lucero, richard law office of richard lucero 643 s olive street #800 los angeles, CA 90014

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 - LOS 606 S. Olive Street, 8th Floor Los Angeles, CA 90014

Name: MARTINEZ-LOPEZ, MIGUEL AN ... A 200-243-233

Date of th is notice: 11/24/2015

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

Enclosure

Panel Members:

Grant, Edward R.

Sincerely,

DOYUtL C aAA)

Donna Carr Chief Clerk

Usertea m: Docket

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Cite as: Miguel Angel Martinez-Lopez, A200 243 233 (BIA Nov. 24, 2015)

U.S. Department of Justice Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

· Falls Church, Virginia 22041

File: A200 243 233 - Los Angeles, CA Date:

In re: MIGUEL ANGEL MARTINEZ-LOPEZ a.k.a Miguel Martinez

IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Richard Lucero, Esquire

APPLICATION: Continuance; administrative closure

NOV 2 4 2015

The respondent, a native and citizen of Mexico, has appealed from the Immigration Judge's decision dated August 5, 2014, denying his motions for a continuance and administrative closure. The record will be remanded.

The Board reviews an Immigration Judge's findings of fact, including findings as to the credibility of testimony, under a clearly erroneous standard.· See 8 C.F.R. § 1003.l(d)(3)(i). The Board reviews questions of law, discretion, and judgment, and all other issues raised in an Immigration Judge's decision de novo. See 8 C.F.R. § 1003.l(d)(3)(ii).

The Immigration Judge denied the respondent's request for a further continuance because he did not have a visa currently available (I.J. at 4-5). During the pendency of the respondent's appeal, his October 31, 2011, priority date has become current. We take administrative notice of the current State Department Visa Bulletin that lists March 1, 2015, as the cutoff date for category 2A family-preference visas. 1 As the Immigration Judge's denial of a further continuance was based on the absence of an immediately available visa and the respondent's priority date is now current, we will remand the record to allow the respondent to pursue adjustment of status on this basis. In doing so, we express no opinion as to the ultimate resolution of the respondent's applications for relief. See Matter of L-0-G-, 21 I&N Dec. 413, 422 (BIA 1996).

Accordingly, the following order will be entered.

ORDER: The record is remanded to the Immigration Judge (or further proceedings consistent with the foregoing opinion.

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'��AM�R· v> FOR THE BOARD

1 Available at http:// travel.state.gov I content/visas/ en/law-and-policy /bulletin/2016/visa-bulletin­for-november-2015 .html.

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Cite as: Miguel Angel Martinez-Lopez, A200 243 233 (BIA Nov. 24, 2015)

UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

UNITED STATES IMMIGRATION COURT LOS ANGELES, CALIFORNIA

File: A200-243-233

In the Matter of

AugustS,2014

MIGUEL ANGEL MARTINEZ-LOPEZ IN REMOVAL PROCEEDINGS

RESPONDENT

CHARGE: Section 237(a)(1 )(B).

APPLICATIONS: Admin close; Continuance; Voluntary departure.

ON BEHALF OF RESPONDENT: RICHARD LUCERO 643 South Olive Street, Suite 800 Los Angeles, California 90014

ON BEHALF OF OHS: BRENDA C. CHUNG

ORAL DECISION OF THE IMMIGRATION JUDGE

The respondent was brought into removal proceedings due to a criminal matter in

the state of California. The NT A was served personally on the respondent July 9, 2011.

See Exhibit 1.

Through written pleadings, the respondent admitted allegations 1 through 4 and

conceded removability. Removability has been established by clear and convincing

evidence.

1

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This case began with counsel advising the Court that the respondent was

married to a lawful permanent resident and that the wife was going to naturalize, which

would make the respondent eligible for adjustment of status. Both the Court and

Homeland Security recognized the equities and in October of 2011 continued this

matter through January of 2013 to allow the naturalization to occur. The respondent's

wife ended up taking the test on three occasions and failing the naturalization test on

three separate occasions. The case was finally set for a Merits hearing on August 5,

2014. A period has elapsed of almost three years before final adjudication of this

particular case. It is clear that the Court and the Department of Homeland Security

where quite deferential to the respondent's equities and circumstances.

After almost three years, the Department of Homeland Security urged the Court

to move this case forward to completion. A few days before the final hearing, one last

opportunity was extended to the respondent and counsel to seek supervisory review to

basically keep this case from going to completion. In the final analysis, supervisory staff

for the Department of Homeland Security did not agree with counsel that prosecutorial

discretion should be offered. The case then came to its final hearing.

ADMIN CLOSE

PROSECUTORIAL DISCRETION

The respondent requested admin close for prosecutorial discretion. Although the

Court indicated to Homeland Security that it would have granted a joint motion .•

Homeland Security was opposed to offering the respondent prosecutorial discretion.

Although there are many factors that go into the analysis of prosecutorial discretion, the

Court certainly is convinced that one of the factors that weighed against the respondent

was the criminal conviction in 2011. In the final analysis, Homeland Security did not

agree to offer prosecutorial discretion. admin close and, therefore, this Court must deny

A200-243-233 2 August 5, 2014

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this relief.

There are other avenues to admin close a case. This Court is certainly familiar

with Interim Decision 3135 and Interim Decision 3327. In the latter case, the Board of

Immigration Appeals has instructed Immigration Judges to pay particular attention to

agreements between the parties. In the former case, under Interim Decision 3135

where the parties agreed to admin close, the Court should grant those motions. In this

case there is no agreement. Department of Homeland Security is opposed and,

therefore, under this case law, the Court must deny this request for admin close.

The Court is also familiar with the Matter of Bavakan Avetisyan, BIA precedent

decision issued January 31, 2012, (See 25 l&N Dec. 688). In this case the Board of

Immigration Appeals authorized Immigration Judges to basically unilaterally admin close

certain cases. In other words, although Homeland Security may oppose, the Courts

have discretion within the proposed guidelines by this case. In the analysis the Court

starts with the question whether Homeland Security opposes and they do. That is only

the beginning point and not the ending point. The Court is also mindful of the other

factors, that include the reason admin close is sought; the basis for any opposition; the

likelihood that the respondent will succeed on any application he or she is pursuing

outside of the removal proceedings; the anticipated duration of closure; and the

responsibility of either party in contributing to any current or anticipated delay; and the

ultimate outcome of proceedings.

The Court looks to many of the facts in this case, but one of them begins with the

analysis that this case was continued by agreement for three years. This is a factor.

Additionally, the Court recognizes that without the naturalization of the

respondent's wife, this respondent will not be eligible for adjustment of status or any

other relief before this Court. It is that naturalization that would make him eligible,

A200-243-233 3 August 5, 2014

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although not guaranteed, of residency status under Section 245. This application

process takes a period of time. In this particular situation the respondent's wife has

failed the test three separate occasions and that has extended over three years. It is

not unlikely that if she does file in the future that another year will be passing before the

final result. Not only is it a factor, but the fact that she has not filed a new application is

an additional factor.

The Court also recognizes that-basically, as I indicated, there is no other relief

save and except administrative closing this case. This is not what Avetisyan, citation

omitted, was authored for. It was not to do indirectly what a respondent could not do

directly.

Furthermore, the Court has listened to the respondent's circumstances and the

wife, who was having difficulty passing the naturalization exam, is not enrolled in

courses at this time. She certainly should be. It is demonstrated that without those

courses she has a very low likelihood of passing the test at all. Since her age is not 55

and there is no evidence that she is close to 55, which is a magic number for one to file

for naturalization in their own language, in all likelihood this is a speculative event now

for this Court in the final analysis.

I comment on her not being in class or having a pending application for

naturalization in supporting my final conclusion that under the totality of the

circumstances, the Court will not exercise its discretion to admin close this case under

Matter of Avetisyan.

CONTINUANCE

The respondent has also asked for a continuance. I incorporate by reference my

entire discussion of the facts that I used in the Avetisyan analysis. I also recognize, and

counsel has pretty much confirmed, that the respondent's priority date under 203(a)(2)

A200-243-233 4 August 5, 2014

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category will be current in a few months. The respondent can apply for the normal

immigrant process and he will not be faced with the same issue that the wife has to be a

naturalized citizen. Once the quota is current, the respondent can apply and move

forward with the immigrant visa. There may be issues of waivers under 212(a)(9)(8),

but those are separate and apart. He would be facing those same issues in the United

States or at the American Consulate. The Court also recognizes that the respondent

worked without permission and this is a factor, but it is not a ground of inadmissibility.

In the final analysis, counsel was seeking a continuance to do indirectly what he could

not do through the admin close process. In the final analysis, this Court will not

exercise its discretion to continue this case any further. Suffice it to say, this case has

been on the docket for an extended period of time based on continuances. Homeland

Security does oppose this additional relief as well.

I cite to Matter of Hashmi, 24 l&N Dec. 785; Matter of Rajah, 25 l&N Dec. 127;

and I look to Simon v. Holder, WL 3606854 (3rd Cir. 2011 ). All these cases suggest

that I look to the factors that I recited herein and look to the totality of the circumstances

to determine whether discretion should be exercised and I have decided that it should

not under the totality of the circumstances.

I do add, however, that if the respondent's wife does get into classes and does

apply for naturalization, and demonstrates that in written form, that the parties can

certainly bring that to a higher authority when reviewing these matters with a view

towards returning this to this Court. However, that is all speculative at this point.

VOLUNTARY DEPARTURE

The respondent is both statutorily eligible and as a matter of discretion I would

grant this relief.

A200-243-233 5 August 5, 2014

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ORDERS

IT IS HEREBY ORDERED respondent's application for admin close be denied.

IT IS FURTHER ORDERED respondent's request for a continuance be denied.

IT IS FURTHER ORDERED that respondent be granted the privilege of departing

this country voluntarily without expense to the Government on or before October 4,

2014, if the respondent within five days of this order, August 12, 2014, places a bond

with the Department of Homeland Security.

IT IS FURTHER ORDERED if respondent does not place a bond of $500 with the

Department of Homeland Security on or before August 12, 2014, or does not voluntarily

depart when and as required, the privilege of voluntary departure shall be withdrawn

without further notice or proceeding and the respondent shall be removed from the

United States to Mexico on the charge contained in the Notice to Appear.

IT IS FURTHER ORDERED if respondent fails to depart as required, a civil

penalty in the amount of $3,000 shall be imposed against the respondent.

signature

A200-243-233

Please see the next page for electronic

IRA BANK Immigration Judge

6 August 5, 2014

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Immigration Judge IRA BANK

banki on November 24, 2014 at 2:35 PM GMT

A200-243-233 7 August5,2014

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