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

Name: MARTINEZ CRUZ, BLANCA EST ...

Riders: 206-912-105 206-912-106

A 206-912-104
Date of this notice: 11/19/2015

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

DOWtL Ca.AA)
Donna Carr
Chief Clerk
Enclosure
Panel Members:

Cole, Patricia A.

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/

Cite as: Blanca Estela Martinez Cruz, A206 912 104 (BIA Nov. 19, 2015)

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DHS/ICE Office of Chief Counsel - SFR

P.O. Box 26449
San Francisco, CA 94126-6449

U.S. Department of Justice

Decision of the Board of Immigration Appeals

Executive Office for Immigration Review

Falls Church, Virginia 22041

Files: A206 912 104- San Francisco, CA

Date:

NOV 1 9 2015

IN REMOVAL PROCEEDINGS
APPEAL
ON BEHALF OF RESPONDENTS: Pro se
ON BEHALF OF DHS: Joseph Y. Park
Deputy Chief Counsel

ORDER:
This Board has been advised that the Department of Homeland Security's appeal has been
withdrawn. See 8 C.F.R. 1003.4. Since there is nothing now pending before the Board, the
record is returned to the Immigration Court without further action.

Cite as: Blanca Estela Martinez Cruz, A206 912 104 (BIA Nov. 19, 2015)

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In re: BLANCA ESTELA MARTINEZ CRUZ

Files: A206-912-104
June 17, 2015
In the Matters of

BLANCA ESTELA MARTINEZ CRUZ

RESPONDENTS

)
)
)
)
)
)

IN REMOVAL PROCEEDINGS

CHARGES:

INA Section 212(a)(7)(A)(i)(I) - An immigrant who at the time of

application for admission is not in possession of a valid unexpired
immigrant visa 1 reentry permit, border crossing card, or other valid
entry document required by the Act, and a valid unexpired passport
or other suitable travel document or document of identity and
nationality as required under the regulations issued by the Attorney
General under Section 211(a) of the Immigration and Nationality
Act.

APPLICATIONS:

INA Section 235(a){4). withdrawal of application for admission

ON BEHALF OF RESPONDENTS: MINA LITVAK

ON BEHALF OF OHS: ANDREW CROW

ORAL DECISION AND ORDER OF THE IMMIGRATION JUDGE

Respondent is a native and citizen of Mexico, as are 1,vell as her two minor
children. She arrived in the United States on or about October 20, 2014 and was

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UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
SAN FRANCISCO. CALIFORNIA

permitted to enter after explaining to an U.S. official her fear of returning to her home
country, {according to the procedural history of this case}.. It is part of the special surge

2014.
_____A.fter being given several opportunities to seek counsel.I. respondent
apprised the Court of her desire to withdraw her application for admission on June 8,
2015. The case was continued until today's date, June 17, 2015, and respondent was
advised by the Court to present evidence about of a documentary basis for returning to
Mexico, evidence of her Mexican nationality, as well as tickets to Mexico for her return
to Mexico. Today she has returned to court with two birth certificates for the two elder
respondents and a document regarding the birth of her 10-month old child,
. Based on respondent's credible testimony and the evidence she
presented I find that she is a native and citizen of Mexico who was not, at the time of
her entry, in possession of a valid entry document and who was paroled into the United
States so that she could pursue some request for relief. She has now convinced the
Court that she is an arriving alien. She intends to and has proven her ability to
immediately depart the United States, and she has proven to the Court's satisfaction
that granting the withdrawal of her application for admission would be in the interest of
justice.
INA Section 235(a)(4) provides that "an alien applying for admission may,
in the discretion of the Attorney General and at any time, be permitted to withdraw that
application for admission and depart immediately from the United States." The
regulations specify that the Court, the Immigration Judge 1 may allow "only an arriving
alien to withdraw an application for admissioni" and that this withdrawal should not be
permitted unless the alien "demonstrates that he or she possesses the intent and the

A206-912-104

.. d

June 17, 2015

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

docket for women and children who arrived at the border after approximately May 1,

means to depart immediately from the United States and establishes that 'factors
relating to the issue of inadmissibility indicate that granting the withdrawal would be in

resolved, permission to withdraw would "ordinarily" be granted only with the

concurrence of OHS. !Q. INA Section 235(a)(4) and 8 C.F.R. 1240.1 (d) codify the
standard set out by the Board of Immigration Appeals and in Matter of Gutierrez, 19 l&N
Dec. 562, 564-565 (BIA 1988).
_____In Gutierrez the Board held that the Court should not allow withdrawal
unless the alien, in addition to demonstrating that he possesses both the intent and the
means to immediately depart the United States, establishes that factors directly relating
to the issue of his admissibility indicate that granting withdrawal would be in the interest
of justice. Additionally, though the Board failed to specifically define the term :interest of
justice:, it specified that the balancing of the equities test is not an appropriate method
by which to determine whether an alien merits permission to withdraw. Instead, a
narrower focus is intendedJ. looking at the factors directly relating to the issue of his or
her admissibility. In that case the alien had attempted to enter the United States
fraudulently, and the Board ultimately decided it could discern no facts or circumstances
relevant to the issue of admissibility which suggested that justice demanded that he be
allowed to withdraw his application for admission.
The Ninth Circuit has also adopted this approach after borrowing from the
Customs and Border Protection Inspector's Field Manual for guidance on determining
whether a particular withdrawal would be in the interest of justice. See for example U.S.
v. Raya-Vaca, 771 F.3d 1195, 1207-1209 (Ninth Circuit 2014).
_____Borrowing from the principals and cases just noted, the Court concludes
that it may grant withdrawal of admission in lieu of removal proceedings in a case such
A206-912-104

June 17, 2015

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

the interest of justice."' 8 C.F.R. 1240.1 (d). Once the issue of inadmissibility has been

as this one where the alien is an arriving alien, she intends and has demonstrated her
ability to depart the United States, and has established to the satisfaction of this Court

OHS is ordinarily required only in the event that withdrawal of an application for
admission is requested after the issue of inadmissibility has been resolved. We are
presently before the resolution of that issue. Additionally, there are no situations
involving deliberate fraud or other misdeed which would militate against withdrawal.
AAtt-

lin the present case, where the respondent is here after attempting to seek

protection from a situation that caused her sufficient fear to leave her country and now
has analyzed her situation in the United States, as well as the present changed
circumstances of her husband who has now moved to Mexico City. Mexico City is;
some distance from Acapulco where the events that militated tmuard motivated her
departure from Mexico occurred. In these circumstances the Court concludes that it is
appropriate to allow this mother and her very young children to withdraw their
application for admission and return to their spouse and father in Mexico, which
decision they have made voluntarily, and the following orders will therefore enter.
ORDERS
IT IS HEREBY ORDERED that the respondents are permitted to withdraw
their application for admission.

Please see the next page for electronic

signature

LAURAL. RAMIREZ
Immigration Judge

A206-912-104

;g

June 17, 2015

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that the granting of withdrawal would be in the interest of justice. The concurrence of

/Isl/
Immigration Judge LAURAL. RAMIREZ

A206-912-104

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

ramirezl on August 4, 2015 at 6:34 PM GMT

June 17, 2015