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Enclosed is a copy of the Board's decision and order in the above-referenced case.
Sincerely,
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Cynthia L. Crosby
Deputy Chief Clerk
Enclosure
Panel Members:
Adkins-Blanch, Charles K.
Pauley, Roger
Kelly, Edward F.
Userteam: Docket
Cite as: Edgar Marcelo Alvarado-Turcio, A201 109 166 (BIA Aug. 17, 2017)
..
IN REMOVAL PROCEEDINGS
APPLICATION: Continuance
The respondent, a native and citizen of El Salvador, appeals the decision of the Immigration
Judge, dated March 31, 2017, denying his request for a continuance and ordering his removal from
the United States. 1 The respondent's appeal, which is opposed by the Department of Homeland
Security ("DHS"), will be sustained. The Immigration Judge's decision will be vacated and the
record will be remanded for further proceedings and the entry of a new decision.
We review the findings of fact, including the determination of credibility, made by the
Immigration Judge under the "clearly erroneous" standard. 8 C.F.R. 1003.l(d)(3)(i) (2017). We
review all other issues, including issues of law, discretion, or judgment, under a de novo standard.
8 C.F.R. 1003.l(d)(3)(ii).
With respect to the first factor, the DHS is opposed to the respondent's request for a
continuance (IJ at 3). Upon remand, the Immigration Judge should request that the DHS fully
articulate the basis for its opposition. Matter of Hashmi, 24 l&N Dec. 785, 791 (BIA 2009)
("[DHS] opposition that is reasonable and supported by the record may warrant denial of a
continuance. On the other hand, unsupported opposition does not carry much weight.").
1 The respondent is subject to removal from the United States because he is an alien who is present
in this country without being admitted or paroled by an immigration officer or who arrived at any
time or place other than as designated by the Attorney General (IJ at 1-2). Section 212(a)(6)(A)(i)
of the Act, 8 U.S.C. l182(a)(6)(A)(i). The respondent has withdrawn his claims to asylum and
related forms of relief (IJ at 3).
Cite as: Edgar Marcelo Alvarado-Turcio, A201 109 166 (BIA Aug. 17, 2017)
A201 109 166
With respect to the second factor, the Immigration Judge has not meaningfully addressed the
issue of whether the underlying visa petition is prima facie approvable. Matter ofSanchez Sosa
holds that an alien who has filed a prima facie approvable petition for a U visa with USCIS will
ordinarily warrant a favorable exercise of discretion for a continuance for a reasonable period of
time. This Board has limited fact-finding ability on appeal. Nonetheless, given that the respondent
has presented a very significant amount of evidence to support his U visa claims, we do not believe
Third, with respect to the reason for the continuance and other procedural factors, the
Immigration Judge made several references to the respondent's detention status and current USCIS
processing delays (U at 4). However, if there are issues regarding the respondent's detention
status, such issues should be addressed during the course of separate bond proceedings. 8 C.F .R.
. 1003.19(d). Moreover, while it is critical that a detained docket move efficiently, it is also
essential that Immigration Judges be mindful of an alien's invocation of procedural rights and
privileges. Matter ofC-B-, 25 l&N Dec. 888, 890 (BIA 2012). While we recognize that USCIS
has a significant U visa backlog, processing delays are insufficient, in themselves, to deny an
alien's request for a continuance. Wu v. Holder, 571 F.3d 467, 470 (5th Cir. 2009) (holding that
an Immigration Judge abused his discretion by denying an alien's motion for continuance solely
based on the length of the delay in obtaining approval of his wife's visa petition).
For the reasons set forth above, we will sustain the respondent's appeal as we disagree with
the reasons upon which the Immigration Judge based his instant decision to deny the respondent's
request for a continuance. Upon remand, the Immigration Judge should provide the parties with a
renewed opportunity to present evidence and articulate the basis of their positions. In turn, the
Immigration Judge should issue a new decision in these proceedings addressing the respondent's
request for a continuance. If the Immigration Judge is concerned about the overall backlog in
U visa claims, it may be prudent for him to consider administratively closing these removal
proceedings. Matter ofAvetisyan, 25 l&N Dec. 688 (BIA 2012). The following orders are entered.
FURTHER ORDER: The Immigration Judge's decision, dated March 31, 2017, is vacated
and the record is remanded to the Immigration Court for further proceedings consistent with the
foregoing opinion and the entry of a new decision.
2
Cite as: Edgar Marcelo Alvarado-Turcio, A201 109 166 (BIA Aug. 17, 2017)
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
DALLAS, TEXAS
In the Matter of
)
EDGAR MARCELO ALVARADO-TURCIO ) IN REMOVAL PROCEEDINGS
)
RESPONDENT )
APPLICATIONS: Request for asylum pursuant to Section 208 of the Immigration and
Nationality Act.
United States at or near Hidalgo, Texas on or about March 7, 2011. At that time he was
the respondent with removal pursuant to Section 212(a)(6)(A)(i) of the Immigration and.
Nationality Act (Act) as amended in that he is an alien present in the United States
without being admitted or paroled or who arrived in the United States at any time or
the Notice to Appear and it was placed in the record as Exhibit number 1.
allegations contained in the Notice to Appear and conceded to the charge of removal.
This case has a long history in that the respondent initially sought asylum
before the Court. His application was pretermitted because he did not establish a legal
basis for his claim. The respondent appealed and the case was remanded to the Court
The matter was set for a hearing today to consider the respondent's
applications for asylum, withholding of removal and Convention Against Torture. Prior to
the hearing the respondent on or about March 16, 2017, filed a motion to continue his
The Court was also informed that the respondent no longer wishes to
respondent's counsel indicated that the respondent was withdrawing these applications
with prejudice. After conversing with the respondent the Court determined that the
respondent had made a knowing voluntary decision to withdraw his application for
asylum, withholding of removal and the Convention Against Torture with prejudice. So
the Court finds that these applications are withdrawn with prejudice.
of a U visa. In part the respondent relies on the Matter of Sanchez Sosa, 25 l&N Dec.
The Immigration and Nationality Act (Act) does not contain any specific
Rather, Immigration Judges have broad discretionary authority over motions to continue
as stated in 8 C.F.R. Section 1003.29. The Immigration Judge may grant a motion for a
continuance for good cause shown. See also, 8 C.F.R. Section 1240.6 (providing that
an Immigration Judge may grant a reasonable adjournment either at his or her own
assistance or for good cause shown upon application by the respondent or the
Government.)
detention status as well as the availability of a U visa and the Government's position.
mentioned, the respondent relies on the Matter of Sanchez Sosa. Even assuming that
the Matter of Sanchez Sosa would apply to the respondent's case the Court finds the
case to allow a U visa. The Court takes administrative notice that there are only 10,000
U visas available per fiscal year. In reviewing the facts and the evidence in this case it
appears that there are over 150,000 U visa petitions awaiting a decision at the end of
the fourth quarter in 2016. The Court takes administrative notice of this. Here the
respondent's detention status would prevent a U visa from becoming available for him
even if it were approved in the near future. The Court finds it would be unreasonable to
indefinitely continue the respondent's case. Even assuming that a U visa will be
granted it would not change his detention status and that it would be at least several
years if not months before a U visa would become available for the respondent based
The Court is not willing to accept the respondent's counsel statement that
there is some type of deferred U visa approval. Even if there were that would not
change the respondent's detention status, that is he will still remain detained and the
Court will find it would be unreasonable to continue a case on someone who is being
detained in light of the Court's decision that the respondent should remain detained.
For the above stated reason the Court finds that the respondent has failed
to establish good cause for a continuance and the Court will deny the respondent's
mentioned there is no visa that will be immediately available for the respondent in light
of the 10,000 limit per fiscal year and the number of U visas that are currently pending
with USCIS.
withholding of removal pursuant to Section 243(a) of the Immigration and Nationality Act
withholding of removal under Article Ill of the Convention Against Torture pursuant to 8
continuance be denied.
from the United States to El Salvador based on the charge contained in the Notice to
Appear.
CERTIFICATE PAGE
I hereby certify that the attached proceeding before JUDGE DEITRICH H. SIMS,
A201-109-166
DALLAS, TEXAS
was held as herein appears, and that this is the original transcript thereof for the file of
MAY 6, 2017
(Completion Date)