U.S.

Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

Office of the Clerk

5107 Leesburg Pike, Suite 2000

Falls Church. Virginia 22041

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

Barr, Mark Robert OHS/ICE - Office of Chief Counsel
Lichter Immigration 12445 East Caley Avenue
1601 Vine Street Centennial, CO 80111-5663
Denver, CO 80206

Name: MARTINEZ-PEREZ, ALONSO A 089-821-875

Date of this notice: 7/22/2020

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

Sincerely,

DcnrtL Ca.AA)
Donna Carr
Chief Clerk

Enclosure

Panel Members:
Kelly, Edward F.

Userteam: Docket

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Cite as: Alonso Martinez-Perez, A089 821 875 (BIA July 22, 2020)
U.S. Department of Justice Decision of the Board of Immigration Appeals
Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A089-82 l-875 - Denver, CO Date:

In re: Alonso MARTINEZ-PEREZ

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

IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Mark R. Barr, Esquire

APPLICATION: Cancellation of removal under section 240A(b)

The respondent, a native and citizen of Mexico, appealed from the Immigration Judge's
decision dated October 25, 2017, denying his request for administrative closure and granting his
application for voluntary departure under section 240B(b)(l) of the Immigration and Nationality
Act, 8 U.S.C. § l229c(b)(l). The Board, on October 10, 2018, dismissed that appeal. On
January 17, 2020, the United States Court of Appeals for the Tenth Circuit granted, in part, the
respondent's Petition for Review, and remanded these proceedings. See Martinez-Perez v. Barr,
947 F.3d 1273 (10th Cir. 2020). Hence, the Board's October 10, 2018, decision will be vacated.
In addition, the record will be remanded.

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 .1 (d)(3 )(i). 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).

In his prior appeal, the respondent argued that the Immigration Judge denied him due process
by delaying the adjudication of his application for cancellation of removal under section
240A(b)(l) of the Act, 8 U.S.C. § 1229b(b)(l), until after his qualifying relative passed the age of
21, thus precluding him from establishing eligibility (Respondent's Br. at 12-13). The Board
rejected that argument based on its decision in Matter of Isidro-Zamorano, 25 I&N Dec. 829
(BIA 2012), which states, in relevant part, that an applicant for cancellation ofremoval whose son
or daughter met the definition of a "child" when the application was filed but turned 21 before the
Immigration Judge adjudicated the application on the merits no longer has a qualifying relative
under section 240A(b)(l)(D) of the Act. The Board therefore concluded that the respondent was
ineligible for cancellation of removal because he was unable to establish that he had a qualifying
relative at the time of the hearing.

However, the Tenth Circuit determined that the Board and Immigration Judge retain
jurisdiction to adjudicate an alien's application for cancellation of removal even though a
qualifying relative is more than age 21 at the time of the hearing if the Immigration Court unduly
delayed the adjudication of the application. See Martinez-Perez v. Barr, 947 F.3d at 1281. The
Tenth Circuit found significant that the respondent filed his application for cancellation ofremoval
in 2011, and the Immigration Judge continued the case, on the judge's own motion, five times on
account of an overcrowded docket. Id. The Tenth Circuit further found significant that the
Immigration Judge was unable to hold a hearing on the application until approximately 6 years

Cite as: Alonso Martinez-Perez, A089 821 875 (BIA July 22, 2020)
A089-821-875

from the time that the respondent filed it. Id. Based on these considerations, the Tenth Circuit
determined that the Board and Immigration Judge had jurisdiction to determine whether the
Immigration Judge had unduly delayed adjudicating the respondent's application for cancellation
of removal, and if so, afford him a hearing on the application. Id.

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

In light of the factors discussed in the Tenth Circuit's decision, the respondent is not precluded
from a hearing on his application for cancellation of removal. We will therefore remand these
proceedings for the Immigration Judge to conduct a hearing on his application.

Accordingly, the following orders will be entered.

ORDER: The Board's October 10, 2018, decision is vacated.

FURTHER ORDER: The record is remanded for further proceedings consistent with the
foregoing opinion and for the entry of a new decision.

Cite as: Alonso Martinez-Perez, A089 821 875 (BIA July 22, 2020)