U.S.

Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

Qffice ofthe Clerk
5107 Leesburg Pike, Suite 2000
Falls Church, Virginia 2204/

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Murphy, Joseph William DHS/ICE Office of Chief Counsel - CHI
Gresk & Singleton, P .C. 525 West Van Buren Street
150 East 10th Street Chicago, IL 60607
Indianapolis, IN 46204

Name: MARTINEZ-ANTONIO, ERNESTO A 206-304-248

Date of this notice: 2/14/2017

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

Sincerely,

DOrutL Ct1/1AJ
Donna Carr
Chief Clerk

Enclosure
Panel Members:
Pauley, Roger

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/

Cite as: Ernesto Martinez-Antonio, A206 304 248 (BIA Feb. 14, 2017)
. U.S. Department of Justice Decision of the Board oflmmigration Appeals
Executive t)ffice for Immigration Review

Falls Church, Virginia 22041

File: A206 304 248 - Chicago, IL Date:

In re: ERNESTO MARTINEZ-ANTONIO FEB 1 4 2017

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IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Joseph W. Murphy, 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: Continuance, remand

The respondent, a native and citizen of Mexico, appeals from the Immigration Judge's
August 24, 2016, decision denying his request for a continuance of proceedings pending the
filing and adjudication by the Department of Homeland Security (DHS) of an application for a U
nonimmigrant visa. The respondent also has submitted new evidence, which we construe as a
motion to remand. The DHS has not filed an appeal brief. The record will be remanded.

On August 24, 2016, the respondent was ordered removed based on the charge listed in
the Notice to Appear. The respondent argues on appeal that the Immigration Judge erred in
denying his request for a continuance of proceedings. He also submits new evidence.

A motion to remand will not be granted unless the Immigration Judge is satisfied that the
evidence sought to be offered is material and was not available and could not have been
discovered or presented at the former hearing. 8 C.F.R. I003.23(b)(3). A motion to remand
will ordinarily not be granted unless the alien meets the "heavy burden" of showing that the new
evidence would likely change the result in the case. See Matter of Coelho, 20 I&N Dec. 464
(BIA 1992).
The respondent submits evidence on appeal consisting of a law enforcement certification
dated September 29, 2016, after the Immigration Judge's decision, and evidence that a completed
1-918 application for a U nonimmigrant visa was mailed to the DHS on December 20, 2016. The
DHS has not filed an opposition to the motion to remand. We find the new evidence sufficient to
support a remand for further proceedings. See Matter of Sanchez-Sosa, 25 I&N Dec. 807 (BIA
2012). Accordingly, the motion to remand will be granted.
ORDER: The motion to remand is granted.

Lf
FURTHER ORDER: The record is remanded for further proceedings consistent with the
foregoing decision.

o:
FOR THE

Cite as: Ernesto Martinez-Antonio, A206 304 248 (BIA Feb. 14, 2017)
 UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
CHICAGO, ILLINOIS

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File: A206-304-248 August 24,2016

In the Matter of

)
ERNESTO MARTINEZ-ANTONIO ) IN REMOVAL PROCEEDINGS
)
RESPONDENT )

CHARGES:

APPLICATIONS:

ON BEHALF OF RESPONDENT: JOSEPH MURPHY

150 East 10th Street
Indianapolis, Indiana 46204

ON BEHALF OF OHS: JESSICA GALASSI, Assistant Chief Counsel

525 West Van Buren Street, Suite 701
Chicago, Illinois 60607

ORAL DECISION OF THE IMMIGRATION JUDGE

The respondent is a 28-year-old married, male, alien and native and
citizen of Mexico. Respondent came to the attention of the Department of Homeland
Security following a conviction for driving under the influence of alcohol. The
respondent was initially placed under removal proceedings in 2014. At a hearing held
on May 27, 2015, the respondent indicated that his wife lives in Mexico and he has no
family in the United States. The respondent requested a continuance and his case was
scheduled for November 12 1 2015. However, his case was reset again to a final
hearing date of August 24, 2016. At the final hearing the respondent, through counsel,

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admitted the allegations of fact contained in the Notice to Appear and conceded
removability. Mexico was designated as the country for removal.

The respondent's attorney indicated that the respondent hoped to qualify

for a U visa in the future and he was still pursuing a law enforcement certification. The

Government attorney opposed the request for continuance.

Just seeking a U visa does not qualify a person to remain in the United

States illegally. Respondent, if he obtains a law enforcement certification, can process

his visa at the American embassy in Mexico. It is also under the Department of

Homeland Security's jurisdiction to decide whether to require a respondent to depart

during a pendency of a U visa. Here 1 I find respondent's request is not reasonable
because he has not even filed for the U visa with the Department of Homeland Security.
Moreover, respondent has a criminal record in the United States, entered illegally
without inspection, and has not presented any offsetting favorable factors warranting a
continuance. Therefore, the continuance will be denied.
The respondent through his counsel indicated he would like to appeal to
the Board of Immigration Appeals. Respondent testified that he does not want to leave.

This is a typical situation where a respondent who is not eligible for any relief can delay
his departure from the United States simply by filing an appeal with the Board of
Immigration Appeals. It appears that the Department of Homeland Security is helpless
and has taken no action in such cases to remove deportable aliens from the United
States despite the fact that they have no relief and they are not seeking any relief.
Therefore, this Court will enter a removal order in respondent's case.

A206-304-248 2 August 24, 2016

"

ORDER
IT IS ORDERED that the respondent be deported and removed from the

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United States to Mexico on the charge contained in the Notice to Appear.

Please see the next page for electronic

signature
ROBERT D. VINIKOOR
Immigration J udge

A206-304-248 3 August 24,2016

' ,, ....4 . . " .,.

/Isl/
Immigration Judge ROBERT D. VINIKOOR

vinikoor on November 29, 2016 at 5:13 PM GMT

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A206-304-248 4 August24,2016