U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Qffice ofthe Clerk
5/07 leesburg Pike, Suile 2000
Falls Church, Virginia 2204/

DHS/ICE Office of Chief Counsel - NYC

26 Federal Plaza, 11th Floor
New York, NY 10278

Name: MUNOZ CASTELLON, LUIS EDU...

A 094-230-428
Date of this notice: 9/24/2015

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

o ca.AA)
Sincerely,

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Grant, Edward R.

Userteam: Docket

For more unpublished BIA decisions, visit

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Cite as: Luis Eduardo Munoz-Castellon, A094 230 428 (BIA Sept. 24, 2015)

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Vargas, Mario Sergio

Salmen Navarro & Lavergne, P.C.
501 5th Avenue - Ste 903
New York, NY 10017

U.S. Department of Justice

Decision of the Board of Immigration Appeals

Executive Office for Immigration Review

Falis Church, Virginia 20530

Date:

File: A094 230 428 - New York, NY

SEP 2 4 20J5

IN REMOVAL PROCEEDINGS
APPEAL
ON BEHALF OF RESPONDENT: Mario Sergio Vargas, 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: Reopening
The respondent, a native and citizen of Guatemala, appeals from the Immigration Judge's
January 28, 2014, decision denying his motion to reopen proceedings. The respondent also
moves to remand based on new evidence. The Department of Homeland Security (OHS) has not
filed an appeal brief or a response to the motion to remand. The motion will be granted, and the
record will be remanded for further proceedings.
On September 6, 2012, the Immigration Judge sustained the charge under section
212(a)(6)(A)(i) of the Immigration and Nationality Act and ordered the respondent removed
from the United States. On August 29, 2013, the respondent filed a motion to reopen
proceedings. The Immigration Judge denied the motion to reopen as untimely on January 28,
2014. The Immigration Judge also declined, in part, to exercise his sua sponte authority to
reopen proceedings under 8 C.F.R. 1003.23(b)(l) because the respondent did not have any
available relief. The respondent presents evidence on appeal that the visa petition that was filed
on his behalf by his wife was approved by the United States Citizenship and Immigration
Services on March 20, 2014, after the Immigration Judge's decision in this case.
While we make no determination as to the merits, we find that a remand for further
consideration of the respondent's request for sua sponte reopening is appropriate, given the
particular circumstances of this case and the lack of opposition by the OHS. Accordingly, the
motion will be granted, and the record will be remanded for further proceedings.
ORDER: The motion to remand is granted.
FURTHER ORDER: The record is ' anded to the Immigration Court for further
proceedings consistent with the foregoing opinion.

Cite as: Luis Eduardo Munoz-Castellon, A094 230 428 (BIA Sept. 24, 2015)

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In re: LUIS EDUARDO MUNOZ-CASTELLON a.k.a. Luis Eduardo Munoz

a.k.a. Luis Eduardo Castellon a.k.a. Luis Munoz a.k.a. Luis E. Munoz

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
26 FEDERAL PLZ 12TH L.,RM1237
NEW YORK, NY 10278

IN THE MATTER OF
MUNOZ CASTELLON, LUIS EDUARDO

FILE A 094-230-428

DATE: Jan 28, 2014

_ UNTO FORWARD - NO ADDRESS PROVIDED

ACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE. THIS DECISION
IS FINAL UNLESS AN APPEAL IS FILED WITH THE BOARD OF IMMIGRATION APPEALS
WITHIN 30 CALENDAR DAYS OF THE DATE OF THE MAILING OF THIS WRITTEN DECISION.
YOUR NOTICE OF APPEAL, ATTACHED DOCUMENTS, AND FEE OR FEE WAIVER REQUEST
BOARD OF IMMIGRATION APPEALS
MUST BE MAILED TO:
OFFICE OF THE CLERK
5107 Leesburg Pike, Suite
. 2000
FALLS CHURCH, VA 20530
ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE AS THE RESULT
OF YOUR FAILURE TO APPEAR AT YOUR SCHEDULED DEPORTATION OR REMOVAL HEARING.
THIS DECISION IS FINAL UNLESS A MOTION TO REOPEN IS FILED IN ACCORDANCE
WITH SECTION 242B(c} (3) OF THE IMMIGRATION AND NATIONALITY ACT, 8 U.S.C.
SECTION 1252B(c) (3) IN DEPORTATION PROCEEDINGS OR SECTION 240(c)(6),
8 U.S.C. SECTION 1229a(c) (6) IN REMOVAL PROCEEDINGS. IF YOU FILE A MOTION
TO REOPEN, YOUR MOTION MUST BE FILED WITH THIS COURT:
IMMIGRATION COURT
26 FEDERAL PLZ 12TH FL.,RM1237
NEW YORK, NY 10278
OTHER:

CC: DISTRICT COUNSEL, NYC DISTRICT .

26 FEDERAL PLAZA, ROOM #1130
NEW YORK, NY, 10278

IMMIGRATION COURT

-FF

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SALMEN, NAVARRO.& LAVERGNE, P.C.

501 5TH AVENUE, SUITE #903
NEW YORK, NY 10017

File No.:

A094-230-428

In the Matter of:

MUNOZ CASTELLON, Luis Eduardo,

IN REMOVAL PROCEEDINGS

Respondent.

APPLICATION:

8 C.F.R. 1003.23(b)

Motion to Reopen

ON BEHALF OF RESPONDENT:

ON BEHALF OF THE DEPARTMENT:

Hedwin Salmen Navru.To, Esq.

Salmen Navarro & Lavergne, P .C.
501 5th Ave, Suite 903
New York, NY 10017

Meida S. Powery, Assistant Chief Counsel

DRS/ICE, Office of Chief Counsel
26 Federal Plaza, Room 1130
New York, NY 10278

ORDER OF THE IMMIGRATION JUDGE

This case was last before the Court on September 5, 2012, when the Court entered a final
removal order. At that time, Respondent had conceded that he was removable from the United
States under INA 212(a)(6)(A)(i), and he had not filed any application for relief. Respondent
did not appeal the Court's final order of removal. He has now filed a Motion to Reopen his
removal proceedings. The Department of Homeland Security ("DHS" or "the Department")
opposes the motion. For the reasons that follow, Respondent's Motion to Reopen is denied.
An alien who has been ordered removed may file one motion to reopen, but must do so
within 90 days of the final administrative decision. INA 240(c)(7); 8 C.F.R. 1003.2(c)(2).
The final order of removal in this case was entered on September 5, 2012, but Respondent's
Motion to Reopen was not filed until August 15, 2013. Accordingly, the motion is untimely and
will be denied as such.

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UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
26 FEDERAL PLAZA.
NEW YORK, NEW YORK

Even if Respondent had timely filed his Motion to Reopen, he has not shown that he is
eligible for adjustment of status. See Matter of Velarde, 23 I&N Dec. at 257 (noting that a motion
to reopen may be denied if "adjustment would be denied in any event, either on statutory grounds
or in the exercise of discretion''). Respondent is not eligible to adjust because he entered the
United States without inspection and has not shown that he is grandfathered under section 245(i).
Respondent argues that he may be eligible to "consular process" after applying for a provisional
waiver of his unlawful presence on Form I-601 A. Yet, Respondent does not appear eligible to
apply for such a waiver at this stage because his wife's I-130 petition remains pending. See
USCIS Website, "Unlawful Presence Waivers,"
http://www.uscis.gov/family/family-us-citizens/provisional-waiver/provisional-unlawful-preseric
e-waivers (last visited Jan. 23, 2014).
To the extent Respondent requests that this Court exercise its sua sponte authority to
reopen his proceedings, that request is declined. 8 C.F.R. 1003.2(a). The Court invokes its sua
spoJJte auth01jty spingly, "treating it not as a general remedy for any hardships creatd by
enforcement of time and number limits in the motions regulations, but as an extraordinary remedy
reserved for truly exceptional situations." Matter of G-D-, 22 I&N Dec. 1 132, 1 133-34 (BIA
1999). Respondent states that his wife relies on him greatly for support because she suffers from
Major Depressive Disorder and Post-Traumatic Stress Disorder. In addition, he has two children,
one of whom _receives speech therapy at his school. The Court is sympathetic to Respondent's
family ties in this country. However, without relief available at this point, the Court declines to
reopen these proceedings. In addition, the Comi is mindful that Respondent has previously been
convicted of Driving While Ability Impaired by Alcohol, in violation of New York VTL 1 192.1.
Following that conviction, Respondent was arrested again and convicted of Aggravated Driving
Without a License in violation of VTL 51 1.2. These are negative equities that weigh against the
"extraordinary remedy" of sua sponte reopening. 1

The Court notes that Respondent previously requested that the Department exercise its
prosecutorial discretion in his case. The Department declined that request on September 5, 2012.
2

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The ninety-day deadline does not apply to motions seeking reopening in order to apply for
asylum. INA 240(c)(7)(C)(ii). However, Respondent does not seek reopening on this basis.
Instead, he asks the Court to reopen his proceedings because wife has filed a Form 1-130, Petition
for Alien Relative ("I-130 petition"), on his behalf. That petition remains pending. The fact that
Respondent is the beneficiary of a pending 1-130 petition is not a proper basis upon which to grant
Respondent's untimely Motion to Reopen. See Matter of Velarde-Pacheco, 23 l&N Dec. 253,
256 (BIA 2002) (holding that the agency may grant a motion to reopen in the exercise of its
discretion to pursue an adjustment application if, among other factors, the motion was timely filed
and not numerically barred); see also Matter of Yauri, 25 I. & N. Dec. 103, 105 (BIA 2009)
(emphasizing "that untimely motions to reopen to pursue an application for adjustment of status ..
. do not fall within any of the statutory or regulatory exceptions to the time limits for motions to
reopen before the Board and will ordinarily be denied") (citing INA 240(c)(7)(C)(ii)-(iv) and 8
C.F.R. 1003.2(c)(3)).

"--'

Thus, after a careful review of the record, the following order is entered:
IT IS HEREBY ORDERED that Respondent's Motion to Reopen is DENIED.

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

Jse B. Christensen
U.S. Il11111igration Judge

',,,,__

._.,,

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
NEW YORK, NEW YORK

In the Matter of
)
)
)
)

LUIS EDUARDO MUNOZ CASTELLON

RESPONDENT

IN REMOVAL PROCEEDINGS

CHARGE:

INA Section 212(a)(6)(A)(i) - alien present without inspection or

admission.

APPLICATIONS:

None.

ON BEHALF OF RESPONDENT: MONICA CONSTAIN

Migration Office, Catholic Charities
143 Schleigel Blvd.
Amityville, New York 11701
ON BEHALF OF DHS: CATHERINE G. BAKER, Assistant Chief Counsel
DHS-ICE, Office of Chief Counsel
New York City, New York

ORAL DECISION OF THE IMMIGRATION JUDGE

The respondent is a 26-year-old male native and citizen of Guatemala. He was
issued a Notice to Appear on February 11, 2011. See Exhibit 1. The filing of that
document in the Immigration Court on May 25, 2011 vested the Court with jurisdiction.
See 8 CFR 1003.14(a). At a previous Master Calendar hearing, the respondent
admitted three of the four factual allegations in the Notice to Appear. He denied
1

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September 6, 2012

File: A094-230-428

allegation number 3 which alleged that he entered at an unknown date and at an

unknown place. He claimed instead to have entered the United States in Arizona

removability under Section 212(a)(6)(A)(i). Guatemala was designated as the country

of removal at the request of the Department.
The respondent has appeared at five removal hearings, including today's. He
has filed no application for relief. The Court has conducted an independent analysis of
the respondent's eligibility for relief and, based on the record, finds that he is not eligible
for relief from removal. The respondent is not the beneficiary of an approved petition
that could lead to relief. Moreover, he does not have sufficient continuous physical
presence for cancellation of removal under INA Section 240A(b). Respondent has a
lawful permanent resident wife and two USC children. Based on those equities, he
requested prosecutorial discretion from the Department of Homeland Security. The
Department of Homeland Security has declined the request for prosecutorial discretion.
Respondent initially indicated at a Master Calendar hearing that he may seek asylum,
but through counsel indicated that he would no longer seek that relief.
The respondent has conceded removability based on the allegations and
charges in the NTA. Upon receiving the pleadings, the Court has determined that no
issues of Jaw or fact remain. Removability as charged has been established by the
admissions of the respondent. See 8 CFR 1240.10(c). Furthermore, based on the
respondent's pleadings, the Court has determined that he is ineligible for relief as
a matter of law.
As the Court has accepted the pleadings of the respondent and after a
careful review of the record, the following order shall be entered:

A094-230-428

September 6, 2012

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without inspection in February 2007. The responded conceded the sole charge of

ORDER
IT IS HEREBY ORDERED that the respondent be removed from the

JESSE 8. CHRISTENSEN
U.S. Immigration Judge

A094-230-428

September 6, 2012

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United States to Guatemala on the charges set forth in the Notice to Appear.

CERTIFICATE PAGE
I hereby certify that the attached proceeding before JUDGE JESSE B.

LUIS EDUARDO MUNOZ CASTELLON

A094-230-428
NEW YORK, NEW YORK
was held as herein appears, and that this is the original transcript thereof for the file of
the Executive Office for Immigration Review.

LYDIA E. WAINWRIGHT (Transcriber)

FREE STATE REPORTING, lnc.-2
MARCH 25, 2014
(Completion Date)

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CHRISTENSEN, in the matter of: