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In this unpublished decision, the Board of Immigration Appeals (BIA) granted a DHS motion to administratively close proceedings in the exercise of prosecutorial discretion for a respondent with a lawful permanent resident mother and four U.S. citizen children, who was two months short of establishing eligibility for non-LPR cancellation of removal. The decision was issued by Member Edward Grant.
In this unpublished decision, the Board of Immigration Appeals (BIA) granted a DHS motion to administratively close proceedings in the exercise of prosecutorial discretion for a respondent with a lawful permanent resident mother and four U.S. citizen children, who was two months short of establishing eligibility for non-LPR cancellation of removal. The decision was issued by Member Edward Grant.
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In this unpublished decision, the Board of Immigration Appeals (BIA) granted a DHS motion to administratively close proceedings in the exercise of prosecutorial discretion for a respondent with a lawful permanent resident mother and four U.S. citizen children, who was two months short of establishing eligibility for non-LPR cancellation of removal. The decision was issued by Member Edward Grant.
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Attribution Non-Commercial (BY-NC)
Formate disponibile
Descărcați ca PDF, TXT sau citiți online pe Scribd
405 W. Southern Avenue, Suite 1-24 Tempe, AZ 85282 Name: RONDIN-NIEVES, GUADALUPE U.S. Department of Justice Executive Ofce fr Immigration Review Board of Immigration Appeals Ofce of the Clerk 5107 Leesburg Pike, S11te 2000 Fals Church, Virginia 22041 OHS/ICE Ofice of Chief Counsel - PHO P.O.Box 25158 Phoenix, AZ 85002 A 087-756-633 Date of this notice: 8/30/2013 Enclosed is a copy of the Board's decision and order in the above-refrenced case. Enclosure Panel Members: Grant, Edward R. Sincerely, DC c l Donna Carr Chief Clerk Lulseges Userteam: Docket I m m i g r a n t
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w w w . i r a c . n e t Cite as: Guadalupe Rondin-Nieves, A087 756 633 (BIA Aug. 30, 2013) For more unpublished BIA decisions, visit www.irac.net/unpublished U.S. Department of Justice Execuive Ofue fr Immigation Review Decision of the Board of Immigation Appeals Falls Church, Virginia 22041 File: A087 756 633 - Phoenix, A In re: GUADALUPE RONDIN-NIEVES I REMOVAL PROCEEDIGS APPEAL AND MOTION Date: ON BEHALF OF RESPONDENT: Marina N. Alexandrovich, Esquire ON BEHALF OF OHS: Jenifr I. Ga Assistant Chief Counsel AUG 3 0 2013 A appeal fom the Immigation Judge's decision in this case is curently pending befre the Board of Immigration Appeals ("Board"). The Department of Homeland Security ("OHS") has now fled a motion to administatively close these proceedings based upon the DHS's exercise of prosecutorial discretion. The respondent has indicated no opposition to the motion. The motion will be granted, ad the proceedings administratively closed. If either party to this case wishes to reinstate the proceedings, a witten request to reinstate the proceedings may be made to the Board. The Board will take no frther action in the case unless a request is received fom one of the parties. The request must be submited directly to the Clerk's Ofce, without fe, but with certifcation of service on the opposing party. Accordingly, the fllowing order will be entered. ORDER: The proceedings befre the Board of Immigration Appeals m this case are administratively closed. I m m i g r a n t
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w w w . i r a c . n e t Cite as: Guadalupe Rondin-Nieves, A087 756 633 (BIA Aug. 30, 2013) UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW UNITED STATES IMMIGRATION COURT PHOENIX, ARIZONA File: A087-756-633 August 30, 2012 In the Matter of GUADALUPE RONDIN-NIEVES IN REMOVAL PROCEEDINGS RESPONDENT CHARGES: Section 212(a) (6) (A) (i) of the Immigration and Nationality Act as an alien present in the United States without being aditted or paroled APPLICATIONS: Termination of proceedings; voluntary departure pursuant to Section 240B(b) of the Imigration and Nationality Act ON BEHF OF RESPONDENT: MARINA ALEXANDROVICH, ESQUIRE ON BEHALF OF OHS: JENNIFER I. GAZ, ESQUIRE ORAL DECISION OF THE IMMIGRATION JUDGE I. PROCEDURAL HISTORY The Respondent is a female alien, native and citizen of Mexico. The Department of Homeland Security (Government) alleges that the Respondent entered the United States at or near Naco, Arizona on or about April 10, 2000.- At the time of that I m m i g r a n t
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w w w . i r a c . n e t entry the Respondent was not admitted or paroled after inspection by an Imigration officer. On the basis of the foregoing, on February 6, 2010, the Government issued a Notice to Appear on Respondent charging her with removability pursuant to Section 212(a) (6) (A) (i). The Notice to Appear was personally served to the Respondent on February 5, 2010, in accordance with applicable statutory requirements (Exhibit 1) . At a Master Calendar hearing held on October 26, 2011, the Respondent, by and through counsel, denied all of the allegations and denied the charge of removability or inadmissibility, however; designating Mexico as country of removal if removal became required. The Respondent desired that these matters be proved-up and the Respondent denied proper service inasmuch as she received her document one day prior to the issuance of the Notice to Appear. Nonetheless, based upon this Court's findings and based upon the documentary evidence submitted, the Court finds that removability has been established by clear and convincing evidence pursuant to Section 240(c) (3) (A) of the Act. The Respondent designated Mexico as the country of removal and she has requested relief from removal in the form of voluntary departure pursuant to Section 240B(b) of the Act as well as termination of these proceedings. At the Individual hearing held on today's date, August 30, 2012, the following items were marked as exhibits and are A087-756-633 2 Re* bl wm August 30, 2012 I m m i g r a n t
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w w w . i r a c . n e t contained as evidence in the Record of Proceedings. Exhibit 1 is the Notice to Appear. Exhibit 2 is a receipt notice regarding a I-130 filed by Respondent's LPR mother, four birth certificates in which the Respondent is named as the mother of these U. S. citizen children. Exhibit 3 is the Respondent's Motion to Terminate these proceedings. The basis for that is the fact that the NTA was issued on February 6 but the Respondent was served the document on February 5. Exhibit 4 is the Government's Motion for Extension of Time with I-213, which was admitted without opposition. Exhibit 5 is Government's Opposition to Respondent's Motion to Terminate these matters. In addition to the documentary evidence, the Court considered oral arguments of the parties with regard to the ruling on the Motion to Terminate. II. FACTS Motion to Terminate The Respondent has argued, and her argument is contained in Exhibit 3 regarding the Motion to Terminate, that the Notice to Appear was defective, incongruent between the charge and the allegations as to what is contained in the Motion to Terminate, and that the Government had not met its burden of proof to prove by clear and convincing evidence. Clear and unequivocal is what the Respondent has cited under Woodby that the Respondent is not removable and cites returning LPR cases, and arguing that the NTA is deficient due to the factual A087-756-633 3 I e /o August 30, 2012 - 9 ..1v.v_v.v1 I m m i g r a n t
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w w w . i r a c . n e t impossibility that is that on the 5th of February the NTA was not in existence. The Government, on the other hand, argues that this was a clerical error that the Respondent was processed in the late hours of February 5 and that when the NTA was formally issued and signed by field operations supervisors it was February 6; however, a copy had already been provided to the Respondent in that she effectively was put on notice regarding the Government's position with regard to her status in this country that she was in the country without inspection. The Respondent has requested the Government to reissue the NTA and the apparent reason for the reissuance of the NTA would then render the Respondent eligible for the relief of at least cancellation of removal based upon her entry date of April 10, 2000. If it were after April 10, 2010, the Respondent would certainly be eligible to pursue the relief of cancellation of removal. But inasmuch as it was dated February 5 or February 6, it would cut the Respondent's time short by the stop-time rule and she would be ineligible for cancellation of removal. This Court finds that no due process issue has surfaced and the Respondent's due process rights have been regarded and complied with, that the Court finds that there was a clerical error based upon the timing. The Court certainly adonishes the Government to be vigilant in terms of dates on documents. However, it does not appear that the date of February 5 or February 6 is substantive in terms -of impacting A087-756-633 4 August 30, 2012 I m m i g r a n t
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w w w . i r a c . n e t the Respondent's rights or eligibility for relief. If February 6 would render her eligible for cancellation of removal, the Court may actually render a different ruling in these matters, but inasmuch as the Respondent was several months away from any kind of eligibility for cancellation, the Court believes that whether issued February 5 or February 6 it would not have changed the Respondent's eligibility for cancellation of removal and would find that this clerical error was de minimus and harmless error and denies the Motion to Terminate these matters. In the alternative, the Respondent has requested that the matter be continued to allow the Respondent to pursue prosecutorial discretion with the Government. The Respondent has been in proceedings now since February of 2010, over two years. The Respondent does not appear to be eligible for any forms of relief before this Court and the Court denied any further motions to continue the matter. However, that does not impact the Respondent's ability to pursue prosecutorial discretion, nor does it impact the Board or the Government's ability to grant prosecutorial discretion. The Court is cognizant that there are cases that the Board has returned to this Court that were administratively closed due to prosecutorial discretion even while the matters were on appeal. And so the Court certainly does not believe that its decision here today impacts the Respondent's ability to continue to A087-756-633
5 August 30, 2012 I m m i g r a n t
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w w w . i r a c . n e t . W pursue the relief of prosecutorial discretion. And the Court accordingly denied any further motions to continue these matters and allowed the Respondent to pursue the sole and only relief that she is seeking before this Court and that is post conclusion voluntary departure. It should be noted that the Court advised the Respondent regarding the potential for pre-conclusion voluntary departure. While this is an Individual hearing, if the Government were agreeable to pre-conclusion voluntary departure it would certainly double her amount of time for voluntary departure and there would not be a requirement for a bond. However, the Respondent's counsel indicated that that had been considered and strategically decided against. And so the Court did advise the Respondent regarding pre-conclusion voluntary departure but that was determined not to be the best avenue for the Respondent. With regard to post-conclusion voluntary departure, the Court believes that as a minimal form of relief and in the Court's discretion it would be appropriate to grant that form of relief. The Court will assess a $500 voluntary departure bond. The Respondent has a duty to post said bond within five business days to the Department of Homeland Security's Field Office Director. If the Respondent fails to post that $500 bond within five business days or fails to leave when and as required, the A087-756-633 6 August 30, 2012 .*% PWW, ~x .r1 . . . ....... .i.:. . . . M.w.. = . . . @ r . . . I m m i g r a n t
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w w w . i r a c . n e t Respondent will be ineligible for a period of 10 years for the reliefs of voluntary departure, cancellation of removal, adjustment or change of status and would be subject to a civil penalty of $3, 000. If the Respondent appeals this decision, which she has an absolute right to do so, she must provide to the Board of Immigration Appeals within 30 days of filing such appeal sufficient proof of having posted the voluntary departure bond. The Board will not reinstate the voluntary departure bond in its final orders if they have not received timely proof that the voluntary departure bond has been posted. If the Respondent files any Motions to Reopen or Reconsider during the voluntary departure period, the period allowed for voluntary departure will not be stayed, tolled or extended. The grant of voluntary departure will be terminated automatically. The alternate Order of Removal will take effect imediately and the penalties for failing to depart voluntarily will not apply. Accordingly, the following orders are entered by this Court. ORDER IT IS ORDERED that the Respondent's Motion to Terminate be and hereby is denied. IT IS FURTHER ORDERED that the Respondent's Motion to Continue these matters to allow the Respondent the right to pursue prosecutorial discretion be and hereby is denied IT IS FURTHER ORDERED that Respondent A087-756-633 7 August 30, 2012 I m m i g r a n t
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w w w . i r a c . n e t the privilege of departing this country voluntarily without expense to the Government on or before October 29, 2012, if the Respondent, within five business days of today or by September 6, 2012, places a $500 bond with the Department of Homeland Security. IT IS FURTHER ORDERED that if the Respondent does not place the $500 bond with the Department of Homeland Security on or before September 6, 2012, or does not voluntarily depart the United States when and as required, the privilege of voluntary departure should be withdrawn without further notice or proceedings and the Respondent shall be removed from the United States to Mexico on the charges contained in the Notice to Appear. IT IS FURTHER ORDERED that if the Respondent fails to comply with the orders of this Court or the orders of the Board of Immigration Appeals, the Respondent will be ineligible for a period of 10 years for the reliefs of voluntary departure, cancellation of removal, adjustment of status and the Respondent will $3,000. A087-756-633 8 August 30, 2012 I m m i g r a n t
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w w w . i r a c . n e t CERTIFICATE PAGE I hereby certify that the attached proceeding before JUDGE WENDELL A. HOLLIS, in the matter of: GUADALUPE RONDIN-NIEVES A087-756-633 PHOENIX, ARIZONA is an accurate, verbatim transcript of the recording as provided by the Executive Office for Inigration Review and that this is the original transcript thereof for the file of the Executive Office for Inigration Review. PAK/BJN .-P-r PATRICIA KOBYLSKI (Transcriber) YORK STENOGRAPHIC SERVICES, Inc. NOVEMBER 13, 2012 (Completion Date) W -