U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals
Office ofthe Clerk
5107 Leesburg Pike, Suite 2000
Falls Church, Virginia 2204/

DHS/ICE Office of Chief Counsel - SDC

146 CCA Road, P.O.Box 248
Lumpkin, GA 31815

Name: RUIZ, GUSTAVO

A 206-862-055
Date of this notice: 8/8/2016

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

[)OrutL Ca.AA)
Donna Carr
Chief Clerk
Enclosure
Panel Members:
Pauley, Roger

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/
Cite as: Gustavo Ruiz, A206 862 055 (BIA Aug. 8, 2016)

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Diaz, Leslie
Weinstock Immigration Lawyers
200 Ashford Center North, Suite 220
Atlanta, GA 30338

.,

U.S. Department of Justice

, Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 22041

File: A206 862 055 - Lumpkin, GA

In re: GUSTAVO RUIZ a.k.a. Gustavo Aguillion Ruiz

Date:

AUG - 8 2016

APPEAL
ON BEHALF OF RESPONDENT: Leslie Diaz, Esquire
ON BEHALF OF DHS: R. Reid McKee
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 ( conceded)

APPLICATION: Continuance

The respondent, a native and citizen of Mexico, appeals from the Immigration Judge's
December 12, 2014, decision denying his motion for a continuance to await the adjudication of
his U visa application (available to certain victims of criminal activity as outlined at section
101(a)(I5)(U) of the Immigration and Nationality Act, 8 U.S.C. Il0l(a)(l5)(U)) before United
States Citizenship and Immigration Services ("USCIS"). The Department of Homeland Security
("DHS") opposes the appeal. The record will be remanded for further proceedings consistent
with this decision.
We review findings of fact, including credibility findings, for clear error. See 8 C.F.R.
1003.l(d)(3)(i); see also Matter of J-Y-C-, 24 I&N Dec. 260 (BIA 2007); Matter of S-H-,
23 I&N Dec. 462 (BIA 2002). We review questions of law, discretion, or judgment, and all
other issues de novo. See 8 C.F.R. I003.l(d)(3)(ii).
On November 17, 2014, the respondent appeared before the Immigration Judge pro se
(I.J. at 3; Tr. at 46-47). 1 The respondent next appeared, with counsel, on December 9, 2014
(I.J. at 3; Tr. at 61-63). The case was reset to December 12, 2014, to allow for attorney
preparation (I.J. at 3; Tr. at 63). On December 11, 2014, the respondent filed a motion to
1

The Immigration Judge indicated that the respondent was also present before her on
October 29, 2014 (I.J. at 2-3; Tr. at 47); however, it is unclear whether the respondent formally
appeared on that date (see Tr. at 1-45 (making no mention of the respondent by name or alien
number); Notice of Hearing, dated October 29, 2014 (indicating that a hearing notice scheduling
the respondent for further proceedings on November 17, 2014, was served on him by mail)).
Cite as: Gustavo Ruiz, A206 862 055 (BIA Aug. 8, 2016)

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IN REMOVAL PROCEEDINGS

A206 862 055

continue (Respondent's Motion to Continue). In support of the motion, he submitted, among

other documents, a copy of his U visa application and a FedEx tracking statement, indicating that
the package had been received by USCIS on December 5, 2014 (Respondent's Motion to
Continue at Tabs A-B). On December 12, 2014, the Immigration Judge found no good cause for
continuing these proceedings (I.J. at 4-5).

Here, the Immigration Judge's decision contains insufficient factual findings for us to
evaluate the propriety of her continuance denial (I.J. at 4-5). See Matter of S-H-, supra,
at 464-65. Specifically, the Immigration Judge concluded that there was insufficient good cause
for continuing the respondent's case based on her conclusion that the respondent had not
established prima facie U visa eligibility; however, she did not review the respondent's
evidentiary submissions of December 11, 2014, including a copy of the U visa application as
filed with USCIS (see I.J. at 2, 5; Tr. at 67-69).2 See Matter of Sanchez Sosa, supra, at 813-14.
She also found that there was insufficient proof that the respondent had received a signed law
enforcement certificate ("LEC"), although the basis of this finding is unclear because the
completed U visa packet submitted to the Immigration Court includes the signed LEC (I.J. at 5;
Respondent's Motion to Continue). See id. at 814-15 (explaining the significance of the LEC in
making a prima facie eligibility determination).
2

In her decision, the Immigration Judge opined that the respondent's eligibility for relief was
"speculative at best as [the] respondent has been in the United States since 2004" (I.J. at 4
(adding, "If he truly was eligible for a U visa, that should have been filed much earlier than the
last few weeks.")). However, we note that the respondent maintains on appeal, and in his U visa
application, that he was not the victim of a qualifying crime until 2013
(see Respondent's Brief at 2-3; Respondent's Motion to Continue). On remand, the parties will
have an opportunity, as appropriate, to present documentary and testimonial evidence regarding
the timing of the U visa application, and the Immigration Judge will have an opportunity to
consider whether that date upon which the U visa was filed has any bearing on the propriety of
the continuance request. See Matter ofSanchez Sosa, supra, at 814-15 (explaining that a history
of continuances, coupled with other relevant factors, may support moving forward with
proceedings rather than continuing the matter).

2
Cite as: Gustavo Ruiz, A206 862 055 (BIA Aug. 8, 2016)

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Although Immigration Judges do not have jurisdiction over the adjudication of U visa
petitions, we have recognized that "an alien in removal proceedings may request a
continuance . . . to seek such a visa or await a decision from the USCIS on a pending U visa
petition." Matter of Sanchez Sosa, 25 l&N Dec. 807, 812 (BIA 2012) (citations omitted). To
determine whether good cause for a continuance has been shown, the Immigration Judge may
consider "(l) the DHS's response to the motion; (2) whether the underlying visa petition is prima
facie approvable; and (3) the reason for the continuance and other procedural factors."
Id. at 812-13 (citations omitted). In regards to the U visa petition, the Immigration Judge
"should consider and articulate all of the relevant factors to evaluate the viability of the
underlying petition and determine whether it is likely to be granted by the USCIS." Id. at 815;
see also id. at 813-14 ( discussing the factors to be considered when assessing the likelihood of
success on the petition).

A20(, 862 055

Based on the foregoing, we conclude that remand is appropriate for the Immigration Judge to
further consider whether a continuance is warranted in this case, including engaging in additional
fact finding regarding the respondent's prima facie eligibility for a U visa and applying the
factors articulated in Matter of Sanchez Sosa, supra, to any continuance request based on this
application. On remand, the parties will have an opportunity to present additional evidence in
assisting the Immigration Judge, and she may take any action that she deems appropriate.
Accordingly, the following order will be entered.
ORDER: The record is remanded to the Immigration Judge for further proceedings
consistent with this decision.

On appeal, the DHS argues that the respondent can pursue his U visa application with a final
order of removal (DHS Brief at 2-3). See 8 C.F.R. 214.14(c)(l)(ii) (explaining that applicants
with final orders of removal remain eligible for U visa classification); see also section 237(d) of
the Act, 8 U.S.C. 1227(d) (explaining the procedures for seeking a stay of removal where a
final order has been entered and an applicant's U visa application remains pending). Although
this is a correct statement of law, the DHS has not offered any argument regarding how the
statutory and regulatory authority are relevant to our case law affording continuances to certain
respondents pursuing U visa benefits. See Matter ofSanchez Sosa, supra.

3
Cite as: Gustavo Ruiz, A206 862 055 (BIA Aug. 8, 2016)

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Although the Immigration Judge identified other grounds for denying the respondent's
motion, these bases are, on their own, insufficient to support her conclusion (see I.J. at 5).
Notably, although the DHS's opposition to a continuance request is relevant, we grant
diminished weight to such opposition here, because it was based primarily on the number of
prior continuances that had been granted (I.J. at 5; Tr. at 68). See Matter ofSanchez Sosa, supra,
at 8134-15 (providing that the DHS's opposition is relevant to the extent it is supported by the
record but clarifying that the continuance history should be considered in context with other
relevant factors). 3 While the number of continuances previously granted is relevant to whether
good cause has been shown, in this case, the continuances granted spanned less than 2 months,
during which time the respondent secured counsel and counsel assisted the respondent in filing
his U visa application (I.J. at 2-4; Tr. at 46-47, 61-69). See id. at 815 (noting that a continuance
to pursue a U visa is not warranted where the application is unlikely to be granted and pursuing
the benefit is a dilatory tactic to forestall the conclusion of removal proceedings).

December 12, 2014

File: A206-862-055
In the Matter of
)
)
)
)

GUSTAVO RUIZ
RESPONDENT

IN REMOVAL PROCEEDINGS

CHARGE:

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

amended, in that you are an alien present in the United States
without being admitted or paroled, or who arrived in the
United States at any time or place other than as designated
by the Attorney General.

APPLICATIONS:

Motion for Continuance.

ON BEHALF OF RESPONDENT: LESLIE A. DIAZ, Esquire

ON BEHALF OF DHS: REID McKEE, Assistant Chief Counsel

DECISION OF THE IMMIGRATION JUDGE

PROCEDURAL HISTORY
Respondent is a male native and citizen of Mexico.
Respondent was placed into removal proceedings by the Department of
Homeland Security (Department) through the issuance of a Notice to Appear (NTA) on

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UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
LUMPKIN, GEORGIA

October 14, 2014. Respondent was served in person on the same day, October 14,
2014. Although he refused to sign that document, it was properly served on him in

The Department charged the respondent with removability under Section

212(a)(6)(A)(i) of the Immigration and Nationality Act as an alien who is present in the
United States without being admitted or paroled, or who arrives in the United States at
any time or place other than as designated by the Attorney General.
Respondent is currently detained by the Department.
It has come to the attention of the Court that respondent's counsel has informed
the Court that she has filed a motion to continue in order to pursue a U visa for her
client.
This motion is not in the Court's file. However, as respondent1 s counsel is an
officer of the Court, the Court takes her statement as being true, and considers that her
written motion simply has not reached the Court's file at no fault of her own.
The Court, therefore, will accept her oral motion for a continuance in order to
pursue a U visa, which she says has been recently filed.
DISCUSSION OF REQUIREMENTS
The Court has followed the following case law: (1) Matter of Sibrun, 18 l&N Dec.
354 (BIA 1983); (2) Matter of Cezareo Sanchez Sosa, Et Al., 25 l&N Dec. 807, Int. Dec.
3753, 2012 Westlaw 2068680 (BIA); and (3) Matter of Hashmi, 24 l&N Dec. 785 (BIA
2009).
FINDINGS OF THE COURT
In this case, the respondent was first before the Court October 29, 2014. At that
time, the respondent informed the Court that he had an attorney, and so his case was
A206-862-055

December 12, 2014

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person. Therefore, the Court finds that service was proper.

reset to November 17, 2014.

November 17, 2014, respondent, again, told the Court that he had an attorney,

December 9, 2014, the respondent's counsel informed the Court that she was
not ready to proceed. However, she did want to file a U visa on behalf of her client.
As that date was December 9, 2014, and respondent's counsel had signed on on
November 20, 2014, the Court immediately reset the case for admissions and
concessions and for any and all relief available to the respondent.
Today, December 12, 2014, admissions and concessions were entered by
respondent's counsel and respondent, himself.
It was admitted and conceded that respondent is not a citizen or national of the
United States, respondent is a native of Mexico and a citizen of Mexico, and was born in
Mexico. Respondent arrived in the United States at or near an unknown place,
however, by his own admission on October 24, 2004. At that time, the respondent was
not then admitted or paroled after inspection by an Immigration Officer. Respondent's
attorney has conceded to respondent being in the United States in violation of Section
212(a)(6)(A)(i) of the Act as enumerated above.
Therefore, the Court found, by clear and convincing evidence, that the
allegations and the charge had been sustained, and the respondent is removable to
Mexico.
As the Notice to Appear was served on the respondent October 14, 2010, and
the respondent gave an admission date of October 24, 2014, the Notice to Appear cut
off the ability for the respondent to file a 428 application.
Thereafter, the respondent, through counsel, informed the Court there are no
fear issues based on race, religion, nationality, political opinion, or membership by a
A206-862-055

December 12, 2014

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but as there were no papers, the Court reset the case for the attorney to appear.

particular social group, and it would appear that the sole relief available to the
respondent, besides pre-conclusion voluntary departure, would be a U visa.

FINDINGS OF THE COURT

The Court has considered respondent's request for a continuance and all
testimony given. The Court notes and accepts the assertion of respondent's counsel
that perhaps he will be granted a U visa by the Department of Homeland Security.
However, as of today, this is prospective, and it is speculative at best as respondent has
been in the United States since 2004. If he truly was eligible for a U visa, that should
have been filed much earlier than the last few weeks.
Section 101(a)(15)(U)(i) of the Act, 8 U.S.C. Section 11(a)(15)(U)(i) (2006),
states in relevant part that an alien is eligible for a U visa nonimmigrant status if the
secretary of Homeland Security determines that, 1, the alien has suffered substantial
physical or mental abuse as a result of having been a victim of a criminal activity, 2, the
alien, or in the case of alien child under the age of 16, the parent, guardian or next
friend of the alien possesses information concerning criminal activity and, 3, the alien, or
in the case of an alien child under the age of 16, the parent, guardian or next friend of
the alien, has been helpful, is being helpful, or is likely to be helpful to a Federal, State
or local law enforcement official, prosecutor, Judge or other authorities persecuting the
criminal activity.
The alien bears the burden to establish the eligibility for the U visa. 8 C.F.R.
Section 214.14(c)(4).
In this case, the Court has denied the respondent's motion to continue for the
following reason.

A206-862-055

December 12, 2014

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No one has requested pre-conclusion voluntary departure in this case.

While Immigration Judges have brought authority over continuances based on

the regulations which state that an Immigration Judge may grant a continuance for good

30 (BIA 2009); 8 C.F.R. Section 1240.6 (2012), stating that an Immigration Judge may
grant a reasonable adjournment at his or her own instinct for good cause shown by
either party. In this case, the Court finds that good cause has not been shown.
The Court has considered Matter of Hashmi, factors that relate to a U visa in
particular. First of all, the Department of Homeland Security properly notes that there
have been four resets of this case already, and that the Government, therefore, objects
to any further continuances. Second, there is no evidence before the Court to establish
whether or not the underlying visa petition is prima facie approvable.
And, three, the reason for the continuance and other procedural factors in this
case considering that there is no other form of relief available to the respondent based
on the date of the Notice to Appear, and the lack of evidence before the Court that the
visa petition is even properly signed by the proper authorities, causes the Court to deny
the motion. The Court finds that there is an absence of unusual clearly identified and
supported reasons for granting a continuance at this time. This Court also at this time is
unable to, based on the evidence before it, make any kind of focused inquiry on the
likelihood of success of said visa petition. Matter of Raiah, 25 l&N Dec. at 130, Matter
of Hashmi, 24 l&N Dec. at 790-91.
Based on the totality of evidence that is in the record, the Court is unwilling to
grant a continuance is this case.
Accordingly, the Court enters the following order.
It is ordered that respondent's request for a continuance be denied.

A206-862-055

December 12, 2014

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cause shown, 8 C.F.R. Section 1003.29 (2012); Matter of Raiah, 25 l&N Dec. 127, 129-

Furthermore, it is ordered that respondent be returned to his native country of

Mexico.

Please see the next page for electronic

signature

SAUNDRA D. ARRINGTON DEMPSEY

United States Immigration Judge

Any appeal is due January 12, 2015.

A206-862-055

December 12, 2014

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Dated this 12th day of December 2014.

\,
',

/Isl/
Immigration Judge SAUNDRA D. ARRINGTON

A206-862-055

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

arringts on February 6, 2015 at 1:05 PM GMT

December 12, 2014