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Department of Justice Executive Office for Immigration Review

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Gallagher, Claire, Esquire Bikkal & Associates, P.C. 170 Hamilton Avenue, Suite 301 White Plains, NY 10601

OHS/ICE Office of Chief Counsel - ELP 1545 Hawkins Blvd. El Paso, TX 79925

Immigrant & Refugee Appellate Center | www.irac.net

Name: SANTEL-MONTES, CONSTANTI...

A 094-090-659

Date of this notice: 10/21/2013

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

DOYUtL ct1/lA)
Donna Carr Chief Clerk

Enclosure Panel Members: Adkins-Blanch, Charles K.

schuckec Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: Constantino Santel-Montes, A094 090 659 (BIA Oct. 21, 2013)

U.S. Department of Jl1stice

Falls Church, Virginia 22041

Decision of the Board of Immigration Appeals

Executive Office for Immigration Review

File:

A094 090 659 - El Paso, TX

Date:

OCT tl ZOJ3

In re: CONSTANTINO SANTEL-MONTES

IN REMOVAL PROCEEDINGS APPEAL ON BEHALF OF RESPONDENT: APPLICATION: Continuance Claire Gallagher, Esquire

Immigrant & Refugee Appellate Center | www.irac.net

This case was last before this Board on .January 11, 2012, when we dismissed the respondent's request for a continuance but remanded the case for the Immigration Judge to reassess the respondent's eligibility for voluntary departure. The respondent, a native and citizen of Mexico, now appeals from a July 17, 2012, decision of an Immigration Judge. The Immigration Judge found the respondent removable and declined to further continue these proceedings, but granted him the privilege of voluntary departure under section 240B(b) of the Immigration and Nationality Act, 8 U.S.C. 1229c(b). The Department of Homeland Security (DHS) has not filed a briefor other response. The record will be remanded. The Board reviews an Immigration Judge's finding of fact, including findings as to the credibility of testimony, under the "clearly erroneous" standard. 8 C.F.R. 1003.l(d)(3)(i). The Board reviews questions of law, discretion, and judgment and all other issues in appeals from decisions oflmmigration Judges de novo. 8 C.F.R. 1003.l(d)(3)(ii). On appeal, the respondent argues that the Immigration Judge erred in denying his request for a continuance for a change of venue, administrative closure, or for termination based primarily on regulations which were pending at that time regarding a waiver relating to approved visa petitions such as that of the respondent (Respondent's Brief at 1-10; Respondent's Motion to Change Venue and to Reopen dated March 12, 2012). The Immigration Judge denied the However, during the pendency of the appeal, regulations for such a waiver (l-601A) have been finalized, and the new regulations include a provision allowing for administrative closure. Therefore, the respondent 1 may renew his request for such relief upon remand. See Matter ofAvetisyan, 25 I&N Dec. 688 (BIA 2012). Accordingly, the following order will be entered. ORDER: The record is remanded for further proceedings not inconsistent with the foregoing opinion. respondent's motion during the hearing on July 17, 2012 (I.J. at 2-3).

Beginning March 4, 2013, certain immediate relatives ofUnited States citizens may apply for a provisional waiver of inadmissibility due to unlawful presence on Form I-601A. See 78 Fed. Reg. 536-01 (January 3, 2013) (to be codified at 8 C.F.R. 103 and 212), 2013 WL 24532.
1

Cite as: Constantino Santel-Montes, A094 090 659 (BIA Oct. 21, 2013)


UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW UNITED STATES IMMIGRATION COURT EL PASO, TEXAS

Immigrant & Refugee Appellate Center | www.irac.net

File:

A094-090-659

In the Matter of

CONSTANTINO SANTEL-MONTES RESPONDENT

CHARGES:

Section 212(a) (6) (A) (i)

of the Immigration and

Nationality Act - alien present in the United States without being admitted or paroled.

APPLICATIONS:

Continuance and voluntary departure under 240B of the Act.

. .

ON BEHALF OF RESPONDENT: ON BEHALF OF OHS:

ROBIN BIKKAL

LORILEI FERNANDEZ

ORAL DEISION OF THE IMMIGRATION

JUDGE

The respondent is a 32-year-old married male native and citizen of Mexico. 1, 2009. Exhibit He was served with a Notice to Appear on May

1.

The Notice to Appear charges that the

respondent is removable under Section 212(a) Immigration and Nationality Act,

(6) (A) (i)

of

the

that he is in the United States

without properly being admitted or paroled.

'

The respondent had previously admitted the factual allegations in the Notice to Appear and conceded that he is removable through counsel. removable as charged. This case was previously before the Court when it denied continuances and granted the respondent "up front voluntary departure. " Appeals. The case was appealed to the Board of Immigration Once again, I found the respondent

Immigrant & Refugee Appellate Center | www.irac.net

The Board of Immigration Appeals dismissed the but remanded the case

respondent's request for a continuance,

back to this Court for further review of voluntary departure based on the fact there was an appeal filed. On today's date, the respondent's counsel renewed a request as well

for a continuance and/or a change of venue to New York, as possible termination. requests.

The Government opposed all such

Apparently the respondent's counsel believes that

there may be some changes to the law in the future that would permit the respondent to adjust status in the United States. However, when asked, the respondent's counsel indicates that at

this time such relief is not available and the Court once again, as previously, found no good cause for continuances for but would solely

potential relief that is not before this Court,

limit the case today to a renewed request for voluntary departure without a change of venue. To that end, the respondent testified once again on the At this time he is married to

request for voluntary departure.

A094-090-659

July 17,

2012

a Un ited States citizen who filed a petition on his behalf. states he has not been arrested, made false claims to U.S.

He

n ever used false documents or While he initially

citizenship.

in dicated that he has never been gran ted voluntary departure, based on further examination there does appear to be a voluntary departure perhaps in 2001. The respon den t understands that to

Immigrant & Refugee Appellate Center | www.irac.net

be granted voluntary departure he would have to agree to leave when required and not return back to the United States un less he had legal permission to do so. The Court does believe that the

respondent would in fact be once again entitled to voluntary departure. The Court is satisfied that this will be considered to wit: post-conclusion of the Act.

at the conclusion of proceedings,

voluntary departure pursuant to Section 240B(b) Therefore, be granted. Therefore,

the respondent's request for voluntary departure will

the following orders shall be entered. ORDER

IT IS HEREBY ORDERED that the respon dent's application for voluntary departure under Section 240B(b) of the Act is granted.

The respondent must depart the United States on or before September 17, 2012. The responden t must post a bon d of $500 If the respondent fails to post the required

within five days.

bond or fails to depart by that date or by any extension granted by the Department of Homeland Security or appellate body, the

privilege of voluntary departure shall be withdrawn irmnediately

A094-090-659

July 17,

2012

'
I

without further notice or proceeding and the respondent shall be removed to Mexico.

Immigrant & Refugee Appellate Center | www.irac.net

2012

A094-090-659

July 17,

r
. Cl..

CERTIFICATE PAGE

I hereby certify that the attached proceeding before JUDGE ROBERT S. HOUGH, in the matter of:

Immigrant & Refugee Appellate Center | www.irac.net

CONSTANTINO SANTEL-MONTES

A094-090-659

EL PASO,
a

TEXAS

is an

ccurate ,

verbatim tran scri pt of the recordi n g as provided

.

by the Executive Office for Immigration Review and that this is the original transcript theeof for the file of the Executive Office for Immigration Review.

. .

FREE STATE REPORTING, AUGUST 2 1, 2 012

Inc.

(Completion Date)