--- U.S.

Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals
Office ofthe Clerk
5 /07 Leesburg Pike, Suite 2000
Falls Church. Virginia 22041

Riders:

DHS/ICE Office of Chief Counsel -ATL

180 Ted Turner Dr., SW, Ste 332
Atlanta, GA 30303

T_M_K_
710

A--711
Date of this notice: 11/30/2015

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

DorutL Ca.AA)
Donna Carr
Chief Clerk
Enclosure
Panel Members:
Grant, Edward R.

Userteam: Docket

For more unpublished BIA decisions, visit

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Cite as: M-K-S-T-, AXXX XXX 711 (BIA Nov. 30, 2015)

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Pugh, April Lenore

Bingham at Law, LLC
218 16th Street North
Bessemer, AL 35020

U.S. 'Department of Justice

Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 22041

Files:

711 -Atlanta, GA
710

Date:

NOV 3 0 2015

IN REMOVAL PROCEEDINGS
APPEAL AND MOTION
ON BEHALF OF RESPONDENTS: April L. Pugh, Esquire
ON BEHALF OF DHS: Wylly Jordan
Assistant Chief Cowtsel
APPLICATION: Continuance; remand
The respondents, natives and citizens of Mexico, appeal the decision of the Immigration
Judge dated July 16, 2014. The Department of Homeland Security (DHS) has filed an
opposition to the appeal.
While on appeal, the respondents have filed a motion requesting remand based upon
evidence that the United States Citizenship and Immigration Services ("USCIS") approved the
respondents' visa petitions for classification as special immigrant juveniles (Form I-360). See
8 C.F.R. 204.l l(a), (d)(2)(i). The DHS has not filed a reply to the motion.
As the facts underlying the respondents' eligibility for relief from removal have changed
during the pendency of the respondents' appeal, we will remand the record for the Immigration
Court to consider in the first instance the new evidence filed on appeal and any other applications
for relief, and any response from the DHS.
Accordingly, the following orders will be issued:
ORDER: The Immigration Judge's July 16, 2014, decision and removal order are
vacated.
FURTHER ORDER: The record is emanded to the Immigration Court for further
proceedings consistent with the foregoing opim and for entry of a new decision.

Cite as: M-K-S-T-, AXXX XXX 711 (BIA Nov. 30, 2015)

Immigrant & Refugee Appellate Center, LLC | www.irac.net

In re: MITCY KELLI SANCHEZ-TACUBA

FATIMA MELANI SANCHEZ-TACUBA

711
710

Files:

July 16, 2014

In the Matters of

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F_M_S_T_
RESPONDENTS

IN REMOVAL PROCEEDINGS

CHARGE:

In both cases there is an 1-261 and an NTA, and both respondents

are being charged under Section 212(a)(7)(A)(ii) of the INA, as
amended, in that they are immigrants who at the time of
applications for admission are not in possession of a valid
unexpired immigrant visa, reentry permit. border crossing
identification card or other valid entry document as required by
the Act.

APPLICATIONS:

None.

ON BEHALF OF RESPONDENTS: ELLIS D. BINGHAM, Ill, Esquire

218 16th Street North
Bessemer, Alabama 35020
ON BEHALF OF DHS: RENAE M. HANSELL
Assistant Chief Counsel
Department of Homeland Security
180 Spring Street, Southwest. 3rd Floor
Atlanta. Georgia 30303
ORAL DECISION OF THE IMMIGRATION JUDGE
The respondents are both minor female natives and citizens of Mexico who were
issued Notices to Appear on October 28. 2010, see Exhibit No. 1. Both respondents
also received an 1-261, both of them dated March 27, 2013 with the correct charge; it

Immigrant & Refugee Appellate Center, LLC | www.irac.net

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
ATLANTA, GEORGIA

was read into the record previously, see Exhibit No. 1-A. On March 27, 2013, the
respondents appeared, represented by counsel, and tendered written pleadings.

allegations, conceded the charge under 212(a)(7)(A)(ii), and designated Mexico as the
country of removal in the event that should become necessary. The Court found
removability to be established. See Section 240(c)(1)(A) of the Act. The issue before
the Court concerns the respondents' request for a continuance in order to bring
evidence to the Court that something has been filed on their behalf.
PROCEDURAL HISTORY
As stated before, these cases came before the Court on the issuance of a Notice
to Appear October 28, 2010. The record reflects that both respondents have been
represented by counsel since at least September 29, 2011. It actually appears in the
file that there is an E-28 that was filed by the current counsel; it is dated March 31,
2011. So, at least since March 31, 2011, the respondents have been represented by
counsel. The Court notes that this case has been continued on numerous occasions.
Again, this case started in 201O; we are now in 2014.
Specifically, the history of the procedure in this case is as follows. On March 31,
2011, counsel appeared and asked for attorney prep. That was granted. There was a
continuance that had no bearing from the respondent on September 29, 2011, that was
continued to May 17, 2012. On that date, again there was a request for attorney prep,
which was granted. The case was scheduled for May 31, 2012. For procedural and
operational reasons, the case was again continued to February 7, 2013. On that date,
there was another request for attorney prep. It was scheduled for March 27, 2013 in
order to receive applications for relief. On that date, no applications were tendered;
another request for a continuance was granted. The case was scheduled for
711ll10

July 16, 2014

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See Exhibit No. 2, respectively, for each of the files. Respondents admitted all

February 26, 2014 in order to receive applications for relief. On that date, no
applications were received. And again, we had scheduled the case for today,

On today's date, counsel has appeared and indicated that nothing has been filed,
and that a brief continuance is implored of the Court in order to show that something
has been filed. The Court is extremely sympathetic with both respondents, as they are
children and they are dependent upon the diligence of their attorney. In this particular
case, the Court has really just bent over backwards. It has just been one continuance
after another, and they are, of course, at the mercy of their attorney getting work done
and things filed on time. We do have rules here and I cannot simply continue the case
for eventually something to occur. The Court is unconvinced that anything will change if
another continuance is granted, particularly because of the history of all the
continuances that have been granted and all the delays that have occurred, some of
them through no fault of the respondents and others clearly requested by the
respondents' attorney.
In any event, the Court is unconvinced that anything is going to change or
anything is going to be filed, perhaps, maybe by either the respondents or this attorney.
In any event, there has been opportunity after opportunity.
I have addressed the respondents directly and I know that they are young.
have made my interpreter available to them to sit in the back so that they understand
exactly the reasons why I am going forward in this manner. I have also instructed them
that if for any reason they were to discuss their case with their attorney and something
were to be filed, either with their attorney or with whoever they choose, and actually get
something filed, that I would encourage them to file a motion to reopen with evidence
that they have something filed that would allow them some form of relief either before

711/710

July 16, 2014

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July 16, 2014, in order to receive any applications for relief.

the Court or before another agency.

At this time, the Court is really left with no alternative but to deny that motion to

removed from the United States to Mexico on the charges contained in the Notice to
Appear.
I will note that the respondents' attorney was advised that the Court would
consider voluntary departure on today's date. He has declined to pursue that form of
relief. He indicated that perhaps if we could have a continuance for August 20th, that
on that date they would be pursuing voluntary departure if they had no documents filed.
Again, the Court is simply unconvinced that any continuance is going to make a
difference. The excuses have been forthcoming for years now, literally, and nothing has
changed and nothing had been filed, and so because the Court is left without no other
alternative but to go forward, that is exactly what I am doing today, with the instructions
to the respondents that if they find that they are best served by a motion to reopen that
they should go ahead and do so, with a caveat that I will simply consider it, not
necessarily grant it, depending on what has been filed.
The Court simply cannot put off cases for eventually something to come to pass,
and truly this is pushing the limits of a lack of diligence on behalf of these respondents,
and it is unfortunate because they are young and they really should not have to
question whether they are being served properly by their own attorney.
In any event, based on the documents marked into the record, Exhibit No. 2,
which are the written pleadings for both of the respondents, the Court has already found
that they are, in fact, removable as charged; that there are no applications for relief
other than a motion to continue. The motion to continue being denied, the respondents
are ordered removed to Mexico on the charges contained in the Notice to Appear.

,_711/710

July 16, 2014

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continue, and since there are no other applications for relief, to order the children

ORDER OF THE IMMIGRATION JUDGE

The respondents are ordered removed to Mexico on the charge contained in the

Please see the next page for electronic

signature

711ll10

MADELINE GARCIA
United States Immigration Judge

July 16, 2014

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Notice to Appear.

/Isl/
Immigration Judge MADELINE GARCIA

.--711/710

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garciama on December 4, 2014 at 4:43 PM GMT

July 16, 2014