U.S.

Department of Justice
Executive Office for Immigration Review

Board of Immigration Appeals

Office qf the Clerk
5107 Leesburg Pike, Suite 20UO Falls Church. Virginia 20530

Macchitelli, James J. Law Office of James J. Macchitelli 1051 Perimeter Dr., Suite 400 Schaumburg, IL 60173

OHS/ICE Office of Chief Counsel - CHI 525 West Van Buren Street Chicago, IL 60607

Immigrant & Refugee Appellate Center | www.irac.net

Name: GOMEZ-CIFUENTEZ, VICTOR H...

A 089-284-153

Date of this notice: 11/6/2013

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

D01vtL Ca./'vV
Donna Can Chief Clerk

'

Enclosure

Panel Members: Adkins-Blanch, Charles K. Guendelsberger, John Hoffman, Sharon

Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: Victor Hugo Gomez-Cifuentez, A089 284 153 (BIA Nov. 6, 2013)

i.

Executive Office for Immigration Review Falls Church, Virginia 20530

iJ S
.

Department of Justice

Decision of the Board of Immigration Appeals

File:

A089 284 153 - Chicago, IL

Date:

NOV 0 6 2013

In re: VICTOR HUGO GOMEZ-CIFUENTEZ a.k.a. Victor H. Gomez IN REMOVAL PROCEEDINGS APPEAL ON BEHALF OF RESPONDENT: ON BEHALF OF DHS: James J. Macchitelli, Esquire

Immigrant & Refugee Appellate Center | www.irac.net

Micheal Harper Assistant Chief Counsel

APPLICATIONS:

Continuance

The respondent, a native and citizen of Guatemala, appeals from the decision of the Immigration Judge, dated September 15, 2011, denying the respondent's request for a continuance and ordering him removed to Guatemala. On appeal, the respondent asserts that the Immigration Judge erred in denying his continuance request. The appeal will be sustained and the record remanded to the Immigration Judge. The Board reviews an Immigration Judge's findings of fact, including findings as to the credibility of testimony, under the "clearly erroneous" standard. 8 C.F.R. decisions of Immigration Judges de novo. 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

1003.1 (d)(3)(ii).

The record reflects that the respondent first appeared before the Immigration Judge on July 12, 2011, and requested a continuance for attorney preparation. The Immigration Judge granted the respondent a continuance until September 15, 2011, and indicated that on that date, the respondent would be expected to plead to the factual allegations and removability charges contained in the Notice to Appear (Form I-862). The Immigration Judge also irformed the respondent that he should be prepared to file for whatever relief from removal he may be seeking, or the Immigration Judge would assume that the respondent had "no interest in filing anything" (Tr. at 2). At the September 15, 2011, hearing, the respondent, through counsel, requested a seven-day continuance in order to gather documents in support of his asylum application (Tr. at 3). The Immigration Judge denied the respondent's request and ordered him removed to Guatemala. We recognize that an Immigration Judge has the authority to set filing deadlines for applications and related documents. see 8 C.F.R.

1003.3 l (c). However, under 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 his application for asylum, withholding of removal, and protection under the Convention against Torture. Specifically, we note that the respondent appeared before the Immigration Judge only one time before September 15, 2011, and had not yet entered pleadings on the date of his September hearing. Moreover, this Board's intervening decision in Matter of C-B-, 25 l&N Dec. 888 (BIA 2012),

Cite as: Victor Hugo Gomez-Cifuentez, A089 284 153 (BIA Nov. 6, 2013)

A089 284 153

holds that, if an alien expresses a fear of persecution or harm in a country to which he might be removed, the regulations require the Immigration Judge to advise the alien of his ability apply for asylum or withholding of removal (including protection under the Convention Against Torture) and make the appropriate application forms available. Under such circumstances, we conclude that the respondent should be afforded an additional opportunity to pursue his asylum claim. We remind the respondent that it is his burden to establish eligibility for relief from removal, and we express no opinion regarding the ultimate outcome of these removal proceedings at the present time. 413 (BIA 1996).

See Matter of L-0-G-,

21 l&N Dec.

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Although the basis of this remand order is to specifically provide the

respondent with an opportunity to file a Form I-589, the parties are not precluded from raising other issues in remanded proceedings. Finally, we note that, to the extent the respondent seeks prosecutorial discretion, he must request this from the Department of Homeland Security. 8 C.F .R. 241.6

See

see also Matter of Quintero,

18 l&N Dec. 348 (BIA 1982) (finding that the

authority to grant deferred action status rests solely in the district director's prosecutorial discretion and that neither the Immigration Judge nor this Board may grant such status). Accordingly, the following orders will be entered. ORDER: The respondent's appeal is sustained and the Immigration Judge's

September 15, 2011, decision is vacated. FURTHER ORDER: The record is remanded to the Immigration Court for further proceedings consistent with the foregoing opinion and for the entry of a new decision.

Cite as: Victor Hugo Gomez-Cifuentez, A089 284 153 (BIA Nov. 6, 2013)

UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW UNITED STATES IMMIGRATION COURT CHICAGO, ILLINOIS

Immigrant & Refugee Appellate Center | www.irac.net

File:

A089-284-153

September 15,

2011

In the Matter of

VICTOR HUGO GOMEZ-CIFUENTEZ RESPONDENT

IN REMOVAL PROCEEDINGS

CHARGES:

Section 212(a) (6) (A) (i) of the INA, without being admitted or paroled.

present

APPLICATIONS:

Motion to continue pursuant to 8 C. F.R. 1003.29.

Section

ON BEHALF OF RESPONDENT: JAMES J. ON BEHALF OF DHS: MICHEAL HARPER

MACCH ITELLI

ORAL DECISION OF THE IMMIGRATION JUDGE The respondent is an adult male native and citizen of Guatemala whose presence in the United States came to the attention of the Department of Homeland Security on about June 1, 2010 as a result of driving without a valid license. the respondent was arrested for driving without a He was turned over to the

Apparently,

valid license in May of 2010.

Department of Homeland Security who issued a Notice to Appear dated June 1, Exhibit 1. 2010 by having it personally served upon him. See

Immigrant & Refugee Appellate Center | www.irac.net

The respondent did appear with counsel on July 12, 2011 at 9:00 a.m. Respondent, through counsel, requested some

additional time to prepare and come back and enter a pleading. That was request was granted and on the record, was informed that he should come back, pleading and he, as well as counsel, the respondent

be prepared to enter a

were informed that they

were to come back with applications for any and all forms of relief. In other words, if the request to remain in the United and I-589) , the

States involved an application (for example,

respondent was required to return to court with such documentation. Respondent and counsel were placed on notice

that if they returned without any applications for relief where one was required, then the issue of discussing the respondent's

departure from the United States would take effect. The respondent returned to court on September 15, 2011, entered a plea to the allegations contained in the Notice The respondent admits the allegations and concedes The respondent has not been willing to Consequently, Guatemala has

to Appear.

removability as charged.

designate a country of removal.

been designated according to the INA.

Based on the respondent's

admission to the allegation and concession to the charge as being present without being admitted or paroled, removability

A089-284-153

September 15,

2011

has been established by clear and convincing evidence. C. F. R. Section 1240.8 (2011) .

See 8

The respondent has submitted an oral as well as a

Immigrant & Refugee Appellate Center | www.irac.net

written motion to have his matter continued. indicates, through counsel,

The respondent

that he would like some additional

time in order to perhaps have an application for political asylum submitted or to attempt to take advantage of the President's announcement in July of 2011 that the Government, specifically the Department of Homeland Security, consider

exercising prosecutorial discretion not to remove individuals such as the respondent. The respondent was clearly advised to return to court with his application for any and all forms of relief. clear for the record. This was

The respondent's request for additional under the regulations at 8

time does not constitute "good cause" C. F. R.

Section 1003.29 because the respondent was given a full

two months to return to court with a copy of an I-589 along with the respondent's statement. Respondent indicated that he needed

to request additional time in order to get documentation from Guatemala. However, there is no indication what the

documentation is or this does not preclude the respondent from simply filing an I-589 which preserves his request formally for the record. This is done on a daily basis and was clearly

within the control of the respondent and counsel to prepare and submit to the Court within approximately two months after his

A089-284-153

September 15,

2011

initial hearing.

The respondent has not done so. in addition,

His request

appears to be a request,

to ask for additional time

based on the President's stated recommendation that the

Immigrant & Refugee Appellate Center | www.irac.net

Government not prosecute these cases. this Judge's control. Consequently,

That is something out of

It does not constitute good cause.

that motion to continue will be denied.

The respondent has not requested voluntary departure. The following order will be entered. ORDER IT IS HEREBY ORDERED that the respondent's motion to continue will be denied. IT IS FURTHER ORDERED that the respondent be removed and deported from the United States to Guatemala on the charge contained in the Notice to Appear. Date: September 15, 2011

CARLOS CUEVAS United States Immigration Judge

A089-284-153

September 15,

2011

CERTIFICATE PAGE

I hereby CARLOS CUEVAS,

certify

that the attached proceeding before JUDGE

in the matter of:

Immigrant & Refugee Appellate Center | www.irac.net

VICTOR HUGO GOMEZ-CIFUENTEZ

A089-284-153

CHICAGO,

ILLINOIS

is an accurate,

verbatim transcript of the recording as provided

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

JO SPEAR

(Transcriber) Inc.

DEPOSITION SERVICES, NOVEMBER 3, 2011

(Completion Date)