U.S.

Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals
Office of the Clerk
5107 leesburg Pike. Suite 2000
Falls Church, Virginia 22041

DHS/ICE Office of Chief Counsel - ATL

180 Ted Turner Dr., SW, Ste 332
Atlanta, GA 30303

Name: DIONICIO-JUAREZ, CLAUDIA C...

A 202-058-964
Date of this notice: 10/29/2015

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

DcrutL c
Sincerely,

Q/lA)

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Greer, Anne J.

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/
Cite as: C-C-D-J-, A202 058 964 (BIA Oct. 29, 2015)

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

Salmon, Rebeca E.
A Salmon Firm, LLC
PO Box 1644
Norcross, GA 30091

U.S. Department of Justice

Decision of the Board of Immigration Appeals

I?xecutive Office for Immigration Review

Falls Church, Virginia 22041

File: A202 058 964 - Atlanta, GA

Date:

In re: CLAUDIA CAROLINA DIONICIO-WAREZ

OCT 2 9 2015

APPEAL AND MOTION

ON BEHALF OF RESPONDENT: R.E. Salmon, Esquire
CHARGE:
Notice: Sec.

212(a)(6)(A)(i), l&N Act [8 U.S.C. l182(a)(6)(A)(i)] Present without being admitted or paroled

APPLICATION: Continuance; remand

The respondent, a native and citizen of Guatemala, appeals from the Immigration Judge's
June 17, 2015, decision denying her request for a continuance and ordering her removal from the
United States. The respondent has also moved to remand the record (Respondent's Brief at 5).
The respondent's request for oral argument is denied; her request for a waiver of the appellate
filing fee is granted. See 8 C.F.R. 1003.l(e)(7), 1003.8(a)(3). The record will be remanded.
We review findings of fact, including credibility findings and determinations as to the
likelihood of future events, under the ''clearly erroneous" standard.
See 8 C.F.R.
1003.l(d)(3)(i); Matter of Z-Z-0-, 26 l&N Dec. 586 (BIA 2015); Matter of S-H-, 23 l&N
Dec. 462 (BIA 2002). We review questions of law, discretion, or judgment, and all other issues
de novo. See 8 C.F.R. 1003.l(d)(3)(ii).
At a hearing on May 21, 2015, the 16-year-old respondent indicated, through counsel, that
she intended to seek Special Immigrant Juvenile (SIJ) status (Tr. at 8). The Immigration Judge
instructed the respondent that she would need to provide a copy of the "SIJS petition" and
continued the proceedings until June 17, 2015 (l.J. at 2; Tr. at 9). 1 When the proceedings
reconvened on that date, the respondent did not provide a copy of the petition, but instead,
provided evidence that a dependency hearing was scheduled for June 19, 2015, in Grady County,
Georgia (l.J. at 4; Tr. at 11; Respondent's Motion to Continue, filed June 17, 2015). In declining
to further continue the proceedings, the Immigration Judge observed that other attorneys
handling similar cases had provided dependency petitions to the Immigration Court (I.J. at 2;
Tr. at 13-14, 17).
1

A necessary precondition to SIJ status is the declaration of a juvenile court that the respondent
is deserving of protection because reunification with one or both of her parents is not viable due
to abuse, neglect, or abandonment. See section 101(a)(27)(J) of the Immigration and Nationality
Act, 8 U.S.C. 1101 (a)(27)(J).
Cite as: C-C-D-J-, A202 058 964 (BIA Oct. 29, 2015)

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

IN REMOVAL PROCEEDINGS

A202 058 964

The respondent has submitted evidence on appeal, which reflects that an order of dependency
was entered in state court on June 19, .2015, and that she thereafter filed a Petition for Amerasian,
Widow(er), or Special Immigrant (Form I-360) and an Application to Register Permanent
Residence or Adjust Status (Form I-485) with United States Citizenship and Immigration
Services ("USCIS") (Respondent's Appellate Filing, Tabs C, J). The respondent requests that
the case be remanded based on the proffered evidence.2
We conclude that the order of dependency provided on appeal constitutes previously
unavailable evidence that is material to the respondent's eligibility for SIJ status under section
10l(a)(27)(J) of the Act (Respondent's Appellate Filing, Tab C). We will remand the record for
further proceedings to allow the respondent the opportunity to request a continuance or
administrative closure pending USCIS's adjudication of her application for SIJ status. 3 Given
our disposition of this matter, we need not reach the respondent's appellate arguments
concerning the denial of her continuance request. See Matter ofS-H-, supra, at 465; cf Matter of
Santos, 19 I&N Dec. 105, 107 (BIA 1984) (stating that "an alien must have been prejudiced ...
before he will be found to have suffered a denial of due process").
Accordingly, the following order will be entered.
ORDER: The record is remanded to the Immigration Court for further proceedings
consistent with the foregoing opinion and for the entry of a new decision.

FOR THOARD

Insofar as the respondent has requested that we remand this matter to USCIS, we note that we
are without jurisdiction to do so (Respondent's Brief at 1).
3

To that end, we defer to the former Chief Immigration Judge's guidance, which provides that,
where 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." See Memorandum from
Brian M.O'Leary, Chief Immigration Judge, to Immigration Judges (Sept. 10, 2014)
(Docketing Practices Relating to Unaccompanied Children Cases in Light of New Priorities).

2
Cite as: C-C-D-J-, A202 058 964 (BIA Oct. 29, 2015)

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

On appeal, the respondent argues that the Immigration Judge (1) abused his discretion by
refusing to grant her a continuance that would allow her to file for SIJ status; (2) erred in
requiring her to produce a juvenile state dependency petition; (3) violated her due process rights
by denying her a reasonable opportunity to apply for available relief; and (4) violated her due
process right to equal protection under the law by denying her the opportunity to apply for SIJ
status (Respondent's Brief at 4-19).

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
ATLANTA, GEORGIA

In the Matter of

CLAUDIA CAROLINA DIONICIO-JUAREZ

RESPONDENT

)
)
)
)

IN REMOVAL PROCEEDINGS

CHARGES:

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

APPLICATIONS:

Please note, the respondent seeks a continuance.

ON BEHALF OF RESPONDENT: LAURA FINN

P.O. Box 1614
Norcross, Georgia 30091
ON BEHALF OF OHS: ABBY LYNN MEYER, Assistant Chief Counsel

ORAL DECISION OF THE IMMIGRATION JUDGE

This case came before the Court as the 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 she is removable from
the United States pursuant to Section 212 of the Immigration and Nationality Act. The
respondent admits the factual allegations in the Notice to Appear and concedes
removability. In light of the foregoing, the Court finds by clear and convincing evidence
the respondent is removable from the United States as charged. The Court sustains the

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

June 17, 2015

File: A202-058-964

charge of removal and designates Guatemala.

The respondent was present in court with counsel at the last hearing. She

dependency petition, she is required to present to the Court evidence of prima facie
eligibility. The respondent's counsel has advised the Court that their office position is
that such documents violate the laws of the State of Georgia and that those documents
will not be submitted. The Court will deny a further continuance in this case.
By way of history, the Court incorporates by reference all of its discussion
earlier from today's hearing concerning the reasons for denying the motion. Simply put,
the respondent's counsel has been advancing this argument for quite some time.
Today, the respondent's counsel has provided no decision from any court in the State of
Georgia that supports the notion that turning over the juvenile dependency petition is
barred by law based on confidentiality reasons. The issue was raised directly with the
supervisory chain within the office of the Chief Immigration Judge and that argument
has not been successful. The Court also notes that virtually all other attorneys that
appear before the Court submit the very document that is being requested in this case.
In other words, this is not an issue of the Court seeking to be arbitrary with respect to
the respondent's argument. Rather, there is simply no document or legal justification
that has been presented that convinces the Court that the document that the Court
requests, which is in the respondent's own possession at this time, cannot be submitted
to the Court.
The Court is not seeking this document for any improper reason. The
Court has an obligation, when a continuance is sought for the purposes of ancillary

relief, to determine whether the respondent has set forth a prima facie case for relief.
That is not a new concept that the Court has articulated. Rather, that is a concept that

A202-058-964

June 17, 2015

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

was advised that if she seeks a continuance for the purposes of pursuing an SIJS

is well established based on Board precedent. An individual who seeks a continuance

based on an 1-130 that is pending before the service has to do more than submit

Immigration Service. They are required under Board of Immigration Appeals precedent
to submit evidence of prima facie eligibility. The request is not grantable based on the
filing of an ancillary application. Rather, the request for a continuance is grantable
based on the filing of an application and evidence that the application is prima facie
eligible for relief. In this case, the respondent has submitted no documents in which the
Court can determine whether there is prima facie eligibility for relief.
This is an area that has, in recent months, been the subject of much fraud.
In the Court's own personal cases, there have been individuals who have sought to file
dependency petition when they are clearly not eligible for such relief. The Court
discussed with the respondent's counsel cases where individuals in the State of
Georgia who live with a parent are not eligible for juvenile dependency. That is different
from the case law in the State of Alabama. So, for example, if someone lives with a
parent in the State of Alabama and they are under the age of 18 or 19, they can get
juvenile dependency petition. The Court routinely grants continuances for such
applications because there is evidence of prima facie eligibility. On the other hand,
individuals who live with a parent in the State of Georgia are not statutorily eligible for
juvenile dependency and that is generally acknowledged by virtually all of the attorneys
that appear before the Court. Some attorneys nevertheless continue to push that
argument without any legal justification. In such cases, the Court does not grant a
continuance because there was no evidence of prima facie eligibility.
The Court gave the previous example to explain its role in this case. The
Court's role is not to deny reasonable continuances when they are supported by

A202-058-964

June 17, 2015

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

evidence that the application is being considered by the United States Citizenship and

evidence. The Court notes that ! in this case, the respondent has submitted only
evidence that there is a case pending and that there is a hearing. That is not sufficient

set forth a case that she is prima facie eligible for the relief in the form of dependency
petition. Without the requested information, the Court simply cannot discern whether
the respondent has set forth a case that she is eligible for a juvenile dependency
petition.
There are other issues of fraud that the Court has had to confront during
the time that it has been adjudicating these cases. Sometimes, information that is
contained in the dependency petition are materially at odds with the real facts of the
case. On more than one occasion, after having observed the pending juvenile
dependency petition ! the respondent has had to make amendments because
representations in the petition are at odds with the facts. For example, some petitions
erroneously state that the respondent's parents live in Central American country when,
in fact ! they live in the United States. The Court can discern this information from the
record; information based on a review of the file before it. The Court does only a
cursory review in the cases to determine whether there is prima facie eligibility for relief.
The Court is not imposing an undue burden on the respondent in this
case. The Court asks only for the documents that was in the respondent's possession.
She has the opportunity to submit the documents or to tell the Court that it is something
that she simply chooses not to submit. She has made that argument based largely on
the counsel's own interpretation of a statute. That interpretation has not been shown to
be supported by any court in the State of Georgia.
The Court will deny the motion for a further continuance in this case. The
respondent is removable as charged. The Court will enter the following order.
A202-058-964

June 17, 2015

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

evidence for the Court to determine whether the respondent is statutorily eligible or has

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

to Guatemala.

Please see the next page for electronic

signature

A202-058-964

EARLE B WILSON
Immigration Judge

June 17, 2015

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

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

/Isl/
Immigration Judge EARLE B WILSON

A202-058-964

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

wilsone on July 31, 2015 at 8:39 PM GMT

June 17 1 2015