Lopez, Cynthia R.

6360 Edgemere Boulevard

El Paso, TX 79925
U.S. Department of Justice
Executive Ofce fr Immigration Review
Board of Immigration Appeals
Ofce of the Clerk
5107 Leesburg Pike, S1ite 2000
Fals Church, Vrginia 22041
OHS/ICE Ofice of Chief Counsel - ELP
1545 Hawkins Blvd.
El Paso, TX 79925
Name: MARTINEZ-HERNANDEZ, MOISES A089-476-569
Date of this notice: 1/31/2012
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosure
Panel Members:
Holmes, David B.
V9MM. .. W ~ PMPP . f
Sincerely,
Donna Carr
Chief Clerk
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Cite as: Moises Martinez-Hernandez, A089 476 569 (BIA Jan. 31, 2012)
U.S. Department of Justice
Executive Ofce fr Immigation Review
Decision of the Board of Immigration Appeals
.
Falls Church, Virginia 22041
File: A089 476 569 - El Paso, T
In re: MOISES MARTINEZ-HERNANDEZ
I REMOVAL PROCEEDINGS
MOTION
Date:
ON BEHALF OF RESPONDENT: Cynthia Raquel Lopez, Esquire
ON BEHALF OF DHS: Betsy Bailey
Assistant Chief Counsel
APPLICATION: Reopening; reconsideration
JAN 31ZD12
This matter was last befre the Board on September 6, 2011, when we dismissed the
respondent's appeal. The respondent has fled a "Motion to Reconsider." The Department of
Homeland Security (DHS) has opposed the motion. The motion will be granted and the record will
be remanded to the Immigration Court.
While the respondent's motion is captioned a motion to reconsider, it does not specif "erors
of fct or law in the prior Board decision . .. supported by pertinent authority," as required fr a
motion to reconsider. Section 240(c)(6)(C) of the Immigration and Nationality Act, 8 U.S.C.
1229a(c)(6)(C); 8 C.F.R. 1003.2(b)(l ); see also Matter ofO-S-G-, 24 I&N Dec. 56 (BIA 2006).
We are not convinced of any fctual or legal error in our prior decision, in which the Board afrmed
the Immigration Judge's decision denying voluntary departure under section 240B(a) of the Act,
8 U.S.C. I229c(a), as a matter of discretion.
However, the respondent also requests that we reopen his case in the exercise of discretion, based
on his recent mariage to his longtime girlfiend, a lawfl permanent resident, and has presented
several documents in support of the motion. To the extent the respondent seeks to introduce new
evidence into the record, we will construe the respondent's motion as a motion to reopen. See
Matter of 0-S-G-, supra, at 57-58 (a motion to reconsider contests the correctness of the original
decision based on the previous fctual record, while a motion to reopen seeks a new hearing based
on new or previously unavailable evidence). The DHS opposes the motion, arguing that the
respondent has not shown in the motion that he would be eligible fr adjustment of status and the
motion does not satisf the fctors set frth in Matter of Velarde, 23 I&N Dec. 253 (BIA 2002). The
DHS also points out that there is no evidence that the 1-130 visa petition, a copy of which was
submitted by the respondent in the motion, was actually fled with or approved by the U.S.
Citizenship and Immigration Serices (USCIS).
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Cite as: Moises Martinez-Hernandez, A089 476 569 (BIA Jan. 31, 2012)
.
.
A089 476.569
While te DHS is corect in these assertions, the respondent is not seeking reopening fr
adjustment of status, and in any event the record indicates that he may be ineligible fr that fr of
relief (l.J. at 1; Exh. 1 ). See section 245(a) of the Act, 8 U.S.C. 1255(a). The respondent admits
in the motion that he will have to retur to Nicaragua fr consular processing befre he can be
admitted pursuant to his wife's visa petition, and merely requests that he be granted voluntary
departure in order that he may immigrate lawflly in the fture, if and when the USCIS approves the
visa petition and a visa becomes available to him (Motion, at 3). Thus, whether the respondent's
motion satisfes the fctors set frth in Matter of Velarde, supra, and whether the respondent has
show he is now eligible fr adjustment of status are not material in this case.
In afrming the Immigration Judge's denial of the respondent's application fr voluntary
departure, we noted in our prior decision, among other things, his lack of close family ties in the
United States. It is axiomatic that, in determining whether a respondent should be granted voluntary
departure in the exercise of discretion, all fvorable and unfvorable fctors must be careflly
weighed. Matter of Thomas, 21 l&N Dec. 20 (BIA 1995); Matter of Lem ham mad, 20 l&N Dec. 316
(BIA 1991); Matter a/Gamboa, 14 I&N Dec. 244 (BIA 1972). The respondent's motion is timely
as a motion to reopen, and his marriage is a "new fct[] since the time of his hearing which may
afect the outcome of his case. Section 240(c)(7)(B), (C)(i) of the Act; 8 C.F.R. 1003.2(c)(l), (2);
see Matter of Coelho, 20 l&N Dec. 464 (BIA 1992). In light of the respondent's new family ties in
the United States, we fnd that remand is waranted to reevaluate and weigh fvorable and
unfavorable factors and to redeterine whether the respondent should be ganted voluntary departure
in the exercise of discretion. Accordingly, the fllowing order will be entered.
ORER: The motion to reopen is granted, and the record is remanded to the Immigration Court
fr the sole and limited purpose of deterining whether the respondent should be granted voluntary
departure under section 240B(a) of the Act.
FOR THE BOARD
2
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Cite as: Moises Martinez-Hernandez, A089 476 569 (BIA Jan. 31, 2012)