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    Adan Ricardo Banuelos-Barraza, A206 279 823 (BIA Dec. 4, 2017)

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    Immigrant & Refugee Appellate Center, LLC
    In this unpublished decision, the Board of Immigration Appeals (BIA) reversed the denial of a motion to reopen and terminate proceedings sua sponte in light of the respondent’s acquisition of U nonimmigrant status. The decision was issued by Member Edward Grant and was joined by Member John Guendelsberger and Member Molly Kendall Clark.

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    Adan Ricardo Banuelos-Barraza, A206 279 823 (BIA Dec. 4, 2017)

    Uploaded by

    Immigrant & Refugee Appellate Center, LLC
    563 views7 pages
    In this unpublished decision, the Board of Immigration Appeals (BIA) reversed the denial of a motion to reopen and terminate proceedings sua sponte in light of the respondent’s acquisition of U nonimmigrant status. The decision was issued by Member Edward Grant and was joined by Member John Guendelsberger and Member Molly Kendall Clark.

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    In this unpublished decision, the Board of Immigration Appeals (BIA) reversed the denial of a motion to reopen and terminate proceedings sua sponte in light of the respondent’s acquisition of U nonimmigrant status. The decision was issued by Member Edward Grant and was joined by Member John Guendelsberger and Member Molly Kendall Clark.

    Copyright:

    © All Rights Reserved
    Download as PDF, TXT or read online from Scribd
    Download as pdf or txt
    563 views7 pages

    Adan Ricardo Banuelos-Barraza, A206 279 823 (BIA Dec. 4, 2017)

    Uploaded by

    Immigrant & Refugee Appellate Center, LLC
    In this unpublished decision, the Board of Immigration Appeals (BIA) reversed the denial of a motion to reopen and terminate proceedings sua sponte in light of the respondent’s acquisition of U nonimmigrant status. The decision was issued by Member Edward Grant and was joined by Member John Guendelsberger and Member Molly Kendall Clark.

    Copyright:

    © All Rights Reserved
    Download as PDF, TXT or read online from Scribd
    Download as pdf or txt
    of 7

    U.S.

    Department of l ·ice
    . .

    Executive Office for Immigration Review

    Board ofImmigration Appeals


    Office ofthe Clerk

    5107 Leesburg Pike, Suite 2000


    Falls Church, Virginia 22041

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


    Cooke, Arthur Campbell, Esq. OHS/ICE Office of Chief Counsel - DAL
    Law Office of Campbell Cooke 125 E. John Carpenter Fwy, Ste. 500
    4627 East 91 Street Irving, TX 75062-2324
    Tulsa, OK 74137

    Name: BANUELOS-BARRAZA, ADAN R ••• A 206-279-823

    Date of this notice: 121412017

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

    Sincerely,

    Donna Carr
    Chief Clerk

    Enclosure

    Panel Members:
    Guendelsberger, John
    Kendall Clark, Molly
    Grant, Edward R.

    Userteam:

    For more unpublished BIA decisions, visit


    www.irac.net/unpublished/index

    Cite as: Adan Ricardo Banuelos-Barraza, A206 279 823 (BIA Dec. 4, 2017)
    U.S. Department of.... ice

    Executive Office for Immigration Review

    Board ofImmigration Appeals


    Office ofthe Clerk

    5107 Leesburg Pike, Suite 2000


    Falls Church, Virginia 22041

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


    BANUELOS-BARRAZA, ADAN RICARDO OHS/ICE Office of Chief Counsel - DAL
    A206-279-823 125 E. John Carpenter Fwy, Ste. 500
    DAVID L MOSS JUSTICE CTR Irving, TX 75062-2324
    300 N. DENVER AVE.
    TULSA, OK 74103

    Name: BANUELOS-BARRAZA, ADAN R ... A 206-279-823

    Date of this notice: 121412017

    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,

    DoYVtL ctl./VLJ
    Donna Carr
    Chief Clerk

    Enclosure

    Panel Members:
    Guendelsberger, John
    Kendall Clark, Molly
    Grant, Edward R.

    .. .: _: ' -::. '�- (:. ,·. -�-


    ·,

    Userteam: !)�.. ;::knt

    Cite as: Adan Ricardo Banuelos-Barraza, A206 279 823 (BIA Dec. 4, 2017)
    U.S. Departmeq.t of Justi" Decision of tr.� ..soard of Immigration Appeals
    Executive Office for Immigration Review

    Falls Church, Virginia 22041

    File: A206 279 823 - Dallas, TX Date:


    DEC - 4 2017
    In re: Adan Ricardo BANUELOS-BARRAZA

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


    IN REMOVAL PROCEEDINGS

    APPEAL

    ON BEHALF OF RESPONDENT: Arthur Campbell Cooke, Esquire

    APPLICATION: Motion to reopen and terminate

    ORDER:

    The respondent appealed from the Immigration Judge's July 27, 2017, decision denying his

    motion to reopen and terminate his removal proceedings. based on his acquisition of

    U nonimmigrant status. See 8 C.F.R. § 214.14(c)(5)(i) (2017). In view of the respondent's

    present status and the circumstances presented, the appeal is sustained, and the proceedings

    are reopened and terminated without prejudice. See 8 C.F.R. § 1003.2(a). The respondent's stay

    request is denied as moot, as we have adjudicated this appeal. The record is returned to the

    Immigration Court without further -action.


    ,,

    Cite as: Adan Ricardo Banuelos-Barraza, A206 279 823 (BIA Dec. 4, 2017)
    •

    UNITED STATES DEPARTMENT OF JUSTICE


    EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
    IMMIGRATION COURT
    - DALLAS, TEXAS

    IN THE MATIER OF: ) IN REMOVAL PROCEEDINGS

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


    )
    BANUELOS BARRAZA, Adan Ricardo ) A 206-279-823
    )
    RESPONDENT ) (DETAINED)

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


    (INA or Act), as amended, in that you are 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 as designated by
    the Attorney General.

    APPLICATIONS: Motion to Reopen and Terminate

    ONBEHALF OF RESPONDENT: ONBEHALF OF THEDEPARTMENT


    OF HOMELAND SECURITY:

    Arthur Campbell Cooke, Esq. Joshua Levy, Esq.

    Order Denying Motion to Reopen and Terminate

    Respondent was ordered removed at his own request on Feb. 20, 2014. He now seeks
    reopening and termination based on the approval ofa non-immigrant vjsa. DRS opposes the
    motion.

    Respondent is a twenty-three-year-old male native and citizen ofMexico. Ex. 1. On


    December 12, 2013, the Department ofHomeland Security (the Government) served Respondent
    with a Notice to Appear (NT A), charging him with removability pursuant to INA §
    212(a)(6)(A)(i). Id. Following a finding ofremovability, Respondent requested a continuance
    for the adjudication ofa U visa application. Respondent was detained at this time. The
    undersigned IJ then scheduled Respondent for an evidentiary hearing pursuant to Matter of
    Sanchez-Sosa, 25 I&N Dec. 807 (BIA 2012), in order to determine whether the application was
    prima facie approvable. 1 A deadline was set by the court for the submission ofwitness lists and
    supporting documentation, and Respondent was directed by the Court to submit a complete copy
    ofthe U visa application.

    Respondent did not comply with that directive and did not offer himselffor examination
    by the Court as contemplated by Sanchez-Sosa. Instead, he jointly requested a removal order

    1 The MTR, at 4, implies erroneously that the purpose of the continuance on Feb. IO, 2014 was to allow time for the
    government to adjudicate the U visa. The audio transcript shows otherwise.

    Page 1 of4
    •

    five days before the scheduled examination by the Court. At that time, Respondent did not
    infonn the Court that he intended to try to remain in the United States pending adjudication of
    the U visa, and then seek to reopen his case. On February 20, 2014, the Immigration Court
    ordered Respondent removed to Mexico at his own request. The government then released
    Respondent from detention and allowed him to proceed to an adjudication of the U visa without
    interview or court ·examination.

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


    On Feb. 12, 2015 Respondent was provisionally approved for a U visa, and placed in
    deferred action pending numbers becoming current. On Dec. 1, 2016 the numbers became
    current and Respondent was automatically granted a U non-immigrant visa.

    In the meantime, Respondent incurred negative discretionary factors, the government re­
    detained Respondent, and has declined to release him notwithstanding the approval of the U visa.
    Thus far, Respondent has not sought bond redetennination.

    A hearing was conducted on the motion July 25, 2017. The government opposes the
    motion, and declines to waive the time limitation on the filing of motions to reopen.

    I. APPLICATION LAW & ANALYSIS

    A motion to reopen shall state new facts and evidence to be presented at a re-opened
    hearing, the evidence must be material, and the respondent must also show that it was
    unavailable and could not have been discovered or presented at the previous hearing. 8 C.F.R. §
    1003.23(b)(3); Matter ofS-Y-G-, 24 I&N Dec. 247, 252 (BIA 2007). Any motion to reopen for
    the purpose of acting on an application for relief must be accompanied by the appropriate
    application for relief and all supporting documents. Id. The motion must be filed within 90 days
    of the date of entry of a final administrative order of removal. 8 C.F .R. § 1003.23(b)(1).

    An Immigration Judge may also reopen any case in which he has made a decision at any
    time upon his own motion. 8 C.F.R. § 1003.23(b)( l ). An Immigration Judge may exercise his
    discretion to reopen a respondent's case despite the statutorily mandated time and numerical
    restrictions on motions to reopen only in "exceptional situations." Matter of J-J-, 21 I&N Dec.
    976, 984 (BIA 1997); see 8 C.F.R. § 1003.23(b)(l ), (3). "[I]t is the respondent's burden to
    demonstrate that such a situation exists." Matter of Beckford, 22 l&N Dec. 1216, 1218 (BIA
    2000). When jurisdiction over a respondent's application for relief rests solely with USCIS sua
    sponte reopening is not appropriate. See Matter of Yauri, 25 I&N Dec. 103, 112 (BIA 2009)
    (declining to reopen for an arriving alien seeking adjustment to LPR status). Finally, under the
    regulations, a respondent who has an approved U visa and

    who is subject to an order of exclusion, deportation, or removal issued by an immigration


    judge or the Board may seek cancellation of such order by filing, with the immigration
    judge or the Board, a motion to reopen and tenninate removal proceedings. ICE counsel
    may agree, as a matter of discretion, to join such a motion to overcome any applicable
    time and numerical limitations of 8 CFR 1003.2 and 1003.23.

    8 C.F.R. § 214.14(c)(S)(i)

    Page 2 of 4
    •

    First, the Court notes that Respondent's motion to reopen is time barred.See 8C.F.R.§
    1003.23(b)(l). Respondent was ordered removed on February 20, 2014, and filed his motion on
    July 7, 2017, more than three years later.Although 8C.F.R.§ 214.14(c)(S)(i) contemplates a
    respondent who has been granted a U visa being able to file a motion to reopen and terminate,
    the regulation contemplates that the respondent's motion is still subject to the time limitations in
    8C.F.R.§ 1003.23(b)(l).See§ 214.14(c)(5)(i) (noting DHS may join in the motion "to

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


    overcome any applicable time and numerical limitations "). An alien who chooses to request a
    removal order even while still seeking a U visa runs the risk under the regulation that he will
    incur additional negative factors and that the government may not agree to waive the time
    limitations. Here, DHS, in its discretion, has not joined in the motion to reopen and terminate;
    rather, DHS has stated on the record that they oppose Respondent's motion to reopen and
    terminate. Thus, the MT R cannot be granted except on a sua sponte basis.

    Respondent requested an order of removal in February 2014.He is seeking to reopen and


    terminate only now that he has obtained an approved U visa.If permitted, this machination
    :would effectively allow aliens to avoid examination under Matter ofSanchez-Sosa, 25 l&N Dec.
    807 (BIA 2012). The order of removal started the motion to reopen time limitation.Now, three
    years later and after Respondent has obtained a U visa, he seeks to take advantage of the
    Immigration Court's jurisdiction again so that he may eventually adjust his status.If Respondent
    intended to adjust status rather than be removed, he should not have sought to end this court's
    jurisdiction by requesting a removal order. It was always inevitable that Respondent would have
    to seek reopening if he expected to adjust to LP R status through the U visa process. It was never
    contemplated by either the Board or CIS that requesting a removal order was an appropriate way
    to await the adjudication of a U visa. The Court will not grant a motion that would have the
    effect of circumventing orderly procedures.See generally Matter ofJ-J-, 21l&N Dec. 976, 984
    (BIA 1997) (holding the Board will not reopen sua sponte to cure filing defects or to otherwise
    circumvent the regulations, where enforcing them might result in hardship).

    In any event, if Respondent is correct that the grant of the U visa operates to preclude the
    government from executing the removal order, it is unnecessary to burden the court with
    reopening motions that would have no practical effect. See Matter of Yauri, 25 l&N Dec. 103,
    112(BIA 2009) (" ...it is not necessary to reopen or terminate proceedings in order to allow an
    alien to pursue an application for adjustment of status before USCIS. The fact that USCIS has,
    in fact, completed its adjudication ...and granted the respondent lawful permanent resident
    status while her motion [to reopen] was pending with the Board merely reinforces our
    determination that sua sponte reopening is not generally warranted."). The Board in Yauri
    specifically alludes to the "already-crowded dockets [of the Immigration Courts." Similar to
    Yauri, where the Court lacked jurisdiction over adjustment for an arriving alien, so here the
    Court lacks jurisdiction over U visa approvals. The Court lacks jurisdiction over any relief to
    which Respondent may be entitled.2

    According, the following order will be entered:

    2Respondent is not currently eligible for adjustment of status because he has not been physically present in the U.S.
    for a continuous period of at least three years after the date he was admitted as a U nonimmigrant. See 8 C.F.R. §
    245.24(b). It would of course be speculative as to whether Respondent might become eligible for adjustment in the
    future. At present he is not eligible for any relief over which the Court has jurisdiction, and thus Yauri applies.

    Page 3 of 4
    •
    . .\

    ORDER

    IT IS HEREBY ORDERED that Respondent's Motion to Reopen and Terminate is

    DENIED.

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


    Date: 1·1..1·11 't. .�
    . �
    R. Wayne Kimball
    "

    Dallas, Texas United States Immigration Judge

    Page4 of4

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