondent now presents -
essentially, an approved U visa - would reflect a "compelling" reason for sua sponte reopening.
Immigration Judge Decision, May 4, 2017, at 2.
1 To the extent that the respondent has now filed a motion with the Board, the question of whether
the Immigration Judge had jurisdiction over the motion to reopen sua sponte, filed with the
Immigration Court is now moot. 8 C.F.R. 1003.2(a); 8 C.F.R. 1003.23(b)(l) (Immigration
Judge lacks jurisdiction to sua sponte reopen a case where the jurisdiction is vested with the Board).
Cite as: Dirav Dolatbhai Patel, A201 183 819 (BIA Sept. 15, 2017)
A201 183 819

In opposing the appeal from the Immigration Judge's decision, the DHS cited to Matter of
Yauri, 25 l&N Dec. 103, 110 (BIA 2009), for the proposition that the Board will not reopen
proceedings of respondents under a final removal order where reopening is sought as a mechanism
to stay a final order of removal while a collateral matter (over which the Board has no jurisdiction)
is being resolved. We note that in Matter ofYauri, in addition to denying the respondent's request

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to reopen sua sponte, we also, on the facts presented, granted a DHS motion to terminate without
prejudice. Id at 112. Under the circumstances of this case, we conclude that Matter of Yauri is
distinguishable. Furthermore, we are reopening and remanding for the sole purpose of determining
if termination of proceedings without prejudice is warranted.

In sum, in the present case, we conclude that reopening and remand of the record to allow the
Immigration Judge to determine if termination of proceedings without prejudice is appropriate is
warranted by the compelling circumstances presented.

ORDER: The Board's order dated November 23, 2015, is vacated.

FURTHER ORDER: The record is remanded tcH:le Immigration Judge forfurther proceedings
consistent with the above decision and the entry of a 11 w order.

R, FOR THEBO

2
Cite as: Dirav Dolatbhai Patel, A201 183 819 (BIA Sept. 15, 2017)
( ( ( (

UNITED STATES DEPARTMENT OF JUSTICE


EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
EL PASO, TEXAS

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Files: A201-183-819/820/821 May 19, 2014

In the Matters of

)
DIRAV DOLATBHAI PATEL (Lead) ) IN REMOVAL PROCEEDINGS
SHWETA DIRAV PATEL )
LEKHAN DIRAV PATEL )
)
RESPONDENTS )

CHARGES: 237(a)(1)(B) of the Immigration and Nationality Act - visa overstay;


and Section 237(a)(C)(i) of the Immigration and Nationality Act -
failure to comply with conditions of nonimmigrant status.

APPLICATION: None.

ON BEHALF OF RESPONDENTS: KEN LEVINE

ON BEHALF OF DHS: BRENDA THOMAS

ORAL DECISION AND ORDER OF THE IMMIGRATION JUDGE


On May 19, 2014, all three respondents appeared before the Court for a Master

Calendar hearing, previously scheduled. Pleadings had been taken and the charges of

removal had been sustained since August 19, 2013. On that date, respondents

appeared before this Court, with counsel, and admitted the factual allegations in the

Notice to Appear, conceding removability as charged (Exhibit 1 ). Based upon the

1
, I
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admission and concessions, this Court is satisfied that removability has been
established in each case by clear and convincing evidence. Woodby v. INS,

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385 U.S. 276 (1976).
Prior to today's hearing, respondent's counsel had filed a motion for continuance.
That motion had been received by the Court on March 24, 2014. Simply stated, the

motion asks that the Court continue this cause for another six months beyond today's

date in the hopes that the Administration would curtail removals from this country. The
motion alleges that the respondents are in a position to take advantage of any such

curtailment of policy by the present Administration.

The Court notes that requests for continuance are governed by 8 C.F.R.

1003.29. The regulation requires that the movant establish good cause for any

requested continuance. As noted, the cause advanced for the extended continuance
was the expectation or hope that the present Administration might change their present
removal policy.

The Court notes that any such motion is based almost entirely upon speculation

with respect to what action, if any, the present Administration might take regarding its

policy towards deportation and removal. The respondents in each case conceded their

removability (Exhibit 1). Further, in open curt, counsel again reiterated that the

respondents were not eligible for relief and were not requesting relief. In the absence of

a continuance, respondent's counsel requested an order of removal for each of the


respondents.
Since it is impossible to determine what action, if any, the executive branch may
take in the future, the Court cannot continue these cases for a period of six months
based. upon hope and speculation that present policy may change. Since good cause
was not established, the request for a continuance was denied.

A201-183-819/820/821 2 May 19, 2014


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The Court also notes that on August 19, the respondents had requested a
continuance until December 2 to enable them to explore relief and determine whether

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the Office of Chief Counsel would agree to close the cases based upon their
prosecutorial discretion.
When discretion was not granted, the Court granted a further continuance from

December 2 until May 19 of this year to enable the respondents to file any and all

applications for relief. Consequently, all cases had been pending before the Court since
August 29, 2011. Good cause not having been established, the Court proceeded to

order removal to India based upon the charges contained in the Notice to Appear.

ORDERS OF THE COURT

The request by the respondents for a further continuance is hereby DENIED.

The respondent's are ordered removed to India upon the charges contained in
their respective Notice to Appear.

Please see the next page for electronic


signature
THOMAS C. ROEPKE
Immigration Judge

A201-183-819/820/821 3 May 19, 2014


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/Isl/
Immigration Judge THOMAS C. ROEPKE
roepket on August 19, 2014 at 3:44 PM GMT

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A201-183-819/820/821 4 May 19 1 2014