U.S.

Department of Justice
Executive Office for Immigration Review

Board ofImmigration Appeals

Office ofthe Clerk
5107 Leesburg Pike, Suite 2000
Falls Church, Virginia 20530

Layne Law Group

PO Box 77007
Atlanta, GA 30357

Name: R

-A

, D

935

Date of this notice: 5/6/2015

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

Donna Carr
Chief Clerk

Enclosure

Panel Members:
Holmes, David 8.
Adkins-Blanch, Charles K.
O'Herron, Margaret M

Userteam: Docket

For more unpublished BIA decisions, visit

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Cite as: D-R-A, AXXX XXX 935 (BIA May 6, 2015)

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OHS/ICE Office of Chief Counsel - ATL

180 Spring Street, Suite 332
Atlanta, GA 30303

Layne, Bernadine H

r.

U.S. Department of Justice

Decision of the Board oflmmigration Appeals

Executive Office for Immigration Review

Falls Church, Virginia 20530

File:

935 -Atlanta, GA

In re: D

RA

Date:

UAY.

ao

8 2015

-A

APPEAL
ON BEHALF OF RESPONDENT:
ON BEHALF OF DHS:

Bernadine H. Layne, Esquire

Kelley Fowler
Assistant Chief Counsel

CHARGE:
Notice:

Sec.

212(a)(6)(A)(i), I&N Act [8 U.S.C. 1182(a)(6)(A)(i)] Present without being admitted or paroled (sustained)

APPLICATION: Continuance

The respondent, a native and citizen of Guatemala, has appealed from the Immigration
Judge's decision dated September 23, 2014, denying his request for a continuance and ordering
his removal from the United States. The appeal will be sustained and the record will be
remanded for additional consideration.
We review the findings of fact made by the Immigration Judge, including the determination
of credibility, for clear error. 8 C.F.R. I 003. l(d)(3)(i). We review all other issues, including
questions of judgment, discretion, and law, de novo. 8 C. F.R. 1003.l(d)(3)(ii).
We conclude that remand for additional consideration of whether the respondent can
establish good cause for an additional continuance to pursue Special Immigrant Juvenile Status
from the Department of Homeland Security (DHS), which, if granted, would allow him to apply
for adjustment of status to that of a lawful permanent resident, is warranted. See sections
101(a)(27)(J) and 245(h) of the Immigration and Nationality Act, 8 U.S.C. 1101(a)(27)(J),
1255(h).
First, the transcript reflects that the Immigration Judge did not record key portions of the
proceedings below. The record reflects that the respondent first appeared at a hearing on
September 9, 2014, and was given a continuance for attorney preparation by the Immigration
Judge (Tr. at 1). The transcript does not reflect that any substantive discussions occurred relating
to removability or relief from removal. The respondent appeared at a second hearing on
September 23, 2014. At the outset of the hearing the Immigration Judge stated that the
. "last time
[respondent's counsel] indicated that it was your desire to file Special Immigrant Juvenile [sic]
and given [the respondent's] release into the custody and care of his father, the Court had some
questions about whether he would qualify for that. Have you looked into that?" (Tr. at 2). The

Cite as: D-R-A, AXXX XXX 935 (BIA May 6, 2015)

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IN REMOVAL PROCEEDINGS

Immigration Judge's comment in this regard strongly implies that. a significant substantive
discussion occurred that was not recorded by the Im.migration Judge and is therefore not part of
the transcript of proceedings.
The respondent's counsel indicated that the respondent was no longer residing with his father

Court was very clear on what your obligation was" (Tr. at 4). However, the respondent disputed
that he was given specific instructions (Tr. at 2). The respondent also denies being given specific
instructions on appeal (Respondent's Br. at 3-4).
Second, the Immigration Judge's consideration of whether the respondent established good
cause for a continuance is insufficient. See 8 C.F.R. 1240.6; see also Matter ofRajah, 25 I&N
Dec. 127 (BIA 2009); Matter of Hashmi, 24 I&N Dec. 785 (BIA 2009).

The Immigration

Judge's decision reflects that the Immigration Judge was most concerned that the respondent did
not follow the instructions that were given to him at the September 9, 2014, hearing (I.J. at 1-2).
However, as we have indicated, these instructions are not set forth in the transcript and the
respondent disputes that he was given specific instructions.

Additionally, the Immigration

Judge's full consideration of the respondent's motion for a continuance consists of a single
conclusory sentence.
In light of the foregoing considerations, we conclude that remand for additional consideration
of whether the respondent can establish good cause for further continuance of these proceedings
1
to permit him to pursue Special Immigrant Juvenile Status is appropriate. Accordingly, the

following orders will be entered.

ORDER: The respondent's appeal is sustained.
FURTHER ORDER:

The Immigration Judge's decision dated September 23, 2014, is

vacated.
FURTHER ORDER:

The record is remanded for further proceedings consistent with the

foregoing opinion and for the entry of a new decision.

In this regard, we observe that the respondent claims on appeal that a state court approved the

pendency petition on January 7, 2015, (Respondent's Br. at 5). However, the respondent did not
proffer any evidence to substantiate this claim.

2
Cite as: D-R-A, AXXX XXX 935 (BIA May 6, 2015)

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and that a petition for dependency had been filed in state court (Tr. at 2). The Im.migration Judge
then indicated that he had instructed the respondent to take action at the last hearing and that ''the

 ..../
.._,

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
ATLANTA, GEORGIA

935

September 23, 2014

In the Matter of

)
)

-A

IN REMOVAL PROCEEDINGS

)
)

RESPONDENT

CHARGES:

Section 212(a)(6)(A)(i).

APPLICATIONS:

Continuance.

ON BEHALF OF RESPONDENT: BERNADINE LANE, Esquire

ON BEHALF OF OHS: KELLY FOWLER, Esquire

ORAL DECISION OF THE IMMIGRATION JUDGE

The respondent is a native and citizen of Guatemala who was placed in removal
proceedings with the filing of a Notice to Appear with the Court charging removability
pursuant to the provisions of 212(a)(6)(A)(i) of the INA. He filed written pleadings
acknowledging proper service of the Notice to Appear, admitting the factual allegations,
conceding removability.
At the last sitting of the Court, counsel indicated she intended to file for Special
Immigrant Juvenile, asking for guardianship to be appointed for the respondent. Exhibit
3 shows the respondent was released from ICE custody into the custody and

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File:

guardianship of his father (Exhibit 3). The Court instructed counsel to notify

RO of

ICE, given the fact that his release from custody was into the care of his father and the

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allegation is he is no longer in the care of his father. Counsel, on today's date, reports
back having failed to do so. She requests a continuance to seek Special Immigrant
Juvenile Status. The evidence before the Court is insufficient to find that he is
statutorily eligible for such relief. The Court will deny the application for a continuance.
No relief is requested.
ORDER
IT IS HEREBY ORDERED that the respondent be removed from the United
States to Guatemala on the charge contained in the Notice to Appear.

J. DAN PELLETIER
Immigration Judge

935

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September 23, 2014

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CERTIFICATE PAGE

I hereby certify that the attached proceeding 'before JUDGE J. DAN PELLETIER,

-A

935

ATLANTA, GEORGIA

was held as herein appears, and that this is th e original transcript t hereof for the file of
the Executive Office for Immigration Review.

FREE STATE REPORTING, lnc.-2

JANUARY 21, 2015
(Completion Date)

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in the matter of: