U.S.

Department of Justice
Executive Office for Immigration Review

Board oflmmigration Appeals Office of the Clerk

5107 Leesburg Pike. Suite 2000 Falls Cliurclz. Virginia 20530

Millan, Felipe D. J. Attorney at Law 2630 Montana Avenue El Paso, TX 79903-0000

OHS/ICE Office of Chief Counsel - ELP 1545 Hawkins Blvd. El Paso, TX 79925

Immigrant & Refugee Appellate Center | www.irac.net

Name: MELGAR-QUIJANO, JULIO CES ...

A 094-857-498

Date of this notice: 12/12/2013

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

DewtL ct1AAJ
Donna Carr Chief Clerk

Enclosure

Panel Members: Kendall-Clark, Molly

Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: Julio Cesar Melgar-Quijano, A094 857 498 (BIA Dec. 12, 2013)

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U.S. Department of Justice

Falls Church, Virginia 20530

Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

File:

A094 857 498 - El Paso, TX

Date:

DEC 12 2013

In re: JULIO CESAR MELGAR-QUUANO IN REMOVAL PROCEEDINGS

APPEAL ON BEHALF OF RESPONDENT: ON BEHALF OF DHS: Felipe DJ. Millan, Esquire

Immigrant & Refugee Appellate Center | www.irac.net

Barbara Cigarroa Senior Attorney

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

APPLICATION:

The respondent's case is before us upon remand from the United States Court of Appeals for the Fifth Circuit, pursuant to Melgar-Quijano
v. Holder, No. 13-60085 (5th Cir. July 12, 2013). The Court ofAppeals considered the Government's unopposed motion to remand, and remanded

Judge's decision to pretermit the respondent's application for Temporary Protected Status

this matter to the Board to consider the respondent's testimony, and to address the Immigration

("TPS"), despite his testimony that he filed documentation to obtain employment authorization in September 2002. The Court of Appeals indicated that there must be a determination as to whether the respondent's testimony is credible and meets his burden of proof.
See Matter of

Figueroa, 25 I&N Dec. 596 (BIA 2011) (Board held that testimony can establish eligibility for TPS). The Court of Appeals also stated that the Board may decide whether the respondent's

made by the REAL ID of2005. See Matter ofS-B-, 24 I&N Dec. 42 (BIA 2006).

renewed application for TPS is subject to the amendments to burden of proof and credibility

The respondent is a native and citizen of El Salvador. In a decision dated August 10, 2011, the Immigration Judge pretermitted the respondent's application for TPS under section 244 of departure. a decision dated January 9, 2013, the Board summarily affirmed the Immigration Judge's decision. The Board has determined that a TPS applicant may seek de novo review of his application the Immigration and Nationality Act, 8 U.S.C.

1254a, but granted his application for voluntary

by an Immigration Judge in removal proceedings. See Matter ofLopez-Aldana, 25 I&N Dec. 49 (BIA 2009); Matter ofBarrientos, 24 I&N Dec. 100 (BIA 2007). Subsequent to the Immigration Judge's decision in this matter, we decided Matter of Figueroa, supra, finding that an Immigration Judge may consider any material and relevant evidence when adjudicating a renewed application for TPS, regardless of whether the evidence was previously considered in

proceedings before the U.S. Citizenship and Immigration Services. Id. at 598.

Cite as: Julio Cesar Melgar-Quijano, A094 857 498 (BIA Dec. 12, 2013)

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A094 857 498

Based on a review of the record, we find the record"should be remanded to the Immigration Judge for further fact-finding, including a determination as to whether the respondent p rovided credible testimony establishing his eligibility for TPS, whether there is any additional material and relevant evidence to consider, whether or not it was previously considered in proceedings before the U.S. Citizenship and Immigration Services, and whether the respondent's application for TPS is governed by the provisions of the REAL ID Act of 2005. On remand, the parties

should be afforded an additional opportunity to present both documentary and testimonial evidence on all of the aforementioned issues. Accordingly, the following order will be entered.

Immigrant & Refugee Appellate Center | www.irac.net

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

Cite as: Julio Cesar Melgar-Quijano, A094 857 498 (BIA Dec. 12, 2013)