U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals
Office ofthe Clerk
5 /07 Leesburg Pike, Suite 2000
Falls Church. Virginia 2204/

OHS/ICE Office of Chief Counsel - KAN

2345 Grand Blvd., Suite 500
Kansas City, MO 64108

Name: ALARCON-SUAREZ, MARIA

A 201-071-840
Date of this notice: 1/11/2016

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

DonrtL C

t1/VL)

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Pauley, Roger

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/
Cite as: Maria Alarcon-Suarez, A201 071 840 (BIA Jan. 11, 2016)

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Ferguson Allard, Angela Janette

Austin &Ferguson, lie
4240 blue ridge blvd
Ste. 315
kansas city, MO 64133

_,.

U.S. Departmt:nt of Justice

Decision of the Board of Immigration Appeals

Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A201 071 840-Kansas City, MO

In re: MARIA ALARCON-SUAREZ

Date:

JAN 1 1 2016

APPEAL AND MOTION

ON BEHALF OF RESPONDENT: Angela Janette Ferguson Allard, Esquire
ON BEHALF OF DHS: Melissa L. Castillo
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 (found)

APPLICATION: Continuance; remand

The respondent, a native and citizen of Mexico, appeals from the Immigration Judge's
October 21, 2014, decision denying her request for a continuance to await a decision on an
administrative appeal from the denial of a U visa application, filed under section 101(a)(l5)(U)
of the Immigration and Nationality Act, 8 U.S.C. 1101(a)(l5)(U), and available to certain
victims of criminal activity, and through which the respondent is a derivative beneficiary. 1 The
respondent has also moved to remand the record, and the Department of Homeland Security
("OHS") has filed a non-opposition to the motion. The respondent's motion will be granted and
the record will be remanded for further proceedings consistent with this decision.
We review findings of fact for clear error, including credibility findings. See 8 C.F.R.
1003.l(d)(3)(i); see also Matter of J-Y-C-, 24 l&N Dec. 260 (BIA 2007); Matter of S-H-,
23 l&N Dec. 462 (BIA 2002). We review questions of law, discretion, or judgment, and all
other issues de novo. See 8 C.F.R. 1003.1(d)(3)(ii).
The facts in this case are not in dispute. The respondent entered the United States without
inspection in 2000, and removal proceedings were initiated in July 2011 (1.J. at 2; Tr. at 5-6,
15-16; Exh. I). The Immigration Judge continued the respondent's proceedings on multiple
occasions to await a decision from United States Citizenship and Immigration Services
("USCIS") on a U visa application filed by the respondent's daughter, through which the
1

The Immigration Judge granted the respondent post-conclusion voluntary departure pursuant to
section 240B(b) of the Act, 8 U.S.C. 1229c(b) (I.J. at 4-5). However, based on our disposition
of this matter, we need not address whether reinstatement of the voluntary departure period is
required.
Cite as: Maria Alarcon-Suarez, A201 071 840 (BIA Jan. 11, 2016)

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IN REMOVAL PROCEEDINGS

A201 071 840

During the pendency of this appeal, USCIS reopened the daughter's U visa application
indicating that the application will be granted once visa numbers become available
(Resp. Motion to Remand at unnumbered 1-2; Tab A). See 8 C.F.R. 214.14(d)(2). Based on
the foregoing, the respondent seeks remand to the Immigration Judge for proceedings to be
administratively closed or terminated once the respondent is granted a U visa as a derivative
beneficiary, and the DHS has indicated its affirmative non-opposition to this course of action
(Resp. Motion to Remand at unnumbered 2).
Given the DHS's non-opposition and the submission of new, previously unavailable, and
material evidence showing that the respondent is the derivative beneficiary of a U visa
application that will be granted once visa numbers are available, the respondent's motion is
granted and the record is remanded to the Immigration Judge for further proceedings. See Matter
of Yewondwosen, 21 l&N Dec. 1025, 1026 (BIA 1997) (noting that "the parties have an
important role to play in these administrative proceedings, and that their agreement on an issue
or proper course of action should, in most instances, be determinative"); Matter of Coelho,
20 l&N Dec. 464 (BIA 1992) (explaining that a motion to remand must generally meet the same
substantive requirements as a motion to reopen); 8 C.F.R. I 003 .2(c) (requiring that new,
previously unavailable, material evidence be proffered to support reopening). Accordingly, the
following orders will be entered.
ORDER: The respondent's motion to remand is granted.
FURTHER ORDER: The record is remanded to the Immigration Judge for further
proceedings and for the entry of a new decision consistent with this order.

FO

HE BOARD "

2
Cite as: Maria Alarcon-Suarez, A201 071 840 (BIA Jan. 11, 2016)

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respondent is a derivative beneficiary (1.J. at 2; Tr. at 7, 17-18, 23-24; Exh. 2). See section
10l(a)(l5)(U)(ii)(I) of the Act; 8 C.F.R. 214.14(a)(l4)(i), (f)(l). At her October 21, 2014,
hearing, the respondent informed the court that USCIS had denied her daughter's U visa
application and requested a further continuance to await the adjudication of an administrative
appeal of the denial (I.J. at 3; Tr. at 27-28). The Immigration Judge found no good cause for
another continuance and denied the respondent's request (I.J. at 3-4).

File: A201-071-840
A201-071-465

October 21, 2014

In the Matters of
)
)
)
)
)

MARIA ALARCON-SUAREZ
ANGEL ERNESTO ALARCON-SUAREZ
RESPONDENTS

IN REMOVAL PROCEEDINGS

CHARGES:

Section 212(a)(6)(A)(i) of the Immigration and Nationality Act (Act),

alien present in the United States without being admitted or
paroled.

APPLICATIONS:

Motion for continuance;

Voluntary departure at the conclusion of removal proceedings.

ON BEHALF OF RESPONDENTS: PRO SE

ON BEHALF OF OHS: MELISSA L. CASTILLO, Esquire
Assistant Chief Counsel
2345 Grand Boulevard, Suite 500
Kansas City, Missouri

ORAL DECISION OF THE IMMIGRATION JUDGE

The respondents are a mother and son. The female respondent is 46 years old.
Her son is 20 years old. Both respondents are natives and citizens of Mexico. On July

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UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
KANSAS CITY, MISSOURI

13, 2011, the Department of Homeland Security (OHS or Department) personally

served a Notice to Appear charging each respondent with inadmissibility under Section

States without being admitted or paroled. These Notices to Appear were filed with the
Kansas City Immigration Court initiating removal proceedings on July. 18, 2011. See
Exhibit 1.
At a Master Calendar hearing for each respondent on January 31, 2012, the
respondents appeared before the Court without an attorney. Their rights were
explained to them. The female respondent indicated she had a U-visa application
pending and her son was a derivative of that U-visa application. The respondents both
requested a continuance for time for the U-visa to be adjudicated.
The respondents returned to court on January 15, 2013, without an attorney.
They each admitted the factual allegations in the Notice to Appear, indicating the female
respondent last entered in the year 2000 and had not returned to Mexico. Her son,
Angel, last entered in approximately 2008 or 2009 after returning to Mexico to live with
his father for nine months, but that did not work out and he returned to the United
States. Based on the respondents' admissions and there being no issue as to the
factual allegations or charge of inadmissibility, I find removability has been established
as required by Section 240(c)(2) of the Act; 8 C.F.R. 1240.1O(c). Both respondents
designated Mexico as the country of removal.
In lieu of the removaL the respondents each submitted a letter indicating a U-visa
was filed and both the mother and son were derivatives. A fee receipt for the U-visa
was provided to the Court. See Exhibit 2 for each. The respondents requested, and
were granted, a continuance for adjudication of the U non-immigrant visa application.
The Court granted the continuances on January 15, 2013, and December 10, 2013.
A201-071-840/465

October 21, 2014

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212(a)(6)(A)(i) of the Immigration and Nationality Act (Act), alien present in the United

Both respondents returned to court for the final hearing on October 21, 2014.
Apparently, the U-visa for the lead or principal on the application was denied.

there is consideration of filing an appeal of the denial of the U-visa and additional
contact with another attorney to prepare the appeal or file a new application. However,
at the final hearing, no documents were submitted to verify a new filing of a U-visa or
that an appeal was pending.
The female respondent indicated she is single and has four children who were all
born in Mexico. Her father is deceased and her mother is living in the United States
without Immigration status. Although the female respondent has lived in the United
States since the year 2000, she has no qualifying relative to request cancellation of
removal. The female respondent indicated there was no reason why she could not
return to Mexico, though she requested to remain in the United States.
Angel Alarcon is engaged to be married and has no children born in the United
States. He apparently lived in Mexico for nine or ten months from 2008 to 2009 when
he returned to live with his father, which did not work out. The reason he did not want to
return to Mexico is that he does not get along that well with his father.
Both respondents requested an additional continuance to appeal the denial of the
LI-visa or file anew. The Department opposed any further continuance as the
respondents have not provided any application to the Court over which this Court has
jurisdiction and the U-visa has been denied.
An Immigration Judge may grant a continuance for good cause shown. 8 C.F.R.
Section 1003.29. The Board of Immigration Appeals has held that a continuance should
only be granted upon a showing that the inability to proceed occurred despite a diligent
good faith effort to be ready to proceed and that any additional evidence is probative,
A201-071-840/465

October 21, 2014

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Therefore, the derivative applications were also denied. According to Maria Alarcon,

non-cumulative and significantly favorable to the respondents. Matter of Sibrun, 18 l&N

Dec. 354 (BIA 1983).

years ago. The respondents have not submitted any applications over which this Court
has jurisdiction and do not appear to have any eligibility to submit any applications for
relief. The Court granted several continuances for the respondents to obtain a decision
on the U non-immigrant visa application upon which they were derivatives. Apparently,
the Department of Homeland Security denied the U-visas. Under the facts of this case,
the Court does not find good cause for any further continuance.
The respondents wanted the opportunity to appeal the Court's decision to the
Board of Immigration Appeals and the appeal forms will be provided.
In the alternative, the respondents requested voluntary departure at the
conclusion of removal proceedings and did not accept the 120 days voluntary
departure. The respondents have both indicated they can post the $500 voluntary
departure bond within five business days. The Court has explained to the respondents
the consequences of failing to depart and the advisals relating to posting the voluntary
departure bond and filing a motion to reopen. The Court will also provide the
respondents with the written notice to respondents granted voluntary departure.
After considering the record in total, the following orders are entered.
ORDERS
ORDER: The respondents' motions for further continuance are denied.
FURTHER ORDER: The respondents are granted voluntary departure at the
conclusion of proceedings without expense to the Government within 60 days from the
date of this order. Both respondents are required to post with OHS a voluntary
departure bond of $500 within five business days from the date of this order. If an
A201-071-840/465

October 21, 2014

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In this case the respondents were placed in removal proceedings over three

appeal of this decision is taken to the Board of Immigration Appeals, the respondents
must notify the Board within 30 days that the requisite voluntary departure bond was

event the respondents fail to comply with the foregoing terms, the grant of voluntary
departure shall automatically terminate and the respondents shall be removed from the
United States to Mexico on the charge contained in each Notice to Appear.

Please see the next page for electronic

signature

A201-071-840/465

PAULA V. DAVIS
Immigration Judge

October 21, 2014

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posted or the Board will not consider voluntary departure in the final decision. In the

/Isl/
Immigration Judge PAULA V. DAVIS

A201-071-840/465

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

davisp on January 8, 2015 at 2:26 PM GMT

October 21, 2014