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

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Grimaldo, Melissa C., Esq. OHS/ICE Office of Chief Counsel - OKD
Davis and Associates 4400 SW 44th Street, Suite A
PO Box 794284 Oklahoma City, OK 73119-2800
Dallas, TX 75379

Name: DUARTE-OLIVERIA, THALES AL... A 201-065-524

Date of this notice: 3/6/2017

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

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/

Cite as: Thales Alberto Duarte-Oliveria, A201 065 524 (BIA March 6, 2017)
 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 2204/

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DUARTE-OLIVERIA, THALES ALBERTO OHS/ICE Office of Chief Counsel - OKD
A201-065-524 4400 SW 44th Street, Suite A
118 COUNTY ROAD, 206 Oklahoma City, OK 73119-2800
HASKELL, TX 79521

Name: DUARTE-OLIVERIA, THALES AL. .. A 201-065-524

Date of this notice: 3/6/2017

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

Falls Church, Virginia 22041

File: A201 065 524-Tulsa, OK Date:

MAR - 6 2017
In re: THALES ALBERTO DUARTE-OLIVERIA a.k.a. Thales Alberto Oliveira

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IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Melissa C. Grimaldo, Esquire

APPLICATION: Adjustment of status

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).

The Immigration Judge pretermitted the respondent's adjustment of status application

because he failed to submit a copy of his medical examination (Tr. at 134). All applications and
supporting documents that are to be considered in a proceeding before an Immigration Judge
must be filed with the Immigration Court having administrative control over the record of
proceedings. See 8 C.F.R. 1003.3 l(a). The Immigration Judge may set and extend time limits
for the filing of applications and related documents. If an application is not filed within the time
set by the Immigration Judge, the opportunity to file that application shall be deemed abandoned.
See 8 C.F.R. 1003.31(c); Matter ofR-R-, 20 I&N Dec. 547 (BIA 1992).

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.

Accordingly, the following order will be entered.

ORDER: The record is remanded to the Immigration Judge for further proceedings

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consistent with the foregoing opinion.

<
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

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

File: A201-065-524 November 9, 2016

In the Matter of

)
THALES ALBERTO DUARTE-OLIVERIA ) IN REMOVAL PROCEEDINGS
)
RESPONDENT )

CHARGES: Section 237(a)(1)(8) of the Immigration and Nationality Act (Act) as

amended - in that, after admission as a nonimmigrant under Section
101(a)(15) of the Act, you have remained in the United States for a
longer time than permitted in violation of this Act or any law of the
United States.

APPLICATIONS: Request for adjustment of status pursuant to Section 245(a) of the

Immigration and Nationality Act; request for a continuance; request
for pretermission of the respondent's application for adjustment of
status.

ON BEHALF OF RESPONDENT: MELISSA GRIMALDO, Esquire

P.O. Box 794284
Dallas, TX 75379

ON BEHALF OF OHS: DAWNITA GRIMES, Assistant Chief Counsel

ORAL DECISION OF THE IMMIGRATION JUDGE

The respondent is a native and citizen of Brazil. He was admitted to the

United States at Chicago, Illinois, on or about August 2, 2007, as a nonimmigrant visitor

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

successor, the Department of Homeland Security (hereto referred to as the

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Government).

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

served on the respondent.

On or about February 2, 2012, before another Immigration Judge, the respondent

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

necessary, Brazil was designated as the country of removal.

Currently, the respondent is being detained by the Government. It appears the

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

under the custody of the Immigration Service.

On September 6, 2016, the respondent appeared by video and his counsel at

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

A201-065-524 2 November 9, 2016

pursue an application for adjustment of status. The Court instructed the respondent's

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

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for adjustment of status, the Form 1-485, must be filed with the Court on or before

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

is today November 9th, 2016.

At today's hearing on November 9, 2016, the respondent failed to submit his

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

in order to submit the medical examination, however, respondent's counsel was

prepared to go forward today with the testimony evidence.

The Government opposed the respondent's request for a continuance and

moved to pretermit the respondent's application for adjustment of status and that he

failed to submit the proper medical examination as required by the regulations at 8

C.F.R. 445.5 and that the respondent failed to establish that he was not admissible

under 212(a)(1) health-related grounds.

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

A201-065-524 3 November 9, 2016

 ,"]'; '

medical examination and be medically examined as required by the regulations at 8

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

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for medical examination. The Court finds that even though the respondent has changed

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

Government counsel that the medical examination was not completed.

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

authority for the adjudication motions to continue in removal proceedings, the

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

good cause shown upon application by the respondent or the Government).

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.

A201-065-524 4 November 9, 2016

 .I

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

have this done prior to today's hearing.

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Accordingly, the Court will grant the Government's motion to pretermit the

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.

Accordingly, the following orders are entered.

ORDER

IT IS HEREBY ORDERED the respondent's request for a continuance be denied.

IT IS FURTHER ORDERED that the motion for pretemiission of the application
for adjustment of status be granted.
IT IS FURTHER ORDERED the respondent's application for adjustment of status

A201-065-524 5 November 9, 2016

pursuant to Section 245(a) of the Immigration and Nationality Act be denied.

IT IS FURTHER ORDERED the respondent should be now deported from the

United States to Brazil based on the charge contained in the Notice to Appear.

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DEITRICH H. SIMS
Immigration Judge

A201-065-524 6 November 9, 2016

 CERTIFICATE PAGE

I hereby certify that the attached proceeding before JUDGE DEITRICH H. SIMS,

in the matter of:

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THALES ALBERTO DUARTE-OLIVERIA

A201-065-524

DALLAS, TEXAS

was held as herein appears, and that this is the original transcript thereof for the file of

the Executive Office for Immigration Review.

LORI A. GOCHNOUR (Transcriber)

FREE STATE REPORTING, lnc.-2

DECEMBER 19, 2016

(Completion Date)