U.S.

Department of Justice
Executive Office for Immigration Review
Board({ Immigration Appeals
Q[fice of the Clerk
5107 Leesburg Pike. Suite 2000
Falls Church. Virginia 20530

Name: S_P_J_
Date of this notice: 6/17/2015

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

DonrtL cwvu
Donna Carr
Chief Clerk
Enclosure
Panel Members:
Holmes, David B.

Userteam: Docket

For more unpublished BIA decisions, visit

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Cite as: J-S-P-, AXXX XXX 178 (BIA June 17, 2015)

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DHS/ICE Office of Chief Counsel - ATL

180 Spring Street, Suite 332
Atlanta, GA 30303

Salmon, Rebeca E., Esq.

Access To Law Foundation
PO Box 1614
Norcross, GA 30091

 U.S. Department of Justice

Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 20530

File: 178 - Atlanta, GA

In re:

Date:

JUN 172015

Jmlllll

APPEAL
ON BEHALF OF RESPONDENT: Rebeca E. Salmon, Esquire
Morris I. Onyewuchi
Assisant Chief Counsel

ON BEHALF OF DHS:
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: Continuance
The respondent, a native and citizen of Guatemala, appeals from the Immigration Judge's
decision dated February 5, 2015, denying her request for a continuance and ordering her
removed from the United States to Guatemala. The Department of Homeland Security (DHS)
opposes the appeal. The record will be remanded.
At a hearing on January 8, 2015, the 13-year-old respondent appeared for the first time with
counsel, who requested a continuance, having only been retained that morning (Tr. at 8). The
Immigration Judge instructed the respondent that, if she intended to apply for Special Immigrant
Juvenile (SIJ) status, she would need to provide a copy of the requisite petition filed with the
state court at her next hearing (Tr. at 8-9). 1 On February 5, 2015, counsel for the respondent
informed the Immigration Judge that the respondent had recently retained pro bono counsel in
Alabama to file a dependency petition in that state (Tr. at 13). She requested a continuance of
I week to file the petition, which the DHS opposed (Tr. at 15). The Immigration Judge declined
to further continue proceedings and ordered the respondent removed to Guatemala (I.J. at 2-3;
Tr. at 13-14).2
I

A necessary precondition to SIJ status is the declaration of a juvenile court that the respondent
is deserving of protection because reunification with her parents was not viable due to abuse,
neglect, or abandonment. See section 10l(a)(27)(J) of the Immigration and Nationality Act,
8 U.S.C. l 101(a)(27)(J).
2

The Immigration Judge noted, in part, his belief that a further continuance would not be
"productive" because the respondent's attorney's law firm had taken the position in other venues
that disclosure of the state court petition would be in violation of Alabama law and would
therefore decline to produce the state court petition at any future date (Tr. at 16).
Cite as: J-S-P-, AXXX XXX 178 (BIA June 17, 2015)

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IN REMOVAL PROCEEDINGS

178

The respondent has submitted evidence on appeal showing that, subsequent to the
Immigration Judge's decision, the dependency petition in fact was granted in state court on
April 2, 2015. The respondent states that she intends to file a Petition for Amerasian,
Widow(er), or Special Immigrant (Form 1-360) and an Application to Register Permanent
Residence or Adjust Status (Form 1-485) with United States Citizenship and Immigration
Services (USCIS) as soon as she receives the original, certified state court petition. The
respondent requests that the case be remanded based on this proffered evidence.
Considering the new evidence that the respondent's dependency petition was granted, we
will remand these proceedings to allow the respondent to request a continuance or administrative
closure while she pursues SIJ status with USCIS. See Matter ofSanchez Sosa, 25 l&N Dec. 807,
815 (BIA 2012) ("As a general rule, there is a rebuttable presumption that an alien who has filed
a prima facie approvable application with the USCIS will warrant a favorable exercise of
discretion for a continuance for a reasonable period of time.") (internal citation omitted);
Matter ofAvetisyan, 25 l&N Dec. 688 (BIA 2012) (discussing the standards for administratively
closing proceedings); Matter of Hashmi, 24 I&N Dec. 785 (BIA 2009) (setting forth a
framework to analyze whether good cause exists to continue proceedings to await adjudication
by USCIS of a pending family-based visa petition).
Because the record will be remanded for further proceedings based on this new evidence, the
issues raised by the respondent on appeal in this case are moot. However, in view of the
recurring nature of the issues raised in this case as evident from the Immigration Judge's
decision and the arguments presented, we note that a 1-week continuance would have been
warranted to allow recently retained counsel to file a state court petition in the respondent's case.
Further, absent compelling reasons, an Im.migration Judge should, as a general practice, continue
or administratively close proceedings to await adjudication of a pending state proceeding that
could serve as a predicate order for SIJ status.3
Accordingly, the following order will be entered.
3

We separately note that guidance provided to Immigration Judges by the Chief Immigration
Judge states that if an unaccompanied child is seeking SIJ status, "the case must be
administratively closed or reset for that process to occur in state or juvenile court."
Memorandum from Brian M. O'Leary, Chief Immigration Judge, to Immigration Judges
(Mar. 24, 2015) (Docketing Practices Relating to Unaccompanied Children Cases and Adults
with Children Released on Alternatives to Detention Cases in Light of the New Priorities).

2
Cite as: J-S-P-, AXXX XXX 178 (BIA June 17, 2015)

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On appeal, the respondent argues that the Immigration Judge (1) erred in requiring her to
produce her juvenile state dependency petition because doing so would violate the Alabama
Juvenile Code and the Georgia Rules of Professional Conduct, and the petition is unnecessary to
establish her prima facie eligibility for SIJ status; (2) violated her due process rights to a fair
opportunity to apply for available relief and to equal protection under the law, and (3) abused his
discretion by refusing to grant the respondent a continuance to allow her to file for SIJ status.

-178

ORDER: The record is remanded to the Immigration Judge for further proceedings
consistent with the foregoing opinion and for the entry of a new decision.

3
Cite as: J-S-P-, AXXX XXX 178 (BIA June 17, 2015)

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FOR THE BOARD

'

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT

In the Matter of

.... S__ P_.

RESPONDENT

)
)
)
)

IN REMOVAL PROCEEDINGS

CHARGES:

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

APPLICATIONS:

A continuance.

ON BEHALF OF RESPONDENT: LUISA CARDONA

P.O. Box 1614
Norcross, Georgia 30091
ON BEHALF OF OHS: MORRIS ONYEWUCHI

ORAL DECISION OF THE IMMIGRATION JUDGE

This case came before the Court as a result of a Notice to Appear that
was issued by the Department of Homeland Security. The charging document alleges
that the respondent is a native and citizen of Guatemala and that the respondent is
removable from the United States pursuant to Section 212 of the Immigration and
Nationality Act. The respondent has admitted the factual allegations in the Notice to
Appear and conceded removability. The Court sustains the charge of removal and
designates Guatemala.

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February 5, 2015

File: 178

Respondent was last before the Court and indicated her desire to seek
relief in the form of a juvenile delinquency petition. The respondent was advised last

evidence that the petition was filed and to submit a copy of that filed petition with the
Court. The respondent has not submitted that petition and has indicated that she wants
another continuance in order to make arrangements, or complete arrangements, with an
attorney that was identified in Alabama to file the juvenile petition.
This case with this particular attorney has some history. The Court asked
the respondent's attorney if she would want an additional week continuance with the
agreement that the petition would be filed at that time. The respondent's attorney is not
able provide that assurance. By way of background, the respondent's attorney has not
filed a petition in any of the cases that she has sought continuances in this case. The
Court is well aware that one of the principles in the respondent's attorney's firm has
brought this issue up at a stakeholder's meeting and has raised this issue on a
continued basis whether a copy of the delinquency petition should be filed. Despite
being advised on numerous occasions, and virtually every inquiry, whether it is
constituency meeting with the ACIJ or with respect to a particular case before the Court,
the fact is the respondent has been made aware that the Court requires a copy of the
delinquency petition in order to determine the bona fides of any application that may be
filed in this case. The respondent's attorney continually and steadfastly refuses to
provide those documents. Further continuance in this case would not be fruitful, given
the history of this case. Also, the respondent was advised specifically to provide the
documents in Court. She was granted approximately one month in order to obtain the
required documents and come back to Court. Those documents have not been filed
and the petition has not been submitted to the Court.
178

February 5, 2015

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hearing that if an additional continuance was to be requested she would need to have

-'

In light of the foregoing ! the Court will not grant a further continuance in
this case. The Court will sustain the charge of removal and issue the following order.

IT IS HEREBY ORDERED the respondent be removed from the United

States based on the charge set forth in the Notice to Appear and that she be deported
to Guatemala.

Please see the next page for electronic

signature

178

EARLE 8 WILSON
Immigration Judge

February 5, 2015

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ORDER

\ t .

..
/Isl/
Immigration Judge EARLE B WILSON

78

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wilsone on March 25, 2015 at 11:39 AM GMT

February 5, 2015