'

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 - HOU

126 Northpoint Drive, Suite 2020
Houston, TX 77060

Name: ARIAS BENITEZ, JOSE ALBERTO

A 041-267-639

Date of this notice: 12/23/2014

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

DOWtL cf1IVL)
Donna Carr
Chief Clerk

Enclosure

Panel Members:
Holmes, David B.

Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: Jose Alberto Arias Benitez, A041 267 639 (BIA Dec. 23, 2014)

Immigrant & Refugee Appellate Center | www.irac.net

Prinz, Richard Lloyd

Richard Prinz
500 Jefferson St., Suite 2040
Houston, TX 77002

U.S. Department of Justice

Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Vuginia 20530

File:

A04 l 267 639 Houston, TX

Date:

DEC .2 3 2014

In re: JOSE ALBERTO ARIAS BENITEZ

MOTION
ON BEHALF OF RESPONDENT:

Richard Prinz, Esquire

REISSUED DECISION
The respondent has filed a motion to reissue the Board's September 18, 2014, decision
denying his motion to reconsider our May 22, 2014, decision dismissing his appeal. In support
of this request, the respondent has submitted a sworn statement attesting that he never received a
copy of the Board's September 18, 2014, decision. In addition, Richard Prinz, the respondent's
attorney of record, has submitted a sworn statement attesting that he did not receive of a copy of
the decision in question. The Department of Homeland Security has not filed a response, and
therefore the respondent's motion is deemed unopposed. 8 C.F .R. I 003 .2(g)(3).
We find no error in the service of our September 18, 2014, decision, inasmuch as copies of
this decision were mailed to the respondent's attorney of record, and to the respondent himself:
at their respective addresses of record, and neither copy was returned to the Board by the United
States Postal Service. However, after examination of the sworn declarations now submitted, and
in the absence of any opposition by the DHS, we will reissue the Board's decision denying the
respondent's motion to reconsider.
Accordingly, the following orders are entered.
ORDER: The motion is granted.
FURTHER ORDER: The Board's decision dated September 18, 2014, decision, attached
hereto, is hereby reissued and shall be treated as entered as of today's date.

FOR THE BOARD

Cite as: Jose Alberto Arias Benitez, A041 267 639 (BIA Dec. 23, 2014)

Immigrant & Refugee Appellate Center | www.irac.net

IN REMOVAL PROCEEDINGS

U.S.

Department of Justice

Decision of the Board of Immigration Appeals

Executive Office for Immigration Review

Falls Church, Virginia 20530

File:

Date:

A041 267 639 - Houston, TX

SEP 1 G 2014

In re: JOSE ALBERTO ARIAS BENITEZ

MOTION
ON BEHALF OF RESPONDENT:

Richard Prinz, Esquire

APPLICATION: Reconsideration

For the reasons set forth below, the respondent's motion to reconsider will be denied.
The respondent, a 55-year old native and citizen of
States as a lawful permanent resident in 1986.

El Salvador, was admitted to the United

On August 29, 2012, the Immigration Judge

issued a decision wherein he held that the respondent was inadmissible under the provisions of
section 212(a)(2)(A)(i)(I) of the Immigration and Nationality Act, 8 U.S.C. 1182(a)(2)(A)(i)(I),
as a result of his 1992 deferred adjudication of guilt for the offense of voluntary manslaughter
and that he did not warrant relief from removal under the provisions of section 212(c) of the Act
as a matter of discretion.
The respondent appealed the Immigration Judge's decision. In his Notice of Appeal from a
Decision of an Immigration Judge (Form EOIR-26) and subsequent appeal brief, the respondent
challenged the Immigration Judge's decision to deny his request for 212(c) relief as a matter of
discretion.

However, he did not dispute that, as a result of his convictio he was subject to

removal from the United States.

See Claudio

v.

Holder,

601 F.3d 316, 319 (5th Cir. 2010)

(holding that, once an alien elects in his notice of appeal to file a brief, that brief becomes the
operative document through which any issues that the alien wishes to have considered must be
raised).

On May 22, 2014, this Board affirmed the Immigration Judge's decision, concluding

that the Immigration Judge properly denied the respondent's request for 212(c) relief as a matter
of discretion. The respondent timely moved for reconsideration.
In support of his motion to reconsider, the respondent now argues that, in light of the
decision in

Vartelas

United States

as

v.

Holder,

132 S.Ct. 1479 (2012), he is not subject to removal from the

charged in the Notice to Appear. However, he has not explained why he did not

raise this claim earlier in these proceedings. For example, he does not explain why he did not
raise this issue at his ultimate removal hearing on August 29, 2012, or in his appeal brief which
he filed with this Board on November 13, 2012.
As explained by the United States Court of Appeals for the Fifth Circuit, a motion for
reconsideration is confined to the substance of the Board's original decision and is not the proper
avenue for raising new issues or arguments.

562 F.3d 314, 319 (5th Cir. 2009).

motion for reconsideration that could have

Omari v. Holder,

In other words, "an issue raised for the first time in

been raised earlier has not been properly presented to the [Board]."

Id.

Similarly, this Board has

held that a motion to reconsider is not a mechanism by which a party may file a new brief before

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IN REMOVAL PROCEEDINGS

-:.

A04 l 2p7 639

the Board raising additional legal arguments that are unrelated to those issues raised before the
Immigration Judge and on appeal.

Medrano,

Matter of 0-S-G-, 24 I&N Dec.

56, 58 (BIA 2006);

Matter of

20 I&N Dec. 216, 219 (BIA 1990, 1991) ("Arguments for consideration on appeal

should all be submitted at one time, rather than in piecemeal fashion.").

For the reasons set

forth above, we will deny the respondent's motion to reconsider. The

respondent does not meaningfully argue that this Board committed legal or factual error in
holding that the Immigration Judge properly denied his request for 212(c) relief as a matter of
discretion. While the respondent does raise an argmnent challenging his removability, said
before this Board as it was not previously raised. Accordingly, the following order is entered.
ORDER: The respondent's motion to reconsider is denied.

FOR

THE BOARD

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argument, which is not based upon a change in law or intervening precedent, is not properly