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 2204/

DHS/ICE Office of Chief Counsel - DAL

125 E. John Carpenter Fwy,Ste. 500
Irving, TX 75062-2324

Name:ALCANTAR,CESAR

A 077-520-504
Date of this notice: 12/9/2015

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

Don.rtL C

aftA)

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Wendtland, Linda S.
Pauley, Roger
Cole, Patricia A.

Userteam: Docket

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Cite as: Cesar Alcantar, A077 520 504 (BIA Dec. 9, 2015)

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Torrey, Robert Victor

Margaret A. Donnelly, PC
2638 Valley View Lane
Dallas, TX 75234

..

.:i

U.S. Department of Justice

Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 22041

File: A077 520 504 - Dallas, TX

Date:

DEC - 9 2015

In re: CESAR ALCANTAR

APPEAL
ON BEHALF OF RESPONDENT: Robert V. Torrey, Esquire
CHARGE:
Notice: Sec.

212(a)(6)(A)(i), I&N Act [8 U.S.C. 1182(a)(6)(A)(i)] Present without being admitted or paroled (conceded)

APPLICATION: Continuance; adjustment of status; administrative closure

The respondent, a native and citizen of Mexico, appeals the Immigration Judge's March 11,
2015, decision denying his request for a continuance and pretermitting his application for
adjustment of status under section 245(i) of the Immigration and Nationality Act, 8 U.S.C.
1255(i). The Department of Homeland Security ("OHS") has not responded to the appeal. The
appeal will be dismissed in part and sustained in part, and the record will be remanded to the
Immigration Judge for further proceedings consistent with this opinion.
We review findings of fact for clear error, including credibility findings. See 8 C.F.R.
1003.l(d)(3)(i); Matter ofJ-Y-C-, 24 I&N Dec. 260 (BIA 2007); Matter ofS-H-, 23 I&N Dec.
462, 465-66 (BIA 2002). We review issues of law, discretion, or judgment, and all other issues
de novo. See 8 C.F.R. 1003.l(d)(3)(ii).
The Immigration Judge pretermitted the respondent's application for adjustment of status
because he concluded that the respondent did not carry his burden of proof in overcoming the
medical and public charge grounds of inadmissibility (1.J. at 2-3). See section 212(a)(l) of the
Act, 8 U.S.C. 1182(a)(l) (outlining the health-related grounds of inadmissibility); section
212(a)(4) of the Act (explaining when the public charge ground of inadmissibility is triggered).
Specifically, the Immigration Judge found that the respondent did not submit a "current" and
complete medical examination or affidavit of support with relevant federal tax returns in support
of his adjustment application, as the record had not been updated since November 2011
(I.J. at 2-3). The Immigration Judge also found no good cause to continue the case to allow the
respondent to update the documents, as the respondent had more than 3 years to file the
"appropriate documents" (1.J. at 3). See 8 C.F.R. 1003.29 (explaining that an Immigration
Judge may grant a continuance for good cause shown).
On appeal, the respondent maintains that he established good cause for a continuance to
update the documents supporting his adjustment application (Resp. Brief at 3-4; Notice of
Cite as: Cesar Alcantar, A077 520 504 (BIA Dec. 9, 2015)

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IN REMOVAL PROCEEDINGS

A.077 520 504

The decision to grant or deny a continuance is discretionary, and the request must be
supported by good cause. See Matter of Perez-Andrade, 19 l&N Dec. 433, 434 (BIA 1987);
8 C.F.R. 1003.29. Here, unlike the Immigration Judge, we conclude that the respondent's
continuance request is supported by good cause.
An affidavit of support (Form 1-864) is generally sufficient if it demonstrates that a sponsor's
annual income will meet or exceed 125 percent of the poverty level for the year in which the
applicant filed the adjustment of status application. See section 213A(f)(l)(E) of the Act,
8 U.S.C. 1183a(f)(l)(E); 8 C.F.R. 213a.2(c)(2)(ii)(C). For adjustment applications filed
before USCIS, to demonstrate the requisite income, the sponsor must attach to the affidavit of
support a copy of his federal income tax return for the most recent taxable year, a transcript of
that return issued by the Internal Revenue Service, or any other documents, such as tax returns
for earlier years, W-2 forms, pay stubs, or earnings statements, that tend to establish the
sponsor's anticipated income for the relevant year. 8 C.F.R. 213a.2(c)(2)(i)(A). If more than
a year has elapsed since the submission of the affidavit of support, the regulations provide that
the adjudicator, including any Immigration Judge presiding over an adjustment application,
has the discretion to request more current information if he concludes that additional evidence
is necessary to the proper adjudication of the case. 8 C.F.R. 213a2(a)(l)(v)(B) ("An
immigration judge may direct the intending immigrant to submit additional evidence and also set
the deadline for submission of the initial evidence....").
In this case, the Immigration Judge instructed the respondent to submit his application for
adjustment along with all supporting documents by November 8, 2011 (Tr. at 10). To comply
with the Immigration Judge's instructions, the respondent submitted an affidavit of support and
his father's 2010 federal tax return (see Resp. Adjustment of Status Before the Immigration
Court, time stamped Nov. 3, 2011). The record reveals that, thereafter, the Immigration Judge,
on his own motion, rescheduled the respondent's final hearing multiple times between
September 7, 2012, and March 11, 2015 (Tr. at 10-13, 15; Notice of Hearing in Removal
Proceedings, dated July 11, 2011, June 11, 2012, March 17, 2014, and March 6, 2015). The
record contains no persuasive evidence that, during this time, the Immigration Judge notified the
respondent of the need for updated financial information.
Although the affidavit of support regulations are DHS regulations and not Executive Office
for Immigration Review ("EOIR") regulations, we conclude that the DHS's approach to
2
Cite as: Cesar Alcantar, A077 520 504 (BIA Dec. 9, 2015)

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Appeal). The respondent asserts that he timely filed the relevant tax and medical documents by
November 8, 2011, in compliance with the Immigration Judge's verbal instructions and in
anticipation of a final hearing on the merits of his application to be held on September 7, 2012
(Resp. Brief at 3-4; Notice of Appeal; Tr. at 10-12). However, the Immigration Judge continued
the matter on his own motion several times until March 11, 2015, causing the documentation to
become stale (Resp. Brief at 3-4; Notice of Hearing in Removal Proceedings, dated June 11,
2012, March 17, 2014, and March 6, 2015). In addition, the respondent contends that the
Immigration Judge abused his discretion in refusing to administratively close proceedings to
allow United States Citizenship and Immigration Services ("USCIS") to adjudicate his
adjustment application (Notice of Appeal).

A077 520 504

Similarly, we conclude that the Immigration Judge should have afforded the respondent an
additional opportunity to submit a "current" medical examination in demonstrating that he is not
inadmissible on medical grounds (I. J. at 1). The pertinent regulations indicate that a report of
medical examination and vaccination record (Form I-693) must be completed no more than
a year prior to the filing of an adjustment application. See 8 C.F.R. 245.5, 1245.5. At the
time the Immigration Judge set the filing deadlines in this case, USCIS had issued memoranda
explaining that the medical examination will remain valid until the adjustment application is
ultimately adjudicated if it is filed with the adjustment application and it denotes no Class A or B
medical conditions. See, e.g., Policy Memorandum, Extension of Validity of Medical
Certifications on Form I-693 (Sept. 4, 2013) (valid until May 31, 2014). However, on June 1,
2014, prior to the respondent's rescheduled hearing, USCIS revised its policy to state that the
medical examination report must be submitted less than a year after completion of the
examination, and the benefit application must be adjudicated no more than a year after the date
the medical examination report was submitted. See http://www.uscis.gov/policymanual/HTML/
PolicyManual-Volume8-PartB-Chapter4.html.1
On November 3, 2011, the respondent, here, submitted with his adjustment application
a medical examination, which was conducted on October 15, 2011, and which indicates that the
respondent has no Class A or Class B medical conditions (Resp. Adjustment of Status Before the
Immigration Court, time stamped Nov. 3, 2011). By March 11, 2015, the date of the
respondent's final hearing, the medical examination was more than 3 years old, supporting the
Immigration Judge's determination that the exam was no longer current. See Matter of Wang,
23 I&N Dec. 924, 934 ("Applications for adjustment of status are continuing applications so that
relevant changes in law that occur while an application is under review in immigration
1

Although not binding on the Board or the Immigration Court, the USCIS memoranda cited
provide useful, practical guidance that is not contradicted by section 212(a)(l) of the Act or its
implementing regulations. See Matter ofButt, 26 I&N Dec. 108, 111 n.3 (BIA 2013).

3
Cite as: Cesar Alcantar, A077 520 504 (BIA Dec. 9, 2015)

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affidavits of support, as outlined in the regulations at 8 C. F .R. 213a.l, et. seq., are not
contradicted by sections 2 l 3A(f)(6)(A)(i) and (B) of the Act, and the regulations are instructive,
in the absence of separate EOIR regulations on the topic. See, e.g., section 213A(f)(6)(A)(i) of
the Act (providing that "in general . . . for purposes of this section, a demonstration of
income . . . shall include . . . a certified copy of the individual's Federal income tax return for
the . . . 3 most recent taxable years . . ."); section 213A(f)(6)(B) of the Act (explaining that the
Attorney General may provide for a sponsor to demonstrate his means to maintain the requisite
income needed to support an applicant for adjustment of status by submitting tax forms for only
"the most recent taxable year"). This is so particularly where, as here, the relevant DHS
regulations contemplate the role Immigration Judges play in adjudicating adjustment applications
and considering affidavits of support. See 8 C.F.R. 213a.2(a)(l)(i)(A)-(B), (c)(l)(ii)(B),
(c)(2)(v)-(vi), (e)(l), (f)(2). Accordingly, we conclude that the Immigration Judge should have
afforded the respondent an opportunity to update the financial documents in the record before
pretermitting the respondent's adjustment application (I. J. at 2-3).

A077 520 504

Finally, we disagree with the respondent's appellate assertion that the Immigration Judge
abused his discretion in refusing to administratively close proceedings to allow USCIS to
adjudicate the respondent's adjustment application (see Notice of Appeal). Once the Notice to
Appear is filed with the Immigration Court, jurisdiction over proceedings vests with the
Immigration Judge. See 8 C.F.R. 1003.14(a). Generally, the Immigration Judge, and not
USCIS, has jurisdiction over any pending adjustment application once removal proceedings have
commenced. See 8 C.F.R. 245.2(a)(l), 1245.2(a)(l). Administrative closure temporarily
removes a case from an Immigration Judge's active calendar, but it does not divest the
Immigration Judge of jurisdiction over the respondent's application for relief. See Matter of
Avetisyan, 25 I&N Dec. 688 (BIA 2012). Accordingly, we find no error in the Immigration
Judge's determination not to administratively close proceedings, as a grant of administrative
closure would not restore USCIS's jurisdiction to adjudicate the respondent's adjustment
application.
Given the extensive period of time that has elapsed since the respondent submitted his
adjustment application, we conclude that, upon remand, it is appropriate for the Immigration
Judge to require updated documentation and to set appropriate deadlines for filing such
documentation. In addition, because an application for adjustment of status is a continuing one,
the parties may present any additional evidence to assist the Immigration Judge with the
adjudication of the respondent's application. See Matter of Wang, supra, at 934; Matter of
Alarcon, supra, at 562.
Accordingly, the following orders will be entered.
ORDER: The respondent's appeal is dismissed insofar as it relates to the Immigration
Judge's denial of his request for administrative closure.
ORDER: The respondent's appeal is sustained insofar as it relates to the Immigration
Judge's denial of his request for a continuance.

We note that the respondent asserts on appeal that he had been scheduled for a new medical
examination to take place on March 17, 2015, 6 days after his final hearing (Tr. at 20; Resp.
Brief at 3).

4
Cite as: Cesar Alcantar, A077 520 504 (BIA Dec. 9, 2015)

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proceedings apply to pending applications."); Matter of Alarcon, 20 l&N Dec. 557, 562
(BIA 1992). However, in light of the respondent's compliance with USCIS guidance at the time
he filed his adjustment application, his timely filing of the medical examination per the
Immigration Judge's verbal deadline, and the Immigration Court's multiple, subsequent delays,
we conclude that the respondent established good cause to continue his case to update the
medical records in support of his adjustment application in addressing the Immigration Judge's
concerns about the respondent's medical admissibility.2

A077 520 504

FURTHER ORDER: The record is remanded to the Immigration Judge for further
proceedings consistent with this order and for the entry of a new decision.

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5
Cite as: Cesar Alcantar, A077 520 504 (BIA Dec. 9, 2015)

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
DALLAS,TEXAS
March 11, 2015

In the Matter of

CESAR ALCANTAR
RESPONDENT

)
)
)
)

IN REMOVAL PROCEEDINGS

CHARGES:

Section 212(a)(6)(A)(i) of the Immigration and Nationality Act (Act)

as amended in that you are an alien present in the United States
without being admitted or paroled, or who arrived in the United
States any time or place other than designated by the Attorney
General.

APPLICATIONS:

Request for adjustment status.

ON BEHALF OF RESPONDENT: ROBERT TORREY,ESQUIRE

2638 VALLEY VIEW LANE
DALLAS.TEXAS 75234
ON BEHALF OF DHS: ROSLYN GONZALEZ,ESQUIRE
ASSISTANT CHIEF COUNSEL
DALLAS,TEXAS
ORAL DECISION OF THE IMMIGRATION JUDGE
The respondent is a native and citizen of Mexico. It is alleged that he
entered the United States at or near an unknown place on about an unknown date. At
that time, he was not admitted or paroled after inspection by an Immigration Officer.
Consequently, the Department of Homeland Security (herein after referred to as the
Government) charged respondent with removal pursuant to Section 212 (a)(6)(A)(i) of

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File: A077-520-504

the Immigration and Nationality Act (Act) as amended in that he is an alien present in
the United States without being admitted or paroled or who arrived in the United States

At a hearing before Immigration Judge James Nugent on or about March

7, 2011,the Notice to Appear was place in the record as Exhibit 1. It also appears on
that date before Judge Nugent, the respondent admitted to the factual allegations
contained on the Notice to Appear with the caveat that he claimed he arrived in the
United States in March of 1999. Judge Nugent based upon the pleadings in this case
that the respondent was not admitted or paroled after inspection upon an Immigration
Officer,sustained the charge of removal pursuant to Section 212 (a)(6)(A)(i) of the Act.
Mexico was designated as the country of removal, if that became necessary.
Respondent seeks relief from removal in the form of an application for
adjustment of status pursuant to Section 245(1) of the Act. The Court notes that the last
documents received by the Court were on or about November 3 of 2011.
The Court finds that the respondent has failed to meet his burden of proof
that he is eligible for adjustment of status. See Matter of Maza. Specifically,the
respondent has failed to submit a current medical examination. As previously
mentioned,the last documents the Court received in this case was on or about
November 3 of 2011. The respondent has had over three years to perfect his case and
to submit a current medical examination. Therefore,the Court finds the respondent has
failed to meet his burden of proof that he is not inadmissible on medical grounds.
Again, there is no current medical examination. The Court finds the medical
examination is valid for approximately one year.
Additionally, the Court finds that respondent has failed to meet his burden
of proof that he is not inadmissible under the poverty guidelines and that the respondent
A077-520-504

March 11,2015

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at any time or place other than designated by the Attorney General. See Exhibit 1.

has failed to submit a current affidavit of support or current federal tax returns. As
previously mentioned, the last documents the Court received in this case was in 2011,

respondent has failed to submit a sponsor/co-sponsor with an affidavit of support

showing that the respondent would not be a public charge. Therefore, the Court finds
the respondent has failed to meet his burden of proof that he is not inadmissible as a
public charge.
Therefore, the Government requests that his case be pretermitted and
denied. The Court will grant the Government's motion and pretermit his application and
deny it.
The respondent did request a continuance in his case, however, the Court
denied that request for continuance because respondent has failed to establish good
cause. Again, the respondent has had over three year and a half years plus to file the
appropriate documents to support his application for relief and he has failed to do so.
Accordingly, the following orders shall be entered.
ORDERS
IT IS HEREBY ORDERED respondent's request for a continuance be
denied.
IT IS FURTHER ORDERED the respondent's request for adjustment of
status pursuant to Section 245(1) of the Act shall be denied.
IT IS FURTHER ORDERED he shall then depart the United States to
Mexico based on the charge contained in the Notice to Appear.

Date: March 11, 2015

Please see the next page for electronic

signature

A077 -520-504

March 11, 2015

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November, approximately over three years ago. Therefore, the Court finds that the

..
DEITRICH H. SIMS
Immigration Judge

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A077-520-504

March 11, 2015

.1

.. .
/Isl/
Immigration Judge DEITRICH H. SIMS

A077-520-504

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simsd on July 21, 2015 at 1:13 PM GMT

March 11, 2015