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U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals Of f ice ofthe Clerk


5107 Leesburg Pike. Suite 2000
Falls Church, Virginia 22041

Anderson Ill, Thomas R., Esquire Robichaud, Anderson & Alcantara, P.A. 211 Washington Avenue North Minneapolis, MN 55401

OHS/ICE Office of Chief Counsel - BLM 2901 Metro Drive, Suite 100 Bloomington, MN 55425

Immigrant & Refugee Appellate Center | www.irac.net

Name: ALONSO-NUNO, DIEGO ALEJA...

A 089-711-493

Date of this notice: 6/17/2013

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

DoYUtL CtYVU
Donna Carr Chief Clerk

Enclosure
Panel Members: Grant, Edward R.

schuckec Userteam: Docket

Cite as: Diego Alejandro Alonso-Nuno, A089 711 493 (BIA June 17, 2013)

U.S. Department of Justice


Executiv Office for ImmigratiQn Review Falls Church, Virginia 22041

Decision of the Board of Immigration Appeals

File: A089 711 493 -Bloomington, MN In re: DIEGO ALEJANDRO ALONSO-NUNO IN REMOVAL PROCEEDINGS APPEAL ON BEHALF OF RESPONDENT:

Date:

JUN 172013

Immigrant & Refugee Appellate Center | www.irac.net

Thomas R. Anderson, III, Esquire

APPLICATION: Continuance; voluntary departure

The respondent, a native and citizen of Mexico, appeals the decision of the Immigration Judge, dated April 11, 2012, denying his motion for a continuance and granting his request for voluntary departure. See section 240B(b) of the Immigration and Nationality Act, 8 U.S.C. 1229c(b). We will dismiss the respondent's appeal and, as the respondent has presented evidence that he posted the requisite voluntary departure bond, provide him with 60 days to voluntarily depart this country. We affirm the Immigration Judge's decision. The respondent, through counsel, has conceded that he is subject to removal from the United States because he is an alien who is present in this country without being admitted or paroled or who arrived at any time or place other than as designated by the Attorney General (I.J. at 2; Tr. at 18; Exh. 1). See section 212(a)(6)(A)(i) of the Act, 8 U.S.C. 1182{a)(6)(A)(i). As the respondent is subject to removal from the United States, it is his burden to establish eligibility for relief from removal. See section 240(c)(4)(A) of the Act, 8 U.S.C. 1229a(c)(4)(A); 8 C.F.R. 1240.8(d). However, the respondent does not allege that, at the present time, he is eligible for any form of relief from removal which can be granted by an Immigration Judge or this Board. "Good cause" does not exist for a further continuance of these removal proceedings. See 8 C.F.R. 1003.29 1240.6. Even though the respondent is apparently the beneficiary of an immigrant visa petition filed by his United States citizen wife, the respondent does not allege that, if the petition is approved, he would be eligible to adjust status under section 245 of the Act, 8 U.S.C. 1255. Cf Matter of Hashmi, 24 I&N Dec. 785 (BIA 2009) (recognizing that a continuance may be warranted where an alien has presented evidence that he is the beneficiary of a pending immigrant visa petition and established a likelihood of success on an application for adjustment of status). Moreover, an alien, such as the respondent, who is the subject of ongoing removal proceedings, is not eligible to file an Application for Provisional Unlawful Presence Waiver (Form I-601A) with United States Citizenship and Immigration Services ("USCIS"). 8 C.F.R. 212.7(e)(4)(v) (effective Mar. 4, 2013) (stating that an alien is ineligible for a provisional unlawful presence waiver under 8 C.F.R. 212.7(e) if the alien is in removal proceedings, unless the removal proceedings are administratively closed and have not been recalendared at the time of filing the Form I-601A); see also Provisional Unlawful Presence Waivers of Inadmissibility for Certain Immediate Relatives, 78 Fed. Reg. 536 (Jan. 3, 2013) (final rule). Thus, inasmuch as the respondent has not established that, if these removal proceedings were further continued, he would be potentially eligible for any form of immigration
Cite as: Diego Alejandro Alonso-Nuno, A089 711 493 (BIA June 17, 2013)

. .

A089 711 493 benefit 'which would permit him to remain in this country and can be granted by an Immigration Judge or this Board, the Immigration Judge properly denied the respondent's request for a further continuance of these removal proceedings (l.J. at 3-4). Matter of Sanchez-Sosa, 25 I&N Dec. 807, 815 (BIA 2012) (recognizing that a continuance should not be granted where it is being sought "as a dilatory tactic to forestall the conclusion of removal proceedings"). Additionally the respondent has not demonstrated that he was prejudiced by the Immigration Judge's to deny his request for a continuance. Matter of Sibrun, 18 I&N Dec. 354 (BIA 1983). Now, more than a year after the Immigration Judge denied the respondent's request for a continuance and several months after the regulations concerning provisional unlawful presence waivers have been finalized, the respondent has yet to present evidence that USCIS has approved either the immigrant visa petition which his spouse filed on his behalf, nor provisional unlawful presence waiver. See Matter of Cerna, 20 l&N Dec. 399, 403 (BIA 1991) (noting that "we are not favorably disposed to the practice of waiting until the conclusion of the administrative appeal process to file a motion that seeks to offer additional evidence regarding the matter previously in issue"). Accordingly, we will not disturb the Immigration Judge's decision to conclude these proceedings by entering a 60-day voluntary departure order. The following orders are entered. ORDER: The respondent's appeal is dismissed. FURTHER ORDER: Pursuant to the Immigration Judge's order and conditioned upon compliance with conditions set forth by the Immigration Judge and the statute, the respondent is permitted to voluntarily depart the United States, without expense to the Government, within 60 days from the date of this order or any extension beyond that time as may be granted by the Department of Homeland Security ("DHS"). See section 240B(b) of the Immigration and Nationality Act, 8 U.S.C. 1229c(b); see also 8 C.F.R. 1240.26(c), (f). In the event the respondent fails to voluntarily depart the United States, the respondent shall be removed as provided in the Immigration Judge's order. NOTICE: If the respondent fails to voluntarily depart the United States within the time period specified, or any extensions granted by the DHS, the respondent shall be subject to a civil penalty as provided by the regulations and the statute and shall be ineligible for a period of 10 years for any further relief under section 240B and sections 240A, 245, 248, and 249 of the Act. See section 240B( d) of the Act. WARNING: If the respondent files a motion to reopen or reconsider prior to the expiration of the voluntary departure period set forth above, the grant of voluntary departure is automatically terminated; the period allowed for voluntary departure is not stayed, tolled, or extended. If the grant of voluntary departure is automatically terminated upon the filing of a motion, the penalties for failure to depart under section 240B(d) of the Act shall not apply. See 8 C.F.R. 1240.26(e)(l). WARNING: If, prior to departing the United States, the respondent files any judicial challenge to this administratively final order, such as a petition for review pursuant to section 242 of the Act, 8 U.S.C. 1252, the grant of voluntary departure is automatically terminated, and the alternate order of removal shall immediately take effect. However, if the respondent files a petition for review and then departs the United States within 30 days of such filing, the respondent will not be deemed to have departed under an order of removal if the alien provides to the DHS such evidence of his or her departure that the Immigration and Customs
2

Immigrant & Refugee Appellate Center | www.irac.net

Cite as: Diego Alejandro Alonso-Nuno, A089 711 493 (BIA June 17, 2013)

. .

'

A089 711 493 Enforcement Field Office Director of the DHS may require and provides evidence DHS deems sufficient that he or she has remained outside of the United States. The penalties for failure to depart under section 240B(d) of the Act shall not apply to an alien who files a petition for review, notwithstanding any period of time that he.or she remains in the United States while the petition for review is pending. See 8 C.F.R. 1240.26(i).

Immigrant & Refugee Appellate Center | www.irac.net

FORT

Cite as: Diego Alejandro Alonso-Nuno, A089 711 493 (BIA June 17, 2013)

UNITED STATES DEPARTMENT OF JUSTICE EXECUT IVE OFF ICE FOR IMMIGRATION REVIEW UNITED STATES IMM IGRATION COURT BLOOMINGTON, M INNESOTA

Immigrant & Refugee Appellate Center | www.irac.net

File:

A089-711-493

April 11,

2012

In the Matter of

DIEGO ALEJANDRO ALONSO-NUNO RESPONDENT

IN REMOVAL PROCEEDINGS

CHARGE:

Section 212(a) (6) (A) (i) - present without admission or parole after inspection by an Immigration officer.

APPLICATIONS:
. .

A continuance and voluntary departure.

ON BEHALF OF RESPONDENT: THOMAS R. ANDERSON, Attorney at Law ON BEHALF O F DHS: DAN IEL J. PORNSCHLOEGL, Assistant Chief Counsel

III,

ORAL DEC I SION OF THE IMMIGRAT ION JUDGE The respondent was placed in removal proceedings on September 3, 2010, by the filing with the Immigration Court the Notice to Appear, Exhibit 1. The respondent was charged with

being subject to removal under Section 212{a) (6) (A) (i) of the Immigration and Nationality Act (Act) . This charge was based

upon allegations that the respondent entered the United States in about November 2008 without being admitted or paroled after inspection by an Immigration officer. The respondent, through counsel, admitted the four factual

Immigrant & Refugee Appellate Center | www.irac.net

allegations contained in the Notice to Appear and conceded that he was subject to removal as charged. Based upon those

admissions and concessions and there being no other issue of law or fact relating to the charge, 1240.lO(c) . At the respondent's hearing on October 17, 2011, at which it is sustained. 8 C.F.R.

the pleadings were taken, the respondent indicated that an I-130 was being filed on his behalf based upon his marriage the previous week to a United States citizen spouse and that he would be requesting voluntary departure because of the need to
. .

Consular process once,

and if,

that petition is approved. 2012.

The

case was rescheduled to April 11,

The respondent filed documents at the April 11 hearing, which the Court will mark and enter as Exhibit 2. These

documents indicate that the respondent's wife did file an I-130 petition on March 16, 2012, and it is still pending. The

respondent requested a continuance of proceedings given the proposed regulations concerning provisional unlawful presence waivers that where published in the Federal Register at the end of March. The respondent argues that he should be allowed a first to have the I-130 petition adjudicated and,

continuance,

A089-711-493

April 11,

2012

second,

to allow the proposed regulations to be promulgated and

become effective so that he can take advantage of the provisions of those regulations. The Court does decline to grant a continuance in this case under these circumstances. A pending I-130 is not normally the

Immigrant & Refugee Appellate Center | www.irac.net

basis for continuing a case when the respondent is also required to leave the United States in order to Consular process. Because the respondent entered the United States without inspection and has not been admitted or paroled, he is

ineligible for adjustment of status in the United States. Even with the proposed regulations relating to provisional unlawful presence waivers, the Court is still disinclined to The Court notes that the

grant a continuance in this case. proposed regulations do -

ave

the intent of decreasing the period

of time an individual must remain outside of the United States while Consular processing. However, the Court notes that these

are recently proposed regulations,

the comment period ends at

the end of June and there is no clear indication if and when these regulations would become effective. The Court takes into

account the history of proposed regulations in the Immigration context and the fact that mere proposal of a regulation does not necessarily result in a final regulation being promulgated. The Court also takes into account in this case the fact that the respondent and his United States citizen wife married while the respondent was in proceedings and should have both

A089-711-493

April 11,

2012

been fully aware that the respondent was going to be required to leave the United States to Consular process through any approved I-130 visa petition. In the alternative, the respondent seeks voluntary

Immigrant & Refugee Appellate Center | www.irac.net

departure and has indicated that he will be reserving his right to appeal. Consequently, he is not eligible for pre-merits

voluntary departure and the Court will grant post-merits voluntary departure provided that the respondent post a voluntary departure bond within five business days of this decision in the amount of $1, 000. Accordingly, the following orders shall be entered: ORDERS 1. The charge under Section 212 (a) (6) (A) (i) of the Act is

sustained. 2. The respondent is granted the privilege of voluntarily 2012. This

departing the United States on or before June 10,

grant of voluntary departure is contingent upon the respondent posting a voluntary departure bond in the amount of $1, 000 within five business days of this decision. If the respondent

fails to post such departure bond or fails to depart within the time given, the voluntary departure is automatically withdrawn without notice or proceedings and an order of removal to Mexico becomes immediately effective. depart within the time given, If the respondent fails to he will be barred for ten years including

from applying for certain Immigration benefits,

A089-711-493

April 11,

2012

voluntary departure,

cancellation of removal,

adjustment or

change of Immigration status.

Further, the respondent would be

subject to a civil penalty of $3, 000.

Immigrant & Refugee Appellate Center | www.irac.net

SUSAN E. CASTRO Immigration Judge

A089-711-493

April 11,

2012

, I

..
,

CERTIF ICATE PAGE

I hereby certify that the attached proceeding before JUDGE SUSAN E. CASTRO, in the matter of:

Immigrant & Refugee Appellate Center | www.irac.net

D IEGO ALEJANDRO ALONSO-NUNO

A089-711-493

BLOOMINGTON, M INNESOTA

is an accurate,

verbatim transcript of. the recording as provided

by the Executive Office for Immigration Reiew and that this is the original transcript thereof for the file of the Executive Office for Immigration Review.

. .

BARBARA CULLITON

(Transcriber) Inc.

FREE STATE REPORTING,


MAY 30,

2012

(Completion Date}

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