U.S.

Department of Justice
Executive Office for Immigration Review

Board of Immigration Appeals

Office of the Clerk
5107 Leesburg Pike, Suite 2000
Falls Church, Virginia 20530

OHS/ICE Office of Chief Counsel - CHL

Name: RODRIGUEZ, J. JOSE CECILIANO

A 076-508-042

Date of this notice: 10/24/2014

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

DOYl.ltL ca/VU
Donna Carr
Chief Clerk

Enclosure

Panel Members:
Grant, Edward R.

Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: J. Jose Ceciliano Rodriguez, A076 508 042 (BIA Oct. 24, 2014)

Immigrant & Refugee Appellate Center | www.irac.net

5701 Executive Ctr Dr., Ste 300

Charlotte, NC 28212

Decision of the Board of Immigration Appeals

U.S. Department of Justice

Executive Office for Immigration Review
Falls Church, Virginia 20530
File:

Date:

A076 508 042 - Charlotte, NC

OCT .242014

In re: J. JOSE CECILIANO RODRIGUEZ

APPEAL
ON BEHALF OF RESPONDENT:
ON BEHALF OF DHS:

Pro se

Susan Leeker
Assistant Chief Counsel

APPLICATION:

Administrative closure

The respondent, a native and citizen of Mexico, appeals the decision of the Immigration
Judge, dated June 5, 2013, ordering his removal from the United States.

The Department of

Homeland Security ("DHS") is opposed to the appeal.

Considering the totality of the circumstances, we will remand the record to the Immigration
Judge in order provide the respondent with a renewed opportunity to request that these removal
1
proceedings be administratively closed. See Matter ofAvetisyan, 25 I&N Dec. 688 (BIA 2012).
The respondent intends to eventually request adjustment o{ status under section 245(i) of the
Immigration and Nationality Act, 8 U.S.C. 1255(i), as a third-preference employment based
immigrant because he is the beneficiary of a certified Application for Permanent Employment
Certification (Form ETA 9089) which was filed with the Department of Labor in May 2012.
The Immigration Judge denied the respondent's request for a continuance because, even if an
Immigrant Petition for Alien Worker (Form I-140) was subsequently filed and approved, he
would, in the Immigration Judge's opinion, need to wait approximately 5 years in order to be
eligible to adjust his status (I.J. at 2).

While, at the time of the Immigration Judge's decision,

third-preference employment based immigrant visas were only available to Mexican nationals
who had a priority date before September 1, 2008, said visas are now available to said nationals
who have a priority date before June 1, 2012.

Department of State Visa Bulletins, Vol. IX,

No. 74 (Nov. 2014), Vol. IX, No. 57 (June 2013).

Thus, considering the significant increased

availability of the applicable immigrant visas, we conclude that it is appropriate to remand the
record to provide the respondent with a renewed request to request that these proceedings be
administratively closed.
At the present time, we express no opinion regarding the ultimate outcome of this case or the
other issues presented on appeal.

While we are remanding these proceedings for the specific purpose of administrative closure,

the parties are not precluded from raising other issues upon remand.
16 I&N Dec. 600 (BIA 1978).

See Matter of Patel,

Cite as: J. Jose Ceciliano Rodriguez, A076 508 042 (BIA Oct. 24, 2014)

Immigrant & Refugee Appellate Center | www.irac.net

IN REMOVAL PROCEEDINGS

A076 508 042

For the reasons set forth above, the following order is entered.
ORDER:

The record is remanded to the Immigration Court for further proceedings

consistent with the foregoing opinion and the entry of a new decision.

..

Immigrant & Refugee Appellate Center | www.irac.net

Cite as: J. Jose Ceciliano Rodriguez, A076 508 042 (BIA Oct. 24, 2014)

-..__./

UNITED STATES DEPARTMENT OF JUST I CE

EXECUTIVE OFFI CE FOR IMMI GRATI ON REVI EW
UNITED STATES IMMIGRATI ON COURT
CHARLOTIE, NORTH CAROLINA

In the Matter of

J. JOSE CECILIANO RODRIGUEZ

RESPONDENT

)
)
)
)

IN REMOVAL PROCEEDINGS

CHARGES:

APPLICATIONS:

ON BEHALF OF RESPONDENT: STEVEN MONKS

ON BEHALF OF OHS: SUSAN LECKER

ORAL DECISION OF THE I MMIGRAT ION JUDGE

-- citizen of Mexico. According to his own testimony -- 1990. The
Department of Homeland Security initiated these proceedings by the service of a Notice
to -- (A)(i) and 212(A)(6)(C) (i). I nasmuch as state that he is a citizen of Mexico who
arrived in the United States near Laredo, Texas, in May of 1990 and was not admitted
or paroled after inspection by an Immigration officer. It also states that on January 5,
2004, he sought to procure a visa, other documentation, or admission to the U.S.A., or
other benefit provided under the INA by fraud by willfully misrepresenting a material

Immigrant & Refugee Appellate Center | www.irac.net

June 5, 2013

File: A076-508-042

..___

fact. That is, that he used and continued used an LPR card mistakenly issued to him
after the Service had informed - naturalization. The charge under 212(a)(6)(C)(i) will
not be sustained. However, charges 1 through 4 of the charging document will be

counsel - and it was approved in January 2013 and it is valid until July 2013 and he is
asking the Court to consider closing the case because the ETA form is evident that the
respondent will succeed in his 1-140 and his 1-45 to adjust his status. Counsel also
argues that the ETA approval demonstrates a prima facie eligibility of the respondent's
adjustment of status application which proves that it is not speculative or that it is an
action certain to occur; however, the counsel could not state within what time period that
it would occur -- Matter of Avetisyan, 25 -- as long as the fourth preference family base.
The -- he needs to wait approximately five years while the fourth family present visa
applicants must wait about 17 years. That is the respondent's basic -- denied that
request. Prosecutorial discretion is as the Government stated a collateral matter and it
is solely within the purview of the Department of Homeland Security and they have
opposed such closure. Respondent in this Court's opinion has failed to state a basis
under the Matter of Avetisyan warranting an administrative closure. In Matter of
Avetisyan, the Board held that the judges may ad ministratively closed proceedings even
if opposed -- is appropriate under the circumstances. In that case, the Board held the
Immigration judge should consider administratively closing a case and weigh all relevant
factors including, but not limited to, one) the reissue - or the application he is pursuing
outside of the removal proceedings and the anticipated duration of the closure. And the
responsibility of either party, if any, in contributing to the current or anticipated delay and
the ultimate outcome of the removal proceedings -- ever be able to adjust his -- so,
based on those two factors alone, not considering anything in -- likelihood of succeeding

A076-508-042

June

5,

2013

Immigrant & Refugee Appellate Center | www.irac.net

sustained. Therefore, I find the respondent removable as charged. The motion -- the

is very -- considering these two factors I find that I need not even examine further. The
respondent does not meet the criteria stated and the admin closure request will be
denied.

After careful review of the record noting that there are no other
applications pending before the Court, the respondent will be ordered removed from the
United States --

THERESA HOLMES-SIMMONS
June 5, 2013

A076-508-042

Immigration Judge

June

5,

2 013

Immigrant & Refugee Appellate Center | www.irac.net

ORDER

CERTIFICATE PAGE

I hereby certify that the attached proceeding before JUDGE THERESA

HOLMES-SIMMONS, in the matter of:

A076-508-042

CHARLOTTE, NORTH CAROLINA

was held as herein appears, and that this is the original transcript thereof for the file of
the Executive Office for I mmigration Review.

TERRY N HOLDRIDGE (Transcriber)

DEPOSITION SERVI CES, lnc.-2
AUGUST 6, 2013
(Completion Date)

Immigrant & Refugee Appellate Center | www.irac.net

J. JOSE CECILIANO RODRIGUEZ