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 20530

OHS/ICE Office of Chief Counsel - SOC

Michael E. Carroll & Associates, L.L.C.

2250 Satellite Boulevard, NW
Suite 205, Satellite Court

146 CCA Road, P.O.Box 248

Lumpkin, GA 31815

Duluth, GA 30097

Name: TORRES DE SANTIAGO, JUAN ...

A 089-474-810

Date of this notice: 2/27/2015

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

Donna Carr
Chief Clerk

Enclosure
Panel Members:
Greer, Anne J.
Pauley, Roger
Cole, Patricia A.

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index
Cite as: Juan Carlos Torres-de Santiago, A089 474 810 (BIA Feb. 27, 2015)

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Carroll, Michael Eugene

U.S. Department of Justice

Decision of the Board of Immigration AppeaJs

Executive Office for lmigration Review

Fal1s Church, Virginia 20530

Date:

File: A089 474 810- Lumpkin, GA

FEB 2 7 2015

Santiago

IN REMOVAL PROCEEDINGS
APPEAL
ON BEHALF OF RESPONDENT:

Michael Eugene Carroll, Esquire

CHARGE:
Notice: Sec.

212(a)(6)(A)(i), I&N Act [8 U.S.C. l 182(a)(6)(A)(i)] Present without being admitted or paroled (conceded)

APPLICATION: Continuance; administrative closure

The respondent, a native and citizen of Mexico, appeals from the Immigration Judge's
October I, 2014, decision denying his requests for a continuance or administrative closure,
sought for the purpose of awaiting the adjudication the respondent's U visa application (available
to certain victims of physical or mental abuse as outlined at section 10 I (a)(l 5)(U) of the
Immigration and Nationality Act (Act), 8 U.S.C. 110l (a)(l5)(U)) that is pending before United
States Citizenship and Immigration Services (USCIS). His appeal will be sustained and the
record will be remanded to the Immigration Judge for further proceedings consistent with this
decision.
We review findings of fact, including credibility findings, for clear error. See 8 C.F.R.
1003.1 (d)(3)(i) see also Matter of J-Y-C-. 24 l&N Dec. 260 (BIA 2007); Maller of S-H-,
23 I&N Dec. 462 (BIA 2002). We review questions of law, discretion, or judgment, and all
other issues de novo. See 8 C.F.R. 1003. l (d)(3)(ii).
On October 24, 2013, the respondent was granted voluntary departure by an Immigration
Judge, and in compliance with the grant of voluntary departure, the respondent left the United
States on November 7, 2013 (l.J. at 2; Tr. at 35-36; Exhs. 2, 4). In February 2014, the
respondent rtumed to the United States without first being inspected and admitted or paroled
(l.J. at 1-2; Tr. at 36; Exhs. 1, 4). On July 13, 2014, the respondent was the victim of an
aggravated assault in Gwinnett County, Georgia, and on this basis, he filed a U visa application
with USCIS (l.J. at 2; Exh. 3). As a result, the respondent sought a continuance of his removal
proceedings to await the adjudication of his U visa application (l.J. at 2; Exh. 3; Resp. October
16 2014, Motion to Continue; Resp. October 16, 2014, Documentary Submission).
In denying the continuance, the Immigration Judge found that, although the respondent is the
beneficiary of a pending U visa application, there is no good cause supporting a further
Cite as: Juan Carlos Torres-de Santiago, A089 474 810 (BIA Feb. 27, 2015)

Immigrant & Refugee Appellate Center | www.irac.net

In re: JUAN CARLOS TORRES-DE SANTIAGO a.k.a. Juan Torres-De

a.k.a. Juan Carlos Torres a.k.a. Juan Carlos Torresdentiago
a.k.a. JuanCarlos Torresdentiago a.k.a. JuanCarlos Torres De Santiago
a.k.a. JuanCarlos Torres

A089 474 810 .

Notwithstanding the fact that USCIS has exclusive jurisdiction over the respondent's U visa
application (along with any application for adjustment of status that may be filed should the U
visa application be approved), as we explained in Matter of Sanchez Sosa, 25 I&N Dec. 807
(BIA 2012), continuances to await the adjudication of a pending U visa application may still be
appropriate under certain circumstances. See section 245(m) of the Act; 8 C.F.R. 245.24(k);
Matter of Sanchez Sosa, supra, at 810-12. In Matter of Sanchez Sosa, supra, we identified
several salient factors for the Immigration Judge to consider in determining if good cause exists
for granting a continuance based on a respondent's potential U visa eligibility, including, but not
limited to: (1) the DHS's position with respect to the request, (2) whether the underlying visa
petition is primafacie approvable, and (3) the reason for the continuance request, along with any
other relevant procedural factors. See id. at 812-13. If the OHS does not oppose the
continuance, generally no further inquiry is required. See id. at 813. However, where the OHS
opposes the continuance, the Immigration Judge should consider the likelihood of the U visa
application's success by (1) first inquiring whether the respondent has demonstrated that he
suffered substantial physical or mental abuse as the victim of a qualifying crime, and if so,
(2) next exploring whether the respondent has been, is being, or will be helpful to the authorities.
See id. at 813-14.
The Immigration Judge considered the fact that DHS opposed a continuance and also relied
on the fact that the respondent only became a victim of a violent crime after this illegal re-entry
(I.J. at 2; Tr. at 35-36, 51-52, 55-57; Exhs. 2-4). In addition, the Immigration Judge identified
concerns regarding the respondent's illegal entry into the United States following a grant of
voluntary departure, a factor that has bearing on the respondent's admissibility, and thus, his
ultimate ability to prevail on his U visa application and any related adjustment application (l.J. at
2; Tr. at 36; Exhs. 3-4). See sections 212(a)(9)(B), (C) of the Act, 8U.S.C. l182(a)(9)(B), (C)
(discussing how an alien's entries into and departures from the United States can trigger a
temporary 3- or IO-year ground of inadmissibility or a permanent IO-year ground of
inadmissibility, respectively).
reasons for the OHS oppos1t1on to the
continuance request in his decision. Further, we disagree with the Immigration Judge that the
timing of the respondent's becoming a victim is a relevant factor regarding the respondent's
prima facie eligibility for a U visa. Further, while the respondent's admissibility is relevant
inasmuch it relates to the respondent's ultimate U visa eligibility, which requires an evaluation of
the respondent's waiver of inadmissibility filed in conjunction with his U visa application, we do
The Immigration Judge did not identify the

2
Cite as: Juan Carlos Torres-de Santiago, A089 474 810 (BIA Feb. 27, 2015)

Immigrant & Refugee Appellate Center | www.irac.net

continuance of these proceedings (l.J. at 2). Specifically, the Immigration Judge noted the
Department of Homeland Security's (DHS's) opposition to further continuances and the fact that
the U visa process does not provide the respondent with an avenue to obtain relief before the
Immigration Court (I.J. at 2; Tr. at 51-52, 56-57). See generally sections 2 l 4(p) and 245(m) of
the Act, 8 U.S.C. l l 84(p), l255(m) (outlining the statutory requirements for obtaining a U
visa and adjusting one's status based upon an approved U visa application); see also 8 C.F.R.
214.14(c)(l)(i)-(ii). In addition, the Immigration Judge opined that the respondent was
unlikely to prevail on his U visa application before USCIS because he returned to the United
States without authorization after voluntarily departing in accordance with the Immigration
Judge's prior decision to grant this benefit (I.J. at 2; Tr. at 55-57; Exhs. 2, 4).

A089 474 810 .

Accordingly, we conclude that remand of the record is necessary to allow the Immigration
Judge an opportunity to further evaluate the respondent's continuance request and to specifically
apply all relevant Matter ofSanchez Sosa, supra, factors. In addition, upon remand, the
Immigration Judge should also reevaluate the propriety of administrative closure without relying
on the respondent's return to the United States, which is not related to the processing of his U
visa (l.J. at 3; Resp. Brief at 15-16). See Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012). In
assisting the Immigration Judge in addressing these issues and issuing a new decision, the parties
should be afforded an opportunity to supplement the record. 1
In light of the foregoing, we decline to address whether the respondent's case should be
continued to await the adjudication of the Alien Relative Petition (Form 1-130) filed on his
behalf by his United States citizen wife (Notice of Appeal; Resp. October 16, 2014,
Motion to Continue). However, we note that the respondent has not explained how, in light of
his entry without inspection and admission or parole, he would be eligible to adjust his status
under section 245 of the Act (l.J. at 1-2; Tr. at 32; Exhs. 1, 4).
Accordingly, the following orders will be entered.
ORDER: The respondent's appeal is sustained.
FURTHER ORDER: The record is remanded to the Immigration Judge for further
proceedings consistent with this opinion and for the entry of a new decision.

,,-

Bi
(/

1 The respondent maintains on appeal that his U visa application cannot be adjudicated until his
biometrics are captured and he is detained (Resp. Brief at 8). We note that any request for a
custody determination is not properly before us, and instead should be raised in the context of
bond proceedings, which are separate and apart from these removal proceedings. See 8 C.F.R.
1003.19(d). However, in light of our disposition of this matter, the parties are invited to discuss,
as appropriate, options for capturing the respondent's biometrics in the course of these remanded
removal proceedings.

3
Cite as: Juan Carlos Torres-de Santiago, A089 474 810 (BIA Feb. 27, 2015)

Immigrant & Refugee Appellate Center | www.irac.net

not view it as a valid basis to deny a continuance absent an analysis of whether the respondent is
likely to obtain the waiver from the DHS (Resp. October 16, 2014, Documentary Submission;
Resp. Brief at Attachments). See sections 212(d)(3)(B), (d)(l4) of the Act (allowing a U visa
applicant to seek a waiver for most grounds of inadmissibility under section 212(a) of the Act
except for some of the grounds set forth at section 212(a)(3) of the Act); see also 8 C.F.R.
212.l 7(a), (b). The Immigration Judge did not meaningfully discuss the role of the
respondent's waiver application in making a determination regarding the respondent's prima
facie U visa eligibility (l.J. at 2).

U.S. Department of Justice

Decision of the Board of Immigration Appeals

Executive Office for Immigration Review

Falls Church, Virginia 20530

File:

A089 474 810-Lumpkin, GA

FEB 2 7 2015

Date:

In re: JUAN CARLOS TORRES-DE SANTIAGO a.k.a. Juan Torres-De Santiago

a.k.a. Juan Carlos Torres a.k.a. Juan Carlos Torresdentiago
a.k.a. JuanCarlos Torresdentiago a.k.a. JuanCarlos Torres De Santiago

DISSENTING OPINION: Roger A. Pauley, Board Member

I respectfully dissent. Unlike the majority, I would affirm the Immigration Judge's decision
denying

the

respondent's

continuance

request

as

unsupported

by

good

cause.

See

Matter ofSanchez Sosa, 25 I&N Dec. 807 (BIA 2012); see also Matter of Perez-Andrade,

19 I&N Dec. 433 (BIA 1987); 8 C.F.R. 1003.29, 1240.6.

Specifically, I conclude that the Immigration Judge's determination that the respondent is
unlikely to prevail on his U visa application (available to certain victims of physical or mental
abuse as outlined at section 101(a)(15)(U) of the Immigration and Nationality Act (Act),
8 U.S.C. 1101(a)(15)(U)) is a predictive finding, and thus, it is a factual determination subject
to clear error review.

See Zhou Hua Zhu

v.

United States Attorney General, 703 F.3d 1303,

1308-14 (11th Cir. 2013) (defining predictive findings as factual ones); Matter of S-H-, 23 l&N
Dec. 462 (BIA 2002) (imposing a clear error standard on our factual findings); 8 C.F.R.
1003.l(d)(3)(i). When reviewing the Immigration Judge's predictive factual findings, I discern
no clear error in his determination that the respondent is unlikely to prevail on his U visa
application (I.J. at 2). As the majority acknowledges, the respondent is likely inadmissible based
on his entries and departures (l.J. at 1-2; Tr. at 36; Exhs. 1, 4). As a result, he requires a waiver
of inadmissibility, and yet, the record does not contain any persuasive evidence indicating a
likelihood that he will prevail on this application (I.J. at 1-2; Tr. at 36; Exhs. 1, 4).
Similarly, for the same reasons that I would affirm the Immigration Judge's decision denying
the respondent's continuance request, I would also affirm his decision denying the respondent's
request for administrative closure. Accordingly, I would dismiss the respondent's appeal.

Board Member

Cite as: Juan Carlos Torres-de Santiago, A089 474 810 (BIA Feb. 27, 2015) (Pauley, dissenting)

Immigrant & Refugee Appellate Center | www.irac.net

a.k.a. JuanCarlos Torres

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATI ON REVIEW
UNITED STATES IMMIGRATION COURT
LUMPKIN, GEORGIA

October 1 , 2014

In the Matter of

JUAN CARLOS TORRES DE SANTIAGO

RESPONDENT

)
)
)
)

IN REMOVAL PROCEEDINGS

CHARGES:

Section 212(a)(6)(A)(i) - present without being admitted or paroled.

APPLICATIONS:

None.

EXHIBITS:

1) Notice to Appear.
2) Record of respondent's voluntary departure and verification of
departure (3 pages).
3) Motion to continue master calendar hearing with tabs A and 8.
4) Form 1-213.

WITNESSES:

None.

ON BEHALF OF RESPONDENT: MICHAEL EUGENE CARROL, Esquire

ON BEHALF OF OHS: DIANE DODD, Esquire

ORAL DECISION OF THE IMMIGRATION JUDGE

FINDINGS OF FACT AND CONCLUSIONS OF LAW
Exhibit 1was served on respondent on 24 July, 2014.
On 10 September, 2014, in accordance with respondent's pleas, the

Immigrant & Refugee Appellate Center | www.irac.net

File: A089-474-810

allegations in Exhibit 1 were sustained, and respondent was found by clear and
convincing evidence to be removable as charged in Exhibit 1. Mexico has been
designated as the country of removal.

voluntary departure. On 7 November, 2013, respondent voluntarily departed the United

States as permitted in my 24 October, 2013 order.
Respondent did not remain outside the United States, but instead returned
to the United States on or around February 2014.
Exhibit 3 shows that on 13 July, 2014, respondent was a victim of an
aggravated assault in Gwinnett County, Georgia. Respondent has submitted an
application for a U visa in connection with his being the victim of that aggravated
assault. See Exhibit 3.
Because of respondent's prior voluntary departure, and because
respondent has no relief before the Immigration Court, the Department of Homeland
Security opposes respondent's motion to continue his case to allow USCIS to
adjudicate his U visa as shown in Exhibit 3. I find that respondent's U visa application is
prima facie approvable, however, I find that the chances of respondent's U visa being
ultimately approved is unlikely because of his prior Immigration history which includes
his ignoring this Immigration Court's order that he voluntarily depart the United States.
find that respondent should not benefit from his ignoring Immigration law and returning
to the United States notwithstanding his being the victim of a crime. Consequently, in
considering the factors contained in Matter of Sanchez Sosa, 25 l&N Dec. 807 (BIA
2012), I have decided that a favorable exercise of my discretion is not warranted in
respondent's case for granting a continuance to respondent for a reasonable period of
time.

A089-4 74-810

October 1, 2014

Immigrant & Refugee Appellate Center | www.irac.net

Exhibit 2 shows that on 24 October of 2013, I granted respondent

I have decided not to administratively close respondent's case considering

the non-exclusive factors of Matter of Avetisyan, 25 l&N Dec. 688 (BIA 2012) because I
find that it is unlikely respondent will succeed on his U visa petition and I find that

he did not remain departed from the United States. And finally, the outcome of
respondent's removal proceedings would be that respondent would be once again
ordered to be removed in as much as he has no relief which may be granted by an
Immigration Court.
For the above reasons, I have also declined to terminate respondent's
current removal case.
Even though I have ffied-decided not to administratively close or to grant
a motion to continue respondent's current removal case, I find that the Department of
Homeland Security in coordination with the District Attorney in the Gwinnett County
Judicial Circuit in the State of Georgia could agree to stay the removal in this case to
allow the District Attorney to have the benefit of respondent's testimony or assistance
should that be required between now and the time that respondent is ultimately
removed. Such stay of removal would have the same effect as administratively closing
the case. I am mindful that the Department may choose not to do that, but because of
the reasons I stated earlier, I find that it should be the Department's decision alone as to
whether they ought to exercise a stay of removal in the matter or not.
Accordingly, I have entered the following order in this case:
ORDER
Respondent will be removed from the United States to Mexico.

A089-4 74-810

October 1, 2014

Immigrant & Refugee Appellate Center | www.irac.net

respondent is a responsible party in contributing to the delay in his case in as much as

r"

A written order reflecting the above decision will be provided separately

and made part of the record.

signature
DAN TRIMBLE
Immigration Judge

A089-474-810

October 1, 2014

Immigrant & Refugee Appellate Center | www.irac.net

Please see the next aaqe for electronic

/Isl/
Immigration

Judge DAN TRIMBLE

trimbled on November 17,

2014 at 12:41 PM GMT

Immigrant & Refugee Appellate Center | www.irac.net

A089-474-810

October 1, 2014