U.S.

Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

Office ofthe Clerk

5107 Leesburg Pike, Suite 2000

Falls Church, Virginia 22041

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Gonzales, Xavier OHS/ICE Office of Chief Counsel - LVG
Law Office of Xavier Gonzales 3373 Pepper Lane
528 S. Casino Center Blvd, 2nd Floor Las Vegas, NV 89120
Las Vegas, NV 89101

Name: BIBIANO-ESCALANTE, TANIA A 205-324-100

Date of this notice: 2/14/201 7

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

Sincerely,

[)On.ttL {!t1/lA.)
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For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/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: Tania Bibiano-Escalante, A205 324 100 (BIA Feb. 14, 2017)
 U.S. Department of Justice Decision of the Board of Immigration Appeals

"
Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A205 324 100-Las Vegas, NV Date:

FEB 1 4 20\7
In re: TANIA BIBIANO-ESCALANTE a.k.a. Tania Bibiano

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IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Xavier Gonzales, 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

APPLICATION: Remand; adjustment of status

The respondent, a native and citizen of Mexico, appeals from the Immigration Judge's
June 6, 2016, decision granting the respondent voluntary departure. The record will be
remanded to the Immigration Judge.

We review findings of fact for clear error, including credibility findings. See 8 C.F.R.
I003.1(d)(3)(i); see also Matter of J-Y-C-, 24 I&N Dec. 260 (BIA 2007); Matter of S-H-,
23 I&N Dec. 462 (BIA 2002). We review issues of law, discretion, or judgment, and all other
issues de novo. 8 C.F.R. 1003.l(d)(3)(ii).

At her February 22, 2016, hearing, the respondent, through counsel, indicated that she had
recently married a United States citizen, but a Petition for Alien Relative (Form I-130) had yet to
be filed on her behalf (I.J. at 2; Tr. at 7). The Immigration Judge agreed to hold the record open
for 90 days to allow the Form I-130 to be filed and subsequently scheduled a master calendar
hearing for June 27, 2016 (I.J. at 2; Tr. at 7; Notice of Hearing dated Feb. 23, 2016). On June 6,
2016, the Immigration Judge issued a written decision noting that the respondent had not
submitted proof that a Form I-130 had been filed to the Immigration Court and granting the
respondent voluntary departure (1.J. at 2). On appeal, the respondent argues that the Immigration
Judge's order was premature and she is prima facie eligible for adjustment of status (Resp.'s
Brief at 4-9).

In light of the totality of the circumstances presented in this matter, we conclude that
remanded proceedings are warranted to provide the respondent with a reasonable opportunity to
pursue her application for adjustment of status under section 245 of the Act. Although the
respondent did not submit proof of filing to the Immigration Court within 90 days, we note that
the Form 1-130 was filed with United States Citizenship and Immigration Services within that
time period. Further, the respondent has presented evidence of her apparent eligibility to adjust
status under section 245(a) of the Act, and the Department of Homeland Security has not
responded to the present appeal. Accordingly, the following order will be entered.

Cite as: Tania Bibiano-Escalante, A205 324 100 (BIA Feb. 14, 2017)
A205 324100
..,.
ORDER: The record is remanded to the Immigration Court for further proceedings
consistent with the foregoing opinion and the entry of a new decision.

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HEBOARD

2
Cite as: Tania Bibiano-Escalante, A205 324 100 (BIA Feb. 14, 2017)


.....
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
LAS VEGAS, NEVADA

File No.: A205 324100 )

)

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IN THE MATIER OF: )
) IN REMOVAL PROCEEDINGS
Tania Bibiano-Escalante )
)
Respondent. )

CHARGE: Section 212(a)(6)(A)(i) of the Immigration and Nationality Act -- Present

in the United States without having been admitted or paroled

APPLICATION: Motion to Reconsider.

ON BEHALF OF RESPONDENT: ON BEHALF OF THE DHS:

Xavier Gonzales, Esquire Mindy Hoeppner, Assistant Chief Counsel

DECISION AND ORDER OF THE IMMIGRATION JUDGE

The respondent's case was last before the Immigration Court on June 6, 2016, when the
Court entered an order granting her voluntary departure. On June 17, 2016, the respondent filed a
motion to reconsider with the Immigration Court. However, on July 6, 2016, the respondent also
filed an appeal to the Board of Immigration Appeals. Accordingly, the Immigration Court now
lacks jurisdiction in this matter, pursuant to 8 C.F.R. I003.2(b) and 1003.23(b)(l). The record
of proceedings will be forwarded to the Board for consideration of the respondent's appeal.

IT IS HEREBY ORDERED that the motion to reconsider is denied for a lack of

jurisdiction.

'
DATE
IMMIGRATION JUDGE
 ,1'.

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
3365 PEPPER LANE, SUITE 200
LAS VEGAS, NV 89120

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Law Office of Xavier Gonzales
Gonzales, Xavier
528 S Casino Center Blvd
2nd Floor
Las Vegas, NV 89101
Date: Jun 6, 2016

File A205-324-100

In the Matter of:

BIBIANO-ESCALANTE, TANIA

Attached is a copy of the written decision of the Immigration Judge.

This decision is final unless an appeal is taken to the Board of
Immigration Appeals. The enclosed copies of FORM EOIR 26,
Notice of Appeal, and FORM EOIR 27, Notice of Entry as Attorney or
Representative, properly executed, must be filed with the Board of
Immigration Appeals on or before
The appeal must be accompanied by proof of paid fee ($110.00).

Enclosed is a copy of the oral decision.

Enclosed is a transcript of the testimony of record.

You are granted until ________ to submit a brief

to this office in support of your appeal.

Opposing counsel is granted until to submit a

brief in opposition to the appeal.

/_ Enclosed is a copy of the order/decision of the Immigration Judge.

All papers filed with the Court shall be accompanied by proof

of service upon opposing counsel.

Sincerely,

&rourt c UL
cc: HOEPPNER, MINDY
3373 Pepper Lane
Las Vegas, NV 89120
 UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
LAS VEGAS, NEV ADA

FILE: A205 324 100 )

)

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IN THE MATTER OF ) IN REMOVAL PROCEEDINGS
)
Tania Bibiano Escalante, Respondent )
)

CHARGE: 212(a)(6)(A)(i) of the Immigration and Nationality Act (the Act)--Alien

present in the United States without having been admitted or paroled

APPLICATIONS: Continuance for DACA; Voluntary Departure

ON BEHALF OF THE RESPONDENT: ON BEHALF OF THE DRS:

Xavier Gonzalez, Esquire Mindy Hoeppner, Assistant Chief Counsel

WRITTEN DECISION OF THE IMMIGRATION JUDGE

The respondent is a 22-year-old female who is a native and citizen of Mexico. The
Department of Homeland Security ("DHS") issued a charging document, the Notice to Appear
(NTA) dated May 22, 2014, charging the respondent with inadmissibility pursuant to section
212(a)(6)(A)(i) of the Immigration and Nationality Act ("the Act"). The OHS alleged in the NTA
that the respondent is an alien who is present in the United States without having been admitted or
paroled. A copy of the NTA is included in the Record of Proceedings as Exhibit 1.

The NTA was filed with the Immigration Court in Las Vegas on May 28, 2014. The
respondent through counsel admitted all factual allegations in the NTA, and she conceded that she
is subject to removal as charged in the NTA. The Court finds that the respondent's inadmissibility
has been established pursuant to section 240(c)(2) of the Act. The Court designated Mexico as the
country for removal.

At a hearing on February 22, 2016, the respondent through counsel requested a continuance
so that the respondent could apply for Deferred Action for Childhood Arrivals (DACA). DRS
Counsel argued that the respondent was not eligible for DACA. The respondent has had, in the
Court's judgment, a fair opportunity to apply for DACA, and this is an application that is outside
the jurisdiction of the Immigration Court.
 ,
(

Moreover, the respondent requested a continuance to file a Form I-130, based upon a
marriage with a U.S. citizen on September 26, 2015. The Court left the record open for 90 days
after February 22, 2016, for submission of a copy of the Form I-130, but no proof of filing of the
Form I-130 was presented to the Immigration Court.

The respondent does appear statutory eligible for post-conclusion voluntary departure under
section 240B(b) of the Act. Therefore, the Court will approve the respondent's application for this

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minimal form of relief in the exercise of discretion, subject to her posting the $500 bond. Based on
the foregoing, the Court will enter the following orders.

ORDERS

IT IS HEREBY ORDERED that the respondent be granted voluntary departure, in lieu of

removal, and without expense to the United States Government, on or before August 5, 2016.

IT IS FURTHER ORDERED that the respondent shall post a voluntary departure bond in
the amount of$500.00 with the DHS on or before June 13, 2016 (or within five business days from
receipt of this order).

IT IS FURTHER ORDERED that, if required by the DHS, the respondent shall present to
the DHS all necessary travel documents for voluntary departure within 60 days.

IT IS FURTHER ORDERED that, if the respondent fails to comply with any of the above
orders, the voluntary departure order shall without further notice or proceedings vacate the next
day, and the respondent shall be removed from the United States to Mexico on the charge contained
in the NTA.

APPEAL RIGHTS: Both parties have the right to appeal the decision in this case. Any appeal is
due at the Board of Immigration Appeals on or before 30 calendar days from the date of service of
this decision.

-:2\ -

Jeffrey L. Romig
Immigration Judge
CERTIFICATE OF SERVICE
THIS DOCUMENT WAS SERVED BY : MAIL(M)PERS (P)
TO: ( )ALIEN( )ALIEN C/0 CUST OFFICER
l M(P')ALIEN REP r{') OHS
DATE: \f>J. pf{ \o BY: COURT STAFF ,
A TACHMENTS: ( )EOIR-33( }fcdR-28
( )LEGAL SERVICES LIST( )OTHER

2
 NOTI CE TO RESPON D ENTS
GRANTED VOLU NTARY DEPA R'I'U RE

You have been granted the privilege of voluntarily departing from the United States o f America. The
Court advises you that, if you fail to voluntarily depart the United States within the time period specified,
a removal order w i J I automatica lly be entered against you. Pursuant to section 240B(d) of the Immigration
and National ity Act, you w i l J also be subj ect to the following penalties:

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1. You will be subject to a civil pcnaJ1y of not less than $ 1 ,000 and not more than $5,000; and
2. You wiJJ h e ineligible, fo r a period o f l O years, to receive canccJlation of removal,
adjustment of status, registry, voluntary d(.,-parture, or a change of nonimmib'Tant status.

The Court further advises you that :

0 You have been granted pre-conclusion voluntary departure.

J. If you file a motion to reopen or reconsider during the voluntary departure period, the
period allowed for voluntary departure will not be stayed, tol led, or extended, the grant of
volu ntary departure wil l be terminated automatically, the alternate order of removal will
take effect immediately, and the penalties for failure lo depart voluntarily under section
240B(d) of the Acl will not apply. 8 C.F.R. 1 240.26(b)(3 )(i i i ), (c)( l ).
2. There is a civil monclary pcnahy if you fai l t o depart wi thin the voluntary departure period.
In accordance with the regulation the Court has set the presumptive amount of $3,000 (or
__ instead of the presumptive amount). 8 C.fi'. R. 1 240.26(j).

You have been granted post-conclusion voluntary departure.

l. If thc Court set any additional conditions, you were advised of them, and were given an
opportunity lo accept or decli ne them. As you have accepted them, you must comply with
the additional conditions. 8 C.F.R. J 240.26(c)(3).
2. The Court set a specific bond amount. You were advised of the bond amount, and were
given an opportunity Lo accept or decline it. As you have accepted it, you have a duty to
post that bond with the Dcpa11mcnt of Homeland Security, Immigration and Customs
Enforcement, Field Office Director within 5 business days of the Court's order granting
voluntary departure. 8 C.F.R. J 240.26(c)(3)(i).
3. I f you have reserved your right to appeal, then you have the absolute right to appeal the
decision. If you do appeal, you must provide to the Board of Immigration Appeals, within
30 days of filing an appeal, sufficient proof of having posted the voluntary departure bond.
The Board wil l not reinstate the voluntary departure period in i ts final order if you do not
submit timely proof to the Board that the voluntary departure bond has been posted.
8 C.F.R. 1 240.26 (c)(3 )( i i ) .
4. If you do not appea1 and instead file a motion to reopen or reconsider during the voluntary
departure period, the period aJlowcd for vo luntary departure wil l not be stayed, tolled, or
extended, the grant of voluntary departure will be terminated automatically, the alternate
order of removal will take effect immediately, and the penalties for failure to depart
voluntarily under section 240B(d) of the Act will not apply. 8 C.F.R. 1 240.26(c)(3)(iii),
(e)( l ).
5. There is a civil monetary penalty if you fail to depart within the voluntary departure period.
In accordance with the regulation, the Court has set the presumptive amount of $3,000 (or
__ instead of the presumptive amount). 8 C.F .R. 1 240.26(j).