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Department of Justice
Enclosed is a copy of the Board's decision and order in the above-referenced case.
Sincerely,
DonrtL Ca.;vu
Donna Carr
Chief Clerk
Enclosure
Panel Members:
Adkins-Blanch, Charles K.
Mann, Ana
Pauley, Roger
Userteam: Docket
Cite as: Thales Alberto Duarte-Oliveria, A201 065 524 (BIA March 6, 2017)
U.S. Department of Justice
Enclosed is a copy of the Board's decision in the above-referenced case. This copy is being
provided to you as a courtesy. Your attorney or representative has been served with this
decision pursuant to 8 C.F.R. 1292.S(a). If the attached decision orders that you be
removed from the United States or affirms an Immigration Judge's decision ordering that you
be removed, any petition for review of the attached decision must be filed with and received
by the appropriate court of appeals within 30 days of the date of the decision.
Sincerely,
Doruu.., C aAA)
Donna Carr
Chief Clerk
Enclosure
Panel Members:
Adkins-Blanch, Charles K.
Mann, Ana
Pauley, Roger
Userteam:
Cite as: Thales Alberto Duarte-Oliveria, A201 065 524 (BIA March 6, 2017)
us. Department of Justice Decision of the Board of Immigration Appeals
Executive Office for Immigration Review
. f
APPEAL
The respondent, a native and citizen of Brazil, has appealed from the Immigration Judge's
decision dated November 9, 2016. The Immigration Judge found the respondent removable as
charged, pretermitted his application for adjustment of status, and ordered him removed. The
respondent challenges this on appeal. The record will be remanded.
We review an Immigration Judge's findings of fact for clear error, but questions of law,
discretion, and judgment, and all other issues in appeals, de novo. 8 C.F.R. I003.l(d)(3)(i),
(ii).
On appeal, the respondent claims that the Immigration Judge erred in pretermitting his
application for adjustment of status. The respondent claims that the Immigration Judge should
have granted him a continuance in order for him to complete his medical requirements. An
Immigration Judge may grant a continuance where good cause is shown. See 8 C.F.R.
1003.29, 1240.6. See also Matter ofRajah, 25 l&N Dec. 127 (BIA 2009); Matter ofHashmi,
24 I&N Dec. 785 (BIA 2009). A continuance to complete an application for relief does
constitute good cause, and the request should have been granted under the circumstances of this
case.
The respondent claims that he did not complete his medical evaluation because of a
miscommunication that resulted from a change of attorneys. The respondent's new attorney was
not aware of the lack of medical documents {Tr. at 120). According to the respondent, the
attorney was unable to contact the respondent prior to the hearing as the respondent had been
moved to another facility (Tr. at 118-120). The respondent indicates that he was detained
throughout the proceedings. Consequently, in light of the totality of the circumstances, we find it
Cite as: Thales Alberto Duarte-Oliveria, A201 065 524 (BIA March 6, 2017)
A201 065 524
appropriate to remand the record to the Immigration Judge to allow the respondent to submit the
completed application.
ORDER: The record is remanded to the Immigration Judge for further proceedings
<
FOR THE BOARD
2
Cite as: Thales Alberto Duarte-Oliveria, A201 065 524 (BIA March 6, 2017)
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
DALLAS, TEXAS
In the Matter of
)
THALES ALBERTO DUARTE-OLIVERIA ) IN REMOVAL PROCEEDINGS
)
RESPONDENT )
for pleasure with authorization to remain in the United States for a temporary period not
1
to exceed February 1, 2008. He remained in the United States beyond February 1,
2008, without authorization from the Immigration and Naturalization Service, or its
On or about May 11, 2011, the Notice to Appear was placed in the record as
Exhibit No. 1. The Notice to Appear also indicates it was personally served on
respondent on April 23, 2011. The Court finds the Notice to Appear was properly
admitted to the factual allegations contained in the Notice to Appear and conceded to
the charge. The Immigration Judge also sustained the charge of removal. Therefore,
removal was established by clear and convincing evidence. In case removal being
respondent has been in detention for matters related to a conviction for driving while
intoxicated and then an ICE custody. It appears that he went into custody for his
conviction for driving while intoxicated on or about October 25, 2015. It appears that he
has remained in custody since that period of time; with his criminal conviction and then
that time appeared in Court. On September 6, 2016, the Court was informed that the
respondent was married to a United States citizen and that an 1-130 petition had been
filed on his behalf. The Court also informed the respondent's criminal history. Based
upon the representations of the respondent's counsel and the evidence that was
submitted to the Court, the Court determined that the respondent should be allowed to
counsel that any supporting documents must be filed at least 15 days prior to the
hearing. The Court also instructed the respondent and his counsel that the application
October 6, 2016. The Court also informed the respondent and respondent's counsel
that the Court is requiring three years of tax returns from the sponsor or co-sponsor,
that is the most recent tax returns. The Court also informed the respondent's counsel
that the medical examination could be submitted on the date of the merits hearing which
medical examination. The respondent's present counsel indicated to the Court that she
contacted the detention facility where she anticipated the respondent being held on
Friday, November 4, 2016. She was informed that the respondent was no longer
detained at the Tulsa Detention Facility, that he had been transferred to a detention
facility in the Dallas Fort Worth Area. In short, the respondent failed to submit his
medical examination. The respondent's counsel requested that the case be continued
moved to pretermit the respondent's application for adjustment of status and that he
C.F.R. 445.5 and that the respondent failed to establish that he was not admissible
The Court will grant the Government's motion to pretermit the respondent's
application for adjustment of status in that the respondent failed to timely submit a
C.F.R. 1245.5. The respondent's last hearing in this case was September 6, 2016. The
respondent has had approximately two months to complete the necessary requirements
attorneys, he still remains being represented by the same office, and the Court finds the
respondent has not shown good cause for delay in having his medical examination
completed and submitted today. The Court would also note that the parties indicated
that they had been communicating with each other on the last several days. According
to the Government counsel, at no time did the respondent's counsel inform the
The Court finds that the respondent has failed to establish why his case should
go forward today and that a continuance should be granted to allow the medical
examination to be completed. Although the Act does not contain specific statutory
Immigration Judge has broad, discretionary authority over motions to continue as stated
in 8 C.F.R. 1003.29. The Immigration Judge may grant a motion for a continuance with
good cause shown. See also 8 C.F.R. Section 1240.6 (providing that the Immigration
Judge may grant a reasonable adjournment either at his or her own assistance or for
Here, there is no good cause. As previously mentioned, the respondent has had
approximately two months to submit the necessary documents to have the medical
examination completed. It was known to respondent and respondent's counsel that the
respondent was being detained by the Government and that arrangements could and
should have been made in a timely manner to have a physical examination completed
on the respondent as required by the regulations and by the Act. It was not done.
The Court finds it unreasonable to have a hearing today and for a continuance to
have a medical examination in light of the respondent's having sufficient enough time to
respondent's application for adjustment of status as he has not complied with all the
requirements for a successful completion of his application for adjustment of status and
he failed to meet the medical requirements.
Finally, the Court makes some other observations with respect to the affidavit of
support submitted by the sponsor. It appears that information contained upon the 2015
tax returns may not be consistent with filing as head of household in that the respondent
may have been in the same household as the sponsor from approximately January
2015 until October of 2015. The Court is also informed by the respondent's counsel
that, contrary to the affidavit signed by the sponsor under penalty of perjury, that the
sponsor did in fact file tax returns for the tax year 2013. However, the Court would note
that the affidavit of support indicates that she did not. This was not explored further
because the Court finds it unnecessary in light of its pretermission of the respondent's
application for adjustment of status based on medical grounds. The Court is mentioning
this for completion of the record.
The respondent is not seeking any other relief before the Court.
ORDER
United States to Brazil based on the charge contained in the Notice to Appear.
I hereby certify that the attached proceeding before JUDGE DEITRICH H. SIMS,
A201-065-524
DALLAS, TEXAS
was held as herein appears, and that this is the original transcript thereof for the file of