U.S.

Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals
Office of the Clerk
5/07 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: CASTILLO GUZMAN, EZEQUIEL ...

A 097 -573-118
Date of this notice: 1/28/2016

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

DOW1L Cl1/Vu
Donna Carr
Chief Clerk
Enclosure
Panel Members:
O'Leary, Brian M.
Guendelsberger, John
Adkins-Blanch, Charles K.

Userteam: Docket

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Cite as: Ezequiel Eugenio Castillo Guzman, A097 573 118 (BIA Jan. 28, 2016)

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

Kelly, Rosalind Allison

Attorney at Law
8500 North Slemmons Fwy., Suite 2085
Dallas, TX 75247

U.S. Departmet of Justice

Executive Office for IniMigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 22041

File: A097 573 118 - Dallas, TX

Date:

JAN 2 8 2G16

In re: EZEQUIEL EUGENIO CASTILLO GUZMAN

APPEAL
ON BEHALF OF RESPONDENT: Rosalind Allison Kelly, Esquire
APPLICATION: Adjustment of status; waiver of inadmissibility
The respondent, a native and citizen of the Dominican Republic, appeals from an
Immigration Judge's decision dated January 5, 2015, finding that the respondent abandoned his
application for adjustment of status and a section 2 l 2(h) waiver of his inadmissibility. See
8 U.S.C. 1182(h). On appeal, the respondent has presented new evidence to show that a
computer malfunction contributed to his attorney missing the correct filing deadline. The
Department of Homeland Security (OHS) has not filed an opposition to the appeal or to the
respondent's request for a remand based on the additional evidence. The appeal will be
sustained and the record will be remanded.
Based on the totality of the circumstances, including the approved 1-130 (Petition for Alien
Relative) and the respondent's new evidence, we find that further proceedings are appropriate to
allow the respondent to seek relief from removal. We express no opinion as to the ultimate
disposition of this case.
For all of the foregoing reasons, the record will be remanded.
ORDER: The record is remanded for further proceedings consistent with this order and for
the entry of a new decision.

Cite as: Ezequiel Eugenio Castillo Guzman, A097 573 118 (BIA Jan. 28, 2016)

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

IN REMOVAL PROCEEDINGS

. I

, r

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE OF IMMIGRATION REVIEW
IMMIGRATION COURT
DALLAS, TEXAS

File Number: A 097-573-118

In Removal Proceedings

WRITTEN DECISION OF THE IMMIGRATION JUDGE

Respondent is a native and citizen of the Dominican Republic.
A review of the record indicates that the Respondent was placed in Removal Proceedings
by the issuance of a Notice to Appear on October 29, 2013 1 Respondent appeared at a master
calendar hearing on November 19, 2013, and was represented by counsel. At that time,
Respondent, through his counsel, admitted factual allegations 1-4 in the Notice to Appear and
conceded the charge of removability under Section 212(a)(6)(A)(i) of the Act. In conjunction
with Respondent's pleadings, the Department submitted a copy of Respondent's Form 1-213 and
a copy of respondent's conviction records2 After reviewing the concessions of Respondent, as
well as the documents submitted by the Department, the Court found removability on the charge
established by clear and convincing evidence. At a subsequent hearing on December 2, 20133 ,
Respondent designated the Dominican Republic as the country of removal, and did not express
any fear of returning to his native country. Through counsel, Respondent indicated his intention
to seek Adjustment of Status under Section 245 of the Act, combined with a Waiver of
Inadmissibility under Section 212(h) of the Act as relief from an Order of Removal. The Court
set a filing deadline for the applications of December 15, 2014 pursuant to 8 C.F.R. 1003.31(c).
Respondent and his counsel were also expressly advised of the consequences of failing to meet
the deadline for filing the application with the Court, specifically, that Respondent's applications
would be considered abandoned and he would be ordered removed if the applications were not
filed. A review of the record reveals that neither the designated application, nor any other
application for relief, has been filed as of the date of this Order. Respondent sought no extension
of time for filing.

The Notice to Appear was served on Respondent on the same date. [Exhibit I], but Respondent refused to
aclmowledge proper service. Respondent subsequently acknowledged proper service through counsel. Respondent
first appeared in Court on November 13, 2013. At that time, his rights in immigration proceedings were explained
to him on the record in both English and his native language of Spanish. At that hearing, Respondent acknowledged
that he understood his rights, and requested a continuance to seek counsel. The matter was reset to November 19,
2013.
2 Exhibit 2. The record indicates a number of criminal convictions, which are detailed on the Form I-213.
Following the November 19, 2013 hearing, Respondent was released on bond, which is reflected in the Form I-830
contained in the Record of Proceedings

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

In the Matter of:

EZEQUIEL EUGENIO CASTILLO GUZMAN
Respondent

In 2007, the Fifth Circuit held in two separate decisions that "where an application or
document is not filed within the time set by the Immigration Judge, the opportunity to file that
application or document shall be deemed waived." See Lakhavani v. Mukasey, 255 Fed. Appx.
819, 822-823 (5th Cir. 2007); see also Sanchez Mendoza v. Keisler, 242 Fed. Appx. 988, 989 (5th
Cir. 2007) (holding that where the alien filed the application timely but failed to file the required
receipt for payment of the required fees by the deadline imposed by the Immigration Judge, the
Immigration Judge properly deemed the alien's application to be abandoned).
In the present case, this Court, pursuant to authority granted by 8 C.F.R. 1003.31(c), set
a deadline for the Respondent to file his application for relief. The Respondent failed to comply
with the deadline imposed by the Court. Therefore, the Court finds that Respondent waived his
right to apply for Adjustment of Status and Waiver of Inadmissibility under Sections 245 and
212(h) of the Act. The Respondent's relief is deemed abandoned. The following Orders are
entered:
ORDER
IT IS ORDERED that the Respondent's Application for Adjustment of Status and
Waiver of Inadmissibility under Sections 245 and 212(h) of the Act are deemed ABANDONED
for failure to file the application within the time deadlines set by the Court.
IT IS FURTHER ORDERED that the Respondent, having been found subject to
removal by clear and convincing evidence, and with no further applications for relief before the
Court, be and is hereby ordered removed from the United States of America to the Dominican
Republic on the basis of the charge set forth on the Notice to Appear.
Dallas, Texas, this 5th day of January, 2015.

James A. Nugent
(/mmigration Jud

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

8 C.F.R. 1003.31(c) provides that where an Immigration Judge has set a deadline for
filing an application for relief and where that application is not filed within the time set by the
Court, the opportunity shall be deemed waived. The Board of Immigration Appeals has long held
that applications for benefits under the Immigration and Nationality Act are properly denied as
abandoned when the alien fails to timely file them. See Matter of R-R-, 20 I&N Dec. 547, 549
(BIA 1992); Matter of Jean, 17 I&N Dec. 100 (BIA 1979) (asylum); Matter of Jaliawala, 14 l&N
Dec. 664 (BIA 1974) (adjustment of status); Matter of Peason, 13 I&N Dec. 152 (BIA 1969)
(visa petition); Matter of Nafi, 19 I&N Dec. 430 (BIA 1987) (exclusion proceedings).