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In this unpublished decision, the Board of Immigration Appeals (BIA) vacated the denial of the respondent’s request for a continuance because the immigration judge who presided over his previous hearing did not indicate that he was required to bring witnesses to his next hearing to testify in support of his adjustment application. The decision was written by Member John Guendeslberger and joined by Vice Chairman Charles Adkins-Blanch and Member Elise Manuel.
In this unpublished decision, the Board of Immigration Appeals (BIA) vacated the denial of the respondent’s request for a continuance because the immigration judge who presided over his previous hearing did not indicate that he was required to bring witnesses to his next hearing to testify in support of his adjustment application. The decision was written by Member John Guendeslberger and joined by Vice Chairman Charles Adkins-Blanch and Member Elise Manuel.
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In this unpublished decision, the Board of Immigration Appeals (BIA) vacated the denial of the respondent’s request for a continuance because the immigration judge who presided over his previous hearing did not indicate that he was required to bring witnesses to his next hearing to testify in support of his adjustment application. The decision was written by Member John Guendeslberger and joined by Vice Chairman Charles Adkins-Blanch and Member Elise Manuel.
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Attribution Non-Commercial (BY-NC)
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Descărcați ca PDF, TXT sau citiți online pe Scribd
3100 Cleburne Avenue Houston, TX 77004 U.S. Department of Justice Executive Ofce fr Imigration Review Board of Immigration Appeals Ofce of the Clerk 5107 Leesburg Pike, Suite 2000 Fals Church, Virginia 20530 OHS/ICE 606 S. Olive Street, 8th Floor LOS ANGELES, CA 90014 Name: AGUILAR-MORALES, LEONEL A ... A 088-091-744 Date of this notice: 12/6/2013 Enclosed is a copy of the Board's decision and order in the above-refrenced case. Enclosure Panel Members: Guendelsberger, John Manuel, Elise Adkins-Blanch, Charles K. Sincerely, bc { t Donna Carr Chief Clerk lulseges Userteam: Docket For more unpublished BIA decisions, visit www.irac.net/unpublished I m m i g r a n t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: Leonel Amador Aguilar-Morales, A088 091 744 (BIA Dec. 6, 2013) U.S. Department of Justice Executive Ofce fr Immigration Review Board of Immigation Appeals Ofce of the Clerk 5107 leeshurg Pike, Suite 2000 Fals Church, Vrginia 20530 AGUILAR-MORALES, LEONEL AMADOR AOSS-091-744 OHS/ICE 606 S. Olive Street, 8th Floor LOS ANGELES, CA 90014 C/O CUSTODIAL OFFICER 62 CIVIC CENTER SANTA ANA, CA 92701 Name: AGUILAR-MORALES, LEONEL A ... A 088-091-744 Date of this notice: 12/6/2013 Enclosed is a copy of the Board's decision in the above-refrenced case. This copy is being provided to you as a courtesy. Your attorey 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 fom the United States or afrms a Immigration Judge's decision ordering that you be removed, any petition fr review of the attached decision must be fled with ad received by the appropriate court of appeals within 30 days of the date of the decision. Enclosure Panel Members: Guendelsberger, John Manuel, Elise Adkins-Blanch, Charles K. Sincerely, Don c f Donna Carr Chief Clerk lulseges Useream: 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: Leonel Amador Aguilar-Morales, A088 091 744 (BIA Dec. 6, 2013) I M U;S. Department of Justce Executve Ofce fr Igation Review Decision of te Board of Imgation Apeals Falls Church, Vigia 20530 File: A088 091 744-Los Angeles, CA Date: DEC 6 2013 I re: LEONEL ADOR AGUAR-MORAES a.k.a. Leonel Amador Aguila I RMOVA PROCEEDIGS APPEAL ON BEHF OF RSPONDENT: Mauie Hew, Jr., Esquire Te respondent, a native ad citizen of Mexico, has appealed fom te Im gation Judge's decision dted May 15, 2013. We review questons of law, discretion, ad judgent aising in appeals fom decisions of Imigation Judges de novo, wherea we review fdngs of fct in such appeas uder a "clealy eroneous" stadad. See 8 C.F.R. 1003.l(d)(3). The appeal will be sustaned, ad te record will be remaded. The respondent challeges the higation Judge's denia of a continuace. A Imgation Judge may gt a continuace "fr good cause shown," within her sound discretion. See Matter of Perez-Andrade, 19 I&N Dec. 433 (BI 1987); 8 C.F.R. 1003.29. "[A]n I igation Judge's decision denyng [a] motion fr continuace will not be reversed unless te alien establises tat te denia caused him actal prejudice ad ha ad materially afected the outcome of his case." Matter of Vllarreal, 23 I&N Dec. 886, 891 (I 2006). Applyg a de novo stadad of review, we conclude tat good cause dd exist fr te gtig of a continuace at te respondent's May 15, 2013, hearng. The Imgaton Judge ordered te respondent removed afer he infred her that his witnesses were not in cou tat day to suppor hs pending applicaton fr adjustment of stats uder section 245 of te higration ad Nationalit Act, 8 U.S.C. 1255. Te Im igation Judge made no effrt to understand the reasons why his wtesses were not present until afer issung her order (Tr. at 80-81 ). The respondet ten explaned tat he did not undestad tat hs witnesses were required to appea at tat heang (Tr. at 81). A review of the record suppors his claim. Although the substitte I igation Judge who presided over the respondent's May 9, 2013, heang ha intially advised te resondent-atig pro se at tat time -that he was required to have his witesses in cou fr his next appeaance (Tr. at 68- 69), her later instctions could reasonably be interreted not to include that requirement. Once it becae appaent tat several pending issues remained in the cae, te substitte Im igation Judge infored te respondent that she would prefr to reset the cae so tat te origal Imigaton Judge "can addess all of those issues as to what she wats fom you." The substitute Imigation Judge only added that the respondent should "do [hs] best to get that medical [exa report] taen cae of' (Tr. at 71-72). At te end of the heang, afer fher discussion of te pendig issues, te Im igation Judge su azed fr the respondent: "I'm going to reset you case over to next week. .. . You'll come back in like you did today ad go over everg wth the Judge, Judge Muoz who is actally going to be doing te cae obviously, ad all of tose issues, ad I'll wte some notes in here [as to] what we discussed today so you ca fgue out what fes need to be paid ad G Mc. . 7W . W 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: Leonel Amador Aguilar-Morales, A088 091 744 (BIA Dec. 6, 2013) A088 091 744 dea wit the oter issues as well" (Tr. at 73). A reasonable person would understad tat the May 15 heang would be a heag like the May 9 heang ("like you did today'). I was terefre reasonable fr te pro se respondent to conclude tat it was not imperative fr hs witesses to appea util Judge Muoz instcted him so. 1 We terefre fnd tat good cause did exist fr te I igation Judge to reset the heag to aother date to provide te respondent te opportty to ar age fr hs wtesses to appea in cou. See Mater of Perez-Andrade, supra. We fher fnd tat the record establishes tat te respondent sufered prejudice due to te I igaton Judge1s denia of a fer continuace, see Matter of Vllarreal, supra, iasmuch as he is te benefciay of a approved immigat visa petition tat has been pendig may yeas, ad he has undergone medcal exaiation ad paid substatia flig fes in ferace of his adjustent application. On remad te paies will have the opportunity to pursue all other pendg issues. Accordingly, the fllowing order will be entered. ORDER: The appeal is sustained, ad the record is remaded fr fer proceedings. I is ofen a buden fr witesses to appea i cou repeatedly, fr tey may need to mae aragements to be away fom their employent ad to travel to the cou location. 2 . . . Y 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: Leonel Amador Aguilar-Morales, A088 091 744 (BIA Dec. 6, 2013) UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW UNITED STATES IMMIGRATION COURT LOS ANGELES, CALIFORNIA File: AOBB-091-7 4 In the Matter of May 15, 2013 LEONEL AMADOR AGUILAR-MORALES ) ) ) ) IN REMOVAL PROCEEDINGS RESPONDENT CHARGES: 212(a) (6)(A) (i ) , present without being admitted or paroled. APPLICATIONS: Adjustment of status. ON BEHALF OF RESPONDENT: PRO SE ON BEHALF OF OHS: JEAN LIN ORAL DECISION OF THE IMMIGRATION JUDGE Respondent is a male native and citizen of Mexico. Removal proceedings were commenced with the issuance of the Notice to Appear dated December 10, 2012, which has been marked and admitted as Exhibit 1. Respondent admitted the allegations and the charge was sustained. The respondent was questioned about his criminal history, including a conviction fr oral copulation on a person under the age of 18, for which he was sentenced to 364 days. The respondent acknowledged that he served 220 days. The Government submitted documentation including the police repor and the conviction documents. The respondent was, in fact, convicted and the issue was whether or not the respondent was eligible fr any relief. Respondent requested adjustment of status I m m i g r a n t
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w w w . i r a c . n e t
based on a petition by his father, Jose Fernando Aguilar Rico. The petition had previously b
een approved in 1992 and appeared to be current at the time of proceeding
before this Court. Therefore, the matter was reset and the respondent filed the application for adjustment of status, including the afidavit of support by the petitioner and a co-affiant. The actual petitioner, Jose Fernando Aguilar Rico, the respondent's fther, does not have the income suficient to meet the guidelines and therefore another petition was filed by Rudy Fiona Manza Nero, who the respondent stated is his brother in-law, married to the respondent's sister. The documents 1 through 7, excluding the police repors and the conviction documents, are Exhibit 2 beca
se the respondent's Notice to Appear is
Exhibit 1. Exhibit 3 is the afidavit of support by the co-afiant Rudy Fiona Manza Nero. Exhibit 4 is the afidavit of suppor by the petitioner. Exhibit 5 is the adjustment of status application, 1-485, which has attached to it, Exhibit 5A, the supplement to the 485. Exhibit 6 is the 601 waiver for the respondent's conviction with regard to whether or not the respondent needs the waiver. The Court does not need to reach that issue at this time because the respondent has not been able to produce his witnesses in order to proceed with the adjustment of status application. The respondent's petitioner is not present. The respondent's co-afiant to suppor the income requirement, which the petitioner cannot meet, and the wife of the co-afant, who would also be required to execute a section of the 1-864 because the income reported on the 1-864 in part relies on the wife's income. None of the witnesses are here. The mater has been continued many, many times and at this time, the Court declines to continue the hearing any longer and will order the respondent removed. A088-091-744 .W LORRAINE J. MUNOZ Immigration Judge 2 . W..... . " May 15, 2013 I m m i g r a n t
Victor Jose Rodriguez Fuentes, Blasina Tejada de Rodriguez, Juana Damaris Miquella Rodriguez v. Immigration and Naturalization Service, 746 F.2d 94, 1st Cir. (1984)