.

U.S. Department of ,Justice

Executive Offce fr Immigration Review
Board of Jmmigmtion Appeals
qffce of the Clerk
5107 leesburg Pike. Suite 2000
Falls Church. Vrginia 20530


OHS/ICE Office of Chief Counsel - LOS
606 S. Olive Street, 8th Floor
Los Angeles, CA 900
1
4
Name: RIVERA ANDRADE, JOSE RUBE ... A 094-458-895
Date of this notice: 6/13/2
0
14
Enclosed is a copy of the Board's decision and order in the above-referenced case.
Enclosure
Panel Members:
Grant, Edward R.
Sincerely,
Do c C
Donna Carr
Chief Clerk
yungc
Userteam: Docket
For more unpublished BIA decisions, visit www.irac.net/unpublished
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Cite as: Jose Rubesindo Rivera Andrade, A094 458 895 (BIA June 13, 2014)
Ronald Earl Behling
Law Office of Ron Behling
3255 Wilshire Boulevard, Suite 1801
Los Angeles, CA 90010
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
Q[ice of the Clerk
5107 Leesburg Pik Suite 2000
Falls Church. Virg1111a 20530
OHS/ICE Office of Chief Counsel - LOS
606 S. Olive Street, 8th Floor
Los Angeles, CA 90014
Name: RIVERA ANDRADE, JOSE RUBE ... A 094-458-895
Date of this notice:
6
/13/2014
Enclosed is a courtesy copy of the Board's decision in the above-referenced case.
Enclosure
Panel Members:
Grant, Edward R.
Sincerely,
Donna Carr
Chief Clerk
yu11:.ic
Userteam: Dod;1:t
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Cite as: Jose Rubesindo Rivera Andrade, A094 458 895 (BIA June 13, 2014)
'U.S. Department of Justice
Executive Ofce fr lmmigrati0nReview
Falls Church, Virginia 20530
File: A094 458 895 - Los Angeles, CA
In re: JOSE RUBESINDO RIVERA ANDRADE
IN REMOVAL PROCEEDINGS
APPEAL
ON BEHALF OF RESPONDENT: Pro se
1
APPLICATION: Temporay Protected Status
Decision ofthe Board of Immigation Appeals
JUN !^
Date:
The respondent has appealed fom the Immigration Judge's decision dated January 2, 2013,
denying the respondent's application fr temporary protected status (TPS).
2
See section 244 of
the Immigation and Nationality Act, 8 U.S.C. 1254a. The respondent seeks a remand to apply
fr asylum, withholding of removal and protection under the Convention Against Torure. Given
the totality of the evidence now befre us, including the evidence that the respondent's attorey
of record befre the Immigration Court and this Board, Mr. Ron Behling, has been suspended
fom practicing befre the Board, the Immigration Courts, and the Departent of Homeland
Security, we fnd tat a remand is warranted .to affrd the respondent the opportunity to pursue
asylum, witolding of removal and protection under the Convention Against Tortue. We
express no opinion on the outcome of these proceedings and note tat the respondent bears the
burden of establishing eligibility fr relief. Accordingly, the fllowig order is entered.
ORDER: The record is remanded to.the Immigration Cour fr frther proceedings consistent
with the fregoing opinion and the entry of a new decision.
,
1
Subsequent to the fling of this appeal, the respondent's attorey, Mr. Ron Behling, was
suspended fom practicing befre this Board, the Immigation Judges, ad the Deparent of
Homeland Security on April 23, 2013. Accordingly, tis order is being sent directly to the
respondent and a courtesy copy is being fished to Mr. Behling.
2
The respondent has not challengeq f Imi
w
atio Judge's deterination that the respondent
is not eligible fr TPS, and we therefore deer that iss.ue waived.
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Cite as: Jose Rubesindo Rivera Andrade, A094 458 895 (BIA June 13, 2014)
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMIGRATION COURT
LOS ANGELES, CALIFORNIA
File: A094-45B-895
In the Matter of
JOSE RUBESINDO RIVERA ANDRADE
RESPONDENT
CHARGES: INA Section 212{a) (6) (A) {i).
January 2, 2013
IN REMOVAL PROCEEDINGS
APPLICATIONS: Temporary protected status and post-conclusion
voluntary .departure.
ON BEHALF OF RESPONDENT: RON BEHLING
ON BEHALF OF DHS: ANGELA FIORENTINO-RIOS
ORAL DECISION OF THE IMMIGRATION JUDGE
This is the oral decision of the Imigration Judge.
It is an oral decision being issued contemporaneously from the
bench.
INTRODUCTION
The respondent is a 49-year-old native and citizen of
El Salvador. He is present in the United States without having
been admitted or paroled. See Exhibit 1.
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Removal proceedings were comenced with the filing on
October 18, 2006 of a Notice to Appear dated July 12, 2006. See
Exhibit 1. At a master calendar hearing on Septemer 11, 2008,
the respondent aditted the factal allegations contained in the
Notice to Appear and conceded inadissibility as charged. As
such, the Court finds that inadissibility has been established
by the requisite burden of proof.
At a hearing on January 2, 2013, the respondent
confirmed that he wished to designate El Salvador as the country
for removal in the event that removal becomes necessary. The
Court directs El Salvador, the country of the respondent's
citizenship, as the country for removal in this case should
removal become necessary.
As relief from removal, the respondent seeks temporary
protected status, and, alternatively, post-hearing voluntary
departure pursuant to INA Section 240B(b) . For the reasons set
forth below, the Court denies the appication for temporary
protected status. The Court grants the alternative application
for voluntary departure through March 4, 2013, conditioned upon
payent of a $500 voluntary departure bond within five business
days of issuance of today's order, with an alternate order of
removal to El Salvador.
EXHIBITS
The Exhibits in this case are as follows:
Exhibit 1 is the Notice to Appear, dated July 12,
A094-458-895 2 January 2, 2013
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2006.
Exhibit 2 is form r-821, and supporting documents,
tabs 1 through 3, pages 1 through 21. These documents were
received by EOIR on January 22, 2009.
Exhibit 3 is comprised of supporting documents
submitted by the respondent, pages 1 through 8, received by EOrR
on May 14, 2009.
Exhibit 4 is a users online case status printout,
dated October 19, 2009, and received by EOIR on October 22,
2009.
Exhibit 5 is a USCrS online case status printout,
dated February 17, 2010, and received by EOIR on February 18,
2010.
Exhibit 6 is the users denial of the respondent's Form
I-765. This is dated June 3, 2010. It was received by EOIR on
June 10, 2010.
Exhibit 7 is a Form I-797e. This for reflects the
Users referral of Form I-821 to the USCIS Administrative Appeals
Office.
Exhibit 8 is comprised of supplemental documents
submitted by the respondent, pages 1 through 53, received by
EOIR on February 27, 2012.
Exhibit 9 is the respondent's "brief regarding
respondent's eligibility for TPS. " This was received by EOrR on
February 27, 2012.
A094-458-895 3 January 2, 2013
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Exhibit 10 is the USCIS Administrative Appeals Office
dismissal of the respondent's adinistrative TPS appeal. This
dismissal is dated February 9, 2012.
Exhibit 11 is a USCIS decision denying TPS. This is
dated February 27, 2004.
Exhibit 12 is a printout from the California
Department of Motor Vehicles, along with proof of biometrics
compliance by the respondent. These documents were received by
EOIR on August 1, 2012.
Exhibit 13 is comprised of records of conviction and
related docuents submitted by the respondent on January 2,
2013.
I.
ANALYSIS: FINDINGS OF FACT AND CONCLUSIONS OF LAW
TEMPORRY PROTECTED STATUS
To be eligible for Temporary Protected Status (TPS),
an alien must establish, among other things, that he has not
been convicted of two or more misdemeanors. See 8 C. F. R.
Sections 1244. 4' 1244.1. Here, it appears as though the
respondent has been convicted of two misdemeanors.
The record in this case discloses that the respondent,
in or about May 2001, was convicted of violating California
Vehicle Code 23152b. See Exhibits 12 and 13. Additionally, the
respondent, in or about November 2001, was convicted for
violating California Vehicle Code Section 20002a. See Exhibit
12 and Exhibit 2 at pages 14 and 16. Both of these offenses are
A094-458-895 4 January 2, 2013
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misdemeanors.
Insofar as the respondent has been convicted of two
misdemeanor offenses, he is ineligible for Temporary Protected
Status. Accordingly, the application for Temporary Protected
Status is denied.
At the hearing on January 2, 2013, the respondent,
through counsel, indicated that the respondent ultimately may
pursue some action aimed at vacating or otherwise diminishing
the migration impact of his two misdemeanor convictions. The
respondent did not explicitly request a continuance for this
purpose. As such, no continuance motion is before the Court.
The Court hastens to add, in any event, that were a motion to
continue e made on that basis under the facts as they exist on
January 2, 2013, the Court would have denied a motion to
continue.
In evaluating whether a denial of a continuance
constitutes an abuse of discretion, the Ninth Circuit considers,
among other things, the following factors: (1) the nature of
any evidence excluded as a result of the denial of the
continuance; (2) the reasonableness of the alien's conduct; (3)
any inconvenience to the Court; and (4) the number of
continuances previously granted. See Ahmed v. Holder, 569 F. 3d
1009 (9th Cir. 2009) .
An alien's pursuit of a collateral attack on criminal
convictions, standing alone, does not present good cause for
A094-458-895 5 January 2, 2013
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continuance of removal proceedings, because a pending collateral
attack on a conviction does not affect the finality of the
conviction for imigration purposes. See Grageda v. INS, 12

Frat: Undline
F.3d 919 (9th Cir. 1993), abrogated

other grounds

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Forat:Une
Forat: Undeline
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Frat: Unerline
In this case, the Court notes that the respondent has
\
been in proceedings since the filing of a Notice to Appear in
October 2006. See Exhibit 1. There is no evidence that the
respondent has made any significant progress on a motion to
vacate any of the convictions which impact his apparent
ineligibility for Temporary Protected Status. Temporary
Protected Status was denied by USCIS, albeit on a different
basis, going all the way back to February 2004. See Exhibit 11.
Applying the factors set forth in Ahmed, the Court
finds that the nature of any evidence excluded as the result of
a denial of continuance would be significant. It would speak,
potentially, to the eligibility of the applicant if the
respondent were to demonstrate that the convictions were vacated
or that a conviction was vacated. Nonetheless, at this
juncture, this is purely speculative. The Court also considers
the reasonableness of the respondent's conduct as noted, his
convictions date all the way back to 2001, he has been in
proceedings since 2006, and there is no evidence of any
substantial progress in a motion to vacate. The Court
recognizes as well that there have been a nuber of continuances
A094-458-895 6 January 2, 2013
Forat: Unline
Forat: Undeline '
. \
\
Fort: Unerlin

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granted in this case for a variety of purposes, albeit none
under specific circumstances by which the respondent. sought a
continuance for purposes of vacating a conviction. Still, there
has been ample opportunity for the respondent to do so.
Although the Court is permitted, under Ahmed, to consider
inconvenienced the Court, the Court finds this not to be an
important factor as it relates to the resolution of the case
here. The Court does not rely upon any inconvenience to it in
finding that the respondent would not have merited a
continuance.
Applying all of these factors, the Court concludes
that the respondent, if he had made a motion to continue on the
basis of a speculative.possibility of a successful motion to
vacate, would not have demonstrated good cause for a
continuance.
II. VOLUNTARY DEPARTURE
As an alternative form of relief, the respondent seeks
&voluntary departure pursuant to INA Section 240B(b) and 8
C.F.R. Section 1240. 26. He appears to be eligible by statute
and by regulation. The Department of Homeland Security has
indicated that it would not appeal from a decision by which the
Court granted voluntary departure.
The Court is concerned with the respondent's criminal
history. See Exhibits 2, 12, and 13. The Court nonetheless
also recognizes that it has been more than 11 years since the
A094-458-895 7 January 2, 2013
_... jFrate: Iet: Fir lie: D.5"
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(
latest conviction. On balance, the Court finds that the
respondent merits a favorable exercise of discretion for the
limited purpose of voluntary departure, particularly in light of
the fact that the respondent's failure to abide by the order
will result in aautomatic entry of an order of removal against
the respondent.
At the hearing on January 2, 2013, the Court
explicitly explained to the respondent conditions to be placed
upon his voluntary departure bond. The Court explained that the
respondent has the right to accept or reject these conditions,
and that the respondent has an absolute right to appeal
irrespective of whether he accepts or rejects the conditions.
The Court had the opportunity to observe the demeanor and the
responsiveness of the applicant throughout this colloquy and is
satisfied that the respondent understood what was described to
him. The respondent indicated that he accepted the conditions
on his voluntary departure.
Accordingly, voluntary departure is granted through
March 4, 2013, conditioned upon payment of a voluntary departure
bond in the amount of $500 within five business days of issuance
of today's order, with an alternative order of removal to El
Salvador.
ORDER
For all the foregoing reasons, IT IS HEREBY ORDERED
that the respondent's application for Temporary Protected Status
A094-458-895 8 January 2, 2013
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(
pursuant INA Section 244 is denied.
IT IS HEREBY FURTHER ORDERED that the respondent's
application for voluntary departure pursuant to INA Section
240B(b) is granted through March 4, 2013, conditioned upon
payent of a $500 voluntary departure bond within five business
days of issuance of today's order, with an alternate order of
removal to El Salvador.
A094-458-895
P1aase sec tho next pave or o1oatranLc siqatur
PHILIP J. COSTA
Immigration Judge
9 January 2, 2013
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' '
/Isl/
Imigration Judge PHILIP J. COSTA
costap on April 4, 2013 at 6:20 PM GMT
A094-458-895 10 January 2, 2013
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