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U.S.

Department of Justice
Executive Office for Immigration Review
Board ofImmigration Appeals
Office of the Clerk
5107 Leesburg Pike, Suire 2000
Falls Church. Virginia 20530

Name:J-
Date of this notice: 6/ 19/2015

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

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Holmes, David B.

Userteam: Docket

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DHS/ICE Office of Chief Counsel - DAL


125 E. John Carpenter Fwy, Ste. 500
Irving, TX 75062-2324

Rosales, Juan David


Catholic Charities of Dallas
9461 LBJ Freeway, Suite 100
Dallas, TX 75243

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Cite as: J-F-, AXXX XXX 328 (BIA June 19, 2015)
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U.S. Department of Justice

Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 20530

File: Amlll328 - Dallas, TX

Date:

JUN 192015

In re: J-r:-.

APPEAL
ON BEHALF OF RESPONDENT: Juan David Rosales, Esquire
CHARGE:
Notice: Sec.

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

APPLICATION: Continuance
The respondent, an 11-year-old native and citizen of El Salvador, appeals from the
Immigration Judge's decision dated December 18, 2014, denying his request for a continuance to
obtain counsel. The record will be remanded.
We review the findings of fact, including the determination of credibility, made by the
Immigration Judge for clear error. 8 C.F.R. 1003.l(d)(3)(i). We review all other issues,
including questions oflaw and issues ofdiscretion, de novo. 8 C.F.R. 1003.l(d)(3)(ii).
On November 6, 2014, at the respondent's initial group master calendar hearing, the
Immigration Judge granted the respondent a brief continuance to attempt to retain counsel,
stating that there would be no additional continuances (I.J. at 1-2; Tr. at 5, 16). At his next
hearing on December 18, 2014, the respondent appeared with his mother, who indicated that she
was attempting to retain an attorney, and again requested a continuance to seek counsel (I.J. at 2;
Tr. at 45, 52, 54). She also indicated that the whereabouts of the respondent's father were
unknown (Tr. at 49). The Department of Homeland Security was not asked its position on the
continuance, and the Immigration Judge denied the respondent any further continuance, ordering
him removed to El Salvador.
On appeal, the respondent is now represented by counsel, and states that he has filed a
petition in state court that could serve as the basis for a petition with U.S. Citizenship and
Immigration Services for special immigrant juvenile ("SIJ") status. See section 101(a)(27)(J) of
the Immigration and Nationality Act, 8 U.S.C. 110l(a)(27)(J). Given the totality of the
circumstances presented in this case, including the asserted filing of the petition in state court,
and the mother's apparent concerted attempts, despite just having given birth to a new baby, to
find counsel, we will remand the record for further proceedings. On remand, the respondent will
provide the Immigration Judge with updated information regarding the status of his state court
petition for the purposes of seeking SIJ status. We note that, absent evidence of an alien's
ineligibility for SIJ status, an Immigration Judge should, as a general practice, continue or

d .._ ..\i&&

Cite as: J-F-, AXXX XXX 328 (BIA June 19, 2015)

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IN REMOVAL PROCEEDINGS

Amlll328
administratively close proceedings to await adjudication of a pending state proceeding that could
serve as a predicate order for SIJ status. 1
Accordingly, the record will be remanded as set forth below.

FOR THE BOARD

We separately note that guidance provided to Immigration Judges by the Chief Immigration
Judge states that if an unaccompanied child is seeking SIJ status, ''the case must be
administratively closed or reset for that process to occur in state or juvenile court."
Memorandum from Brian M. O'Leary, Chief Immigration Judge, to Immigration Judges
(Mar. 24, 2015) (Docketing Practices Relating to Unaccompanied Children Cases and Adults
with Children Released on Alternatives to Detention Cases in Light of the New Priorities).

2
Cite as: J-F-, AXXX XXX 328 (BIA June 19, 2015)

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ORDER: The record is remanded to the Immigration Judge for further proceedings and the
entry of a new decision.

o .

December 18, 2014

File:328
In the Matter of
)
)
)
)

J-
RESPONDENT
CHARGES:

A violation of Section 212(a)(6)(A)(i).

APPLICATIONS:

None stated.

IN REMOVAL PROCEEDINGS

ON BEHALF OF RESPONDENT: PRO SE


ON BEHALF OF OHS: MELISSA WARBURTON

ORAL DECISION OF THE IMMIGRATION JUDGE


The respondent is an 11-year-old male, native and citizen of El Salvador
who was issued a Notice to Appear on July 28, 2014.. See Exhibit 1. The respondent
was seen by a different judge on November 6, 2014. The record reflects that the
respondent and his mother, who accompanied him, had a full rights advisal done. The
record would reflect that the Trial Attorney re-served the mother with the Notice to
Appear in Court on that day; that she was also given a list of pro bona legal
representation and a notice of the appeals rights package. The previous judge granted
the respondent's mother's request for a continuance, reset the case for about six weeks

f%:,

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UNITED STATES DEPARTMENT OF JUSTICE


EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
DALLAS 1 TEXAS

to alfow the mother to hire an attorney, and advised her that she would be expected to
proceed today with pleas and relief in her son's case on the reset date.

again on December 18 1 2014. The respondent's mother acknowledged that she had
been served with the Notice to Appear at the last court date, so it was marked and
admitted as Exhibit 1.
The respondent's mother stated on the record that she had consulted with
attorneys and that she did not have enough money to hire a lawyer, that they charged
too much, and that she would be proceeding to represent her son herself. The Court
then swore the respondent's mother in and, because of the age of the respondent, took
pleadings through the mother.
The record would reflect that the mother admitted allegations one through
four and_ conceded her son's removability from the United States as charged. The
respondent's mother designated El Salvador as the country of removal.
Because the respondent was proceeding without an attorney, the Court
engaged the mother in a series of questions in an effort to attempt to determine whether
or not there was any relief available to the respondent. We learned that the respondent
first entered the United States on July 20, 2014. We learned that since arriving in the
United States that he had not departed this country. We learned that he is single and
that he has no children. We learned that the respondent lives with his mother, who is
also in the United States illegally. The respondent's mother indicated that she did not
know where the child's father was anymore.
The mother indicated that no visa petitions had been filed on behalf of her
son. The Court asked what was the purpose,of-a-RG the respondent coming to the
United States, and she said that he had been living in El Salvador with his grandparents
328

December 18, 2014

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The record will reflect that the respondent appeared back with his mother

and the grandparents decided to come to the United States, and so there no one else
for him to live with in El Salvador, so he came here to reunite with his mother.

respondent's mother on behalf of her minor child, the Court finds that the issue of
removability has been conclusively established. See Section 240(c)(1)(A) of the Act.
As to relief, the Court determines that the respondent is statutorily not
eligible for cancellation of removal for a non-lawful permanent resident. He has neither
a qualifying relative nor the requisite period of continuous presence in the United States
to qualify for that form of relief.
The Court determines that the respondent is not statutorily eligible for
cancellation of removal for a lawful permanent resident because h is not a lawful
permanent resident.
The Court finds that the respondent is not eligible for adjustment of status
insomuch as no one has filed a visa petition on his behalf.
The Court finds that the respondent is not an unaccompanied alien child.
He lives here, in the United States, with his mother in Dallas, Texas.
The Court finds that we have no asylum, withholding, or CAT issues.
When asked what was the child's purpose in coming to the United States, the
respondents mother said that he had been living in El Salvador with his grandparents,
that the grandparents decided to come to the United States, and so they came with
Johan so that Johan could be reunited with his mother here, in this country, and that
there was no one to care for him in El Salvador.
The respondent is statutorily not eligible for post-conclusion voluntary
departure. The Notice to Appear was issued on July 28, 2014, following the
respondent's July 20 entry into this country. Therefore, the respondent lacks the period
328

December 18, 2014

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As a result of the admissions and concessions having been entered by the

of requisite continuous presence in order to qualify for post-conclusion voluntary


departure pursuant to Section 240B(b) of the Act and 8 C.F.R. Section 1240.26(c).

the respondent was pre-conclusion voluntary departure. The record would reflect that
the Court reviewed all the various forms of relief with the Government's counsel, and
Government counsel concurred with the Court's assessment of available relief.
Pre-conclusion voluntary departure was explained to the respondent's
mother, including the federal obligation that in order to receive the privilege of pre
conclusion voluntary departure, the respondent is required to accept the Court's
decision as final and waive appeal. The record will reflect that the respondent's mother
indicated that she wished to accept pre-conclusion voluntary departure, and that she
agreed to accept the Court's decision as final and waive appeal.
The record would reflect that the Court then went through all of the pre
conclusion voluntary departure advisals, and had signed the order and given it to the
parties. Then the record wou Id reflect that at that point, the respondent's mother said
no, she did not want pre-conclusion voluntary departure; that she wanted to appeal and
she did not want to accept voluntary departure on her son's behalf.
The record would reflect that respondent's mother then changed her mind
twice more, and eventually said she did not know what to say.
The Court finds that the failure of the respondent's mother to accept that
the Court's decision is final and waive appeal in her son's case constitutes a rejection of
pre-conclusion voluntary departure. Federal law requires in Section 240B(a) and 8
C.F.R. Section 1240.26(b) that to be granted the privilege of pre-conclusion voluntary
departure that the respondent must accept the Court's decision as final and waive
appeal, which his mother has refused to do.
328

b&

?.h.. 4.44.

December 18, 2014

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The Court then determined that the only potential form of relief available to

As noted above, the respondent is not statutorily eligible for post


conclusion voluntary departure.

The Court, having determined that there is relief available for this
respondent the respondent having rejected pre-conclusion voluntary departure, it is
hereby ordered that the respondent be removed from the United States to the nation of
El Salvador.
The respondent's mother has been advised of her appeal rights on the
record.

Please see the next page for electronic


signature

328

WC

MICHAEL P. BAIRD
Immigration Judge

December 18, 2014

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ORDER

/Is//
Immigration Judge MICHAEL P. BAIRD

328

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bairdm on March 12, 2015 at 6:35 PM GMT

December 18, 2014