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Department of Justice
Executive Office for Immigration Review Board ofImmigration Appeals Office ofthe Clerk
Sl07 Leesburg Pike, Suite 1000 Falls 01urch. Virginia 22041
Gauzza, Lindsey, Esq. Law Offices of Cheryl R. David 299 Broadway, Suite 706 New York, NY 10007
OHS/ICE Office of Chief Counsel 26 Federal Plaza, 11th Floor New York, NY 10278
NYC
A 075-559-747
Enclosed is
copy of the Board's decision and order in the above-referenced case. Sincerely,
DQ)Ua_ ctVVt.)
Donna Carr Chief Clerk
Enclosure
Panel Members: Hoffman, Sharon
Trane
Userteam: Docket
Cite as: Alisha Rahim Robinson, A075 559 747 (BIA June 18, 2013)
U.S.
Department of Jnstice
File:
Date:
JUN 18 2013
In re: ALISHA RAHIM ROBINSON IN REMOVAL PROCEEDINGS APPEAL ON BEHALF OF RESPONDENT: Lindsey Gauzza, Esquire
("OHS") did not file a brief or other response to the appeal and has not opposed the requested remand. The record will be remanded.
for the Immigration Judge to apply applicable law.2 The Department of Homeland Security
continuance and for administrative closure.1 In the respondent's appeal, she requests a remand
The respondent, a native and citizen of Trinidad and Tobago, has filed a timely appeal of the
all other issues in appeals from decisions of Immigration Judges, including legal and discretionary determinations and applications of law to fact.
We review the factual findings of the Immigration Judge for clear error but review de novo
See Matter of Quintero, 18 I&N Dec. 348, 350 (BIA 1982); see also Matter of Rajah, 25 I&N Dec. 127, 136 (BIA 2009) (noting that a respondent with a prima facie approvable 1-140
and adjusttnent application may not be able to show good cause for a continuance where visa availability is too remote). However, as we have held when discussing the possibility that visa availability may be too remote to constitute good cause for a continuance, ''the Immigration
inappropriate for an Immigration Judge to continue based on speculation that a respondent's priority date
immigration judges and denied the request for a continuance. We recognize that it is typically eventually removal proceedings will become indefinitely current.
factors or citation to other case law, the Immigration Judge discussed his view of the role of the
forth in
the respondent established good cause for a continuance in light of the applicable factors set
We find it appropriate to remand this matter for the Immigration Judge to consider whether
].,fatter of Hashmi, 24 I&N Dec. 785 (BIA 2009). Without reference to the Hashmi
Rajah, supra, at 136; see also Freire v. Holder, 647 F.3d 67, 71 (2d Cir. 2011) (emphasizing the application of the Hashmi factors when evaluating the specific merits of a motion for a
continuance).
Judge must evaluate the individual facts and circumstances relevant to each case."
Matter of
(I.J. at 6-7), but the respondent did not appeal the issue and it is therefore considered waived. 31, 2011, l.J. at 1; Tr. at 18, 25; Exh. 1) and does not now contest his removability. See Respondent's Brief at 2 (conceding removability as charged, including as an alien who has been convicted of a crime involving moral turpitude).
2 The respondent previously conceded removability (Oct.
The Immigration Judge also denied the respondent's request for termination of proceedings
Cite as: Alisha Rahim Robinson, A075 559 747 (BIA June 18, 2013)
Here, the Immigration Judge did not discuss the relevant factors necessary for an individualized examination of whether the respondent established good cause for a continuance.
fact-finding and consideration of applicable law, the decision is inadequate for appellate review.
See generally Matter ofS-H-, 23 l&N Dec. 462, 465 (BIA 2002) (describing the importance of
comprehensive findings of fact).
In addition, lhe 'Immigration Judge also found that he was without authority to grant administrative closure (l.J. at 6). Since the Immigration Judge's decision, however, the Board
has found that an Iminigration Judge may administratively close a case over the objection of a party. See Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012). Therefore, upon remand the
warranted. 3 Imilligration Judge shall also consider this new guidance on when administrative closure may be
Judge for further proceedings consist nt with this opinion and the entry of a new decision.
Cite as: Alisha Rahim Robinson, A075 559 747 (BIA June 18, 2013)
UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW UNITED STATES IMMIGRATION COURT New York, New York
File No.:
November 15,
2011
In the Matter of ALISHA RAHIM ROBINSON Respondent CHARGE: Section 212 (a) (2) (A) 9i) (I) of the Immigration Act - an alien who has been convicted of a crime involving moral turpitude; Section 212 (a)(6) (A) (i) of the Immigration Act an alien present in the U. S. without being admitted or paroled. AP PLICATIONS: Exercise of prosecutorial discretion, for administrative closure. continuance IN REMOVAL PROCEEDINGS
ORAL DECISION OF THE IMMIGRATION JUDGE The respondent was placed in removal proceedings through Exhibit 1, 2010. the Notice to Appear, that was issued in February,
allegations in the Notice to Appear and did at least concede the charge of being present without admission or parole. The Court believes that the documentary evidence in the record does establish the respondent is subject to removal on 1
'
both charges.
clear and convincing evidence. The respondent, at the present time, is present in the U.S.
her status in the future if she received a waiver of inadmissibility for the criminal case referenced in allegation 4 of the Notice to Appear. The respondent's priority date under
the rationing system for issuance of immigrant visas established by Congress is far away. We do not know exactly when that but it is presently about six years It
thinks it is likely to be close to six years because very few immigration priority number categories actually become much more current within a few years. They tend to stay in the same range but staying
varying from month to month during the fiscal year, in around the same average. The respondent, therefore,
her case or to defer action on the case for some period of time, . possibly as long as five years, longer, possibly six years, possibly
adjusting her status with a waiver of inadmissibility in relation to her criminal conviction. The respondent also did make a request to the Department of Homeland Security for prosecutorial discretion, but the trial
A 0 75 559 747
November 15,
2011
attorney assigned to the case today has indicated that OHS is not willing to exercise that type of discretion for this respondent's case. The Court does not know, and actually need not know, why
but I
would suppose that the respondent's criminal conviction and the relatively long period of time before the case might be resolved in some way may be factors. come the U.S. a long period, Otherwise, in 1991, the respondent having
from exactly the same point of view that I speculate OHS may look at it because OHS may see a reason to allow a person to remain in the United States indefinitely without legal status. For the Court, however, I believe that the Court structure
establishes a system to determine in a fair way whether an alien is subject to removal, removal, the Court is, and I believe if an alien is subject to in general, has the duty to see that the as established
respondent either qualify for some type of relief, by legislation that Congress passed, required to leave the United States.
essence of a removal proceeding and of the deportation proceeding we had before. The Court does know, and I apologize that I do not have the but the Board of
November 15,
2011
that Immigration judges should not reschedule cases so that a respondent will have the opportunity to become eligible for a form of relief, which could not be granted at this time. The two
cases as I recall involved Immigration judges granting a continuance in one case of six months, in another case of one
year for persons who would need to demonstrate some period of good moral character in order to qualify for certain relief that they were seeking. not proper, The Board held that such continuances were
that a person becomes eligible for relief that is not actually available at the time the hearing is conducted. In the Court's view, case may be strong. the sympathetic factors in the present
stronger than the sympathetic factors in the cases the Board considered. That sort of balancing of which case is more
appealing or in which there may be stronger humanitarian interests is actually, in the Court's view, more a matter for
prosecutorial discretion by the Department of Homeland Security. In the Court's view, I believe that I should be limited by and I believe that Congress, believes that an
Immigration judge should not be exercising general equity powers and making rulings that the Judge thinks promote the interest of fairness or humanitarian concerns except within the confines of the statutory framework that we have.
November 15,
2011
One could view the Immigration judge's authority to grant lengthy continuances as being part of the statutory framework, but I do not think it is a substantive right. I think it is a
procedural mechanism to accomplish some goal that the statute recognizes. The court does not believe that it is justified to reset the respondent's case for a lengthy period or to administratively close or terminate the proceedings when the respondent, present time, at the
If the question were whether the respondent's U.S. relative had filed a visa petition,
length by Department of Homeland Security to determine whether that petition should be granted, matter. that would be a different
It would be the processing procedures of OHS which were Here, the matter which delays the
respondent from trying to qualify for relief is a framework established by Congress, which Congress has left in place with That framework of priority
times involved for a person to immigrate under the the preference system, in the Court's view
is an expression of an important policy by Congress. The court believes the entire idea that a person was in the U.S. without legal status should be granted the chance to stay in without legal status for five or six more years because
the U.S.
it is hoped that at that time the person might qualify for relief
A 075 559
747
November 15,
2011
is really not contemplated by the system Congress established to adjudicate applications for resident status such as the one in this case. Further, the Court believes that the Congress was even less
likely intending that such long continuances would be granted in a case where the respondent has a criminal conviction that justifies her removal from the United States and which is far from a minor technical violation of a non-turpitudinous statute. The respondent's conviction, not a crime of violence, et cetera,
but still must be considered as a fairly serious offense involving moral turpitude and obviously fraud on the part of the respondent. As far as the Court is concerned, it is quite unlikely that for
Congress intended that aliens be allowed to stay in the U. S. five or si years waiting for their chance to become legal inunigrants.
The Court believes that it is not justified to grant the continuance in the case on that basis. As far as administrative closure, the precedent decisions on
this indicate strongly that an Inunigration judge is not allowed to administratively close a removal proceeding unless both parties agree to do so, and here the Department of Homeland
Security could have obtained a similar result through the exercise of prosecutorial discretion if they wished to do so. As far as the termination, the Court does not believe there
November 15,
2011
' I
'
There is no and
the Court does not believe that termination can be used by fiat by the Court to delay the process of the removal proceeding, which the Department of Homeland Security decided to set in motion and then continue in motion. The Court, therefore, believes that the request for
continuance for adm inistrative closure or termination must be denied. Respondent's counsel has stated today that respodent is not aware of any other relief application that appears to be eligible to respondent. It does not appear to the Court is, and certainly
the respondent is not actively pursuing any other type of relief application. For this reason, the Court believes that a decision ordering
the respondent's removal is consistent with the intent of Congress is justified under the law, that order. IT IS HEREBY ORDERED that the respondent be removed from the United States to Trinidad and Tobago based on the charge that is sustained in this decision. and the Court will issue
November 15,
2011
CERTIFICATE PAGE
e
\.
hereby
certify
that
the
attached
proceeding
before
in the matter of: ALISHA RAHIM ROBINSON A 075 559 747 New York, New York
is an accurate,
the Executive Office for Immigration Review and that this is the original transcript thereof for the file of the Executive Office for Immigration Review.
January 2,
2012
(completion date)
By submission of this CERTIFICATE PAGE, the Contractor certifies that a Sony BEC/T-147, 4-channel transcriber or equivalent, and/or CD, as described in Section C, paragraph C.3.3.2 of the contract, was used to transcribe the Record of Proceeding shown in the above para graph.