U.S.

Department of Justice
Executive Office for Immigration Review

Board of Immigration Appeals

Office of the Clerk
5107 Leesburg Pike. Suite 2000
Falis Church. Virginia 20530

OHS/ICE Office of Chief Counsel - CHI

Cabrera, Marisabel, Esquire

525 West Van Buren

Chicago, IL 60607

Name: CHAVEZ-TELLEZ, RODRIGO

Street

Immigrant & Refugee Appellate Center | www.irac.net

Cabrera Law Office

PO Box 44344
Milwaukee, WI 53214

200-777-839

Date of this notice:

3f9/2015

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

DonrtL cl1/Vt.)
Donna Carr
Chief Clerk

Enclosure
Panel Members:
Mann, Ana

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index

Cite as: Rodrigo Chavez-Tellez, A200 777 839 (BIA March 9, 2015)
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U.S.

Department of Justice

Decision of the Board oflmmigration Appeals

Executive Office for Immigration Review

Falls Church, Virginia 20530

File:

Date:

A200 777 839 - Chicago, IL

MAR

9 2013

In re: RODRIGO CHAVEZ-TELLEZ

APPEAL AND MOTION

ON BEHALF OF RESPONDENT:
ON BEHALF OF DHS:

Marisabel Cabrera, Esquire

Kristin Linsley
Assistant Chief Counsel

CHARGE:
Notice:

Sec.

2 l2(a)(6)(A)(i), l&N Act [8 U.S.C. l l 82(a)(6)(A)(i)] Present without being admitted or paroled

APPLICATION: Continuance; remand

The respondent appeals the Immigration Judge's December 4, 2012, decision denying his
request for a continuance and ordering him removed.

During the pendency of this appeal, the

respondent filed a motion requesting that proceedings be remanded to the Immigration Judge.
The motion will be granted and proceedings will be remanded.
We review for clear error the findings of fact, including the determination of credibility,
made by the Immigration Judge.

8 C.F.R. 1003.l(d)(3)(i). We review de novo all other issues,

including whether the parties have met the relevant burden of proof, and issues of discretion.
8 C.F.R. 1003.l(d)(3)(ii).
On appeal, the respondent argues that he presented good cause for a continuance to pursue a
"U" nonimmigrant visa for victims of violent crimes.

The Immigration Judge denied a

continuance because the respondent had not yet filed a U visa petition with United States
Citizenship and Immigration Services ("USCIS").
On appeal, the respondent has submitted evidence that, subsequent to the Immigration
Judge's decision, he filed a nonimmigrant U visa petition with USCIS, along with the required
approved law enforcement certification ("LEC") (as well as an application for a waiver of
inadmissibility). He has filed a motion to remand this matter to the Immigration Court to await
processing of the petition by USCIS. See Matter a/Sanchez-Sosa, 25 I&N Dec. 807 (BIA 2012).
Considering this new evidence, we will remand these proceedings to allow the. respondent the
opportunity to request a continuance while he pursues non-immigrant U visa status with USCIS.

See Matter of Sanchez-Sosa, supra (stating 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). Accordingly, the following orders will be entered.

Cite as: Rodrigo Chavez-Tellez, A200 777 839 (BIA March 9, 2015)

Immigrant & Refugee Appellate Center | www.irac.net

IN REMOVAL PROCEEDINGS

f
"''

A200 777 839

ORDER: The motion to remand is granted.

FURTHER ORDER:

The record is remanded to the Immigration Judge for further

proceedings consistent with the foregoing opinion and entry of a new decision.

Immigrant & Refugee Appellate Center | www.irac.net

Cite as: Rodrigo Chavez-Tellez, A200 777 839 (BIA March 9, 2015)

UNITED STATES DEPARTMENT O F JUSTICE

EXECUTIVE OF FICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
CHICAGO,

December 4,

A200-777-839

2012

In the Matter of

IN REMOVAL PROCEEDINGS

RODRIGO CHAVE Z-TELLE Z

RESPONDENT

Section 212 (a) (6) (A) (i)

CHARGE:

- alien present in the

United States without being admitted or paroled.

Continuance.

APPLICATION:

ON BEHALF OF RESPONDENT:
ON BEHAL F O F DHS:

MARISABEL CABRERA

CHRISTIAN LINDSEY

ORAL DECISION OF THE IMMIGRATION JUDGE

The respondent is a male who is a native and citizen of
Mexico.

The Notice to Appear was served on the respondent on

June 30,

2010.

August 18,

2010.

The Notice to Appear was served on the Court on

Proof of service is contained in the record.

A Certificate of Service shows that the respondent was

personally served with the Notice to Appear on June 30,
an Immigration officer.

See Exhibit No.

1.

Cite as: Rodrigo Chavez-Tellez, A200 777 839 (BIA March 9, 2015)

2010,

by

Immigrant & Refugee Appellate Center | www.irac.net

File:

ILLINOIS

At a hearing on August 21, 2012, the respondent appeared

with his lawyer and acknowledged service,

The Court finds that the

charge has been established by those admissions.

PROCEDURAL AND FACTUAL HISTORY
At the hearing on August 21,

2012, there was a discussion

of the respondent's eligibility for relief.

Counsel for the

respondent made it known to the Court that he was going to be

seeking a U visa.
lOl (a) (15) (U)

Under the regulations, a U visa applies under

of the Act, which allows someone who has "suffered

substantial physical or mental abuse as a result of having been

the victim of one or more crimes,

et cetera,u to obtain a

temporary visa to remain legally in the United States.

The respondent,

through counsel, informed the Court that

the crime of a substantial battery had been committed in

Milwaukee on April 27, 2009, that he had been the victim in that
crime, that a certification had been applied for with the
District Attorney of Milwaukee County and a request for a 60 to
90 day continuance was made with the Court.
The Court inquired whether the Department of Homeland
Security had any record of such a crime and it stated that it
did not.

The Court then asked counsel whether she would agree

to file the application and obtain the certification before the

next hearing and she said she would.

In addition,

the Court

informed counsel for the respondent that he would grant one

A200-777-839

December 4,

Cite as: Rodrigo Chavez-Tellez, A200 777 839 (BIA March 9, 2015)

2012

Immigrant & Refugee Appellate Center | www.irac.net

allegations, conceded the charge.

admitted the

continuance for this purpose and continue the case beyond the
90-day period requested by the respondent.
counsel for the respondent has

requested another continuance stating that she has never

submitted the application.
certification.
continuance.

However,

She claims to have obtained the

the Court has denied the request for a

In denying the request for the continuance,

Court must consider the following,

among other things.

the

It must

consider the Department of Homeland Security's response to the

It has not declared its position in this

motion to continue.
case.

The Court will apply the criteria of Matter of Hashmi,

I&N Dec.

785

(BIA 2009).

24

Other criteria are concerned with the

reasons for the continuance and any other relevant procedural

factors.

In addition,

whether the application merits a

favorable exercise of discretion.

The reasons why the Court has denied this request for
continuance are the following.

First,

although the respondent

promised to file the application within approximately 90 days,

he has never done so.

The Court,

therefore,

cannot assess

whether he is prima facie eligible for this relief.

U visas

require that an applicant file an application with the Vermont

Service Center,

which makes an assessment of the prima facie

eligibility for the relief,

including determining whether there

is a certification from a state or federal law enforcement

officer attesting to the person's status as a victim.

A200-777-839

In this

December 4,

Cite as: Rodrigo Chavez-Tellez, A200 777 839 (BIA March 9, 2015)
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2012

Immigrant & Refugee Appellate Center | www.irac.net

At today's hearing,

'

case,

no such application has been filed,

submitted to the Court,

nor proof that it has been filed.

In

the respondent has deprived the Court of the opportunity

to make an assessment of whether he is prima facie eligible for

Pursuant to the agreement at the last hearing,

this visa.

the

Court has denied the request for another continuance to do what

was supposed to have been done prior to this hearing.
Consequently,

the Court finds that a good cause has not been

established for yet another continuance to do what was promised

to have been done,

namely to file a U visa and obtain a

certification before this hearing.

The respondent was afforded the opportunity to apply for
voluntary departure.

The respondent has declined to apply

saying that he instead wants to appeal.

The Court will consider

that as any request for voluntary departure to have been

abandoned by the respondent's own choice or own volition.
Since the respondent has designated Mexico as the country
of removal,

the Court will direct removal to Mexico.

Accordingly,

the following order is entered.

ORDER

IT IS ORDERED that the respondent be removed to Mexico.

CRAIG M.

ZERBE

Immigration Judge

A200-777-839

December 4,

Cite as: Rodrigo Chavez-Tellez, A200 777 839 (BIA March 9, 2015)

2012

Immigrant & Refugee Appellate Center | www.irac.net

short,

nor certification