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U.S.

Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
Office of the Clerk
5/07 Leesburg Pike, Suite 2000
Falls Church, Virginia 2204/

DHS/ICE Office of Chief Counsel - SAJ


7 Tabonuco St., Suite 300 (Rm 313)
Guaynabo, PR 00968

Name:R_E_
Date of this notice: 12/21/2016

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

DorvtL Ct:uVu
Donna Carr
Chief Clerk
Enclosure
Panel Members:
Kendall-Clark, Molly

Userteam: Docket

For more unpublished BIA decisions, visit


www.irac.net/unpublished/index/
Cite as: E-R-, AXXX XXX 571 (BIA Dec. 21, 2016)

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

GONZALEZ-RUCCI, ROSAURA
ROSAURA GONZALEZ-RUCCI
P. 0. BOX 6363
LOIZA STREET STATION
SAN JUAN, PR 00914

U.S. Department of Justice

Decision of the Board of Immigration Appeals

Executive Oce for Immigration Review


Falls Church, Virginia 22041

File: 571-St. Thomas, VI

Date:

DEC 2 1 2016

In re:E-

MOTION
ON BEHALF OF RESPONDENT:

Rosaura Gonzalez Rucci, Esquire

ON BEHALF OF DHS: Magdalena Ramos


Assistant Chief Counsel
APPLICATION: Reopening; stay of removal
This case was last before the Board on August 29, 2012, when we affirmed the Immigration
Judge's decision denying the respondent's request for a continuance, and reinstated a 60-day
period of voluntary departure. On October 24, 2016, the respondent, a 13-year-old native and
citizen of Antigua, filed a motion to reopen these proceedings. The Department of Homeland
Security opposes the motion, which will be granted.
The respondent seeks to reopen these removal proceedings to pursue an application for
adjustment of status based on an approved visa petition filed on her behalf by her United States
citizen mother (Motion to Reopen at 2). Considering the totality of the circumstances presented,
particularly the respondent's young age, the motion to reopen is granted pursuant to our sua
sponte authority under 8 C.F.R. I003.2(a). The proceedings are reopened, and the record is
remanded to the Immigration Judge for further proceedings, in which the respondent will have
the opportunity to demonstrate her eligibility for adjustment of status under section 245(a) of the
Immigration and Nationality Act, 8 U.S.C. 1255(a), as well as any other relief that she may
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presently be seeking. Given our present disposition of this matter, the respondent's request for a
stay of removal is now moot.
Accordingly, the following orders will be entered.
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The respondent, who was a rider in her father's proceedings, was 9 years old when we
reinstated a 60 days voluntary departure in August 2012. We find that the bar in section
240B(d)(l)(B) of the Act, 8 U.S.C. 1229c(d)(l)(B), does not apply to the respondent. Her
failure to depart the United States during the voluntary departure period was not "voluntary" as,
due to her young age, she did not understand the consequences of not leaving under the
voluntary departure order, and was likely unable to depart on her own. See generally Matter of
Zmijewska, 24 l&N Dec. 87 (BIA 2007) (finding that an alien has not voluntarily failed to depart
the United States under section 240B(d)(l) of the Act when the alien, through no fault of his or
her own, was unaware of the voluntary departure order or was physically unable to depart within
the time granted).
Cite as: E-R-, AXXX XXX 571 (BIA Dec. 21, 2016)

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

IN REMOVAL PROCEEDINGS

571
ORDER: The respondent's motion to reopen is granted and the record is remanded to the
Immigration Court for further proceedings consistent with this decision.
FURTHER ORDER: The respondent's motion for a stay of removal is denied as moot.

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

2
Cite as: E-R-, AXXX XXX 571 (BIA Dec. 21, 2016)

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