U.S.

Department of Justice
Executive Office for Immigration Review

Board ofImmigration Appeals

Office of the Clerk
5107 Leesburg Pike, Suite 2000
Falls Church, Virginia 22041

DHS/ICE Office of Chief Counsel - ATL

180 Ted Turner Dr., SW, Ste 332
Atlanta, GA 30303

Date of this notice: 12/27/2016

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

DCWtL ctVvu
Donna Carr
Chief Clerk
Enclosure
Panel Members:
Greer, Anne J.
Kendall-Clark, Molly
O'Herron, Margaret M
Lu!s2ges
Userteam: Docket

For more unpublished BIA decisions, visit

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Cite as: B-A-M-G-, AXXX XXX 558 (BIA Dec. 27, 2016)

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

Erwin, Anna, Esq.

Kuck Immigration Partners
365 Northridge Rd. Suite 300
Atlanta, GA 30350

'i / '_ .. ,.,:

U.S. Department of Justice

Decision of the Board of Immigration Appeals

Executive Office for Immigration Review

Falls Church, Virginia 22041

Files:

-.

Date:

DEC 2 7 2016

IN REMOVAL PROCEEDINGS
APPEAL
ON BEHALF OF RESPONDENTS: Anna Erwin, Esquire
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: Reopening
The respondents, natives and citizens of Honduras, appeal the hnmigration Judge's order
dated June 14, 2016, denying the motion to reconsider the denial of the motion to reopen the
removal proceedings. The Department of Homeland Security (DHS) has not filed an opposition
to the appeal. The appeal will be sustained, proceedings will be reopened and the record will be
remanded.
We review for clear error the Immigration Judge's findings of fact, including the
determination of credibility. 8 C.F.R. 1003.l(d)(3)(i). We review all other issues de novo,
including whether the parties have met the relevant burden of proof and issues of discretion.
8 C.F.R. 1003.l(d)(3)(ii).
At their first Master Calendar proceeding on November 24, 2015, the respondents sought a
continuance for time to file a state court custody petition for their father to ask for sole custody
of the respondents. The respondents intend to seek Special Immigrant Juvenile (SIJ) status. The
respondents were granted until January 20, 2016, to file any applications for relief. At the
January 20, 2016, hearing the respondents sought an additional continuance, as the father had
been unable to hire a custody attorney until shortly before the hearing. The Immigration Judge
denied the request. The custody attorney filed a petition for sole custody to be granted to the
respondent's father on February 26, 2016. The respondent's attorney received a copy of the
petition on April 19, 2016, and filed a motion to reopen with the Immigration Judge on April 22,
2016. The motion was untimely by 2 days. The hnmigration Judge denied the respondent's
motion, noting that the petition was filed in February and therefore there was no excuse for
failing to timely file the motion to reopen. The respondents filed a motion to reconsider,
detailing the communications between the respondents' immigration counsel and custody
counsel, and acknowledging that counsel did not read the communications closely enough and
neglected to request a copy of the custody petition earlier.

Cite as: B-A-M-G-, AXXX XXX 558 (BIA Dec. 27, 2016)

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

In re:

558 - Atlanta, GA
557

Aa11111ss8 etal.

At the time of the hearing on January 20, 2016, the petition bad not yet been filed. There
.:does :noLappear,-.:ho.w.ev.er, ,to;hav.e.been ;:all,intentional:or,.unwarranted,:delay. The,ondents
presented evidence that the custody attorney had been retained. Under these circumstances, a
continuance toallow for the filing of the petition and submission of evidence of that filing would
have been appropriate. A continuance would also have been consistent with guidance provided
to Immigration Judges by the Chief Immigration Judge, which states that if an unaccompanied
child is seeking SU status, ''the case must be administratively closed or reset for that process to
occur in state or juvenile court." See Memorandum from Brian M. O'Leary, Chief Immigration
Judge, to Immigration Judges (Sept._ 10, 2014) (Docketing Practices Relating to Unaccompanied
Children Cases in Light of New Priorities). We acknowledge the Immigration Judge's reasons
for denying the motion to reopen as untimely, but find that under the circumstances, an exercise
of the Immigration Judge's sua sponte authority would have been warranted.
We will vacate the removal order and remand the record to the Immigration Judge. The
petition for sole custody has been filed and the respondents are awaiting a court date. We will
remand these proceedings to allow the respondents to request a continuance or administrative
closure while they pursue SU status. See Matter of Sanchez Sosa, 25 I&N Dec. 8 07, 8 15 (BIA
2012) ("As a general rule, there is a rebuttable presumption that an alien who has filed a prima
facie approvable application with the USCIS will warrant a favorable exercise of discretion for a
continuance for a reasonable period of time.") (internal citation omitted); Matter of Avetisyan,
25 l&N Dec. 688 (BIA 2012) (discussing the standards for administratively closing
proceedings); Matter ofHashmi, supra.
Accordingly, the following orders will be entered.
ORDER: The respondents' appeal is sustained.
FURTHER ORDER: The Immigration Judge's decision and removal orders are vacated.
FURTHER ORDER: The record is remanded to the Immigration Judge for further
proceedings and the entry of a new decision.

t-f-_
2
Cite as: B-A-M-G-, AXXX XXX 558 (BIA Dec. 27, 2016)

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

Under the totality of the circumstances presented, we find that reopening is warranted. As an
initial matter, the Immigration Judge should have granted the request for a continuance at the
January 20, 1016, bearing. See 8 C.F.R. 1003.29 and 1240.6.; Matter of Hashmi, 24 I&N
Dec. 785 (BIA 20 09) (discussing the factors to be considered in determining whether good cause
exists to continue proceedings to await adjudication of a family-based visa petition). Absent
evidence of an alien's ineligibility for SU status, an Immigration Judge should, as a general
practice, continue or administratively close proceedings to await adjudication of a pending state
dependency petition.

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UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
180 TED TURNER DR SW, STE. 241
ATLANTA, GA 30303

Date: Jun 15, 2016

File A--558/557
In the Matter of:

et al.

M-- A

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Attached is a copy of the written decision of the Inunigration Judge.

This decision is final unless an appeal i.s taken to the Board of
Immigration Appeals. The enclosed copies of FORM,EOIR 26,
Notice of Appeal, and FORM EOIR 27, Notice of Entry as Attorney or
Representative, properly executed, must be filed with the Board 'of
Immigration Appeals on or before
The appeal must be accompanied by proof of paid fee ($110.00).

--- Enclosed is a copy of the oral decision.

Enclosed is a transcript of the testimony of record.
You are granted until ________ to submit a brief
to this office in support of your appeal.

---

Opposing counsel is granted until

brief in opposition to the appeal.

to submit .a

__/4osed is a cop.y of the order/decision of the Immigration Judge.

Ail papers filed with the Court shall be accompanied by proof
of service upon opposing counsel.
Sincerely,
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Immigrant & Refugee Appellate Center, LLC | www.irac.net

Kuck Immigration Partners

Erwin, Anna
365 Northridge Rd. Suite 300
Atlanta, GA 30350

.GE ... ...... ..

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
OFFICE OF THE IMMIGRATION JUDGE
ATLANTA,GA
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Respondent

In Removal Proceedings
A
A

557
558

ORDER OF THE IMMIGRATION JUDGE

Upon consideration of the MOTION TO RECONSIDER DENIAL OF MOTION TO
REOPEN REMOVAL PROCEEDINGS, it is HEREBY ORDERED that the motion be o
GRANTED ,'DENIED because:

oDHS does not oppose the motion.

oThe respondent does not oppose the motion.
oA response to the motion has not been filed with the court.
oGood cause has been established for the motion.
oThe court agrees with the reasons stated in the opposition to the motion.
oThe motion is untimely per------
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oThe application(s) for relief must be filed by ____________

:od;:oomplyfu DHS biomettic

Date

Immigration Judge

Certificate of Service
This document was served by:
Mail
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! ervice
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[] Alien c/o Custodial Officer
To:
[] Alien
Jlien's Atty/Rep

Date:
By: Court stMf'__

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

In the Matter of: