U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office ofthe Clerk

5107 Leesburg Pike, Suite 2000

Falls Church, Virgm1a 22041

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Urenda, Robert Ray OHS/ICE - Office of Chief Counsel - OKT
The Vinesh Patel Law Firm, PLLC 4400 SW 44th Street, Suite A
2730 N. Stemmons Freeway Oklahoma City, OK 73119-2800
Suite 1103
Dallas, TX 75207

Name: ALVARADO-TURCIO, EDGAR M ... A 201-109-166

Date of this notice: 5/22/2018

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

Sincerely,

Donna Carr
Chief Clerk

Enclosure

Panel Members:
Pauley, Roger

:l,2 .1 "
..

Userteam: Docket

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Cite as: Edgar Marcelo Alvarado-Turcio, A201 109 166 (BIA May 22, 2018)
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U.S. Department of Justice Decision of the Board of Immigration Appeals

Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A201 109 166 - Dallas, TX Date:

MAY 2 2 2018

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

In re: Edgar Marcelo ALVARADO-TURCIO

IN REMOVAL PROCEEDINGS

APPEAL AND MOTION

ON BEHALF OF RESPONDENT: Robert R. Urenda, Esquire

APPLICATION: Remand; continuance, administrative closure

This is the third time this matter has been before us. 1 The respondent is a native and citizen of
El Salvador whose instant appeal stems from a December 6, 2017, Immigration Judge decision
finding him removable as charged and denying his request for a continuance and to
administratively close proceedings. We will remand for further proceedings.

During the pendency of the first remand, the respondent moved to continue proceedings in
order to pursue an application for nonimmigrant benefits under section 101(a)(15)(U)(ii) of the
Immigration and Nationality Act, 8 U.S.C. §llOl(a)(lS)(U)(ii) (2017), with the United States
Citizenship and Immigration Services ("USCIS") as a derivative beneficiary of his wife's
Form 1-918 petition for U nonimmigrant status. The Immigration Judge denied that motion on
March 31, 2017. The respondent appealed that decision, and on August 17, 2017, we sustained
the respondent's appeal and remanded for further proceedings and for full consideration of the
respondent's motion to continue and motion to administratively close proceedings. 2

We review findings of fact, including credibility findings, under the "clearly erroneous"
standard and we review all other issues de novo, including questions of law, discretion, and
judgment. See 8 C.F.R. §§ 1003.l(d)(3)(i}, (ii) (2017); Matter of J-Y-C-, 24 I&N Dec. 260
(BIA 2007); Matter ofS-H-, 23 I&N Dec. 462 (BIA 2002).

The respondent entered the United States without admission or parole on or about
March 7, 2011. In the instant appeal, the respondent asserts that the Immigration Judge did not
use the correct standard for adjudicating a motion to continue or a motion to administratively close

1 An Immigration Judge originally ordered the respondent removed on April 24, 2012, after
finding him removable as charged and pretermitting his asylum application as time barred and
otherwise pretermitting his application because the respondent's proffered particular social groups
lacked defined boundaries. The Board remanded the record on July 8, 2015, for the application to
be adjudicated under Matter of E-F-H-L-, 26 I&N Dec. 319 (BIA 2014), vacated by
Matter of E-F-H-L-, 27 l&N Dec. 226 (A.G. 2018), but the respondent the respondent withdrew
his asylum application on remand.

2 However, administrative closure is now foreclosed as a result of the Attorney General's

intervening decision in Matter ofCastro-Tum, 27 I&N Dec. 271 (A.G. 2018).
Cite as: Edgar Marcelo Alvarado-Turcio, A201 109 166 (BIA May 22, 2018)
A201 109 166

proceedings. The respondent further stresses that his U visa petition is prima facie approvable.
He also contends that the Immigration Judge improperly relied on a document not in evidence to
support his decision.

We will again remand for further proceedings. It does not appear from the Immigration Judge's

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December 6, 2017, decision that he applied the correct standards for adjudicating a motion to
continue to pursue a U visa. On remand, we ask that the Immigration Judge follow
Matter of Sanchez Sosa, 25 I&N Dec. 807, 812-13 (BIA 2012), to determine if good cause exists
to continue proceedings while the respondent's U visa petition is pending. The Immigration Judge
determined that the respondent's U visa petition appears to be prima facie approvable, but then
denied the motion in part because there was no "guarantee" that USCIS would grant the petition
in an exercise of discretion and grant a waiver for the respondent's criminal activity (a DUI and
driving without a license) (December 6, 2017, IJ's Decision at 3).

A guarantee of a grant of relief is not a consideration in Matter of Sanchez Sosa,

25 l&N Dec. at 812-13 (concluding that an Immigration Judge should consider DHS's response to
the alien's motion to continue, whether the underlying visa petition is primafacie approvable, and
the reason for the continuance and other procedural factors).

The Immigration Judge relied heavily on the fact that the respondent is detained and that there
is a significant U visa backlog. We recognize the need for a detained docket to move efficiently,
but an Immigration Judge also must consider an alien's "invocation of procedural rights and
privileges." Matter o/C-B-, 25 I&N Dec. 888, 890 (BIA 2012). In addition, we acknowledge the
substantial U visa backlog, but stress that processing delays are not sufficient by themselves to
deny an alien's request for a motion to continue. See Wu v. Holder, 571 F.3d 467, 470
(5th Cir. 2009). We ask that any documents relied on by the Immigration Judge be in the record
and available to the parties. The parties may submit additional documents on remand.

Accordingly, the following order will be issued.

ORDER: The record is remanded for further proceedings consistent with this order and for
the entry of a new decision.

2
Cite as: Edgar Marcelo Alvarado-Turcio, A201 109 166 (BIA May 22, 2018)