U.S.

Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals
qffice ofthe Clerk
5/()7 Leesburg Pike, Suite 2000
Falls Church. Virginia 220./ I

DHS/ICE Office of Chief Counsel - NEW

970 Broad Street, Room 1300
Newark, NJ 07102

Name: HERRERA-XIVIR, GLENDA

A 079-648-307

Date of this notice: 12/16/2015

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

Don.JtL C

tYv't.)

Donna Carr
Chief Clerk
Enclosure
Panel Members:
O'Leary, Brian M.

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/
Cite as: Glenda Herrera-Xivir, A079 648 307 (BIA Dec. 16, 2015)

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Lynwander, Julie E., Esq.

Julie Lynwander
7216 Bergenline Avenue
#400
North Bergen, NJ 07047

u.s. Department of Justice

Executive Office for Immigmtion Review

Decision of the Board of Immigration Appeals

Falls Chlll'Ch, Virginia 12041

File: A079 648 307 - Newark, NJ

Date:

In re: GLENDA HERRERA-XIVIR

DEC 1 6 2015

APPEAL
ON BEHALF OF RESPONDENT: Julie E. Lynwander, Esquire
APPLICATION: Reconsideration

The respondent, a native and citizen of Guatemala, appeals the decision of the Immigration
Judge, dated August 29, 2014, denying her motion for reconsideration of the June 9, 2014,
decision denying her motion to reopen proceedings. The record will be remanded to the
Immigration Judge for the entry of a new decision adjudicating the respondent's motion for
reconsideration.
These removal proceedings were concluded when, on March 11, 2005, an Immigration Judge
granted the respondent's request to voluntarily depart the United States on or before
July 10, 2005. See section 240B(a) of the Immigration and Nationality Act, 8 U.S.C. 1229c(a).
On May 22, 2014, the respondent filed her motion to reopen proceedings in order to pursue an
Application for Provisional Unlawful Presence Waiver (Fonn I-601A). The Immigration Judge,
in her June 9, 2014, decision denied the motion to reopen finding that the respondent did not file
a draft Form I-601A or evidence of her prima facie eligibility for the provisional waiver. In her
motion for reconsideration, the respondent contends, contrary to the Immigration Judge's
decision, that she did include evidence of prima facie eligibility including proof of payment of
consular fees, the approval notice for her 1-130 petition, a copy of her marriage certificate, her
husband's citizenship certificate as well as her children's birth certificates. Her counsel further
explained that this was the first I-601A provisional waiver motion that her office filed and that a
draft I-601A was not included because it was believed that the application could not be filed until
proceedings had been reopened. The respondent submitted a draft l-601A with her motion for
reconsideration as well as a statement addressing the issue of any prior arrests, fraud charges or
removal issues.
The Immigration Judge, in a brief decision to deny the motion for reconsideration, concluded
that there was no contention that the Court erred and no evidence or argument had been
submitted in support of the motion for reconsideration. However, the respondent did argue that
the Immigration Judge erred in her denial of the motion to reopen proceedings because she did
include evidence of the bona fides of her application with her motion to reopen proceedings. In
view of these circumstances, we conclude that the respondent's motion for reconsideration
sufficiently alleges error in the Immigration Judge's decision to deny the motion to reopen
proceedings and presents argument in support of that claim. Moreover, the Immigration Judge's
decision denying the motion for reconsideration, in its present form, does not sufficiently explain
the reason for the denial of that motion when viewed in light of the above. See, e.g., Matter of
M-P-, 20 l&N Dec. 786 (BIA 1994) (holding that when a motion to reopen is denied, the
Cite as: Glenda Herrera-Xivir, A079 648 307 (BIA Dec. 16, 2015)

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IN REMOVAL PROCEEDINGS

A079 648 307

We express no opinion as to the ultimate outcome of the respondent's motion at the present
time. See Matter ofL-0..(]-, 21 I&N Dec. 413 (BIA 1996). However, as we deem it necessary
for the Immigration Judge to enter new decision adjudicating the respondent's motion, the
following order is entered.
ORDER: The record is remand to the Immigration Judge for the entry of a new decision
adjudicating the respondent's motion for reconsideration.

2
Cite as: Glenda Herrera-Xivir, A079 648 307 (BIA Dec. 16, 2015)

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

Immigration Judge must identify and fully explain the reasons for such decision); see also Matter
ofS-H-, 23 I&N Dec. 462 {BIA 2002 (holding that, as the Board has limited fact-finding ability
on appeal, there is a heightened need for Immigration Judges to include in their decisions clear
and complete findings of fact that are supported by the record and are in compliance with
controlling law). As such, we will remand the record to the Immigration Judge for the entry of a
new decision adjudicating the respondent's motion for reconsideration.

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Julie Lynwander
Lynwander, Julie E
7216 Bergenline Avenue #400
North Bergen, NJ 07047
IN THE MATTER OF
HERRERA-XIVIR, GLENDA

FILE A 079-648-307

DATE: Sep 5, 2014

UNABLE TO FORWARD - NO ADDRESS PROVIDED

\I) ATTACHED

.f

IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE. TH"I; DECISION

FINAL UNLESS AN APPEAL IS FILED WITH THE BOARD OF IMMI.RATION APPEALS
WITHIN 30 CALENDAR DAYS OF THE DATE OF THE MAILING OF THlS WRITTEN DECISION.
SEE THE ENCLOSED FORMS AND INSTRUCTIONS FOR PROPERLY PREPARING YOUR APPEAL.
YOUR NOTICE OF APPEAL, ATTACHED DOCUMENTS, AND FEE OR FEE .. WAIVER REQUEST
MUST BE MAILED TO:
BOARD OF IMMIGRATION APPEALS
OFFICE OF THE CLERK
5107 Leesburg Pike, Suite 2000
FALLS CHURCH, VA 20530
'S,

. f IS
.....

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:::,ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE AS THE RESULT

OF YOUR FAILURE TO APPEAR AT YOUR SCHEDULED DEPORTATION OR REMOVAL HEARING.
THIS DECISION IS FINAL UNLESS A MOTION TO REOPEN IS FILED"'1N ACCORDANCE .
WITH SECTION 242B{c} (3) OF THE IMMIGRATION AND NATIONALIX ACT, 8 U.S.C.
SETION 1252B(c.) (3) IN DEPORTATION PROCEEDINGS OR SECTIO 240(c) (6),
8 U.S.C. SECTION 1229a{c) (6) IN REMOVAL PROCEEDINGS. IF YOO FILE A MOTION
TO REOPEN, YOUR MOTION MUST BE FILED WITH THIS COURT:

IMMIGRATION COURT
970 BROAD STREET, ROOM 1200
NEWARK, NJ 07102

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OTHER:

CC: CHIEF COUNSEL, DEPARTMENT OF HOMELAND

970 BROAD STREET ROOM 1300
NEWARK, NJ, 07102

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UNITED .l,TATES. DEPARTMENT OF JUSTICE

EXECUTivg::oFFICE FOR IMMIGRATION REVIEW
: IMMIGRATION COURT

i-'
970
:BROAD STREET I ROOM 1200
.
.:. NEWARK, NJ 07102

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. ..

U.S. Department of Justice

Executive Office for Immigration Review
Immigration Court, Newark, New Jersey

IN THE MATTER OF:

HERRERA-XIVIR, Glenda

CASE NO. A079 648 307

RESPONDENT
IN REMOVAL PROCEEDINGS
AT NEWARK, NEW JERSEY
ORDER DENYING RESPONDENT'S MOTION TO RECONSIDER
In reviewing Respondent's materials filed with her timely Motion to Reconsider,
this court notes that the Department of Homeland Security filed no response to the
Motion filed on July 29, 2014. The regulation requires that Respondent establish that the
court committed an error of fact or of law in considering Respondent's (untimely) Motion
to Reopen that she had filed on May 22, 2014. 8 C.F.R. 1003.23(b)(2).
This court has fully reviewed this matter and its decision issued on June 9, 2014.
The Motion to Reconsider provides information about Respondent's case, such as a draft
of her I-601A, that essentially concedes that the Respondent had failed to file such
information with the Motion to Reopen that was denied. There is no contention that this
court erred. The court concludes that there is no evidence or argument filed in support of
Respondent's Motion to Reconsider.
IT IS ORDERED that Respondent's Motion to Reconsider is DENIED.
Signed on August 29, 2014 at Newark, New Jersey.

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