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Russell S.

Mainord
Frager Kliner, PLLC
2120 Norhgate Park Lane, Suite 301
Chatanooga, TN 37415
Name: LORENZO-CABRERA, HUGO
U.S. Department of Justice
Executive Ofce fr Immigration Review
Board of Immigration Appeals
Ofce of the Clerk
5107 Leeburg Pike, Suite 2000
Fals Church. Vrinia 20530
OHS/ICE Ofice of Chief Counsel - MEM
167 N. Main St., Suite 737 A
Memphis, TN 38103
A 200-610-998
Date of this notice: 6/13/2014
Enclosed is a copy of the Boad's decision and order in the above-refrenced case.
Enclosure
Panel Members:
Grant, Edward R.
Sincerely,
DO CW
Donna Car
Chief Clerk
williame
Userteam: Docket
For more unpublished BIA decisions, visit www.irac.net/unpublished
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Cite as: Hugo Lorenzo-Cabrera, A200 610 998 (BIA June 13, 2014)
U.S. Department of Justice
Executive Ofce fr Imigation Review
Decision of te Board of Imigraton Appeals
Falls Chuch, Virgina 20530
File: A200 610 998 - Memphis, T
I re: HUGO LORENZO-CABRERA
I RMOVAL PROCEEDIGS
Appeal
Date:
ON BEHALF OF RESPONENT: Russell S. Mainord, Esquire
ON BEHALF OF DHS: Jonatha M. Lacomb
Assistat Chief Counsel
APPLICATION: Continuace; volutay depaure
JUN 13 2014
Te respondent, a native ad citizen of Guatemala, has appealed fom the Im igation
Judge's June 13, 2013, decision, denying his request fr a continuace ad denying his request
fr volutary depae under section 240B of the Imigation ad Nationality Act, 8 U.S.C.
1229B. The Depament of Homelad Security (DHS) has fled a motion fr sum ay
affnace of the Immigation Judge's decision. Te record will be remaded fr fer
proceedings.
We review fr clea eror the fndings of fct, including te determinaton of credibility,
made by the Immigation Judge. 8 C.F.R. 1003.l(d)(3)(i). We review de novo all oter issues,
icluding whether the paies have met the relevat burden of proof, ad issues of discretion.
8 C.F.R. 1003. l(d)(3)(ii).
We agree with the Imigation Judge's conclusion tat the respondent did not establish good
cause fr a continuace. See Matter of Sibrun, 18 l&N Dec. 354 (BIA 1983). As noted by te
Imigration Judge, the respondent sought a additional continuace to enoll in a GED proga
so that he migt be eligible fr a grat of Defer ed Action fr Childhood Arvals (ACA) by
the DHS (l.J. at 3). We frst note that neiter the Board nor the Imigration Judge has
jusdiction over issues of prosecutorial discretion. See Matter of Quintero, 18 I&N Dec. 348,
349-50 (BIA 1982). However, at a heag in Augst of 2012, the Imigration Judge allowed
the respondent a 10-mont contnuace afer he requested time to enoll i a GED proga ad
seek relief under DACA (I.J. at 3; Tr. at 4). Neither at his fllowing heang, nor on appeal, did
the respondent present evidence that he enolled in such a progra, or has otherise established
eligibility fr DACA. See USCIS, Frequently Asked Questions, Deferred Action for Childhood
Arrivals, ww .dhs.gov/defered-action-childood-arvals (noting that to be considered fr
DACA, alien must be in school, have gaduated fom hig school, have obtained a GED
certifcate, or be an honorably dischaged vetera). Terefre, the respondet has not
demonstated how the Imigation Judge's denial of the continuace caused him prejudice. See
Matter of Sibrun, supra (alien must show te denial of a continuace caused actual prejudice).
However, we fd remad is necessay fr te I igation Judge to frther consider whether
the respondent is eligible fr a gant of voluntay departe. Te hmigation Judge's sole bais
denying voluntay deature was tat te respondent did not have his physical passpor present at
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Cite as: Hugo Lorenzo-Cabrera, A200 610 998 (BIA June 13, 2014)
A200 610 998
te heaing fr te DHS to inspect (I.J. at 9-10). See 8 C.F.R. 1240.26(c)(2) (requring tat te
applicat fr voluntay departure have his or ,her passpor or travel documentation available fr
inspection). Nevertheless, the regulation that requires presentation of a passport also gives
hgation Judges discretion to grat voluntay depare, even if te passport is not available,
if the hnmigation Judge "is satisfed that te alien is makng diligent eforts to secure it."
8 C.F.R. 1240.26(b)(3)(ii). I te instat case, te respondent had presented te DHS wit two
photocopies of his passport ad indicated he was in possession of te original at his home (I.J. at
1 O; Tr. at 12-15). As te I igation Judge improperly denied te respondent volunta
depature on the issue of his absent passport, we fnd it necessay to remad te record fr the
Imigration Judge to fher address the respondent's request fr voluntay deparure.
Accordingly, te fllowing order will be entered.
ORER: The record is remaded t the Imigration Judge fr fer proceedings in
accordace wit this decision and fr entry of ew order.
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Cite as: Hugo Lorenzo-Cabrera, A200 610 998 (BIA June 13, 2014)
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
MEMPHIS, TENNESSEE
File: A200-610-998
In the Matter of
June 1 3, 201 3
HUGO LORENZO-CABRERA
)
)
)
)
IN REMOVAL PROCEEDINGS
RESPONDENT
CHARGES: INA Section 21 2(a)(6)(A)(i) -- alien present in the United States
without being admitted or paroled, or who arrived in the United
States at any time or place other than as designated by the
Attorney General.
APPLICATIONS: Motion to continue and post-completion voluntary departure in the
alternative.
ON BEHALF OF RESPONDENT: RUSSELL MENARD
ON BEHALF OF OHS: JONATHAN M. LARCOMB
ORAL DECISION OF THE IMMIGRATION JUDGE
Respondent is a native and citizen of Guatemala. On July 6, 201 0, the
Department of Homeland Security filed a Notice to Appear against the respondent with
the Court. The Notice to Appear is dated June 29, 201 0. The filing of this charging
document commenced proceedings and vested jurisdiction with this Court. 8 C.F.R.
Section 1003. 1 4(a). The Notice to Appear has been marked and admitted into evidence
as Exhibit 1 .
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In removal proceedings, the Notice to Appear shall be served in person on
the alien or, if personal service is not practicable, through service by mail to the alien or
the alien's counsel of record. INA Section 239; 8 C.F.R. Section 1 003. 1 3. Respondent
appeared in Court on August 16, 201 2 and conceded proper service of the Notice to
Appear. Based upon respondent's concession and the certificate of service, which is
attached to the Notice to Appear, the Court will find that the Notice to Appear has been
properly served. Respondent was aforded 1 0 days following service of the Notice to
Appear prior to appearing before an Immigration Judge, as is required by regulation.
Respondent on August 16, 2012 also admitted the factual allegations
contained in the Notice to Appear, specifically that he is not a citizen or national of the
United States, is a citizen and native of Guatemala, that he was not admitted or paroled
after inspection by an Immigration oficer, and alleges that he arrived in the United
States at or near the Mexico-California border in or about March of 2003. Respondent
further conceded that he is removable pursuant to Section 21 2(a)(6)(A)(i) of the
Immigration and Nationality Act as an alien present in the United States without being
admitted or paroled, or who arrived in the United States at any time or place other than
as designated by the Attorney General.
For aliens who are present in the United States without admission or
parole, the Department of Homeland Security must prove by clear and convincing
evidence that respondent is an alien. Once alienage has been established, respondent
must prove by clear and convincing evidence that he is lawfully present in the United
States pursuant to a prior admission or is entitled to be admitted. INA Section
240(c)(2)(8); 8 C.F.R. Section 1240. B(c). To meet this requirement the alien must
generally prove the time, place, date, and manner of entry into the United States.
Based upon the admissions of respondent and his concessions as to removability, the
A200-610-998 2 June 13, 2013
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Court finds that the Department of Homeland Security has established alienage by clear
and convincing evidence and that respondent has failed to establish he is present in the
United States lawfully or is entitled to be admitted to the United States. Accordingly, the
Court has sustained the charge of removability as charged under INA Section
212(a)(6)(A)(i).
Respondent initially appeared in proceedings before the Court while in
detention. His initial hearing was set for August 5, 201 0, but the matter was apparently
changed to December 8, 201 1 . Respondent was then apparently able to bond out of
detention, and his matter was transferred to the docket of the Memphis Immigration
Court. Respondent appeared before the Court approximately eight months later on
August 1 6, 2012 with his attorney, Russell Menard. At that time, the respondent
provided pleadings, as noted above, to the Notice to Appear, and his attorney requested
additional time and an opportunity to prepare and investigate the matter. The
respondent, through counsel, indicated that he believes that he qualified for deferred
action and was trying to enroll at that time in a GED course. The respondent was given
a continuance of these proceedings for 1 0 months to today's date, June 1 3, 201 3, and
was instructed that he was to file any and all applications for relief with the Court at the
hearing together with proof of filing, biometrics, and all supporting documents.
At the hearing of today's date, the respondent through counsel indicated
that he is still not enrolled in a GED course, and that although he is in an English
language course, that apparently does not qualify for a deferred action application. The.
respondent in a late filing made yesterday, June 1 2, 201 3, apparently filed paperwork
with the Deparment of Homeland Security requesting prosecutorial discretion. The
Court has not received any of this documentation. The respondent through counsel
indicated that he has no other application for relief, and although he stated he has a fear
A200-610-998 3 June 13, 2013
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of returning. that he was not qualified pursuant to Matters of S-E-G- & E-A-G-, and that
the respondent would not be filing an application for withholding.
The respondent requested a continuance in order to get additional
documents for deferred action and/or for consideration of prosecutorial discretion. The
Department of Homeland Security objected to a continuance on the basis that the
respondent has had ample opportunity to prepare his case, most particularly since he
was given approximately 1 0 months for the very specific purpose of applying for
deferred action, prosecutorial discretion, or for filing any and all applications for relief
before the Court. In the alternative, the respondent has requested post-completion
voluntary departure.
An Immigration judge may grant a motion for continuance for good cause
shown. 8 C.F.R. Section 1 003.29. That section provides that an Immigration judge
may grant the motion, but it is not mandatory. In Matter of Sibrun, 1 8 l&N Dec. 354 {BIA
1 983), the Board of Immigration Appeals reviewed a request for continuance in
exclusion proceedings to obtain additional evidence. The Board in that case held that a
continuance should be granted only upon a showing of the inability, that the inability to
proceed by the respondent occurred despite a diligent good faith efort to be ready to
proceed, and that any additional evidence sought by the respondent is probative,
noncumulative, and significantly favorable to the respondent. !. at 356. The BIA also
has held that it will not reverse an Immigration judge's decision denying a motion to
continue unless the respondent establishes that the denial caused him actual prejudice
and harm, that the denial materially afected the outcome of the case, and also that
bare, unsuppored allegations are insuficient as the alien must specifically articulate the
particular facts involved in his case or evidence which he would have presented and
otherwise fully explain how a denial of the motion fundamentally changes the result
A200-610-998 4 June 13, 2013
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reached. Id. at 357.


More recently, the Board decided Matter of Hashmi, 21 l&N Dec. 785 (BIA
2009). In that case, the Board set forth five factors to determine if good cause exists to
continue a case. That case involved an application for adjustment of status premised
upon a visa application which was still pending. However, the factor set forth in Matter
of Hashmi are generally used in other cases outside of an adjustment of status
application with a visa petition pending. The factors include whether the Department of
Homeland Security's response to a motion to continue is favorable or against the
continuance, whether the underlying visa petition is prima facie approvable, the
respondent's statutory eligibility for any such relief, whether the respondent's application
merits a favorable exercise of discretion, and the reason for continuance in any other
relevant procedures. Id. at 790.
The Circuit Courts have also opined on continuances. In general, case
law provides that administrative eficiency is among the factors that may be considered
by the Court when ruling on motions for a continuance. While administrative eficiency
cannot be the sole factor considered, it remains a sound docket management device to
seriously consider administrative eficiency and the efect of multiple continuances on
the eficient administration of justice. It remains, therefore, the general policy that
absent good cause shown, no more than two continuances should be granted by an
Immigration judge to an alien fr the purpose of obtaining legal representation, for
example. See Operating Policies and Procedures Memorandum 1 3-02 (March 7,
201 3).
Additionally, case law suggests that factors to be considered in whether or
not to grant a motion to continue include whether or not the motion is opposed by the
Department, whether there was time to gather relevant evidence or information, whether
A200-610-998 5 June 13, 2013
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or not prior continuances were granted, and other relevant factors. See Ilic-Lee v.
Mukasey, 507 F.3d 1044 (6th Cir. 2007); Subhan v. Ashcroft, 383 F.3d 591 (7th Cir.
2004 ). The Immigration judge can give no reason for denying the continuance and it
must not be an arbitrary reason. El Harake v. Gonzalez, 21 0 F.App'x. 482 {6th Cir.
2006). There is an abuse of discretion only if the denial was made without a rational
explanation, inexplicably departs from established policies or has rested upon an
impermissible basis such as invidious discrimination. Abu-Khaliel, 436 F .3d 627 (6th
Cir. 2006).
At the completion of removal proceedings, the Court may grant voluntary
departure in lieu of removal. INA Section 240B(b ). The alien bears the burden to
establish both that he is eligible for relief and that he merits a favorable exercise of
discretion. Matter of Gamboa, 1 4 l&N Dec. 244 (BIA 1972); Matter of Arguelles, 22 l&N
Dec. 811 (BIA 1999). To establish eligibility, the respondent must establish that he:
1 . Has been physically present in the United States for at least one year
immediately preceding service of the Notice to Appear;
2. Is, and has been, a person of good moral character for at least five
years immediately preceding his application for voluntary departure;
3. Is not removable under certain INA sections as an aggravated felon or
for security or related grounds; and
4. Has establish by clear and convincing evidence that he has the means
to depart the United States and intends to do so.
8 C.F.R. Section 1 240.26{c){2) provides that an Immigration Judge may
grant voluntary deparure at the completion of proceedings if he or she finds the
Respondent meets the elements listed above. and also that clear and convincing
evidence of the means to depart the United States shall include in all cases
A200-610-998 6 June 13, 2013
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presentation by the alien of a passpor or other travel documentation sufficient to assure
lawful entry into the country to which the alien is departing. The Service shall have full
opportunity to inspect and photocopy the documentation, and to challenge its
authenticity or suficiency before voluntary departure is granted.
First, the Court will address the respondent's application orally today for a
continuance of these proceedings. As noted above, the respondent has been in
proceedings since the Notice to Appear was issued and filed with the Cour on July 6,
2010. The Court will note that the respondent was notified of the issuance of the Notice
to Appear when he was served on June 29, 201 0. The Court will note that that is
approximately three years ago.
The respondent's first scheduled hearing was on August 5, 2010, although
in a detained setting. The Court cannot determine what occurred without listening to the
DAR recording at that hearing, but another hearing was scheduled for the respondent in
a different locale on October 6, 2010. That hearing was continued for court reasons to
December 8, 2010. The respondent's motion for a change of venue was apparently
granted three days before that hearing on December 5, 2011 , and the case was
transferred to the Memphis Court.
As noted, the respondent appeared before the Court on August 16, 2012
with his current attorney and pied to the Notice to Appear. The case was discussed
with counsel, and counsel indicated that the respondent met the qualifications or
appeared to meet the qualifications fr deferred action, and that this was the preferred
route that the respondent was going to take. The respondent was given a continuance
fr purposes not only of qualifying for deferred action in making his application, but also
for all additional attorney preparation.
The respondent was specifically told to file any and all applications for
A200-610-998 7 June 13, 2013
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relief, together with proof that the application had been filed appropriately with the
Immigration Service and all fees paid, as well as the filing of all supporting documents
with the application. The respondent's counsel indicated at that hearing that he would
advise his client of the consequences for failure to file any and all applications for relief.
At hearing on today's date, counsel has indicated to the Court that he has, in fact,
advised the respondent of these consequences after that hearing.
In making the analysis, the Court will note that, first of all, the Department
of Homeland Security opposes the continuance. The respondent has been given 1 O
months nearly in the proceedings before the Court in Memphis, and at the time that he
initially appeared already indicated to the Court that he had not yet enrolled and was
attempting to enroll in a GED program in order to qualify. At the hearing before the
Court of today's date, counsel indicated that the respondent had still not enrolled in a
program, and that they were "trying" to enroll him in a program.
Further, the respondent waited until the day before this hearing in order to
request prosecutorial discretion, which had previously been reviewed by the
Department and declined to be exercised. The Court will find that the respondent has
had ample opportunity to gather relevant evidence and to present it both to the
Department for discretionary action outside of the jurisdiction of this Court, to the
Department of Homeland Security or the Immigration Service with regard to the
deferred action, also outside the jurisdiction of this Court, and to prepare and present
any and all applications for relief. In this connection, the Court will note that the
respondent was also asked at the hearing today whether or not an application for
withholding would be filed, and the respondent, even having been told that the
continuance was going to be denied indicated that he would not be filing an application
for withholding.
A200-610-998 8 June 13, 2013
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Further, the Court will specifically note that in addition, the respondent has
failed to provide any required evidence or information to this Court, including perhaps
copies of the qualifications for deferred action and/or prosecutorial discretion to indicate
that there is some sort of a likelihood of success, that a continuance would be
significantly favorable to the respondent, and that the respondent has had any inability
to proceed despite diligent good-faith eforts on his part. The argument and information
from the respondent is, is specifically lacking in any detail in these regards. As noted,
bare, unsupported allegations are insuficient, and as the respondent has specifically
failed to articulate paricular factors involved or evidence which he could have or should
have presented but has been unable to do so because of something that he could have
articulated, he has been unable to fully explain, then, how the denial of this motion
fundamentally changes any result that would be otherise reached. The respondent
apparently has no other form of relief available to him other than voluntary departure.
The respondent has specifically indicated that he would not request pre
completion voluntary departure, which the Deparment does not oppose. The
respondent wishes to reserve appeal and has sought post-completion voluntary
departure.
It is noted the respondent must qualify by establishing the four grounds
necessary fr a grant of voluntary departure. It is clear that the respondent has been
physically present in the United States for at least one year prior to the issuance of the
Notice to Appear, and it is perhaps true that the respondent is a person of good moral
character for the required five years and has not been convicted of a disqualifying
conviction. However, the respondent has failed to establish by clear and convincing
evidence as required specifically under 8 C.F.R. Section 1240.26(c)(2) that he has the
means to depart the United States and intends to do so. While the respondent may
A200-610-998 9 June 13, 2013
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have articulated his intent to do so, the respondent has not given the Department an
opportunity to inspect and photocopy his travel documentation and to challenge its
authenticity. The Department does not accept the partially-photocopied documentation
that was provided in the prosecutorial discretion request as a substitute for the original
documentation. It is clear to the Court that it is bound by 8 C. F.R. Section
1 240.26(c)(2), and the respondent therefore has not met his burden to establish
eligibility under this ground, and the application will be denied.
ORDERS:
Based upon the foregoing, the fllowing orders will enter:
IT IS HEREBY ORDERED that respondent's application for a continuance
of these proceedings be and hereby is denied.
IT IS HEREBY ORDERED that respondent's application for voluntary
departure, post-completion, be and hereby is denied.
IT IS HEREBY ORDERED that respondent be ordered removed to
Guatemala on the charges contained in the Notice to Appear.
signature
A200-610-998
Please see the next page for electronic
REBECCA L. HOLT
Immigration Judge
10 June 13, 2013
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/Is//
Imigration Judge REBECCA L. HOLT
holtr on Septemer 3, 2013 at 1:34 PM GMT
A200-610-998 11

\ ;
June 13, 2013
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