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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Jimenez, lvania A., Esq. OHS/ICE Office of Chief Counsel - MIA
Law Offices of lvania Jimenez, PA 333 South Miami Ave., Suite 200
717 Ponce de Leon Blvd. Miami, FL 33130
Suite 218
Coral Gables, FL 33134

Name: MEJIA, YOVANI ANTONIO A 094-366-877

Date of this notice: 11/29/2017

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

Sincerely,

Donna Carr
Chief Clerk

Enclosure

Panel Members:
Malphrus, Garry D.

Lui:seqe-S
Userteam: Docket

For more unpublished BIA decisions, visit

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Cite as: Yovani Antonio Mejia, A094 366 877 (BIA Nov. 29, 2017)
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,..
U.S. Departme!nt of Justice Decision of the Board of Immigration Appeals
Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A094 366 877 - Miami, FL Date:

NOV 2 9 2017
In re: Yovani Antonio MEJIA ak.a. Y ovani Mejia Ortiz

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IN REMOVAL PROCEEDINGS

APPEAL AND MOTION

ON BEHALF OF RESPONDENT: Ivania A. Jimenez, Esquire

ON BEHALF OF DHS: Riya Resheidat

Assistant Chief Counsel

APPLICATION: Temporary protected status; remand

The respondent, a native and citizen of El Salvador, appeals the Immigration Judge's
March 21, 2017, decision pretermitting his application for temporary protected status. See
section 244(c) of the Immigration and Nationality Act; 8 U.S.C. § 1254a(c); 8 C.F.R. § 1244.2.
Subsequent to his appeal, the respondent filed a motion to remand proceeding to the Immigration
Judge based on new evidence. The Department of Homeland Security (DHS) opposes the
appeal, but did not respond to the motion. The respondent's motion to remand will be granted
and the record will be remanded to the Immigration Judge.

We review the findings of fact, including the determination of credibility, made by the
Immigration Judge under the "clearly erroneous" standard. 8 C.F.R. § 1003.l(d)(3)(i). We
review all other issues, including issues of law, discretion, or judgment, under a de novo
standard. 8 C.F.R. § 1003.1(d)(3)(ii).

The Immigration Judge granted the DHS's motion to pretermit the respondent's application
for temporary protected status because the Immigration Judge found the respondent had been
convicted of three misdemeanors, and was therefore ineligible for relief (IJ at 4-5; Exh. 3 at 177;
Exh. 4 at 186, 190-91). See section 244(c)(2)(B)(i) of the Act; 8 C.F.R. § 1244.4(a). The
respondent argues on appeal that the Immigration Judge erred in denying his request for a
continuance (U at 7-9). He also moves the Board to remand his case to the Immigration Judge in
light of new evidence that he was granted post-conviction relief for his 2015 and 2016
convictions (Respondent's Motion, Tabs 7, 11). He further submits evidence that the Florida
state courts issued orders certifying that the respondent would face no incarceration for the
charged offenses, and subsequently entered new orders of conviction (Respondent's Motion,
Tabs. 8-9, 12-13). See Fla. R. Crim. P. Rule 3.111.

As the evidence submitted by the respondent is relevant to his eligibility for temporary
protected status and does not appear to have been previously available, we will remand the
record to the Immigration Judge for consideration of this evidence. See 8 C.F.R § 1003.2(c);
see also Matter of Coelho, 20 I&N Dec. 464, 473 (BIA 1992). Accordingly, the following
orders will be entered.

Cite as: Yovani Antonio Mejia, A094 366 877 (BIA Nov. 29, 2017)
A094 366 877

ORDER: The respondent's motion to remand is granted.

FURTHER ORDER: The record is remanded to the Immigration Judge for further
proceedings consistent with this order and for the issuance of a new decision.

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FOR 1HE BOARD

Cite as: Yovani Antonio Mejia, A094 366 877 (BIA Nov. 29, 2017)
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UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
MIAMI, FLORIDA

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File: A094-366-877 March 21, 2017

In the Matter of

)
YOVANI ANTONIO MEJIA ) IN REMOVAL PROCEEDINGS
)
RESPONDENT )

CHARGES: 212(a)(6)(A)(i) of the Immigration and Nationality Act, as amended,

as an alien present in the United States who has not been admitted
or paroled after inspection by an Immigration officer.

APPLICATIONS: De novo review of TPS.

ON BEHALF OF RESPONDENT: IVANIA A. JIMENEZ, Esquire

ON BEHALF OF OHS: RIVA RESHEIDAT, Esquire

Assistant Chief Counsel
Immigration and Customs Enforcement

ORAL DECISION OF THE IMMIGRATION COURT

The respondent in these proceedings is a male, native and citizen of El Salvador.

The Department of Homeland Security initiated removal proceedings alleging that he

should be deported from the United States after his 1-821 application for Temporary

Protected Status was denied on July 25, 2002. The Notice to Appear with the

allegations and the single charge of removal under Section 212(a)(6)(A)(i) is in the

record of proceedings as Exhibit No. 1. The respondent did admit proper service of the

1
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Notice to Appear, admitted the allegations contained therein, and conceded the charge

of removal. The Court finds that the issue of the respondent's removability has been

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established by evidence that is clear and convincing. El Salvador has been designated

as the country in the event that removal became necessary.

The Court then turned its attention to the respondent's relief from removal. At a

prior Master Calendar hearing many years ago, the Court did agree to administratively

close the respondent's removal proceedings. The Court, at that time, was advised, and

this is based on this Court's review of the record, this Judge was not the Judge at the

prior hearings in this matter back in 2006 and 2007; but it appears to this Court who has

reviewed the entire record of proceedings, the recordings as well as the documentary

evidence, that the Court agreed to have proceedings administratively closed so that the

respondent could go back to the Department of Homeland Security to revisit their denial

of his TPS application. It appears that TPS was denied by USCIS on April 7, 2006,

because it appears that at that time that the respondent had requested from USCIS was

a re-registration. USCIS denied the re-registration in finding that the respondent had

never been previously granted Temporary Protected Status. The Court notes that the

respondent did previously file for TPS back in 2001 when El Salvador was first

designated, but his application then was denied due to the lack of an identity and

national documents. So it was that reason that the 2001 application was denied. The

respondent apparently for some time attempted to have that case re-opened in order to

submit the documentary evidence that USCIS found lacking. Proceedings were

administratively closed so the respondent could do that, but it appears that after many

attempts to have those proceedings re-opened, the respondent, throug� now different

and current counsel, asked the Court just to re-calendar proceedings in order to have

the Court adjudicate it, which was probably something that should have been done back

A094-366-877 2 March 21, 2017

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in 2007 instead of administratively closing the proceedings. At that point,_ the Court did·

have jurisdiction already to conduct the de novo review of the respondent's TPS

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application. However, that was not done and here we are today and the respondent is

under a different situation at this time.

In the record, marked as Exhibit No. 2, is the respondent's Notice of Filing from

September 7, 2007. That Notice of Filing was received by the Court when the

respondent was first placed in removal proceedings. It does contain a number of

documents in support of a TPS application, to include physical presence documents

and again the 2006 USCIS decision. Proceedings were then administratively closed by

the Court on September 17, 2007. The Court received a motion to re-calendar on

March 3, 2014, so almost seven years later, because the respondent had been unable

to have his proceedings re-adjudicated by USCIS. The matter then came before this

Immigration Judge. The respondent submitted an additional Notice of Filing of

documents, which the Court has marked and admitted into the record as Exhibit No. 3.

This submission was received on July 6, 2015, in preparation for the respondent's de

novo TPS individual hearing before the Court. That hearing had been scheduled for

July 21, 2015; however, on that date, when the parties appeared for the individual

hearing, the Court was advised that the respondent needed some additional time

because it had come to light that he had been arrested in 2015 for driving without a

license. The respondent's counsel needed some time in order to obtain that disposition.

It was noted at that time that if the respondent was convicted and if it was a

misdemeanor, that he would not be eligible for TPS because he had already sustained

a 2003 driving misdemeanor. The Court reset the matter in order to give the

respondent's counsel an opportunity to obtain the disposition of that 2015 driving arrest.

The respondent is appearing today for an individual hearing on his TPS

A094-366-877 3 March 21, 2017

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application; however, the Department of Homeland Security has asked the Court to

pretermit the respondent's TPS application because the respondent now has three,

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apparently, misdemeanor infractions or convictions, which apparently render him not

eligible for Temporary Protected Status. One who has one felony or two misdemeanor

convictions is not statutorily eligible for Temporary Protected Status. At this point, it

appears that the respondent is not eligible for the following reason. He not only has that

2003 driving while license suspended conviction, and that is contained in Exhibit No. 3,

tab F, but the respondent now also has, from 2015, which apparently was the one that

we had reset the case for in order to get the disposition, a driving with expired license

for more than six months conviction, which he apparently obtained March 17, 2015. So

those two alone would have knocked the respondent out of TPS eligibility. But there is

more, because the respondent actually has a third driving conviction, driving without a

valid driver's license .. which he was convicted for on March 16, 2016.

The Court does have records in the Record of Proceedings which do indicate

that the respondent was convicted as the Court is now discussing. There is a Notice of

Filing from March 6, 2017, from the respondent's counsel, which the Court has marked

and admitted into the record as Exhibit No. 4, which does contain the two additional

misdemeanor convictions from 2015 and 2016.

The respondent, through counsel, has today submitted to the Court additional

information by way of a memorandum from USCIS dated January 21, 2011, which

discusses Temporary Protected Status adjudications involving no jail or no incarceration

certifications, and the respondent, through counsel, asked the Court for additional time

in order to obtain one of these no-jail or no-incarceration certifications. The Court did

discuss with the parties what exactly these certifications meant. The Court looked into

Florida Rule of Criminal Procedure, Rule 3.994, which apparently means that a

A094-366-877 4 March 21, 2017

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no-incarceration or no-jail certifications are issued pursuant to that rule. But it appears

that this is not even really relevant to the respondent's case right now because he does

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not have one of these no-jail or no-incarceration certifications. Apparently, these are

offered to individuals when it is a small infraction or it is not anything serious. The Court

certainly would not consider a driving without a valid license, a driving with an expired

license, or driving while license is suspended to be a minor offense. But, in any case,

this respondent is coming forward today without such type of certification of the no-jail

or no-incarceration. So the Court does not find that this memo from USCIS is

applicable to him and it would be speculative in order to continue these proceedings to

see if this respondent could maybe try to obtain one of these certifications. The Court

finds that good cause does not exist for a continuance in order to give the respondent

time to see if he can obtain these certifications. The Court notes that this individual has

three misdemeanor convictions, so even if he was able to get rid of one of them, he

would still have two, which would continue to bar him from TPS. So, unfortunately for

the respondent, he is not statutorily eligible for Temporary Protected Status. The Court

does grant the Department of Homeland Security's motion to pretermit the respondent's

TPS application.

There is no other relief from removal pending before the Court. Accordingly, in

light of the foregoing and after considering all of the evidence presented, whether or not

specifically referenced in this decision, the Court will hereby enter the following order:

ORDER

IT IS HEREBY ORDERED that the respondent's application for Temporary

Protected Status is pretermitted due to statutory ineligibility as the respondent has three

misdemeanor convictions.

A094-366-877 5 March 21, 2017

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The respondent shall be removed from the United States to El Salvador pursuant

to the charge contained in the Notice to Appear.

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Please see the next page for electronic

signature
MARIA LOPEZ-ENRIQUEZ
Immigration Judge

A094-366-877 6 March 21, 2017

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!Is//

Inunigration Judge MARIA LOPEZ-ENRIQUEZ

lopezenm on June 29, 2017 at 6:34 PM GMT

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A094-366-877 7 March 21, 2017