U.S.

Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
Office of the Clerk
5/07 Leesburg Pike, Suite 2000
Falls Church, Virginia 2204/

DHS/ICE Office of Chief Counsel - CHL

5701 Executive Ctr Dr., Ste 300
Charlotte, NC 28212

Name: AYALA-GARCIA, JOSE IGNACIO

A 202-002-479

Date of this notice: 5/19/2016

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

DCinltL C!

t1/lA.)

Donna Carr
Chief Clerk

Enclosure
Panel Members:
O'Herron, Margaret M
Greer, Anne J.
Kendall-Clark, Molly

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/
Cite as: Jose Ignacio Ayala-Garcia, A202 022 479 (BIA May 19, 2016)

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

Thie, Douglas Bradley

Forsythe Immigration Law Firm
756 Tyvola Road
Suite 160
Charlotte, NC 28217

U.S. Department t1f Justice

Decision of the Board of Immigration Appeals

Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A202 002 479- Charlotte, NC

Date:

MAY 1 9 2u1fi
In re: JOSE IGNACIO AYALA-GARCIA

APPEAL
ON BEHALF OF RESPONDENT: Douglas B. Thie, Esquire
ON BEHALF OF DHS: Susan Leeker
Assistant Chief Counsel
APPLICATION: Reopening

The respondent, a native and citizen of El Salvador, appeals from the Immigration Judge's
November 18, 2015, decision denying his motion to rescind an in absentia removal order and
reopen his removal proceedings. See section 240(b)(S)(C) of the Immigration and Nationality
Act, 8 U.S.C. 1229a(b)(5)(C); 8 C.F.R. 1003.23(b)(4){ii). The Department of Homeland
Security ("DHS") opposes the appeal, which will be sustained.
We review the findings of fact made by the Immigration Judge, including the determination
of credibility, for clear error. 8 C.F.R. 1003.l(d)(3)(i). We review all other issues, including
questions of judgment, discretion, and law, de novo. 8 C.F.R. 1003.l(d)(3)(ii).
Considering the totality of the circumstances presented in this case, we conclude that the
respondent has presented an exceptional situation sufficient to warrant sua sponte reopening of
his removal proceedings. See 8 C.F.R. 1003.2(a); Matter of G-D-, 22 I&N Dec. 1132
(BIA 1999); Matter of J-J-, 21 I&N Dec. 976 (BIA 1997). In his motion the respondent, who
has been designated as an Unaccompanied Alien Child (UAC), and who was 18 years old and a
high school student when the in absentia order of removal was issued, claimed that his failure to
appear at his removal hearing was due to an oversight. The respondent also presented evidence
that his mother obtained a Form 1-918 Supplement B, U Nonimmigrant Status Certification,
executed by the Houston Police Department on her behalf. The respondent indicated that he
intended to seek U-3 nonimmigrant status as a derivative beneficiary of his mother's U-1
nonimmigrant status. The respondent has proffered additional evidence on appeal that
demonstrates he is the beneficiary of an I-918A, Petition for U Nonimmigrant Status that is
pending before the United States Citizenship and Immigration Services (USCIS), as well as
evidence in support of that petition.
Under the circumstances presented in this case, and in particular in light of the evidence
proffered during the pendency of the appeal, we conclude that reopening proceedings and
remanding the record to the Immigration Judge for further proceedings in order to provide the
respondent with an opportunity to request that these removal proceedings be continued while
Cite as: Jose Ignacio Ayala-Garcia, A202 022 479 (BIA May 19, 2016)

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

IN REMOVAL PROCEEDINGS

"

...

'

A202 002 -479

USCIS considers his request for U nonimmigrant status is appropriate. See Matter of Sanchez
Sosa, 25 I&N Dec. 807 (BIA 2012).

ORDER: The respondent's appeal is sustained.

FURTHER ORDER: The respondent's motion to reopen is granted.
FURTHER ORDER: The record is remanded for further proceedings consistent with the
foregoing opinion and for the entry of a new decision.

O'

FOR THE BOARD

2
Cite as: Jose Ignacio Ayala-Garcia, A202 022 479 (BIA May 19, 2016)

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

Accordingly, we will reopen these proceedings pursuant to our sua sponte authority. We
express no opinion regarding the ultimate outcome of these removal proceedings at the present
time and we note that the respondent bears the burden of demonstrating "good cause" for a
continuance of these removal proceeding. 8 C.F.R. 1003.29, 1240.6. We further note that
while, in certain circumstances, a continuance of removal proceedings may be warranted where
an alien is seeking U nonimmigrant status from USCIS, a continuance should not be granted
where it is being sought "as a dilatory tactic to forestall the conclusion of removal proceedings."
Matter ofSanchez Sosa, supra, at 815. Accordingly, the following order will be entered.

,/

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UNITED STATES DEPARTME NT OF JUSTICE

EXECUTIV E OFFICE FOR IMMIGRAT ION REVIEW
UNITED STATES IMMIGRAT ION COURT
CHARLOTT E, NORTH CAROLINA
)
)

IN REMOVAL PROCEEDI NGS

) File No. A202-002-479

Jose Ignacio Ayala Garcia
Respondent.

)
)

ORDER TO REOPEN

) Date: November 18, 2015

COMES NOW the Court upon review and consideration of Respondent's Motion to
Reopen these proceedings, and enters the following ORDERS:
[ ]

The motion is GRANTED and the case is adjourned to an individual / master calendar

hearing on

at

am / pm.

['}(]

The motion is DENIED. 8 C.F.R. 1003.23(b)(3).

[ ]

A telephonic appearance of counsel [ ) is [ ] is not authorized for the next hearing

only.
[ ]

Respondent shall file all [ ] applications for relief and [ ] supporting documents no.

later than _ _ _ _ _ _ or they may be deemed waived and abandoned by the Court
pursuant to 8 C.F.R. 1003.3 l(c).

.)

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

IN THE MATTER OF

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----------C-ER_T
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THIS DOCUMENT WAS SERVED BY: MAI (M) PERSO~AL SERVICE (P)
TO: [ ~LIEN [ ) ALIEN c/o Custodial
[ ] Aben' s A TT / REP [ -c]-u--.::HS
DATE:
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BY: COURT STAFF _.....,.....
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Attachments: [ ] EOIR-33 [ ] EOIR-28 [ ] Legal Services List [ ] Other

____________