U.S.

Department of Justice
Executive Office for Immigration Review
Board ofImmigration Appeals
Office ofthe Clerk
5107 leesburg Pike, Suite 2000
Falls Church, Virginia 2204 I

DHS/ICE Office of Chief Counsel - BUF

130 Delaware Avenue, Room 203
Buffalo, NY 14202

Name: GIRALDO ARTEAGA, JULIAN S...

A 088-744-005
Date of this notice: 3/14/2016

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

DCWtL C

(1/\A)

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Malphrus, Garry D.
Mann, Ana
Geller 1 Joan B

Userteam: Docket

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

Drago, Anthony
Anthony Drago, Jr., P.C.
35 India Street
2nd floor
Boston, MA 0211 O

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/

Cite as: Julian Sebastian Giraldo Arteaga, A088 744 005 (BIA March 14, 2016)
#M. zr I

_ !i\. 'Y _

222

U.S. Department of Justice

Decision of the Board of Immigration Appeals

Executive Office for Immigration ;Review

Falls Church, Virginia 22041

File: A088 744 005 - Buf flo, New York

Date:

In re: JULIAN SEBASTIAN GIRALDO ARTEAGA

MAR 1 4 2016

APPEAL
ON BEHALF OF RESPONDENT: Anthony Drago, Jr., Esquire
APPLICATION: Reopening
The respondent, a native and citizen of Colombia, has appealed from an Immigration Judge's
June 12, 2014, decision which denied the parties' joint motion to reopen. The appeal will be
sustained. The record will be remanded.
We review an Immigration Judge's findings of fact, including the credibility determination,
under the "clearly erroneous" standard. 8 C.F.R. 1003.l(d)(3)(i). We review all other issues,
including whether the parties have met the relevant burden of proof, and issues involving
questions of law, judgment and discretion, under a de nova standard. 8 C.F.R. 1003.1(d)(3)(ii).
Following a hearing conducted in absentia on December 3, 2008, an Immigration Judge
found the respondent subject to removal as charged, and ordered him removed from the United
States. The respondent married a United States citizen in 2012, and her immediate relative visa
petition on his behalf was approved in 2013. On April 28, 2014, the parties filed a joint motion
to reopen to permit the respondent to apply for adjustment of status. On June 12, 2014, the
Immigration Judge denied the motion to reopen because he found that the respondent was not
eligible for adjustment based upon his conditional parole into the United States from Canada in
2008.
In view of the DHS consent to the motion to reopen and a lack of clarity about whether the
respondent was paroled under section 212(d)(5)(A) of the Immigration and Nationality Act,
8 U.S.C. 1182(d)(5)(A), or section 236(a) of the Act, 8 U.S.C. , 1226(a), we will sustain the
respondent's appeal and hold that reopening is warranted. 1 The record will be remanded in order
to permit the respondent to apply for adjustment of status, and the parties may make any
arguments as to eligibility for relief in the reopened proceedings on remand.
ORDER: The appeal is sustained.
FURTHER ORDER: The record is remanded for further proceedings in accordance wtth the
preceding opinion.

We note that the record does not contain evidence that the respondent was ever detained or
had a bond hearing.
Cite as: Julian Sebastian Giraldo Arteaga, A088 744 005 (BIA March 14, 2016)

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

IN REMOVAL PROCEEDINGS

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
BUFFALO, NEW YORK

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

In the Matter of:

GIRALDO ARTEAGA, Julian Sebastian
A# 088-744-005

IN REMOVAL PROCEEDINGS

Respondent

CHARGES:

INA 212(a)(7)(A)(i)(I)
INA 212(a)(4)(A)

MOTIONS:

Joint Motion to Reopen

Documentation Requirements
Public Charge

ON BEHALF OF RESPONDENT
Humberto R. Gray, Esq.
A Professional Law Corporation
11726 San Vicente Boulevard, Suite 670
Los Angeles, California 90049

ON BEHALF OF THE OHS

Carla Hengerer, Esq.
Chief Counsel
130 Delaware Avenue, Suite 203
Buffalo, New York 14202

DECISION AND ORDER OF THE IMMIGRATION JUDGE

The parties' joint motion to reopen is DENIED.
I.

FACTS AND PROCEDURAL HISTORY

Julian Sebastian Giraldo Arteaga ("Respondent") was born in Colombia on

February I 0, 1991. (Exh. 4C). He first entered the United States on January 22, 2002, as
a nonimmigrant (B2). (Exh. 3 at 2); see also (Exh. 4K at 1). Respondent remained in the
United States for less than a year. (Exh. 4K at 1).
On December 7, 2002, Respondent and his family entered Canada to pursue an
application for refugee status. (Exh. 4F). Ultimately, their refugee claim was denied and
all avenues to appeal that denial were exhausted. Id. Respondent remained in Canada
until he was arrested by the Toronto Transit Commission Police on April 7, 2008. (Exh.
4K at 1). Respondent was then taken to a Canadian detention center where he stayed for
two nights. Id

A# 088-744-005
'''" z

---L . ::;;.;q ML.. . .::csm..:s.. .. . :.:.:u:.

>;;i.J@.$.0'.'?
i

J..k......t.... . .&%

....444

On April 9, 2008, Respondent was returned to the United States under Section
III(2) of the Reciprocal Arrangement between Canada and the United States. (Exh. 4F).
Upon his arrival in the United States, the Department of Homeland Security (OHS)
issued Respondent a Notice to Appear ("NTA"), alleging that:

[2] Respondent is a native and citizen of Colombia;

[3] Respondent is an immigrant not in possession of a valid
unexpired immigrant visa, reentry permit, border crossing
card, or other valid entry document required by the
Immigration and Nationality Act; and
[ 4] Respondent is likely at any time to become a public charge.
(Exh. I at 3). The NTA also alleged that Respondent was an arriving alien. Id. at 1.
Based on these allegations, the OHS charged that Respondent was subject to removal
from the United States pursuant to INA 212(a)(7)(A)(i)(I) and 212{a)(4)(A). Id. at 3.
The NTA was served on Respondent in person, advising him of the date, time, and
location of his initial hearing in removal proceedings. Id. at 1-2.
In light of his age, Respondent was not placed into OHS custody. See (Exh. 3 at
2) (stating, "Since [Respondent] was seventeen years old, he and his brother were
released on their own recognizance after a negative attempt at obtaining juvenile bed
space."). Instead, Respondent was "paroled" by immigration officers until the date of his
hearing, June 4, 2008. See (Exh. 41); see also (Exh. I at I). At that time, Respondent
reported that his address would be: "C/0 Deborah Reed, 612 East 14th Street, Apt. 13A,
New York, NY 10009." (Exh. I at 1).
Removal proceedings were commenced against Respondent through the filing of
the NT A with the Buffalo Immigration Court ("Court") on April 30, 2009. On June 2,
2008, two days before his initial master calendar hearing, Respondent filed a pro se
motion to change venue. See Motion to Change Venue (Jun. 2, 2008). Because it was
not timely filed, the Court was unable to consider Respondent's motion prior to the
hearing that took place on June 4, 2008. See Immigration Court Practice Manual,
Chapters 5.2(c), 3. l (b) (Jun. 10, 2013).
On June 4, 2008, Respondent appeared pro se before the Court. According to
Court's notes, Respondent's motion to change venue was denied on the record at that
hearing. 1 The Court then continued the matter to give Respondent an opportunity to find
an attorney. A hearing notice was personally served on Respondent, advising him that he

Because of a nationwide computer network outage, the Court is currently unable to review the digital
audio recording of this hearing.

A# 088-744-005

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

[1] Respondent is not a citizen or national of the United States;

was next scheduled to appear before the Court on December 3, 2008, at 10:30 a.m. See
Notice of Hearing in Removal Proceedings (Jun. 4, 2008).2

On April 20, 2012, more than three years after he was ordered removed by the
Court, Respondent married U.S.-citizen Jenny Gandara. See (Exh. 4E). On October 10,
2012, Respondent's wife filed a Petition for Alien Relative ("Form 1-130") on behalf of
Respondent. (Exh. 4B). On July 11, 2013, the Form I-130 was approved by U.S.
Citizenship and Immigration Services. Id. 4
On April 28, 2014, the parties filed a joint motion to reopen removal proceedings.
Respondent is seeking to reopen his removal proceedings to allow him to apply for
adjustment of status pursuant to 245(a). See Joint Motion to Reopen at 2 (Apr. 28, 2014).
II.

DOCUMENTARY EVIDENCE

The following documents are included in the record of proceedings:

Exhibit 1:

Notice to Appear (Apr. 9, 2008)

Group
Exhibit 2:
2A:
2B:
2C:

Documents Submitted by Respondent on June 2, 2008

Letter from Deborah Reed (undated)
Birth Certificate of Deborah Pearl Reed (Oct. 14, 1954)
Letter from Stephanie Factor (May 16, 2008), with attachments

Exhibit 3:
Group
Exhibit 4:
4A:

4B:

Record of Deportable/Inadmissible Alien for Juan Camilo Giraldo

Arteaga (Apr. 9, 2008)
Documents Submitted by the Parties on April 28, 2014
Notice of Entry of Appearance as Attorney or Representative
Before the Immigration Court (Mar. 24, 2014)
Notice of Action (Jul. I l, 2013)

Respondent admits that he received this hearing notice. (Exh. 4K at 2-3).

Respondent claims that his failure to appear was a result of his unstable living conditions and his status as
a minor at the time of the hearing. See Joint Motion to Reopen at 4 (Apr. 28, 2014).
4 The evidence submitted by the parties tends to indicate that U.S. Citizenship and Immigration Services
was unaware that Respondent is present in the United States and would be seeking adjustment of status.
See (Exh. 4B) (advising Respondent's spouse that her petition was sent "to the Department of State
National Visa Center (NVC), 32 Rochester Avenue, Portsmouth, NH 03801-2909/' and noting that
"NVC processes al1 approved immigrant visa petitions that need consular action").
3

A# 088-744-005

&44'

;3$&4#.

.:&.... (

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

Respondent failed to appear before the Court on December 3, 2008. Accordingly,

the Court entered an in absentia removal order against Respondent. 3 Order of the IJ
(Dec. 3, 2008). A copy of the Court's decision was mailed to Respondent's address of
record. Id.

4C:
4D:
4E:

4H:
41:
4J:
4K:
4L:
4M:
4N:
III.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The parties have asked the court to reopen Respondent's removal proceedings to
allow him to pursue an application for adjustment of status; however Respondent has not
established eligibility for that form of relief from removal. Therefore, the parties' joint
motion to reopen removal proceedings shall be denied.
To be eligible for adjustment of status, the applicant must first meet the threshold
requirement of having been inspected and either admitted or paroled into the United
States. INA 245(a). 5 Respondent does not claim that he has been "admitted" to the
United States. See (Exh. 4L at 2); see also (Exh. 41) (stating, "Your admission cannot be
authorized at this time") (emphasis added).6 Therefore, he must establish that he has
been "paroled" into the United States.
The Immigration and Nationality Act uses the term "parole" in several different
contexts. Under INA 212(d)(5)(A), 'an alien may be "parole[d] into the United States"
temporarily for urgent humanitarian reasons or to achieve a significant public benefit.
5

Respondent does not claim to be eligible for adjustment of status pursuant to any other provisions of law,
such as INA 245(i). See Joint Motion to Reopen at 2 {Apr. 28, 20 14).
6
Section 1 0 l (a)( 13) of the Act defines the terms "admission and "admitted," "with respect to an a1ien, [as]
the lawfu l entry of the aJien into the United States after inspection and authorization by an immigration
officer." The Court notes that Respondent was previously admitted to the United States. See supra at 1 .
However, he subsequently departed the United States to pursue refugee status i n Canada. See Matter ofR
D-, 24 I&N Dec. 22 1 (BIA 2007) (for the proposition that an alien who leaves the United States and is
admitted to Canada to seek refugee status has made a departure from the United States). Therefore, he was
properly charged as an arriving alien when he was returned to the United States. See id.; see also 8 C.F.R.
1 .2 (201 4) (defining the term "arriving alien" as inter alia Han applicant for admission").

A# 088-744-005

JG&

az....x.,.B4

, .@$ iJ.%...J . .&......... -

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

4F:
4G:

Registration of Birth of Julian Sebastian Arteaga Giraldo

(translated from Spanish to English)
U.S. Passport (Aug. I , 2008) and Certified Abstract of Birth (Sept.
4, 1992) of Jenny Gandara
County of Los Angeles License & Certificate of Marriage (May 4,
2012)
Letter from U.S. Customs and Border Protection (Aug. 1, 2006)
Record of Deportable/Inadmissible Alien for Respondent (Apr. 9,
2008); Notice to Appear (Apr. 9, 2008)
Notice of Hearing in Removal Proceedings (Jun. 4, 2008)
Departure Record (valid until Jun. 4, 2008)
Order of the IJ (Dec. 3, 2008)
Statement by Respondent (undated)
Proposed Application to Register Permanent Residence or Adjust
Status (Mar. 24, 20 1 4)
Affidavit of Support Under Section 213A of the Act (Mar. 24,
201 4), with attachments
Affidavit of Support Under Section 2 1 3A of the Act (Mar. 24,
2014), with attachments

INA 2 1 2(d)(S)(A). On the other hand, according to INA 236(a), an alien may be
released from detention on "conditional parole," pending a decision as to whether the
alien should be removed from the United States. INA 236(a)(2)(B).

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

The U.S. Court of Appeals for the Second Circuit (in whose jurisdiction this
Court sits) and the Board of Immigration Appeals ("BIA") have each held that only aliens
granted "parole" under the former provision of the law are eligible for adjustment of
status. See Matter of Castillo-Padilla, 25 I&N Dec. 257, 258-59 (BIA 2010); Cruz
Miguel v. Holder, 650 F.3d 189, 198 (2d Cir. 2011) ("[C]onditional parole merely
permits an alien to remain at liberty based upon a determination that he poses no risk of
danger or flight while his removal is actively sought.").
Although Respondent was issued a Form I-94, the record in these proceedings
makes clear that he was only granted "conditional parole," and not paroled into the
United States pursuant to INA 21 2(d)(S)(A). Compare with Castillo-Padilla, 25 I&N
Dec. at 262 ("[W]hile it is unclear why the local DHS Immigration and Customs
Enforcement office would issue a Form I-94 to an alien granted bond by an Immigration
Judge, as was done in this case, the Form I-94 does not contain the stamp, as required by
regulation, indicating that the Respondent was granted parole under section 212(d)(5)(A)
of the Act. 8 C.F.R. 235.l(h)(2). Rather, it contains a stamp that explicitly states that
the Respondent was released from custody after posting a $12,000 bond and appears to
merely memorialize his release on bond. Thus, although the Respondent did receive a
Form I-94, there is no evidence to indicate that the Government intended to parole him
into the United States pursuant to section 212(d)(5)(A).") (citations omitted).
Respondent' s Form 1-94 bears a stamp indicating that he would be paroled until
his first appearance date, June 4, 2008. (Exh. 41). Additionally, the stamp clearly states
that Respondent's parole is conditional. Id. (stating, "Conditions: EOIR/ 1-862 NTA
BUF 4/9/08 3181"). The stamp does not mention any of the factors listed in section
212(d)(5) of the Act. (Exh. 4I). There is nothing else in the record to suggest that
Respondent has been "paroled" into the United States "for urgent humanitarian reasons or
significant public benefit." INA 212(d)(5)(A).
Because Respondent was granted a conditional parole pursuant to INA
236(a)(2)(B), he has not been "paroled into the United States" for purposes of
establishing eligibility for adj ustment of status under INA 245(a). See Matter of
Castillo-Padilla, 25 l&N Dec. 257, 258-59 (BIA 20 1 0). 7
To the extent that the parties may be seeking to reopen removal proceedings to
allow for an exercise of prosecutorial discretion, the Court believes that it would be
7

Although not requested by the parties, the Court notes that Respondent is not statutorily eligible for either
form of voluntary departure. Arriving aliens (like Respondent) who are placed into proceedings upon
arrival are ineligible for pre-conclusion voluntary departure. INA 240B(a)(4). In order to qualify for
post-conclusion voluntary departure, an alien must establish that he or she "has been physical ly present in
the United States for a period of at least one year immediately preceding the date the notice to appear was
served." INA 240B(b)(l )(A). Respondent was served with the NTA upon his arrival from Canada. See
(Exh. I ).

A# 088-744-005

51

!W.

!!:,l

.:il .furncu

.
y
-l

2JJ

inappropriate and unnecessary to reopen removal proceedings to allow the government to

consider such a request. Under similar circumstances, the BIA has held:

Accordingly, we conclude that we have not been granted

authority to reopen the proceedings of respondents who are
under a final administrative order of removal to pursue
matters that could affect their removability if we have no
jurisdiction over such matters. This is especially so where
reopening is sought simply as a mechanism to stay a final
order of removal while the collateral matter is being
resolved.
Matter of Yauri, 25 I&N Dec. 1 03, 1 09-1 1 0 (BIA 2009) (noting, "The [Department of
Homeland Security] also has its separate authority to grant a respondent deferred action
in the exercise of its prosecutorial discretion, which is not subject to review by the Board
or the Immigration Judges.") (citations omitted). The Court takes judicial notice of the
fact that, under certain circumstances, the DHS is apparently willing to consider requests
for deferrals of removal from aliens who have been ordered removed from the United
States. See, e.g. , USCIS, Dep't of Homeland Security, Deferred A ction for Childhood
Arrivals, https://www.dhs.gov/deferred-action-childhood-arrivals (Jun. 11 , 201 4). Based
on the foregoing, the Court finds that it lacks authority to reopen removal proceedings in
the case of an alien (such as Respondent) who is not eligible for any form of relief over
which the Court has jurisdiction. 8
The Court shall enter the following order:
8 The Court notes that a separate mechanism exists for allowing certain arrival aliens to pursue adjustment
of status. See Matter of Martinez-Montalvo, 24 I&N Dec. 778 (BIA 2009) (discussing adjustment of status
under the Cuban Refugee Adjustment Act of November 2, 1 966, Pub. L. No. 89-732, 80 Stat. 1 1 6 1 , as
amended). However, the Court lacks jurisdiction to consider such a request. Id. at 783 (''[A]rriving aliens
may now seek this form of relief before the USCIS, whether or not they are in removal proceedings, and
whether or not they are under an order of removal."); see also 8 C.F.R. 1 245 .2(a)(ii) ("In the case of an
arriving alien who is placed in removal proceedings, the immigration judge does not have jurisdiction to
adjudicate any appl ication for adjustment of status filed by the alien unless [certain conditions have been
satisfied] .").

A# 088-744-005

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

It is our understanding of the law that if an alien under a

final order of exclusion, deportation, or removal is seeking
some form of relief from a third party over which the
Immigration Judge and the Board lack jurisdiction, the
question whether the alien is either entitled to a stay of
removal or warrants a stay as a matter of discretion while
such application or request is pending is not within [the
Board's] jurisdiction. Any stay request should go to the
agency or court that does have jurisdiction over the matter.

ORDER

--

IT IS HEREBY ORDERED that the parties' joint motion to reopen is DENIED.

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

----Philip J. Montante, J{- __

_
U.S . Immigration Judge )

A# 088-744-005

M .6

0W