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 - SEA

1000 Second Avenue, Suite 2900
Seattle, WA 98104

Name: AGUILAR-JACOBO, ELIAS

A 200-882-885
Date of this notice: 10/27/2015

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

DOWU- C

Q/lA)

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Pauley, Roger

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/
Cite as: Elias Aguilar-Jacobo, A200 882 885 (BIA Oct. 27, 2015)

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Armijo, Sergio
Armijo Law Office
917 N. 2nd. Street
Tacoma, WA 98403

Decision of the Board oflmmigration Appeals

U.S. l)epartment of Justice

. Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A200 882 885 - Seattle, WA

Date:

OCT 2 7 2015

In re: ELIAS AGUILAR-JACOBO

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IN REMOVAL PROCEEDINGS
APPEAL
ON BEHALF OF RESPONDENT: Sergio Armijo, Esquire
ON BEHALF OF OHS: Hana A. Sato
Assistant Chief Counsel
CHARGE:
Notice: Sec.

212(a)(6)(A)(i), l&N Act [8 U.S.C. 1 I 82(a)(6)(A)(i)] Present without being admitted or paroled

APPLICATION: Continuance

The respondent, a native and citizen of Mexico, has appealed the Immigration Judge's
decision dated November 12, 2013. 1 The Immigration Judge denied the respondent's
continuance request but granted him voluntary departure pursuant to section 240B(b) of the Act,
8 U.S.C. 1229c(b). On appeal, the respondent contests the Immigration Judge's denial of
request for a continuance. The Department of Homeland Security ("DHS") has filed a brief in
opposition to the respondent's appeal. The record will be remanded to the Immigration Judge for
further proceedings.
We review an Immigration Judge's findings of fact, including credibility findings, to
determine whether they are clearly erroneous. 8 C.F.R. 1003.l(d)(3)(i). We review de novo
all questions of law, discretion, and judgment and any other issues in appeals from decisions of
Immigration Judges. 8 C.F.R. 1003.l(d)(3)(ii).

The respondent claims in his Notice of Appeal that the Immigration Judge erroneously circled
"appeal waived" on the written summary of the oral decision. The respondent claims he never
waived appeal. Although the Immigration Judge erroneously indicated that the respondent
waived appeal on the written summary of the oral decision, the Immigration Judge stated in his
oral decision that the respondent "made it clear" that he intended to appeal the Immigration
Judge's decision (I.J. at 2). Furthermore, the respondent filed an appeal with this Board and has
not been harmed by the error in the summary sheet.

... &,

Cite as: Elias Aguilar-Jacobo, A200 882 885 (BIA Oct. 27, 2015)
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A200 .882 885

The Immigration Judge denied the request for an additional continuance. He found that our
decision in Matter of Sanchez Sosa, 25 I&N Dec. 807 (BIA 2012), did not require further
continuances where the respondent was convicted of serious criminal misconduct after being
placed in proceedings (1.J. at 2). He also noted that the DHS was opposed to further delay
(I.J. at 2).
In Matter of Sanchez Sosa, supra, we held that an alien who has filed a prima facie
approvable petition for a U visa with the United States Citizenship and Immigration Services,
DHS, will ordinarily warrant a favorable exercise of discretion for a continuance for a reasonable
period of time. We also held that, in determining whether good cause exists to continue removal
proceedings to await the adjudication of an alien's pending U visa petition, an Immigration
Judge should consider the following: 1) the response of the DHS to the alien's motion to
continue; 2) whether the underlying visa petition is prima facie approvable; and 3) the reason for
the continuance and other procedural factors.
The respondent contends that the Immigration Judge did not consider whether the underlying
visa petition was prima facie approvable. We agree with the respondent that the Immigration
Judge did not consider this factor in his evaluation of whether a continuance was warranted in
this case. Therefore, we will remand the record to the Immigration Judge to apply the factors set
forth in Matter of Sanchez Sosa, supra. The Immigration Judge should also consider whether
the respondent's domestic violence conviction would render him inadmissible, and, if so,
whether a waiver would be available to him. We also note that the record includes a Notice of
Action, Form I-797, dated October 30, 2013, shortly before the Immigration Judge's
November 12, 2013, decision. The Notice of Action requested additional evidence regarding the
U visa application by January 25, 2014. Upon remand, the record should be supplemented to
include any response by the respondent to the Notice of Action. The parties may present
available evidence that is relevant to the respondent's eligibility for the U visa.
Accordingly, the following order will be entered.
ORDER: The record is remanded to the Immigration Judge for further proceedings
consistent with the foregoing opinion and for the issuance of a new decision.

2
Cite as: Elias Aguilar-Jacobo, A200 882 885 (BIA Oct. 27, 2015)

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

On appeal, the respondent argues that the Immigration Judge should have granted his request
for an additional continuance, which he sought to await adjudication of a petition for a qualifying
family member of a U-1 visa under section IOl(a)(lS)(U) of the Act filed on his behalf by his
son. The record indicates that prior continuances were granted in this case for the adjudication
of the U visa and that proceedings were administratively closed on May 2, 2012. However, the
respondent was convicted of assault in the fourth degree-domestic violence on August 10, 2012,
and proceedings were reinstated.

November 12, 2013

File: A200-882-885
In the Matter of

ELIAS AGUILAR-JACOBO

IN REMOVAL PROCEEDINGS

)
)

RESPONDENT
CHARGES:

Present without admission.

APPLICATIONS:

Motion to continue.

ON BEHALF OF RESPONDENT: TIM GREEN AND SERGIO ARMIJO

ON BEHALF OF OHS: ANNE MCELEARNEY

ORAL DECISION OF THE IMMIGRATION JUDGE

The respondent is a native and citizen of Mexico. He was placed in
proceedings by the filing of his Notice to Appear on November 24, 2010. The
respondent has admitted the allegations and the Notice to Appear has been designated
as Exhibit 1.
The respondent has repeatedly been informed of his opportunity to apply
asylum and related relief and has chosen not to do so. The respondent makes no claim
that he is eligible for cancellation of removal.
The respondent submitted a Form 1-918, request for a U-visa in January of

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

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
SEATTLE, WASHINGTON

2012, but unfortunately the Department has not made any decision.
The respondent appears this afternoon again requesting that the case be

continue primarily on the basis that the respondent was previous given the benefit of
prosecutorial discretion and while there under, unfortunately was arrested and convicted
of assault, domestic violence. The Department believes and I concur that the
respondent's criminal misconduct while under the benefit of that program is a very
negative factor with regard to the continued delay in this case which has now been on
the docket for some three years and it has been repeatedly continued at his request.

don't read Matter of Sanchez to mechanically compel continuances where especially as

here the respondent was convicted of serious criminal misconduct after being placed in
proceedings and the Dept is opposed to further delay. After all, the I 918 continues
notwithstanding this decision and if granted: the respondent will be given that benefit.
I have designated as composite Exhibit 2 the Departments submission
which include the criminal record as well as associated information.
With regard to the request for voluntary departure in the alternative, the
Department is opposed to that request; however, I have indicated that I am prepared to
provide that admittedly modest benefit. The respondent has made it clear that he
intends to appeal this decision so it is not as though he would be willing to accept pre
conclusion voluntary departure.
ORDER
IT IS HEREBY ORDERED that the motion for further continuance be
denied.
IT IS FURTHER ORDERED that the respondent be given the privilege of
voluntary departure by January 13, 2014, upon the posting of a $500 voluntary
A200-882-885

November 12, 2013

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

continued because of the pending 1-918. The Department has opposed the request to

departure bond with an alternate order of removal to Mexico.

provided herewith and incorporated by reference dated this 12th day of November,
2013, at Seattle, Washington.

Please see the next page for electronic

signature

A200-882-885

KENNETH JOSEPHSON
Immigration Judge

November 12, 2013

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IT IS FURTHER ORDERED that the voluntary departure advisements are

.. - f

//s//
Immigration Judge KENNETH JOSEPHSON

A200-882-885

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

josephsk on October 15, 2014 at 5:44 PM GMT

November 12, 2013