U.S.

Department of Justice
Executive Office for Immigration Review Board ofImmigration Appeals Office of the Clerk
5107 l.eesb11rg Pike, S11i1e 2000 Falls Ch11rch, l'irgi11ia 2204/

Bretz, Eileen Collins, Esq. Bretz & Coven, LLP 305 Broadway, Suite 100 New York, NY 10007

OHS/ICE Office of Chief Counsel - NYC 26 Federal Plaza, Room 1130 New York, NY 10278

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Name: HU, YAN ZHEN

A042-729-871

Date of this notice: 4/7/2011

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

Donna Carr Chief Clerk

Enclosure

Panel Members: Creppy, Michael J. Liebowitz, Ellen C Malphrus, Garry D.

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: Yan Zhen Hu, A042 729 871 (BIA April 7, 2011)

U.S. Department of Justice

Executive Office for Immigration Review Falls Church, Virginia 2204 l

Decision of the Board of Immigration Appeals

File:

A042 729 871 - New York, NY

Date:

In re: YAN ZHEN HU IN REMOVAL PROCEEDINGS APPEAL ON BEHALF OF RESPONDENT: CHARGE: Notice: Sec. Eileen Collins Bretz, Esquire

APR -7 2011

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237(a)( l )(D)(i), l&N Act [8 U.S.C. 1227(a)( l )(D)(i)] Conditional resident status terminated 1 237(a)(2)(A)(ii) , I&N Act [8 U.S.C.

Sec.

1227(a)(2)(A)(ii)] -

Convicted of two or more crimes involving moral turpitude APPLICATION: Section 212 (c) waiver

The respondent, a native and citizen of China, appeals from the Immigration Judge's decision dated April 19, 2010, denying relief under former section 2 l 2(c) of the Immigration and Nationality Act, 8 U.S.C. 1182(c) (repealed 1996). The Department of Homeland Security has not responded to the appeal. The appeal will be sustained, and the record will be remanded.

This case was last before the Board on January 22, 2010, when we granted the respondent's unopposed motion to remand to permit her to apply for relief under former section 212(c) of the Act and remanded the record to the Immigration Court for this purpose. The Immigration Judge issued a decision on April 19, 2010, without further proceedings and without permitting the respondent an opportunity to file an application for this relief, finding that the respondent had abandoned her application for relief because she had not filed her application in 2005. While we recognize that the respondent had a previous opportunity to apply for section 212(c) relief without doing so, DHS did not express any objection to remanding to consider relief under 212(c) and DHS has not responded to the present appeal. We will therefore again remand the record to the Immigration Judge, consistent with our previous decision, solely to permit the respondent to apply for relief under former section 212(c) of the Act and for consideration of that application. We express no opinion regarding whether the respondent warrants such relief on the merits or in the exercise of discretion. See Matter ofInteriano-Rosa, 25 I&N Dec. 264, 266 (BIA 2010 ). ORDER: The appeal is sustained.

This charge was not sustained by the Immigration Judge in his December 6, 2005, decision (l.J.

at 2-3).

Cite as: Yan Zhen Hu, A042 729 871 (BIA April 7, 2011)

A042 729 871

FURTHER ORDER: The record is remanded to the Immigration Court for further proceedings consistent with the foregoing and for the entry of a new decision.

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Cite as: Yan Zhen Hu, A042 729 871 (BIA April 7, 2011)

) ,,..,
,

UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT

BRETZ & COVEN, GUADAGNO, NEW YORK, 305 BROADWAY, NY

LLP ESQ. SUITE #100 10007 FILE A 042-729-871 DATE: Apr 19, 2010

MATTHEW,

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IN THE MATTER OF HU, YAN ZHEN

UNABLE TO FORWARD - NO ADDRESS PROVIDED

vi ATTACHED

IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE.

THIS DECISION

IS FINAL UNLESS AN APPEAL IS FILED WITH THE BOARD OF IMMIGRATION APPEALS WITHIN 30 CALENDAR DAYS OF THE DATE OF THE MAILING OF THIS WRITTEN DECISION. SEE THE ENCLOSED FORMS AND INSTRUCTIONS FOR PROPERLY PREPARING YOUR APPEAL. YOUR NOTICE OF APPEAL, MUST BE MAILED TO: ATTACHED DOCUMENTS, OFFICE OF THE CLERK P.O. BOX 8530 VA 22041 FALLS CHURCH, AND FEE OR FEE WAIVER REQUEST BOARD OF IMMIGRATION APPEALS

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 IN ACCORDANCE WITH SECTION 242B(c) (3) 8 u.s.c. SECTION 1252B(c) (3) TO REOPEN, OF THE IMMIGRATION AND NATIONALITY ACT, 8 U.S.C. IN DEPORTATION PROCEEDINGS OR SECTION 240(c)

(6),

SECTION 1229a(c)

(6) IN REMOVAL PROCEEDINGS.

IF YOU FILE A MOTION

YOUR MOTION MUST BE FILED WITH THIS COURT: IMMIGRATION COURT

OTHER:

COURT CLERK IMMIGRATION COURT CC: FF

! ./

U.S. DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW UNITED STATES IMMIGRATION COURT
26 Federal Plaza, Room 1237 New York, N. Y. 10278

In the Matter of Hu, Yan Zhen Respondent

In behalf of Respondent: Matthew Guadagno, Esq. Bretz & Coven

File No. A 042-729-871

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In behalf of Dept. of Homeland Security: Litigation Section, l.C.E.

305 Broadway, Suite 100 New York, N.Y. 10007

26 Federal Plaza, Room 1130 New York, N.Y. 10278

ORDER OF REMOVAL For the reasons stated in the accompanying Decision, the court hereby ORDERS, that respondent's application for waiver under section 212c is hereby Denied on the basis that it was previously waived and abandoned, ORDERS, that the court's written decision of August 4, 2008, denying respondent's motion for termination pursuant to 8 CFR 1239.2(t) is hereby restated and incorporated herein by reference, and further ORDERS, that respondent be removed to China on the charge sustained. Dated:

tf-19-10.
Alan Vomacka, Immigration Judge

DECISION OF THE IMMIGRATION JUDGE

Introduction.
This court attempts to follow the guidance of and comply with the directives of the Board of Immigration Appeals. In the present situation the court finds it is proper to issue the written order of removal without scheduling further hearings pursuant to the Board's decision. This court believes the case was remanded for further proceedings without full attention to the history of this proceeding.

Specifically, the court believes respondent has waived and/or abandoned any application for relief under section 212c of the Immigration Act by several times failing to pursue that issue. First, respondent was directed by the court to file and pay the fee for any relief application she might wish to pursue. She was directly advised on the record of a deadline to do so. The deadline passed on February 15, 2005- five years ago. Second, respondent appears' to have failed to raise any issue concerning the availability of 212c relief when she filed her first notice of appeal in 2005. Third, she failed to raise the issue at the hearing in 2007, after the remand, when her attorney stated there was no new or additional issue to raise before the court prepared its written decision. Fourth, she appears to have failed to raise the issue in her second notice of appeal. She only raised this issue before the Board in her motion for reconsideration, filed in December 2008- three and one half years after she failed to file the actual relief application by the deadline set by the court. Rather than raise this issue before the parties in a new bearing and delay its resolution, the court believes it is preferable to bring the issue to the Board's attention directly and as soon as possible. The court originally intended to bring this issue to the Board's attention by means of certification, pursuant to 8 CFR 1003.7. Doing so would relieve respondent of the need to file a notice of appeal or pay a new appeal fee. However, consideration of the specific language in the regulation left the court unsure whether it would be proper to do so, given the procedural history of the case. Further, the appeal procedure affords respondent the opportunity to formulate any other issues which she might wish to raise on appeal.

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Relevant history of the proceedings.

This removal case is before this court pursuant to the Board's Order issued January 22, 2010. That order remanded the case for further hearings on respondent's request for relief pursuant to section 212c of the Immigration Act. The Board decision states: We note that the respondent did request this form of relief and the immigration judge indicated that he would not pretermit the application and it was not thereafter addressed. Upon remand, the immigration judge can consider and address the respondent's arguments with respect to the 212c waiver. Board Decision of January 22, 2010. The discussion concerning respondent's possible 212c

Certainly the Board has sole authority to determine whether respondent waived

available issues in filing her notices of appeaJ. However, it seems to this court that the Board would normally view the failure to raise the issue in either notice of appeal as a waiver of this issue. Since the Board's recent remand order does not refer to the possibility of a waiver of this relief, the court respectfully raises the issue.
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()

application occurred during the hearing on April 29, 2003 {Tr. at 28]. The case then was rescheduled more than once for C.I.S. to adjudicate the I-751 petition. By December 7, 2004, the petition had been approved, and the issue shifted to respondent's need for some relief application to overcome her removability for criminal convictions. Respondent's counsel also had previously raised the possibility of cancellation of removal under section 240A(a) INA, a form of relief similar to 212c, but the court suggested that cancellation would be unavailable because respondent's convictions occurred soon after her admission. The court stated to counsel that if respondent wished to preserve the issue for appeal,

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You're welcome to prepare the application if you want to have a ruling on it. You can bring it to court and be ready to pay the fee.
. .

And then, I don't know if there is any form of relief she might be eligible for, but - I think what I could do is reset the case. You can bring any relief application tltat site wants to file to tlte next /tearing and we'll see if something seems to be available. Okay?

Attorney: Thank you, your honor. Tr. at 54 [emphasis added]. The court then addressed the respondent directly: You have to come back And your attorney is going to help you prepare some papers. You must have tl1em ready tofile wl1en you come back on the 15'", okay?
. .

Respondent: Okay. Tr. at 55 (emphasis added). At the subsequent hearing on February 15, 2005, respondent submitted only a request for termination of proceedings so as to allow respondent to pursue an application for naturalization. This court believes that by failing to file an application for 212c waiver at that hearing, respondent waived any such application. The regulations provide: If an application or document is not filed within the time set by the immigration judge, the opportunity to file that application or document shall be deemed waived. 8 CFR 1003.Jlc.

Discussion.
In a similar case, the respondent was given a deadline to file an application for cancellation of removal. He failed to file the application at all, but appeared with witnesses at the final merits hearing which had been scheduled, and sought to file his written application that day. The immigration judge held that the cancellation application had been waived by failure to file.
-3-

!)

The Board dismissed respondent's appeal. It stated: The respondent did not submit his application for cancellation of removal in advance of his Individual Calendar hearing, as required by the Immigration Judge and the Local Operating Procedures of the Baltimore Immigration Court.8 Instead, he appeared on the date scheduled for the hearing and sought to have the application placed into the record for the first time. The Immigration Judge and counsel for the DHS could not have reviewed the application and all its attachments in sufficient detail on such short notice. Moreover, considering that approximately 6 months had passed since the respondent's final Master Calendar hearing, it would not have been reasonable to expect the Immigration Judge to grant an adjournment. Under the circumstances, therefore, we agree that the respondent's cancellation ofremoval application was not filed in a timely manner and that the Immigration Judge acted within the scope of her discretion when she deemed that application abandoned pursuant to 8 C.F.R. 1003.31c.

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Matter ofS/1anu, 23 I& N Dec. 754, 765 (BIA 2005); see also Matter ofR.R., 20 l&N Dec. 547,
549 (BIA 1992) and cases there cited. In regard to its own jurisdiction, the Board has applied the remedy of forfeiture to appeals which are only days late. See Matter ofliadov, 23 I&N Dec. 990 (BIA 2006). In the present case, respondent's termination request was eventually denied on the merits, from which respondent took her appeal. This court would respectfully suggest that respondent failed to raise any issue concerning 212c relief in her 2005 notice of appeal. The Board remanded the matter on April 24, 2007, with instructions to the court as to how the motion for termination should be assessed. At a master calendar hearing on June I 2, 2007, the court asked respondent's counsel several times whether there was anything more that needed to be done other than to issue a new decision consistent with the Board's order. Counsel eventually replied that he did not think so. (Tr. at 3, June 12, 2007). Counsel made no reference to any other application, including 212c relief.2 The court issued the new decision on August 4, 2008. Respondent filed her appeal on September 3, 2008. The second notice of appeal appears to make no reference 212c relief. As

It may be noted that before issuing the first removal order, the court tried to convince

respondent and counsel that she could apply for the alternative relief of voluntary departure without weakening her claim for termination. [Tr. at 186-92, Dec. 6, 2005]. The court still believes this is a well-founded argument in the context of conclusion-stage voluntary departure under 8 CFR 1240.26c. Compare 8 CFR 1240.26(b) (1) (i) (B) to (D). Respondent declined to make the application and her appeal asserted that the court had erred by trying to "coerce" respondent into applying for this other form of relief. Respondent Notice of Appeal filed Dec. 28, 2005. Given this history the court had no reason to think respondent's counsel was seeking more strategic guidance from the court. -4-

I
.

.)

'.1

far as the court can determine, at no point between February 2005 and December 2008 did respondent do anything to pursue 212c relief. The motion to remand filed in December 2008 states that "[b)ecause respondent went fonvard on her request for termination her eligibility for INA section 212c relief has never addressed" [sic]. Respondent's Brief on Appeal at 12.

This statement in respondent's motion to remand is incorrect. Her eligibility for 212c relief was never addressed because s/1e f ailed to file an application f or sucll relief after the court directed her to do so by a certain date. If respondent had filed an application for 212c relief at any time before this court's order of removal in August, 2008, the court would have addressed it in some manner. The court believes that respondent waived the right to seek such relief three and a half years before she belatedly raised the claim that it was never addressed. Respondent has been represented throughout this period by a law firm which has substantial experience in immigration law, including issues arising from criminal convictions. The court believes that respondent may be said to have waived the right to seek 212c relief three times: most clearly, by her failure to file such application by February 15, 2005, and again by her failure to include an appellate issue on this point in her first or second notice of appeal. Lengthy delays in many types of court proceedings are often the subject of public concern. Immigration court proceedings may be unique in that one party (the alien) may be said to prevail so long as the litigation continues, since respondents are able to stay in the United States, and thereby temporarily block the goal of DHS, for as long as no order of removal becomes final. Ifrespondent had timely filed her application for 212c relief, that claim could have been adjudicated during the original proceedings which ended over four years ago. The issues to consider on 212c are not identical to the issues involved in the motion to terminate which respondent did pursue, but they are similar enough that both matters could be considered on the same evidentiary record. As far as this court can determine, respondent has given no explanation at all for why she did not or could not file a 212c application in February 2005.

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Conclusion.
The Board's Decision of January 2010 states that the question of 212c relief was not addressed by this court, but it does not refer to the portions of the record cited above, which provide a basis to conclude that such relief had been waived by respondent even before the first appeal was filed with the Board. Respondent's motion to remand makes no mention of the court's directive to file any relief application by February 15, 2005. The court respectfully requests that the issue of abandonment be addressed by the Board. For the foregoing reasons the court has concluded that 212c relief was waiver or abandoned by respondent long ago, and has denied the new request for such relief on that basis. The
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")
- __ ,,. ..

order of removal is set out at the head of this decision.

Dated:
0714

'-/-(?

-/O.

(/
Alan Vomacka, Immigration Judge

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