In this unpublished decision, the Board of Immigration Appeals (BIA) held that the immigration judge erred in denying the respondent’s request for a continuance to appear in federal court on a criminal sentencing matter, and remanded the record to permit the respondent to apply for voluntary departure. The Board also stated that the immigration judge should not have accused the respondent’s attorney of acting frivolously by seeking continuances or administrative closure, and that “rash and inflammatory comments impugning the motives of a party's attorney are not appropriate.” The decision was issued by Member Linda Wendtland and joined by Member Anne Greer and Member Roger Pauley.
Looking for IRAC’s Index of Unpublished BIA Decisions? Visit www.irac.net/unpublished/index
In this unpublished decision, the Board of Immigration Appeals (BIA) held that the immigration judge erred in denying the respondent’s request for a continuance to appear in federal court on a criminal sentencing matter, and remanded the record to permit the respondent to apply for voluntary departure. The Board also stated that the immigration judge should not have accused the respondent’s attorney of acting frivolously by seeking continuances or administrative closure, and that “rash and inflammatory comments impugning the motives of a party's attorney are not appropriate.” The decision was issued by Member Linda Wendtland and joined by Member Anne Greer and Member Roger Pauley.
Looking for IRAC’s Index of Unpublished BIA Decisions? Visit www.irac.net/unpublished/index
In this unpublished decision, the Board of Immigration Appeals (BIA) held that the immigration judge erred in denying the respondent’s request for a continuance to appear in federal court on a criminal sentencing matter, and remanded the record to permit the respondent to apply for voluntary departure. The Board also stated that the immigration judge should not have accused the respondent’s attorney of acting frivolously by seeking continuances or administrative closure, and that “rash and inflammatory comments impugning the motives of a party's attorney are not appropriate.” The decision was issued by Member Linda Wendtland and joined by Member Anne Greer and Member Roger Pauley.
Looking for IRAC’s Index of Unpublished BIA Decisions? Visit www.irac.net/unpublished/index
756 Tyvola Road, Ste. 160 Charlote, NC 28217 U.S. Department of Justice Executive Ofce fr Immigration Review Board of Immigration Appeals Offce of the Clerk 5107 Leesburg Pike, Suite 2000 Fals Church, Virginia 20530 OHS/ICE Ofice of Chief Counsel - CHL 5701 Executive Ctr Dr., Ste 300 Charlotte, NC 28212 Name: PEREZ-SERRANO, ALEJANDRO A 205-394-591 Date of this notice: 9/17/2014 Enclosed is a copy of the Board's decision and order in the above-referenced case. Enclosure Panel Members: Greer, Anne J. Pauley, Roger Wendtland, Linda S. Sincerely, Do Ca Donna Carr Chief Clerk Userteam: Docket For more unpublished BIA decisions, visit www.irac.net/unpublished For more unpublished BIA decisions, visit www.irac.net/unpublished I m m i g r a n t
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w w w . i r a c . n e t Cite as: Alejandro Perez-Serrano, A205 394 591 (BIA Sept. 17, 2014) U.S. Deparment of Justice Executive Ofce fr Imigation Review Decision of the Boad of Imigation Appeals Falls Chuch, Viginia 20530 File: A205 394 591 - Chalotte, NC I re: ALEJADRO PERZ-SERO IN REMOVAL PROCEEDINGS APPEAL ON BEHALF OF RSPONDENT: Jordan G. Forsythe, Esquire ON BEHALF OF DHS: Susa Leeker Assistant Chief Counsel CHARGE: Date: Notice: Sec. 212(a)(6)(A)(i), l&N Act [ 8 U .S.C.
1182(a)(6)( A)(i)] - Present without being admitted or paoled APPLICATION: Continuance; adnistative closue SEP 1 7 2014 Te respondent, a native and citizen of Mexico, appeals the Immigration Judge's May 16, 2013, decision denying the respondent's requests fr a continuace and fr administative closue. The appeal will be sustained in pa, ad the record will be remaded. The Boad reviews a Imigation Judge's fdings of fct, including credibility deterinations and (under the law of the Circuit with jursdiction over this cae) te likelihood of fture events, under a "clealy eroneous" standad. 8 C.F.R.
1003.l(d)(3)(i); see Turkon v. Holder, 667 F.3d 523, 530 (4th Cir. 2012). We review all oter issues, including questions of law, judgent, or discretion, under a de novo standad. 8 C.F .R. 1003 .1 ( d)(3 )(ii). Because the Imigation Judge ered in fnding that the respondent's request fr a continuace to perit the respondent to appea in fderal cour on a crminal sentencing matter wa uneaonable ad not suppored by good cause (l.J. at 2), the record will be remanded to the Imigation Judge to perit te respondent to seek voluntary deparure. See, e.g., Mater of Yauri, 25 I&N Dec. 103, 111 n.8 (BIA 2009) ("Tere ca be soud reasons to continue or adinistatively close proceedings while matters outside te Immigation Judge's jurisdiction ae resolved, ofen including reasons directly related to administrative effciency ad the best utilizaton of adjudicative resouces."). However, the Immigration Judge did not comit legal or clea fctual error in denying the respondent's request fr administative closure (l.J. at 3), which we agee is not wa ated uder the circumstaces. Specifcally, we do not fnd that pursuing a challenge to the local DHS ofce's denial of a request fr prosecutorial discretion or awaitng the availability of a furh prefrence faily-based visa fom Mexico constitute sufcient reasons fr administative closure in the respondent's case. Finaly, we disagee with the Immigration Judge's coments that te respondent's frer attorey acted fvolously in pursuing requests fr a continuance and fr adinistative closure I m m i g r a n t
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w w w . i r a c . n e t Cite as: Alejandro Perez-Serrano, A205 394 591 (BIA Sept. 17, 2014) A205 394 591 (I.J. at 4). Rather, we fnd that te respondent's frmer counsel simply attempted to pursue all reasonable avenues fr the respondent, ad that none of the actions she took on behalf of the respondent lacked an arguable basis in law or fct or were intended to cause unecessary delay (1.J. at 4). See 8 C.F.R. 1003.1020)(1). We caution that rah and infa atory comments impuging te motives of a party's attorey ae not appropriate, and that geat cae must be ten to assure that suffcient justifcation exists fr suggesting that an attorey's conduct has been unprofessional. ORDER: Te respondent's appeal is sustained in part, and the record is remanded to te Immigration Judge fr fher proceedings consistent wit this order and fr the entry of a new decision. THE BOARD 2 I m m i g r a n t
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w w w . i r a c . n e t Cite as: Alejandro Perez-Serrano, A205 394 591 (BIA Sept. 17, 2014) UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW UNITED STATES IMMIGRATION COURT CHARLOTTE, NORTH CAROLINA File: A205-394-591 In the Matter of May 16, 2013 ALEJANDRO PEREZ-SERRANO ) ) ) ) IN REMOVAL PROCEEDINGS RESPONDENT CHARGES: 212(a)(6)(A)(i), alien present in the United States without having been admitted or paroled. APPLICATIONS: Request for a continuance. ON BEHALF OF RESPONDENT: AMANDA KEAVENY ON BEHALF OF OHS: SUSAN LECKER ORAL DECISION OF THE IMMIGRTION JUDGE The respondent is a native and citizen of Mexico. He was placed in removal proceedings on July 13, 2013 with the filing of a Notice to Appear in the Charlotte Immigration Court. While respondent was represented by counsel, he admitted to factual allegations and conceded his removability. Accordingly, the Court finds the respondent's removability has been established by clear and convincing evidence. I m m i g r a n t
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w w w . i r a c . n e t The respondent first appeared at a master calendar on August 28, 2012, at which time he was unrepresented, and the Court gave him a continuance in order to seek counsel. The respondent's next appearance in GCourt was on October 30, 2013. At this hearing, he was represented by his present counsel, Amanda Keaveny. The respondent's counsel at that time requested that he matter be set over for a six-month continuance so that he could resolve his criminal matter which was pending. The Cour granted a continuance until March 14th, 2013. At the March 14th, 2013 hearing, the respondent at that point had pied to a misdemeanor charge for failure to register as an alien under 8 U.S. C. 1306(a). He had not yet been sentenced. The respondent's counsel requested a continuance in order to resolve his sentencing matter. Additionally, in the course of the proceedings, counsel had also requested that the Government exercise prosecutorial discretion and administratively close the case. The Department of Homeland Security denied the respondent's request to close the case pursuant to prosecutorial discretion. That letter was sent to the respondent on March 1, 2013. As such, the respondent was aware at the master calendar on March 14, 2013 that OHS had already declined prosecutorial discretion. The Court on March 14, 2013. granted one last continuance to respondent, indicating that it would be the last one and that on May 16th, 2013. the date of today's hearing, the respondent would be granted voluntary departure. At +!oday's hearing, the respondent is declining to take voluntary departure. Instead, he requested a continuance so that he can seek review of DHS's local denial of the exercise of prosecutorial discretion so-tfae-GaH-hae-t-e-leGa. E-nial-GfJf-0&GtF+al-dSGeten-.reviewed-by OHS in Washington, DC. As a threshold matter, the Court has no authority and no ability to control DHS's exercise of prosecutorial discretion. That is a matter entirely between the A205-394-591 2 May 16, 2013 I m m i g r a n t
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w w w . i r a c . n e t respondent and OHS. As such, prosecutorial discretion does not involve the Court. The Court has no authority to intervene faFin that matter. The Court can find no good cause to grant a continuance so that the respondent can further plead his request for prosecutorial discretion to higher authorities in Washington, D. C. It's the Court's view that if the respondent is ultimately successful in convincing .HS in Wast+RgtGR-Washington, DC that prosecutorial discretion should be exercised, OHS will take the appropriate steps to resolve the respondent's case. The Court sees no reason to continue the case because the Court has no applications pending in front of it and the respondent is not requesting any forms of relief. There is nothing fr the Court to adjudicate. The Court has indicated that it was willing to grant the respondent voluntary departure today. The respondent has declined to accept voluntary departure and instead requests an order of removal. The respondent has also requested that the Court sua sponte administratively close the case under Matter of Avetisyan, 25 l&N Dec. 688 (BIA 2012). In Avetisyan, the court addressed the factual situation where a respondent had a family based visa petition pending and where there was significant delay by USCIS in adjudicating that visa petition. In Avetisyan, the Board concluded that an Immigration judge would have the authority to exercise its independent judgment and discretion to administratively close the case in an appropriate circumstance. The facts in Avetisyan are extremely narrow. The Court, based on the facts it has before us, can see no basis whatsoever for any good faith argument that this matter falls within the four corners of the reasoning in Avetisyan. The Court finds that the respondent's motion has no arguable basis in law or fact. Respondent essentially is asking the Court to exercise its sua sponte authority to close his removal proceedings, essentially to aford him an opportunity to remain here A205-394-591 3 May 16, 2013 I m m i g r a n t
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w w w . i r a c . n e t in the United States without lawful status while he pursues further requests for the exercise of prosecutorial discretion. It is clear to the Court that Matter of Avetisyan is entirely inapplicable to the respondent's factual circumstances. Further, in Avetisyan, the respondent was applying for relief from removal while awaiting the adjudication of a pending visa petition by USCIS. Finally, the Court finds that, because there is absolutely no basis in law or fact for wfie-a request for administrative closure under Avetisyan, respondent's counsel has engaged in frivolous conduct before the Court. A P2ractitioner is subject to disciplinary sanctions if she engages in frivolous behavior while proceeding before an Immigration court when she "knows or reasonably should have known that his or her actions lack an arguable basis in law or in fact, or are taken for an inappropriate purpose, such as . . . to cause unnecessary delay." See 8 C.F. R. Section 1003.1020)(1 ). Respondent's counsel either knows or reasonably should know that her motion lacks any arguable basis in fact or law. It appeaftlhe Court finds that she's merely making this request to have f1e.irespondenfs case administratively closed under Avetisyan as a subterfuge !delay fthe completion of her client's proceedings. The Court finds tllat counsel's conduct should subj ect her to sanctions. In sum, the Cour denies the respondent's motion for a continuance because there is no good cause for granting said continuance. Additionally, as to the request that the Court sua sponte close the case under Matter of Avetisyan, the Court denies that motion to continue as there is no basis in law or in fact aRGunder the reasoning of that case to do so . A205-394-591 4 May 16, 2013 I m m i g r a n t
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w w w . i r a c . n e t ORDERS It is hereby ordered that the respondent's request to administratively close his proceedings is denied. It is further ordered that the respondent's request for a continuance is denied. It is further ordered that the respondent is ordered removed from the United States to Mexico on the charge contained in his Notice to Appear. siature A205-394-591 Please see the next page for electronic BARRY J. PETTINATO Immigration Judge 5 May 16, 2013 I m m i g r a n t
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w w w . i r a c . n e t . . //s// Imigration Judge BARRY J. PETTINATO pettinab on August 14, 2013 at 11:30 AM GMT A205-394-591 6 May 16, 2013 W. . . . I m m i g r a n t