U.S.

Department of Justice
Executive Office for Immigration Review

Board </'Immigration Appeals

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

OHS/ICE Office of Chief Counsel - CHI

Chicago Immigration Advocates Law

Offices
20 S Clark St. Suite 2120

525 West Van Buren Street

Chicago, IL 60607

Chicago, IL 60603

Name: RODAS-AMBROCIO, ROCAEL

A 200-557-411

Date of this notice: 4/9/2015

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

o cl1/Vt.)
Donna Carr
Chief Clerk

Enclosure

Panel Members:
Geller, Joan 8

Userteam: Docket

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Cite as: Rocael Rodas-Ambrocio, A200 557 411 (BIA Apr. 9, 2015)

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Espinoza, Carla lveth

Decision of the Board of Immigration Appeals

U.S. Department of Justice

Executive Office for Immigration Review

Falls Church, Virginia 20530

File:

Date:

A200 557 411 -Chicago, IL

APR

9 2015

In re: ROCAEL RODAS-AMBROCIO

APPEAL AND MOTION

ON BEHALF OF RESPONDENT:

Carla I. Espinoza, Esquire

Minnie D. Yuen

ON BEHALF OF DHS:

Assistant Chief Counsel

CHARGE:
Notice:

Sec.

212(a)(6)(A )(i), I&N Act [8 U.S.C. 1182(a)(6)(A)(i)] Present without being admitted or paroled

APPLICATION: Continuance; remand

The respondent appeals the Immigration Judge's July I, 2013, decision denying his request
for a continuance and ordering him removed.

Subsequent to filing his appeal, the respondent

submitted new evidence with his appellate brief, which we construe as a motion to remand. The
motion to remand will be granted and the record will be remanded to the Immigration Judge.
We review for clear error the findings of fact, including the determination of credibility,

1003.l(d)(3)(i). We review de novo all other issues,

including whether the parties have met the relevant burden of proof, and issues of discretion.
made by the Immigration Judge. 8 C.F.R.
8 C.F.R.

1003.1(d)(3)(ii).

The respondent seeks a remand in order to pursue adjustment of status as a sibling of a

United States citizen.

In support of his request, the respondent has submitted proof that his

United States citizen sister filed a Form I-130, Petition for Alien Relative, on his behalf, which
was approved by the United States Citizenship and Immigration Service. The Form I-130 has a
priority date of April 28, 200 l, which indicates that the respondent is prima facie eligible to

adjust his status under section 245(i) of the Immigration and Nationality Act, 8 U.S.C. 1255(i).
In addition, the respondent has submitted a copy of his Form-I 485, Application for Permanent
Residence or to Adjust Status.
In light of the foregoing, we find it appropriate to remand the record to the Immigration
Judge to allow her to consider this new evidence and adjudicate the respondent's application.
Accordingly, the respondent's motion to remand will be granted.

Cite as: Rocael Rodas-Ambrocio, A200 557 411 (BIA Apr. 9, 2015)

Immigrant & Refugee Appellate Center | www.irac.net

IN REMOVAL PROCEEDINGS

A200 557 411

ORDER: The motion to remand is granted.

FURHTER ORDER:

The record is remanded to the Immigration Judge for further

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

FOR THE BOARD

Cite as: Rocael Rodas-Ambrocio, A200 557 411 (BIA Apr. 9, 2015)

Immigrant & Refugee Appellate Center | www.irac.net

c:::::::r

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
.
CHICAGO, ILLINOIS

In the Matter of

ROCAEL RODAS-AMBROCIO

IN REMOVAL PROCEEDINGS

RESPON DENT

CHARGE:

212(a)(6)(A)(i) of the Immigration and Nationality Act - present

in the United States without being admitted or paroled.

APPLICATION:

None.

ON BEHALF OF RESPONDENT: JUAN K. RIVERA

ON BEHALF OF OHS: MINNIE YUEN

ORAL DECISION OF THE IMMIGRATION JUDGE

The respondent is a native and citizen of Guatemala who arrived in the United
States at or near an unknown location on or about an unknown date. He was not then
admitted or paroled after inspection by an Immigration officer. The Department of
Homeland Security initiated removal proceedings by issuing a Notice to Appear dated
December 1, 2010, charging the respondent under Section 212(a)(6)(A)(i) of the
Immigration and Nationality Act, present in the United States without being admitted or
paroled.

Immigrant & Refugee Appellate Center | www.irac.net

July 1, 2013

File: A200-557-411

On February 9, 2011, the respondent appeared at a Master hearing at 9:00 a. m.

at the Chicago Immigration Court and requested more time to speak to an attorney.
The Court granted that continuance and scheduled his next hearing for June 21, 2011,

The respondent appeared at that hearing, represented by an attorney, who

requested more time for attorney preparation. The Court again continued the case until
October 5, 2011, for a Master hearing scheduled at 10:00 a. m. at the Chicago
Immigration Court. On October 5, 2011, the respondent, through counsel, admitted to
the allegations and conceded removability under Section 212(a)(6)(A)(i). See Exhibit
No. 1. The respondent also designated Guatemala as the country of removal should
that be necessary.
At the hearing on October 5, 2011, counsel was granted leave to file an
application for adjustment of status for lawful permanent residents under Section 245(a)
and waiver under 245(i). The respondent's filing to the Court was due on or before 15
days prior to today's final hearing on July 1, 2013. The respondent did not file any
applications for relief, including the adjustment of status for lawful permanent residents
(Form 1-485 and Form l-485A). The respondent also at that hearing, through counsel,
was given a prehearing order by the Court instructing the same. That respondent must
file any relief and any other submissions 15 days prior to the hearing, as well as
biometrics must be current and complete the day of the hearing; if not, the Court will
have deemed any and all applications abandoned.
On July 1, 2013, at the respondent's individual hearing, he appeared with
counsel and requested a motion to continue in order to file all necessary applications in

order for him to adjustment his status. Respondent's counsel stated that he appeared
at his office about a month ago and they were not sure what was prepared in the case.

A200-557-411

July 1, 2013

Immigrant & Refugee Appellate Center | www.irac.net

at 1:00 p. m. at the Chicago Immigration Court.

He also stated that he did not speak to his previous counsel, Ms. Elizabeth Koziol, since
about a year from today's date. To date, the respondent has failed to file any

this case.
The Court will deny the motion to continue. First, the motion to continue is
untimely. The motion to continue was requested the day of the individual hearing on
July 1, 2013, not prior to the hearing, although the Court would recognize that the
current counsel had been representing this respondent for about a month and that there
was no motion before this Court requesting a continuance prior to today's date.
Second, the respondent was given specific instructions through counsel as to applying
for the relief that he was requesting before this Court, which was to be 15 days prior to
this hearing. and was given written instructions both for filing applications and
submissions of documents, as well as for biometrics. It has been almost two years
since the last hearing. The respondent had plenty of time to speak to another attorney
since he did not speak to Ms. Koziol for about a year, and then also to his current
counsel, and yet nothing has been filed. So, the Court is denying the motion to
continue.
Applications for benefits under Immigration and Nationality Act are customarily
denied as abandoned for lack of prosecution when the alien fails to file for or pursue
them. Matter of Shanu, 23 l&N Dec. 754-65 (BIA 2005) (cancellation of removal
application); Matter of Jean, 17 l&N Dec. 100 (BIA 1979) (asylum application); Matter of
Pearson, 13 l&N Dec. 152 (BIA 1969) (visa petition proceedings); Matter of Jaliawala,
14 l&N Dec. 664 (BIA 1974) (adjustment of status). See also Kuschchak

v.

Ashcroft,

366 F.3d 597 (7th Cir. 2004); Matter of R-R-, 20 l&N Dec. 547, 549 (BIA 1992).
The regulations provide an Immigration Judge may set his or her own deadlines

A200-557-411

&Z

JM

&L

July 1, 2013

Immigrant & Refugee Appellate Center | www.irac.net

applications with any filing fees and has not been fingerprinted or taken his biometrics in

for the submission of evidence. 8 C. F. R. Section 1003. 31(c) 2004, states: "The
Immigration Judge may set and extend time limits for the following applications, related
documents and responses thereto, if any. If an application or document is not filed

document shall be deemed waived. " The Seventh Circuit Court of Appeals has cited
this inherent authority of an Immigration Judge under the regulations. Approval on
several cases including Yuan Gao v. Mukasey and Hussain v. Gonzales. 424 F. 3d 622,
626 (7th Cir. 2005).
Although an Immigration Judge could conceivably impose a deadline so
unreasonable that it would not afford an alien a reasonable opportunity to present
evidence, this is not such a case. See Hussain v. Gonzales, 424 F.3d 622, 626 (7th Cir.
2005). The respondent was given nearly two years to perfect an application for relief,
yet none was filed. It bears noting that the respondent never requested a-me
an

extension from the Court either in order to file an application for relief..
The respondent's removability previously had been established by clear and

convincing evidence through the entry of a pleading at the Master Calendar hearing on
October 5, 2011, and, therefore, removability is not in dispute. By failing to file any
application for relief, the respondent has abandoned his opportunity to apply for
adjustment of status for lawful permanent residents (Form 1-485). Finally, he has made
no request for, nor established his eligibility for, any other form of relief from removal.
Accordingly, the following orders will be entered:
ORDER
The respondent's request to file for adjustment of status for lawful permanent

residents under Section 245(a) is hereby denied for lack of prosecution.

A200-557-411

July 1, 2013

Immigrant & Refugee Appellate Center | www.irac.net

within the time set by the Immigration Judge, the opportunity to file the application or

IT IS FURTHER ORDERED that the respondent shall be removed from the

United States to Guatemala on the charge contained in the Notice to Appear.

signature
VIRGINIA PEREZ-GUZMAN
Immigration Judge

A200-557-411

July 1, 2013

Immigrant & Refugee Appellate Center | www.irac.net

Please see the next page for electronic

/Is//
Immigration Judge VIRGINIA PEREZ-GUZMAN
perezv on October 17,

2013 at 3:28

PM GMT

Immigrant & Refugee Appellate Center | www.irac.net

A200-557-411

July 1, 2013