U.S.

Department of Justice

Executive Office for Immigration Review

Board oflmmigration Appeals
Office of the Clerk
5 /07 Leesburg Pike. Suue 2000
Falls Church. Virginia 22041

OHS/ICE Office of Chief Counsel - SND

880 Front St., Room 2246
San Diego, CA 92101-8834

Name: PEDRO VILLAFANA, SERGIO

A 087-749-264

Date of this notice: 10/27/2015

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

bOWtL Ca.AA)
Donna Carr
Chief Clerk
Enclosure
Panel Members:
Grant, Edward R.

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/
Cite as: Sergio Pedro Villafana, A087 749 264 (BIA Oct. 27, 2015)

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Hilts, Murray David

Law Offices Of Murray D. Hilts
3020 Meade Avenue
San Diego, CA 92116

 U.S. Department of Justice

Decision of the Board of Immigration Appeals

Executive Office for Immigration Review

Falls Church, irginia 22041

File: A087 749 264 - San Diego, CA

Date:

OCT 2 7 2015

In re: SERGIO PEDRO VILLAFANA a.k.a. Sergio Pedro

APPEAL
ON BEHALF OF RESPONDENT: Murray D. Hilts, Esquire
ON BEHALF OF OHS: Jonathan Grant
Assistant Chief Counsel
APPLICATION: Administrative closure
The respondent, a native and citizen of Mexico, appeals from the Immigration Judge's
decision dated July 10, 2014, which denied his motion to continue proceedings but granted ,his
request for voluntary departure under section 240B of the Immigration and Nationality Act,
8 U.S.C. 1229c. The record will be remanded.
The Immigration Judge's decision reflects that the respondent is the beneficiary of an
approved immediate relative petition (Form I-130) filed on his behalf by his United States citizen
spouse (I.J. at 2). The decision also reflects that, as of the date of the merits hearing, the
respondent had not applied for a provisional unlawful presence waiver of inadmissibility under
8 C.F.R. 212.7(e), which the Immigration Judge referred to as a "stateside waiver" (I.J. at 2;
Tr. at 54).
Under the circumstances presented herein, we find it appropriate to remand the case to allow
the Immigration Judge to consider whether proceedings should be administratively closed for the
respondent to apply for a provisional unlawful presence waiver of inadmissibility under 8 C.F.R.
212.7(e), for which he appears prima facie eligible. See Matter of Avetisyan, 25 I&N Dec.
688 (BIA 2012) ([i]n determining whether administrative closure of proceedings is appropriate,
the Board should weigh all relevant factors, including but not limited to the likelihood the
respondent will succeed on any petition, application, or other action he or she is pursuing outside
of removal proceedings). Accordingly, the following order will be entered.
ORDER: The record is remanded to the Immigration Judge.

Cite as: Sergio Pedro Villafana, A087 749 264 (BIA Oct. 27, 2015)

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IN REMOVAL PROCEEDINGS

July 10, 2014

File: A087-749-264
In the Matter of
)
)
)
)

SERGIO PEDRO VILLAFANA

RESPONDENT

IN REMOVAL PROCEED1NGS

CHARGE:

Section 212(a)(6)(A)(i) of the Immigration and Nationality Act (Act) an alien present in the United States without being admitted or
paroled.

APPLICATION:

Voluntary departure at the conclusion of proceedings under Section

240B(b) of the Act.

ON BEHALF OF RESPONDENT: MURRAY D. HILTS

ON BEHALF OF OHS: JONATHAN S. GRANT

ORAL DECISION AND ORDER OF THE IMMIGRATION JUDGE

The respondent is charged as a native and citizen of Mexico who arrived fn the
United States on or about June of 2003, without being admitted or paroled after fG4=
inspection by an Immigration officer. The respondent, through counsel, admits and
concedes that he is removable as charged. and the Court so finds.
The respondent today again requested a continuance of the case because he
believes he is at the last stages of getting his documentation together so that he can
apply for the OHS program known as DACA. The respondent believes he qualifies for
1

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UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
SAN DIEGO, CALIFORNIA

that program and wants another continuance to be able to get all the remaining
documents. He says that he is currently attending school, which is one of the

school diploma, and he only needs at this point documentation showing that he was
present in the United States before the age of 16. He has had trouble getting those
documents in the past.
The OHS objected to the continuance in light of the record in this case where
prior continuance had been given for that same purpose.-: Agnd the fact that the
respondent still today does not have even a DACA application pending.:.i eBased on the
OHS opposition to the continuance and for the reasons stated in the record which I
incorporate by reference herein, I denied the continuance.
In summary, the reasons are that the respondent has not shown good cause. At
this point we are still uncertain when whatever documentation he needs to show
eligibility for DACA will be obtained. It is not certain. I note that the history of this case
shows that we have provided numerous continuances to allow the respondent to pursue
prosecutorial discretion programs with the OHS. The case started in March of 201O; it is
going on now to more than four years, and the records of Master Calendars in the case
show all the different continuances.
I know that the respondent is married to a United States citizen and that she has
filed an 1-130 which has been approved and that is in the record. However, there is no
indication that the respondent has started the process through the new program
adopted by OHS known as a stateside waiver. The paperwork has not been started
because of some problem with the respondent getting the necessary fees.
In short, the reasons for not granting a continuance have to do with the fact that
the respondent has taken an inordinate amount of time to get his documentations, fees
A087-749-264

July 10, 2014

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requirements, for this DACA program.. School is so that he can get a GED, a high

in order to present whatever options he has available, according to the prosecutorial

discretion guidelines and the new programs that the OHS is utilizing to help people like

interest on the part of the respondent given all the years that have taken place since this
proceeding started.
The respondent has applied for the only relief available at this time for him, which
is voluntary departure at conclusion of proceedings under Section 240(B)(b) of the Act.
The adverse factors in the case consist of the respondent having been arrested several
times for driving without a license and also use of marijuana that he admits. The
positive factors include the respondent's wife is a U.S. citizen, and his children, and his
work as a landscaper and in construction, supporting his family.
The OHS does not oppose a grant of voluntary departure on discretion and I,
therefore, will grant the respondent voluntary departure on discretion. The voluntary
departure will be granted for a period of 60 days, which is the maximum allowed. That
period of time, if counted from today, will expire on September 8, 2014. Voluntary
departure is also conditioned upon the posting of a voluntary departure bond within five
business days with the appropriate office of the OHS, and subject to the terms and
conditions set forth by that office for these types of bonds.
The voluntary departure granted today is conditioned all the terms and
limitations aflti_ln the statute and the regulations, one of them being, of course, that if
the respondent does not leave voluntarily when and as required, an order of removal
would be automatically entered against the respondent based on the charge in the
charging document. In addition, voluntary departure is conditioned upon the advisals
and warnings that will be given to the respondent at the conclusion of this decision.
These advisals and warnings are in writing and they pertain to the new regulations
AOB?-749-264

July 10, 2014

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the respondent legalize their status. The Court would need a stronger showing of

related to voluntary departure and the effect of filing a motion to reopen, and/or not
posting the bond and showing the Board if an appeal ajs taken that the bond was

record and are incorporated by reference herein.

Therefore, for all the above mentioned reasons, the Court issues the following
orders.
ORDER
The respondent is found to be removable as charged.
The respondent's application for voluntary departure at conclusion of
proceedings is granted for a period of 60 days and subject to all the terms and
conditions previously discussed, as well as all the terms and conditions in the statute
and the regulations and in the written advisals provided to the respondent today.
So ordered.
THIS IS A TRANSCRIPT OF THE ORAL DECISION I RENDERED
EXTEMPORANEOUSLY DURING THE HERARING WHICH WAS RECORDED ON
THE D.A.R.. THE RECORDING SHOULD BE LISTENED TO FOR ANY QUESTIONS
REGARDING THE ACCURACY OF THE TRANSCRIPT. SOME CORRECTIONS AND
STYLISTIC CHANGES WERE MADE. I.P.F.{10-23-14)

Please see the next page for electronic

signature

A087-749-264

IGNACIO P. FERNANDEZ
Immigration Judge

July 10, 2014

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posted. The written advisals will be provided to the respondent and will form part of the

//s//
Immigration Judge IGNACIO P. FERNANDEZ

A087-749-264

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fernandi on October 23, 2014 at 11:05 PM GMT

July 1 O, 2014