U.S.

Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals Office of the Clerk

5/07 l<'e"h11ri.: i'ik<'. Suite :!OOO Fal/.s CJ111rd1. l'irgi11i11 2204 I

Sinkler, Lawrence N. 8097-B Roswell Road Atlanta, GA 30350

OHS/ICE Office of Chief Counsel - ATL 180 Spring Street, Suite 332 Atlanta, GA 30303

Immigrant & Refugee Appellate Center | www.irac.net

Name: DIAZ-AULIS, SHEILA SOFIA

A 205-131-206

Date of this notice: 5/16/2013

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

DcrutL CWVt.J
Donna Carr Chief Clerk

Enclosure
Panel Members: Guendelsberger, John

Userteam: Docket

Cite as: Sheila Sofia Diaz-Aulis, A205 131 206 (BIA May 16, 2013)

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals Office of the Clerk

5107 Leesburg l'ike. S11i1e 2000 Fall. Cli11rcli. l'irgi11ia :::!IJ.11

DIAZ-AULIS, SHEILA SOFIA A205-131-206 IRWIN COUNTY DETENTION CENTER 132 COTTON DRIVE OCILLA, GA 31774

OHS/ICE Office of Chief Counsel - A TL 180 Spring Street, Suite 332 Atlanta, GA 30303

Immigrant & Refugee Appellate Center | www.irac.net

Name: DIAZ-AULIS, SHEILA SOFIA

A 205-131-206

Date of this notice: 5/16/2013

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 affirn1s 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,

DoYutL ca.Nl)
Donna Carr Chief Clerk

Enclosure
Panel Members: Guendelsberger, John

Userteam: L;,,__ . t

Cite as: Sheila Sofia Diaz-Aulis, A205 131 206 (BIA May 16, 2013)

U.S. Department of Justice

Executive Office for Immigration Review Falls Church, Virginia 22041

Decision of the Board of Immigration Appeals

File:

A205 131 206 -Atlanta, GA

Date:

MAY 16 2013

In re: SHEILA SOFIA DIAZ-AULIS IN REMOVAL PROCEEDINGS APPEAL ON BEHALF OF RESPONDENT: ON BEHALF OF OHS: Lawrence N. Sinkler, Esquire

Immigrant & Refugee Appellate Center | www.irac.net

Abby L. Meyer Assistant Chief Counsel

APPLICATION: Continuance

The respondent has appealed from the Immigration Judge's decision dated January 15, 2013. The Immigration Judge found the respondent removable as charged and denied the respondent's request for a continuance in order to pursue an application for Deferred Action Childhood Arrival ("DACA") with the Department of Homeland Security ("OHS"). On appeal, the respondent argues that the Immigration Judge erred in denying her request for a continuance. The respondent's appeal will be dismissed. The Board reviews an Immigration Judge's findings of fact, including findings as to the credibility of testimony, under the "clearly erroneous" standard. 8 C.F.R. 1003.l(d)(3)(i). The Board reviews questions of law, discretion, and judgment and all other issues in appeals from decisions of Immigration Judges de novo. 8 C.F.R. 1003.l(d)(3)(ii). We agree with the Immigration Judge's denial of the respondent's motion for a continuance in order to pursue her application for DACA with the DHS. A party seeking a continuance has the burden to establish good cause for a continuance. See 8 C.F.R. 1003.29. The respondent's application for DACA pending with the OHS does not provide good cause for a continuance of her removal proceedings, as the DHS's consideration of this application is collateral to the respondent's removal proceedings. See Matter of Perez-Andrade, 19 I&N Dec. 433 (BIA 1987) (the decision to grant or deny a continuance is within the discretion of the Immigration Judge, if good cause is shown, and that decision will not be overturned on appeal unless it appears that the respondent was deprived of a full and fair hearing). Hence, we find that the Immigration Judge properly denied the respondent's request for a continuance. Effective January 20, 2009, an Immigration Judge who grants an alien voluntary departure must advise the alien that proof of posting of a bond with the Department of Homeland Security must be submitted to the Board of Immigration Appeals within 30 days of filing an appeal, and that the Board will not reinstate a period of voluntary departure in its final order unless the alien has timely submitted sufficient proof that the required bond has been posted. 8 C.F.R. 1240.26(c){3). See Matter of Gamero, 25 I&N Dec. 164 (BIA 2010). The Immigration Judge provided the respondent with the required advisals and granted the respondent a 30-day

Cite as: Sheila Sofia Diaz-Aulis, A205 131 206 (BIA May 16, 2013)

A205 131 206

voluntary departure period, conditioned upon the posting of a $500.00 bond. The record before the Board, however, does not reflect that the respondent submitted timely proof of having paid that bond. Therefore, the voluntary departure period will not be reinstated, and the respondent will be removed from the United States pursuant to the Immigration Judge's alternate order. Accordingly, the following orders will be entered. ORDER: The respondent's appeal is dismissed. FURTHER ORDER: The respondent is ordered removed from the United States pursuant to the Immigration Judge's alternate order.

Immigrant & Refugee Appellate Center | www.irac.net

FOR THE BOARD

Cite as: Sheila Sofia Diaz-Aulis, A205 131 206 (BIA May 16, 2013)

UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW UNITED STATES IMMIGRATION COURT ATLANTA, GEORGIA

Immigrant & Refugee Appellate Center | www.irac.net

File:

A205-131-206

January

15,

2013

In the Matter of

SHEILA SOFIA DIAZ-AULIS RESPONDENT

IN REMOVAL PROCEEDINGS

CHARGES:

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

APPLICATIONS:

Voluntary departure.

ON BEHALF OF RESPONDENT: ON BEHALF OF OHS:

CORY MARTIN ESQUIRE

ABBY MEYER ESQUIRE

ORAL DECISION OF THE IMMIGRATION The respondent is an adult female, Mexico,

JUDGE

native and citizen of

who was placed in removal proceedings with the filing of

the Notice to Appear with the Court charging removability pursuant to the provisions of 212(a)

(6) (A)(i)

of the INA.

Respondent filed written pleadings admitting factual allegations one, two, three and four, but denying the charge of the admission of the factual

removability.

Nonetheless,

allegations is sufficient for the Court to sustain the charge of

rernovability. This case has been continued a number of times. respondent is detained. The

Counsel today requested a continuance

for adjudication of an application for Deferred Action Childhood Arrival (DACA). The Court will not continue the case for that First, a so-called DACA even if the

Immigrant & Refugee Appellate Center | www.irac.net

adjudication for several reasons.

application is collateral to the Court proceedings, Court proceeds and issues a final decision, still be granted a DACA.

the respondent can

An Immigration Court order in no way and it would not Therefore, it

interferes with her proceeding under the DACA, prohibit a grant of two year deferred action.

does not seem a good use of the Court's resources to continue this case further. It is unnecessary to rule on the

Government's motion that the respondent is statutorly ineligible for DACA. First of all, the argument of "statutory"

ineligibility for a non-statutory relief may not be the proper argument, but nonetheless regardless of whether her conviction

for theft would make her ineligible is beyond the purview of this Court. The only other relief departure. request is that of voluntary

The Department indicated they would not object to a

grant of voluntary departure under safeguards even though she does have the conviction for Rockdale County. theft from the state court of

The fact that there is post-conviction relief

being sought again it is a collateral matter and would not

A205-131-206

January

15,

2013

affect the finality of that conviction.

Respondent is

granted voluntary departure under safeguards on or before February

14,

2013 pursuant to the provisions by Section 240B.

Immigrant & Refugee Appellate Center | www.irac.net

Respondent is required to post a voluntary departure bond in the amount of

$500.

This

voluntary departure is under safeguards.

P1easo see the ne.xt paqe or eiectron.ic sqnature

J.

DAN PELLETIER

Immigration Judge

A205-131-206

January 15,

2013

/Isl/
Immigration Judge J. pelletij DAN PELLETIER

on April 29; 2013 at 6:02 PM GMT

Immigrant & Refugee Appellate Center | www.irac.net

A205-131-206

January 15,

2013