U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals
Office ofthe Clerk
5107 Leesburg P;ke, Suite 2000
Falls Church, Virg;11ia 2204/

OHS/ICE Office of Chief Counsel - LOU

80 Monroe Ave., Suite 502
Memphis, TN 38103

Name: SOLORZANO MARTINEZ, KENIA...

A 200-192-464

Date of this notice: 10/19/2016

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

bOYVtL C

l1./v\)

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Pauley, Roger

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/
Cite as: Kenia Maleyvi Solorzano Martinez, A200 192 464 (BIA Oct. 19, 2016)

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

Funke, David
Kortz & Funke
455 S. Fourth Street
Starks Bldg., Suite 1221
Louisville, KY 40202

 U.S. Department of Justice

Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 22041

File: A200 192 464 - Memphis, TN

Date:

In re: KENIA MALEYVI SOLORZANO MARTINEZ

OCT 1 9 2016

APPEAL
ON BEHALF OF RESPONDENT: David Funke, 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: Motion to remand

The respondent appeals the Immigration Judge's September 21, 2015, decision denying her
motion for a continuance. During the pendency of the appeal, the respondent filed a motion to
remand and the Department of Homeland Security has not filed an opposition to the motion. See
8 C.F.R. I003.2(g)(3) (2016). The motion will be granted, and the record will be remanded to
the Immigration Judge for further proceedings consistent with this opinion and for entry of a new
decision.
Along with her motion, the respondent has submitted evidence regarding her eligibility for a
U non-immigrant visa ("U-visa"). See section lOl(a)(lS)(U)(i) of the Immigration and
Nationality Act, 8 U.S.C. llOl(a)(lS)(U)(i). The documents submitted with the motion
include a signed law enforcement certification (Form 1-918, Supplement B, U Nonimmigrant
Status Certification), as well as evidence that the respondent has filed a U-visa petition with the
United States Citizenship and Immigration Services ("USCIS"). In light of the evidence, we find
it appropriate to remand to the Immigration Judge. See Matter of Sanchez Sosa, 25 I&N Dec.
807 (BIA 2012) (providing that an alien who has filed a prima facie approvable petition for a U
visa with the USCIS will ordinarily warrant a favorable exercise of discretion for a continuance
for a reasonable period of time); see also 8 C.F.R. 214.14(c)(l)(i).
Accordingly, the following order will be entered:
ORDER: The motion to remand is granted, and the record is remanded to the Immigration
Judge for further proceedings consistent with this opinion.

Cite as: Kenia Maleyvi Solorzano Martinez, A200 192 464 (BIA Oct. 19, 2016)

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

IN REMOVAL PROCEEDINGS

\,

September 21, 2015

File: A200-192-464
In the Matter of

KENIA MALEYVI SOLORZANO MARTINEZ

IN REMOVAL PROCEEDINGS

RESPONDENT
CHARGES:

Section 212(a)(6)(A)(i) of the Immigration and Nationality Act as

amended in that you are an alien present in the United States
without being admitted or paroled or who arrived in the United
States at any time or place other than as designated by the
Attorney General.

APPLICATIONS:

None

ON BEHALF OF RESPONDENT: DAVID FUNKE, Esquire

ON BEHALF OF OHS: JONATHAN LARCOMB

ORAL DECISION OF THE IMMIGRATION JUDGE

PROCEDURAL HISTORY
This removal proceeding was initiated by a Notice to Appear dated
November 17, 2011 filed with the EOIR on or about February 16, 2012. On April 14,
2014, Judge Holt found the respondent removable as charged based upon the
allegations being admitted and the charge of removability conceded. Exhibit 2 in the
record of proceeding is the respondent's request for DACA which was made before

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

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
MEMPHIS, TENNESSEE

USCIS, that is another agency of Department of Homeland Security. I marked that as

Exhibit 2. And Exhibit 3 is counsel's filing the denial of that application for DACA on or

REMOVABILITY
Respondent has admitted the allegations contained in the Notice to
Appear and conceded removability. Based upon the respondent's admissions and
concessions Judge Holt finds and I also find that the respondent is removable by
evidence which is clear and convincing.
RELIEF
Respondent is seeking a continuance with this Court for the purpose of
filing a second application for DACA, even though the first application was denied.
Counsel has stated that there may be some new guidelines upon which he could get a
different decision than what was rendered in November of 2014. As far as relief with
the Court, counsel for respondent is seeking no relief whatsoever includingJ. voluntary
departure. Possible avenues of relief with the Court include asylum, cancellation,
voluntary departure, but counsel is not applying for any of those. A DACA application is
not filed with the Court; it is filed with USCIS, a separate branch of the Department of
Homeland Security.
In determining whether or not good cause exists to continue an
Immigration proceeding, a variety of factors should be considered. See Matter of
Hashmi, 24 l&N Dec. 785 (BIA 2009). The factors which must<* be considered by this
Court in deciding whether or not to grant a continuance are the following: 1) the
Department of Homeland Security's response to the motion to continue; 2) whether the
underlying visa petition is prima facie approvable, again, these are the factors from
Hashmi, not exactly similar to this case, 3) respondent's eligibility for relief; 4) whether
A200-192-464

September 21, 2015

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

about November 6, 2014.

the respondent's application bears a favorable exercise of discretion; and 5) the reason
for the continuance.

motion in this case. The case has been continuing in this court for a period of two-and
a-half years, and there is not relief sought before the Court. There is absolutely no
reason to continue this case any further. The second factor in Hashmi was whether or
not an underlying visa petition was approved. There is no petition in this case. Three,
the respondent is not eligible for any time of relief in removal proceedings. Four,
respondent, although she has been convicted of a DUI in 2011, probably does merit a
favorable exercise of discretion in the event she was seeking some type of relief from
the Court; however, she is not. And, five the reason for the continuance, the reason for
the request to continuaooe is a second application for DACA, keeping in mind the first
application has already been denied. But in discussions with counsel and the
Government, that DACA application really does not affect this removal proceedings.
Inasmuch as the respondent is not applying for any type of relief before
this Court, I will not continue the case further. And as there is no relief requested from
this Court, not even voluntary departure, the only choice that this Court has is to enter
an order of removal to Mexico against the respondent.

ORDERS
The following orders are hereby entered:
IT IS HEREBY ORDERED that respondent's motion for a continuance be
and is hereby denied.

A200-192-464

September 21, 2015

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

In this case, the Department of Homeland Security correctly opposes the

IT IS FURTHER ORDERED that the respondent be removed to Mexico

based upon the charge contained in the Notice to Appear.

signature

A200-192-464

RICHARD J. AVERWATER
Immigration Judge

September 21, 2015

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

Please see the next page for electronic

.,

.
/Isl/
Immigration Judge RICHARD J. AVERWATER

A200-192-464

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

averwatr on November 19, 2015 at 1:59 PM GMT

September 21, 2015