U.S.

Department of Justice
Executive Office for Immigration Review
Board ofImmigration Appeals
Office ofthe Clerk
5107 Leesburg Pike, Suite 2000
Falls Church, Virginia 22041

OHS/ICE Office of Chief Counsel - LOS

606 S. Olive Street, 8th Floor
Los Angeles, CA 90014

Name: MARTINEZ-LOPEZ, MIGUEL AN...

A 200-243-233

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

lucero, richard
law office of richard lucero
643 s olive street #800
los angeles, CA 90014

Date of th is notice: 11/24/2015

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

DOYUtL C

aAA)

Donna Carr
Chief Clerk
Enclosure
Panel Members:

Grant, Edward R.

Usertea m: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/

Cite as: Miguel Angel Martinez-Lopez, A200 243 233 (BIA Nov. 24, 2015)
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Decision of the Board of Immigration Appeals

U.S. Department of Justice

Executive Office for Immigration Review
Falls Church, Virginia 22041

File: A200 243 233 - Los Angeles, CA

Date:

NOV 2 4 2015

In re: MIGUEL ANGEL MARTINEZ-LOPEZ a.k.a Miguel Martinez

APPEAL
ON BEHALF OF RESPONDENT: Richard Lucero, Esquire
APPLICATION: Continuance; administrative closure
The respondent, a native and citizen of Mexico, has appealed from the Immigration Judge's
decision dated August 5, 2014, denying his motions for a continuance and administrative closure.
The record will be remanded.
The Board reviews an Immigration Judge's findings of fact, including findings as to the
credibility of testimony, under a clearly erroneous standard. See 8 C.F.R. 1003.l(d)(3)(i). The
Board reviews questions of law, discretion, and judgment, and all other issues raised in an
Immigration Judge's decision de novo. See 8 C.F.R. 1003.l(d)(3)(ii).
The Immigration Judge denied the respondent's request for a further continuance because he
did not have a visa currently available (I.J. at 4-5). During the pendency of the respondent's
appeal, his October 31, 2011, priority date has become current. We take administrative notice of
the current State Department Visa Bulletin that lists March 1, 2015, as the cutoff date for
category 2A family-preference visas. 1 As the Immigration Judge's denial of a further
continuance was based on the absence of an immediately available visa and the respondent's
priority date is now current, we will remand the record to allow the respondent to pursue
adjustment of status on this basis. In doing so, we express no opinion as to the ultimate
resolution of the respondent's applications for relief. See Matter of L-0-G-, 21 I&N Dec. 413,
422 (BIA 1996).
Accordingly, the following order will be entered.
ORDER: The record is remanded to the Immigration Judge (or further proceedings consistent

with the foregoing opinion.

'AMR v>
FOR THE BOARD
Available at http:// travel.state.govIcontent/visas/en/law-and-policy/bulletin/2016/visa-bulletin
for-november-2015 .html.
1

Cite as: Miguel Angel Martinez-Lopez, A200 243 233 (BIA Nov. 24, 2015)

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

IN REMOVAL PROCEEDINGS

File: A200-243-233

AugustS,2014

In the Matter of

MIGUEL ANGEL MARTINEZ-LOPEZ

IN REMOVAL PROCEEDINGS

RESPONDENT
CHARGE:

Section 237(a)(1)(B).

APPLICATIONS:

Admin close; Continuance; Voluntary departure.

ON BEHALF OF RESPONDENT: RICHARD LUCERO

643 South Olive Street, Suite 800
Los Angeles, California 90014
ON BEHALF OF OHS: BRENDA C. CHUNG

ORAL DECISION OF THE IMMIGRATION JUDGE

The respondent was brought into removal proceedings due to a criminal matter in
the state of California. The NTA was served personally on the respondent July 9, 2011.
See Exhibit 1.
Through written pleadings, the respondent admitted allegations 1 through 4 and
conceded removability. Removability has been established by clear and convincing
evidence.

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

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
LOS ANGELES, CALIFORNIA

This case began with counsel advising the Court that the respondent was
married to a lawful permanent resident and that the wife was going to naturalize, which

Homeland Security recognized the equities and in October of 2011 continued this
matter through January of 2013 to allow the naturalization to occur. The respondent's
wife ended up taking the test on three occasions and failing the naturalization test on
three separate occasions. The case was finally set for a Merits hearing on August 5,
2014. A period has elapsed of almost three years before final adjudication of this
particular case. It is clear that the Court and the Department of Homeland Security
where quite deferential to the respondent's equities and circumstances.
After almost three years, the Department of Homeland Security urged the Court
to move this case forward to completion. A few days before the final hearing, one last
opportunity was extended to the respondent and counsel to seek supervisory review to
basically keep this case from going to completion. In the final analysis, supervisory staff
for the Department of Homeland Security did not agree with counsel that prosecutorial
discretion should be offered. The case then came to its final hearing.
ADMIN CLOSE
PROSECUTORIAL DISCRETION
The respondent requested admin close for prosecutorial discretion. Although the
Court indicated to Homeland Security that it would have granted a joint motion.
Homeland Security was opposed to offering the respondent prosecutorial discretion.
Although there are many factors that go into the analysis of prosecutorial discretion, the
Court certainly is convinced that one of the factors that weighed against the respondent
was the criminal conviction in 2011. In the final analysis, Homeland Security did not
agree to offer prosecutorial discretion. admin close and, therefore, this Court must deny
A200-243-233

August 5, 2014

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would make the respondent eligible for adjustment of status. Both the Court and

this relief.
There are other avenues to admin close a case. This Court is certainly familiar

Immigration Appeals has instructed Immigration Judges to pay particular attention to

agreements between the parties. In the former case, under Interim Decision 3135
where the parties agreed to admin close, the Court should grant those motions. In this
case there is no agreement. Department of Homeland Security is opposed and,
therefore, under this case law, the Court must deny this request for admin close.
The Court is also familiar with the Matter of Bavakan Avetisyan, BIA precedent
decision issued January 31, 2012, (See 25 l&N Dec. 688). In this case the Board of
Immigration Appeals authorized Immigration Judges to basically unilaterally admin close
certain cases. In other words, although Homeland Security may oppose, the Courts
have discretion within the proposed guidelines by this case. In the analysis the Court
starts with the question whether Homeland Security opposes and they do. That is only
the beginning point and not the ending point. The Court is also mindful of the other
factors, that include the reason admin close is sought; the basis for any opposition; the
likelihood that the respondent will succeed on any application he or she is pursuing
outside of the removal proceedings; the anticipated duration of closure; and the
responsibility of either party in contributing to any current or anticipated delay; and the
ultimate outcome of proceedings.
The Court looks to many of the facts in this case, but one of them begins with the
analysis that this case was continued by agreement for three years. This is a factor.
Additionally, the Court recognizes that without the naturalization of the
respondent's wife, this respondent will not be eligible for adjustment of status or any
other relief before this Court. It is that naturalization that would make him eligible,

A200-243-233

August 5, 2014

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with Interim Decision 3135 and Interim Decision 3327. In the latter case, the Board of

although not guaranteed, of residency status under Section 245. This application
process takes a period of time. In this particular situation the respondent's wife has

not unlikely that if she does file in the future that another year will be passing before the
final result. Not only is it a factor, but the fact that she has not filed a new application is
an additional factor.
The Court also recognizes that-basically, as I indicated, there is no other relief
save and except administrative closing this case. This is not what Avetisyan, citation
omitted,was authored for. It was not to do indirectly what a respondent could not do
directly.
Furthermore, the Court has listened to the respondent's circumstances and the
wife, who was having difficulty passing the naturalization exam, is not enrolled in
courses at this time. She certainly should be. It is demonstrated that without those
courses she has a very low likelihood of passing the test at all. Since her age is not 55
and there is no evidence that she is close to 55, which is a magic number for one to file
for naturalization in their own language, in all likelihood this is a speculative event now
for this Court in the final analysis.
I comment on her not being in class or having a pending application for
naturalization in supporting my final conclusion that under the totality of the
circumstances, the Court will not exercise its discretion to admin close this case under
Matter of Avetisyan.
CONTINUANCE
The respondent has also asked for a continuance. I incorporate by reference my
entire discussion of the facts that I used in the Avetisyan analysis. I also recognize, and
counsel has pretty much confirmed, that the respondent's priority date under 203(a)(2)

A200-243-233

August 5, 2014

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

failed the test three separate occasions and that has extended over three years. It is

category will be current in a few months. The respondent can apply for the normal
immigrant process and he will not be faced with the same issue that the wife has to be a

forward with the immigrant visa. There may be issues of waivers under 212(a)(9)(8),
but those are separate and apart. He would be facing those same issues in the United
States or at the American Consulate. The Court also recognizes that the respondent
worked without permission and this is a factor, but it is not a ground of inadmissibility.
In the final analysis, counsel was seeking a continuance to do indirectly what he could
not do through the admin close process. In the final analysis, this Court will not
exercise its discretion to continue this case any further. Suffice it to say, this case has
been on the docket for an extended period of time based on continuances. Homeland
Security does oppose this additional relief as well.
I cite to Matter of Hashmi, 24 l&N Dec. 785; Matter of Rajah, 25 l&N Dec. 127;
and I look to Simon v. Holder, WL 3606854 (3rd Cir. 2011). All these cases suggest
that I look to the factors that I recited herein and look to the totality of the circumstances
to determine whether discretion should be exercised and I have decided that it should
not under the totality of the circumstances.
I do add, however, that if the respondent's wife does get into classes and does
apply for naturalization, and demonstrates that in written form, that the parties can
certainly bring that to a higher authority when reviewing these matters with a view
towards returning this to this Court. However, that is all speculative at this point.
VOLUNTARY DEPARTURE
The respondent is both statutorily eligible and as a matter of discretion I would
grant this relief.

A200-243-233

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naturalized citizen. Once the quota is current, the respondent can apply and move

ORDERS
IT IS HEREBY ORDERED respondent's application for admin close be denied.

IT IS FURTHER ORDERED that respondent be granted the privilege of departing

this country voluntarily without expense to the Government on or before October 4,
2014, if the respondent within five days of this order, August 12, 2014, places a bond
with the Department of Homeland Security.
IT IS FURTHER ORDERED if respondent does not place a bond of $500 with the
Department of Homeland Security on or before August 12, 2014, or does not voluntarily
depart when and as required, the privilege of voluntary departure shall be withdrawn
without further notice or proceeding and the respondent shall be removed from the
United States to Mexico on the charge contained in the Notice to Appear.
IT IS FURTHER ORDERED if respondent fails to depart as required, a civil
penalty in the amount of $3,000 shall be imposed against the respondent.

Please see the next page for electronic

signature

A200-243-233

IRA BANK
Immigration Judge

August 5, 2014

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IT IS FURTHER ORDERED respondent's request for a continuance be denied.

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Immigration Judge IRA BANK

A200-243-233

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

banki on November 24, 2014 at 2:35 PM GMT

August5,2014