U.S.

Department of Justice
Executive Office for Immigration Review

Board ofImmigration Appeals

Office of the Clerk
5107 Leesburg Pike, Suite 2000
Falls Church. Virginia 22041

DHS/ICE Office of Chief Counsel - SLC

2975 Decker Lake Dr. Stop C
West Valley City, UT 84119

Name: HERRERA-BALTAZAR, OSWAL. ..

A 200-673-573
Date of this notice: 8/30/2016

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

borutL C

t1/V'L)

Donna Carr
Chief Clerk
Enclosure
Panel Members:
O'Leary, Brian M.
Adkins-Blanch, Charles K.
Mann, Ana

Use rteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/
Cite as: Oswaldo Raul Herrera-Baltazar, A200 673 573 (BIA Aug. 30, 2016)

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

Richards, Kevin G
RICHARDS, BRINLEY & RICHARDS LAW
GROUP, PPLC
289 24th Street, Suite 101
Ogden, UT 84401

Decision of the Board of Immigration Appeals

.U.S. Department of Justice

Executive Office for Immigration Review

..

Falls Church, Virginia 22041

Date:

File: A200 673 573 - West Valley, UT

In re: OSWALDO RAUL HERRERA-BALTAZAR

AUG 3 0 2016

APPEAL
ON BEHALF OF RESPONDENT: Kevin G. Richards, Esquire
ON BEHALF OF OHS: P. Michael Truman
Assistant Chief Counsel
APPLICATION: Continuance
The respondent, a native and citizen of Mexico, appeals the decision of the Immigration Judge
dated April 29, 2015, denying his request for a continuance but granting him the privilege of
voluntary departure. The respondent and the Department of Homeland Security ("DHS") have filed
briefs, which have been considered in adjudicating this appeal. The record will be remanded.
We review Immigration Judges' findings of fact for clear error, but questions of law, discretion,
and judgment, and all other issues in appeals, de novo. 8 C.F.R. I003.1(d)(3)(i), (ii).
The respondent requested a continuance to file an application for cancellation of removal and
marry his United States citizen girlfriend and then apply for adjustment of status after he remarries.
We agree with the Immigration Judge's decision to deny a continuance for the respondent to
complete a divorce and then remarry, which could have taken an excessive period of time.
However, the Immigration Judge erred in not continuing the proceedings for the respondent to apply
for cancellation of removal. We recognize that he should have filed the application at an earlier
stage of the proceeding. However, the respondent reasonably believed that he would be eligible to
adjust his status to a lawful permanent resident of the United States based upon his marriage.
Hence, it was reasonable for the respondent to not file his cancellation of removal application.
Based upon the totality of the circumstances, we will remand these proceedings for the respondent
to apply for cancellation of removal, inasmuch as he is the father of two United States citizen
children. See section 240A(b)(l )(D) of the Immigration and Nationality Act, 8 U.S.C.
1229a(b)(l)(D). For the reasons set forth above, the following order is entered.
ORDER: The record is remanded to the Immigration Court for further proceedings consistent
with the foregoing opinion and the entry of a new decision.
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FOR THE Bb:r

Board Member Ana L. Mann respectfully dissents without opinion.

Cite as: Oswaldo Raul Herrera-Baltazar, A200 673 573 (BIA Aug. 30, 2016)

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

IN REMOVAL PROCEEDINGS

April 29, 2015

File: A200-673-573
In the Matter of
)
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)
)

OSWALDO RAUL HERRERA-BALTAZAR

RESPONDENT

IN REMOVAL PROCEEDINGS

CHARGES:
APPLICATIONS:
ON BEHALF OF RESPONDENT: KEVIN G. RICHARDS
ON BEHALF OF OHS: PHILLIP MICHAEL TRUMAN, Assistant Chief Counsel

ORAL DECISION OF THE IMMIGRATION JUDGE

MOTION
The sole issue contested by the respondent is whether the Court has properly
denied in discretion the motion made in Court on todays date, April 29, 2015, for a
continuance. The Court has determined that as a matter of discretion no good cause
exists for continuing these proceedings.
The Court notes that these proceedings commenced on July 7, 2010, with the
filing of the Notice to Appear with the Immigration Court. See Exhibit 1. On October 19,

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

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
SALT LAKE CITY, UTAH

2010, the pleadings were taken in this case. The respondent subsequently filed an
application for adjustment of status, but that application is no longer going forward.

certain nonpermanent residents of the United States under 428, no application has
been filed. The Court notes that biometrics in this case are far out of date. So the
Court would find that the application has been abandoned under 8 C.F.R. Section
1003.47(d) .
The Court finds that the respondent is subject to removal as charged. He
admitted that he is a native and citizen of Mexico and subsequently it was determined
that he overstayed a 8-2 visa. Although the respondent was only ten years old at the
time, he is now an adult and has been in proceedings for some time and knows of the
serious Immigration consequences.
Given the fact that this case has been pending for so long, the Court is mindful
that at some point proceedings must come to a conclusion. The Court asked counsel
what steps would need to fall into place for the respondent to be eligible for adjustment
of status in the future and those steps are significant and include a divorce from his
current wife, a subsequent marriage to his current girlfriend and the filing of certain
applications, including a petition for alien relative, a Form 1-130, and the approval of that
petition by USCIS. Because so many of these factors would fall into place, the Court
finds that no good cause exist.
Counsel for the respondent has reserved appeal in this case and any appeal
must be filed with the Board of Immigration Appeals on or before May 29, 2015.
The summary order of the Court also shows that the respondent's application for
post conclusion voluntary departure was granted for 60 days, which is prior to June 29,
2015. He must post a bond in the amount of $500 within five business days of this
A200-673-573

April 29, 2015

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

While counsel concedes that the respondent may be eligible to seek cancellation for

decision. That decision on voluntary departure was waived by both parties.

The Court notes that there are simply too many factors that would have to fall in

factors fell into place, it would take months, if not more than a year, and the Court will
note that the respondent has a pending criminal case that may also bar him from relief
based upon the charge date of December 30, 201 4, for threat of violence. Although a
previous domestic violence case was dismissed, the Department of Homeland Security
has contested that the combination of a threat of violence conviction and the previous
facts surrounding the domestic violence charges that were brought in 2009 could
potentially preclude the respondent from seeking cancellation of removal. For all those
reasons, the Court will deny the respondent's motion for a continuance as a matter of
discretion.
ORDERS
The motion to continue is denied.
The respondent's application for voluntary departure was granted until June 29,
2015, on the posting of a bond in the amount of $500 within five business days.

Please see the next page for electronic

signature

A200-673-573

GLEN R. BAKER
Immigration Judge
April 29, 20 1 5

April 29, 201 5

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

to place for the respondent to be granted a continuance. And that even if all those

. ..

.... ,

/Isl/
Immigration Judge GLEN R. BAKER

/:\200-613-573

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

BakerG on August 20, 2015 at 3:19 PM GMT

April 29 1 2015