U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office ofthe Clerk

5107 Leesburg Pike, Suite 2000

Falls Church. Virginia 22041

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Seyfried, Brian DHS/ICE Office of Chief Counsel - CHI
Wang, Leonard & Condon 525 West Van Buren Street
33 N. LaSalle St., Suite 2020 Chicago, IL 60607
Chicago, IL 60602

Name: MEDRANO-HERRERA, SATURNI... A 206-786-746

Date of this notice: 2/16/2017

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

Sincerely,

Donna Carr
Chief Clerk

Enclosure
Panel Members:
Adkins-Blanch, Charles K.
Pauley, Roger
Grant, Edward R.

Usertea m: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/

Cite as: Saturnino Medrano-Herrera, A206 786 746 (BIA Feb. 16, 2017)
./9 ZWk.+.410_1......A..i, .Qt.
., U.S. Department of Justice
ExeG:utive Oft.flee for Immigration Review
Decision of the Board of Immigration Appeals

Falls Church, Virginia 22041

File: A206 786 746- Chicago, IL Date:

FEB 1 6 2017
In re: SATURNINO MEDRANO-HERRERA a.k.a. Saturnine Medrano

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IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Brian A. Seyfried, Esquire

ON BEHALF OF OHS: Ellen J. Krupp

Assistant Chief Counsel

APPLICATION: Continuance

The respondent, a native and citizen of Mexico, appeals from the Immigration Judge's
July 27, 2016, decision denying his request for a continuance, for the purpose of awaiting of the
adjudication the respondent's U visa application pending before United. States Citizenship and
Immigration Services ("USCIS"). The record will be remanded.

The Board defers to the factual findings of an Immigration Judge, unless they are clearly
erroneous, but it retains independent judgment and discretion, subject to applicable governing
standards, regarding questions of law and the application of a particular standard of law to those
facts. 8 C.F.R. 1003.l(d)(3)(i), (ii).

In Matter of Sanchez Sosa, 25 l&N Dec. 807 (BIA 2012), we stated that continuances to
await the adjudication of a pending U visa application may be granted based on the consideration
of several factors. Those factors include: (1) the Department of Homeland Security's position
with respect to the request, (2) whether the underlying visa petition is prima facie approvable,
and (3) the reason for the continuance request, along with any other relevant procedural factors.
Id at 812-13. In the instant case, the Immigration Judge denied the respondent's request for a
continuance primarily because there was a four to five-year backlog of U visa applications before
the USCIS (I.J. at 3). However, the Immigration Judge did not consider the likelihood of the
respondent's U visa being granted by (1) first inquiring whether the respondent has demonstrated
that he suffered substantial physical or mental abuse as the victim of a qualifying crime, and if
so, (2) next exploring whether the respondent has been, is being, or will be helpful to the
authorities. Id. at 813-14. In light of the foregoing, the record will be remanded for the
Immigration Judge to further evaluate the respondent's continuance request and to specifically
apply the factors set forth in Matter ofSanchez Sosa, supra.

Cite as: Saturnino Medrano-Herrera, A206 786 746 (BIA Feb. 16, 2017)
...

A206 786 746

Accordingly, the following order will be entered.

ORDER: The record is remanded for further proceedings consistent with the foregoing
opinion.

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2
Cite as: Saturnino Medrano-Herrera, A206 786 746 (BIA Feb. 16, 2017)
 UNITED SlATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
CHICAGO, ILLINOIS

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File: A206-786-746 July 27, 2016

In the Matter of

)
SATURNINO MEDRANO-HERRERA ) IN REMOVAL PROCEEDINGS
)
RESPONDENT )

CHARGES: Section 212a(6)(A)(i) - physically present without inspection or

admission.

APPLICATIONS: Continuance of proceedings to await adjudication of a U-visa by

USCIS.

ON BEHALF OF RESPONDENT: BRIAN SEYFRIED

33 North South Street
Suite 2020
Chicago, Illinois 60602

ON BEHALF OF OHS: ELLEN KRUPP, Assistant Chief Counsel

525 West Van Buren Street
Suite 701
Chicago, Illinois 60607

ORAL DECISION OF THE IMMIGRATION JUDGE

The respondent is a 34-year old male alien. native and cltizen of Mexico.
The respondent allegedly entered the United States without inspection in 2001. The
respondent's criminal record brought him to the attention of the Departmf,t of
Homeland Security. He was convicted of aggravated driving under the influence of
alcohol and without a license, 2015. The respondent served approximately 17 days in
custody. On July 14, 2015, he was placed under removal proceedings. Before his case

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could be completed, he posted a bond for his release. He returned to court on

September 30, 2015 with counsel. His attorney conceded that the respondent was

subject to removal, but did not want to designate Mexico as the country for removal.
Respondent's case was continued to see whether or not he wished to file for asylum
and/or withholding of removal. Respondent's attorney also indicated that respondent
might be seeking U-visa.

At the final hearing held on July 27, 2016, the respondent declined to file
for asylum and withholding of removal, therefore, the Court deemed that relief
abandoned. The respondent, however, did file a U-visa petition with the Department of
Homeland Security. The respondent's attorney argued that the filing of te form 1-918

on July 1, 2006 establishes the respondent's eligibility for the U-visa and the right to

remain in the United States.

The Government Attorney opposed administratively closing the
respondent's case pending the outcome of the U petition. The Governmnt Attorney

pointed out that the respondent was arrested and placed under proceedings for driving
without a license and DUI.
Therefore, this Court is forced to decide whether or not the respondent
has shown a reasonable cause to continue his case due to the fact that he filed for a U

visa.
The fact that the respondent may be eligible for a U-visa in the future does
not eviscerate the underlying grounds of removability in removal proceedngs. The
respondent remains removable unless and until he receives an approved' U-visa, which

A206-786-746 2 July 27, 2016

 ,

remains solely within the USCIS jurisdiction. See Section 245(m)(1) (the Act). See also

8 C.F.R. Section 214.14(c). Thus, although this Court has no jurisdiction over the
,
respondent's U-visa, the respondent seeks to continue his removal proceeding

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indefinitely until a decision is made on his U-visa application. Currently there is a four to

five year backlog in adjudications due to the lack of number availability. The record in

this case reflects that the respondent is living with a girlfriend, has two Mexican-citizen

children, and has been convicted of a driving under the influence of alcohol offense as

recently as 2015.

I find under the circumstances of this case that an indefinite continuance

to await adjudication of the U-visa is not reasonable and that a departure order should

be entered in the respondent's case. Respondent simply is not eligible for a U-visa at

this time. Respondent can seek a stay of removal from the Department cf Homeland

Security and can seek to reopen his case in the future should he be granted U status.

Accordingly, this Court will not grant an indefinite continuance in the respandent's case

in light of the negative factors present in his case. Therefore request for ;ontinuance

will be denied.

This Court will nevertheless grant the respondent voluntary departure in

lieu of removal and enter the following order:

ORDER:

IT IS ORDERED that the respondent be granted voluntary departure if he

departs on or before September 26, 2016.

IT IS FURTHER ORDERED that the respondent post the voluntary

departure bond with the Department of Homeland Security within five da:'.s of this

decision to qualify for voluntary departure.

IT IS FURTHER ORDERED that if the respondent fails to post the

A206786-746 3 July 27, 2016

ZW_c w1.@c %M44.M ;;

voluntary departure bond or fails to depart the United States when and a required, the
privilege of voluntary departure shall be withdrawn without further notice :,r proceeding
and the following order shall there upon become immediately effective: respondent

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shall be deported and removed from the United States to Mexico on the charge
contained in the Notice to Appear.

Please see the next page for electronic

signature
ROBERT D. VINIKOOR
Immigration Judge

A206-786-746 4 July 27, 2016

/Isl/
Immigration Judge ROBERT D. VINIKOOR
vinikoor on October 13, 2016 at 8:00 PM GMT

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A206-786-746 5 July 27, 2016