U.S.

Department of Justice

Executive Office for Immigration Review

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

DHS/ICE Office of Chief Counsel - SND

880 Front St., Room 2246
San Diego, CA 92101-8834

Name:MOSQUEDA,WENDY

A 096-814-323

Date of this notice: 11/19/2015

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

DGn.JtL C

f1/VL)

Donna Carr
Chief Clerk
Enclosure
Panel Members:

O'Leary, Brian M.

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/

Cite as: Wendy Mosqueda, A096 814 323 (BIA Nov. 19, 2015)
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Ortega, Hector Ricardo

Ortega Canossa and Associates
315 W 9th St
Suite 408
Los Angeles, CA 90015

U.S. Department of Justice

Decision of the Board of Immigration Appeals

Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A096 814 323 - San Diego, CA

Date:

NOV 1 9 2015

IN REMOVAL PROCEEDINGS
APPEAL
ON BEHALF OF RESPONDENT: Hector R. Ortega, Esquire
ON BEHALF OF OHS: Julia C. Contreras
Assistant ChiefCounsel
ORDER:
The respondent is a native and citizen ofMexico. On August 21, 2014, an order ofremoval
was entered by an Immigration Judge. On September 22, 2014, the respondent filed an appeal
from this decision. On January 29, 2015, the Department of Homeland Security granted the
respondent's request for Deferred Action for Childhood Arrivals (DACA). The respondent now
moves for administrative closure of her case based on this new fact. Under the totality of the
circumstances and the government's grant ofDACA during the pendency ofthis appeal, we find
that administrative closure is warranted. Matter ofAvetisyan, 25 I&N Dec. 688 (BIA 2012).
If either party to this case objects to the continued administrative closure of these
proceedings, a written request to reinstate the proceedings may be made to the Board. The Board
will take no further action in the case unless a request is received from one of the parties. The
request must be submitted directly to the Board ofImmigration Appeals Clerk's Office, without
fee, but with certification ofservice on the opposing party.

Cite as: Wendy Mosqueda, A096 814 323 (BIA Nov. 19, 2015)

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In re: WENDY MOSQUEDA

August 21, 2014

File: A096-814-323
In the Matter of

WENDY MOSQUEDA
RESPONDENT

)
)
)
)

IN REMOVAL PROCEEDINGS

CHARGES:

Section 212(a)(6)(E)(i) of the Immigration and Nationality Act, an

alien who at any time knowingly has encouraged, assisted or aided
any other alien to enter or to try to enter the United States in
violation of law.

APPLICATIONS:

Termination of proceedings.

ON BEHALF OF RESPONDENT: VI RIDIANA GALLARDO

HECTOR ORTEGA
ON BEHALF OF OHS: JULIA CONTRERAS

ORAL OPINION AND ORDER OF THE IMMIGRATION JUDGE

The respondent is charged as a native and citizen of Mexico who applied
for admission to the United States at the San Ysidro, California, Port of Entry on or
about December 10, 2011. It is also alleged that, on that same date, the respondent
knowingly encouraged, assisted or aided an alien by the name of Norma Jimenez to try
to enter the United States in violation of law. The respondent has contested the charge.
The parties agree that the respondent is a lawful permanent resident.

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UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
SAN DIEGO, CALIFORNIA

Apparently, she, however, does not have the required seven years after admission in
any status to be eligible for cancellation of removal for a permanent resident relief under

The Department of Homeland Security has presented evidence in the form

of Record of Deportable Alien, Form 1-213 (Exhibit 2), and a Record of Sworn
Statement, Form 1-877 (Exhibit 3).
The respondent objected to Exhibit 2 and filed a motion to terminate.
Respondent argues that the statute provides her with the right to cross-examine any
witnesses presented by the Government, and that the right of confrontation requires the
Government to procure its witnesses for a hearing or establish that the witnesses are
not available to testify at a hearing. The respondent contends that, until such time as
the Government produces its witnesses for the purposes of cross-examination,
presenting the 1-213 would constitute a flagrant violation of her due process rights
because those statements do not meet the requirement that they be reasonable,
substantial and probative. Therefore, the respondent contends, until the Government
produces the officer of the Form 1-213 for cross-examination, the respondent objects to
its admission and moves for a termination of proceedings.
The OHS responded to the motion and argued that the respondent has not
provided anything by either allegation or in any manner that would suggest that the
1-213 record is inaccurate or the result of force. The Government argues that, pursuant
to case law, the Form 1-213 is an inherently trustworthy and admissible piece of
evidence to prove alienage and deportability, unless the respondent makes a sufficient
challenge to the document. See Matter of Barcenas, 19 l&N Dec. 609 (BIA 1988); Cruz
v. INS, 45 F.3d 308 (9th Cir. 1995). Since the respondent has not made any such
allegations of force or of anything being inaccurate in the document, she has not made
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Section 240A(a).

a sufficient challenge to require the Government to present its agents as witnesses.

In addition, the Government also submitted another document that was

Record of Sworn Statement. The respondent was offered an opportunity to object to

that additional record, and the respondent presented no objections to it.
The Court, on September 11, 2012, made a preliminary ruling on the
respondent's motion to terminate denying it, indicating that the Court agreed with the
reasons stated by the OHS in their opposition, finding that the objections raised to the
1-213 were insufficient pursuant to the guidelines provided in Matter of Barcenas and
admitting the 1-213. I reiterate those findings today.
In addition, the document filed by the Government marked as Exhibit 3
was not objected to by the respondent, and the Court, therefore, admits that document
today.
I note that both documents, Exhibits 2 and 3, clearly, convincingly and
unequivocally establish the charge against the respondent. In those documents, the
respondent, who was the driver of a vehicle when she applied for admission to the
United States at the Port of Entry, admitted to the officers that she had gone to Mexico
to pick up her cousin 1 Norma, and that she had brought respondent's sister's United
States passport and had brought the passport to Mexico to give the passport to Norma,
so that Norma would pretend to be the respondent's sister and use the passport to gain
admission to the United States illegally. The respondent admitted that she went to
Tijuana to pick up Norma at the Tijuana airport and then drove her to the Port of Entry
and gave her the respondent's sister's U.S. passport for Norma to use at the Port of
Entry.
On today's hearing 1 the individual hearing date 1 the respondent requested
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August 21, 2014

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procured during the respondent's detention at the Port of Entry, which is Exhibit 3, the

a continuance because she had filed, on December 2013, a request for the
prosecutorial discretion program known as DACA. This is a program that is handled

The criteria for applying for DACA is exclusively determined by the particular component
in the Executive that handles these applications, which is the Citizen and Immigration
Services component of the OHS or CIS. Because the OACA evaluation is done
completely outside of court, the Court has no knowledge of what decision will be made,
nor when will the decision be made on this OACA matter that is pending outside of
court. The OHS counsel, which technically is not a Government Attorney for CIS in light
of the structuring of the Department of Homeland Security when that agency was
created, does not know either when will the CIS adjudicate the pending OACA
application nor what would be the result, although OHS counsel believes that it will be
denied because of the respondent's smuggling activity. However, OHS counsel advises
that, as they are not involved in the decision making, she cannot say one way or the
other what will be the eventual decision of the respondent's pending OACA application.
The OHS opposed a continuance because of the history of the case and
the fact that it had been continued several times in the past.
After examining the arguments made for the continuance, I concluded that
justification of good cause for it had not been established. I note that the case started in
December of 2011, that is the date of the incident, and it had to be continued from last
year because of the government shutdown. I noted that the respondent, other than the
motion to terminate, had not indicated to the Court what was their theory of contest, and
the Court was concerned as to whether there was going to be any need for any
additional evidence and further hearings. The respondent. through counsel, informed
the Court that other than what they had raised in the motion to terminate, they did not

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August 21, 2014

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exclusively by the Executive and it is not contained in the statute or the regulations.

have any other objections or any other theory of contest. Government Counsel
informed the Court that if the Court decided the case today that this would not have an

respondent a deferred action, that even if there were an order of removal, this would not
prevent the benefits afforded to the respondent under the DACA program and that
simply the order of removal would be stayed for the period of the DACA program, which
is two years, although that period can be renewed. Therefore, I found and I reiterate my
findings in this decision that good cause for the continuance is not shown and the Court
should proceed in the case today, given these circumstances.
In proceedings today, the respondent submitted on the case on the
record, and I do find that the record is clear, convincing and unequivocal that the
respondent is removable as charged. It appears that she clearly admitted her
involvement in the smuggling and had sufficient involvement and a knowing involvement
in her attempt to try to bring her cousin illegally into the United States. That is sufficient
to establish the charge in this case, even considering the fact that the respondent is a
legal resident, because this evidence is clear, convincing and unequivocal that the
respondent knowingly helped her cousin to attempt to enter the United States illegally.
Therefore, I find the respondent to be removable as charged.
The respondent does not appear to be eligible for any form of relief from
removal. As indicated previously, it appears that she does not qualify for the
cancellation for a permanent resident because of the time and the seven years. She
has been given an opportunity to present any other relief. She mentioned voluntary
departure. However, I noted that voluntary departure does not really apply in these
circumstances because the respondent has technically not been admitted to the United
States, so she cannot really depart from the United States as the legal fiction is that she
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impact on the DACA process because, if the DACA decision was to grant the

is not really here yet. I noted that the similar form of relief would be withdrawal of the
application for admission. but I explained the requirements for that and counsel

No other form of relief has been brought to the Court's attention that the
respondent could be eligible for l nor has any other form of relief been requested, nor
any other application filed by the deadline set forth by the Court. Therefore, there
appears to be no other relief available for the respondent before the Court. The Court !
for all the above-mentioned reasons, then issues the following order.
ORDER
The respondent's motion for a continuance is denied.
The respondent's motion for termination is again denied.
The respondent is hereby ordered removed from the United States to
Mexico based on the charge in the charging document.
SO ORDERED.
This is a transcript of the oral decision I rendered extemporaneously during the hearing
on August 21. 2014 and recorded on the D.A.R. system. The recording should be
listened to for any questions regarding the accuracy of the transcript. I.P.F. (12-11-14)

Please see the next page for electronic

signature

A096-814-323

IGNACIO P. FERNANDEZ
Immigration Judge

August 21, 2014

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informed that the respondent was not interested in that.

/Isl/
Immigration Judge IGNACIO P. FERNANDEZ

A096-814-323

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fernandi on December 11, 2014 at 4:18 PM GMT

August 21, 2014