De Los Santos, Reynaldo A., Esq.

202 S. Main
Cleburne, TX 76033
Name: MAEDGEN, VALERIE LEE
U.S. Department of Justice
Executive Ofce fr Iigration Review
Board of Immigration Appeals
Ofce of the Clerk
5 J 07 Leeburg Pike. Suire 2000
Fall Church, Vrginia 20530
OHS/ICE Ofce of Chief Counsel - DAL
125 E. John Carpenter Fwy, Ste. 500
Irving, TX 75062-2324
A 093-07-562
Date of this notice: 5/30/2014
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosure
Panel Members:
Pauley, Roger
Wendtland, Linda S.
Greer, Anne J.
Sincerely,
Do C t
Donna Carr
Chief Clerk
Trane
Userteam: Docket
For more unpublished BIA decisions, visit www.irac.net/unpublished
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Cite as: Valerie Lee Maedgen, A093 407 562 (BIA May 30, 2014)
. '
,-
U.S; Deparment of Justice
Executive Ofce fr Imigation Review
Decision of the Boad of Imigation Appeals
Falls Church, Virginia 20530
File: A03 407 562 - Dalas, TX
In re: VALERIE LEE MAEDGEN a.k.a. Lidia Bazn Aguilar
I RMOVAL PROCEEDINGS
APPEAL
ON BEHALF OF RSPONDENT: Reynaldo A. De Los Santos, Esquire
CHARGE:
Notce: Sec. 237(a)(l)(B), l&N Act (8 U.S.C. 1227(a)(l)(B)] -
In the United States in violation of law
APPLICATION: Reopening
Date:
MAY 3 0 2014
The respondent, a native ad citizen of Per, has appealed fom the Immigation Judge's
November 22, 2011, decision. In that decision, the Immigration Judge denied the respondent's
Jauary 10, 2011, motion to reopen as well as the Febrary 7, 2011, joint motion to reopen in
order fr the respondent to apply fr adjustent of status on the basis of a approved Petition fr
Alien Relative ("Form I-130"). The respondent's appeal will be sustained, and the record of
proceeding will be remaded for frher proceedings.
Te timeline of events culminating in the instat appea is as fllows. The respondent
entered the United States on September 9, 2000, as a nonimmigrant (Exh. 1). Following the
denial of a application fr adjustment of status on October 27, 2009, the remova proceedings
were initiated with te fling of the Notice to Appear in immigration court on Jauary 14, 2010
(Ex. 1 ). Afer the initial heaing on May 24, 2010, te respondent admitted the fctual
allegations ad conceded the chage of deportability though frmer counsel on June 21, 2010.
Also on June 21, 2010, the respondent indicated that a Form 1-130 had been fled on
her behalf by her Unted States citzen spouse. As a result of the petition's pendency
befre United States Citizenship ad Immigration Services ("USCIS"), te respondent and
the Depatment of Homelad Secuity ("DHS") entered into an ageement approved
by the Imgation Judge. There is no tascript of te proceedings below (transcripts
ae generaly not prepaed in an appea fom te denial of a moton to reopen,
see Boad of Immigation Appeals Practice Maual, 4.2(f(ii), at 47, available at
ht://w .justice.gov/eoir/vll qapracmanual/BIAPracticeManual. pdfpage=5 5 (last visited on
March 20, 2014)). However, we have independently reviewed the audio recording of the
proceeding. Our review of the audio recording refects that the salient ters of the ageement
were a fllows: The Immigration Judge would grat the respondent a 3-month continuace
fom June 21, until September 20, 2010. If the 1-130 petition was not approved by tat date, then
the respondent would waive her right of appeal and accept an order of volunta depare within
90 days fom that date. If USCIS subsequently "approved [the For I-130] within the period of
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Cite as: Valerie Lee Maedgen, A093 407 562 (BIA May 30, 2014)
A093 407 562
voluntary deparure, the cou has indicated that it will reopen your case [and] allow you to seek
adjustment of status, but if it's not approved, you have to leave on or befre the voluntary
deparure date . . . ."
Due to the Imigration Judge's schedule, te September 20, 2010, heaing was reset fr
October 12, 2010. On that date, the Immigration Judge issued an order of pre-hearing voluntary
depaure until Jauary 10, 2011, pursuat to section 240B(a) of the Act, 8 U.S.C. 1229c(a).
On Jauary 5, 2011, US CI S approved the For 1-130 fled on the respondent's behalf (I.J. at 2 of
6). On January 10, 2011, the respondent fled a motion to reopen, but it was unaccompanied by
the fe receipt (l.J. at 2 of 6). On February 7, 2011, the motion to reopen was refled as a joint
motion to reopen with the DHS' suppor. On July 18, 2011, the Immigration Judge held
a hearing on the motion to reopen.
In the November 22, 2011, decision, the Immigration Judge determined, frst, that the
Janua 10, 2011, motion to reopen was not a joint motion and was not properly fled due to the
absence of te fee receipt under 8 C.F.R. 1003.23(b)(l)(ii). Second, te Immigration Judge
denied the subsequent joint motion fled on February 7, 2011, deterining tat the respondent
is bared fom adjustment of status under section 245(a) of the Act, 8 U.S.C. 1255(a), because
she filed to depar on or befre Jauary 10, 2011, in accordance with the order of voluntary
depae (l.J. at 5 of 6).
1
The Immigation Judge deterined that section 240B(d) of te Act
bars the respondent fom adjustment of status ad could not be cured by a moton to reopen
(I.J. at 5 of 6). See Mater of Zmiewska, 24 I&N Dec. 87 (BI A 2007) ("The Board of
Immigation Appeals lacks authority to apply a 'exceptional circumstances' or other general
equitable exception to the penalty provisions fr failure to depar witin the time period aforded
fr voluntary departure under section 240B(d)(l) of the Immigration and Nationality Act,
8 U.S.C.A. 1229c(d)(1) (West Supp. 2006).").
However, the respondent has a statutory right to fle one motion to reopen. See Garcia
Carias v. Holder, 697 F.3d 257, 261-62 (5th Cir. 2012). Furterore, according to te literal
ters of the June 21, 2010, agreement, the respondent's Form 1-130 was "approved " by US CIS
"within the period of voluntay deparure." Hence, the respondent, who, proceeding tough
curent counsel, showed sufcient diligence in fling the motion to reopen afer the For I-130's
approval, was entitled to expect that te Immigration Judge would "reopen your case [and] allow
you to seek adjustent of status .... " Under these paicular fctual circumstances, terefre,
we conclude that te respondent's failure to depart was not voluntay under section 240B( d)(l)
of the Act. See Mater of Zmiewsk, supra, at 95 (determining that the alien had not
"voluntarily" filed to depa in par because the alien was "erroneously instcted by te
Immigration Judge tat the penalty provisions would not apply in the event that she could
demonstrate exceptional circumstances fr having failed to depart within the time aforded.").
In conclusion, section 240B( d) of the Act ha not rendered the respondent ineligible fr
adjustment of status. Accordingly, if otherise eligible, on remand she should be peritted to
1
The Imigation Judge's decision refects tat another motion to reopen was fled on July 18,
2011 (I.J. at 5 of 6); however, we have not been able to identif ay such motion in the record of
proceeding.
2
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Cite as: Valerie Lee Maedgen, A093 407 562 (BIA May 30, 2014)
A093 407 562
apply fr adjustment of status based on the approved For I-130. The fllowing orders will be
entered.
ORDER: The respondent's appeal is sustained, and the record of proceeding is remanded fr
frther proceedings.
FURTHER ORDER: The Immigration Judge's November 22, 2011, decision is vacated.
FOR TH BOA
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Cite as: Valerie Lee Maedgen, A093 407 562 (BIA May 30, 2014)
UNITED STATES DEPARTMENT OF JSTICE
EXECUTIVE OFFICE FOR IMMIGRTION RVIEW
IMMIGRATION COURT
I TH MATTER OF:
Maedgen, Valerie Lee
RSPONDENT
CHARGE:
APPLICATION:
DALLAS, TEXAS
)
)
)
)
)
)
)
IN REMOVAL PROCEEDINGS
A093-407-562
Section 237(a)(l)(B) of the Imigration ad Nationality
Act (Act), as amended, in tat afer admssion as a
nonimgrat under Section 101(a)(l5) of the Act, you
have remained i te United Sttes fr a time period longer
than permited, in violation of te Act or any oter law of
te United States.
Motion to Reopen
ON BEHALF OF THE RSPONDENT ON BEHAF OF THE DEPARTMENT
OF HOMELAND SECURITY
Rey De Los Santos
_
De Los Santos & Associates, P. C.
202 Sout Main
Clebue, TX 76033
Magaet Prce, Esq.
Assistant Chief Counsel - ICE
125 E. Joh Carenter Freeway, Suite 500
Irving, TX 75062
WTTEN DECISION OF TH IMMIGRATION JUDGE
FACTUAL BACKGROUD
The Respondent is a 19-year-old fmale, native and citizen of Per. Exhibit I.
Te Respondent entered te United States on September 9, 2000 at Dallas, Texas, a a
nonimgrant wt autorizaton to remain in the United States fr a temporary period.
Id.
On January 8, 2010 te Department of Homelad Secuity (DHS or te
Goverment) served the Respondent wth a Notice to Appea (NTA) charging her wt
Page 1 of 6
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removabilit under Section 237(a)(l)(B) of the Immigration and Nationalit Act (A or
Act), in that afer being admitted as a nonimigrant, she remained i the United States
beyond the temporary period wthout authorizaton fom the Goverent. Id
At a heaing on June 21, 2010 te Respondent, tough prior counsel, Moved fr
a Continuance to await the adjudication of a I-130 Ptition pending on te Respondent's
behalf. The Court ganted a three-mont continuance, until September 20, 2010. Te
Court asked te Respondent if she would accept voluntay deparure wit a 90-day
departre period and waive her right to appeal if the 1-130 were not approved by
September 20, 2010. Te Court stated that, in conjunction with it ofer, if the 1-130 was
approved within te 90-day voluntay depature period, it would reopen te Respondent's
case to allow her to seek adjustent of stats. The Respondent accepted and ageed to
the Court's ofer, ad te Goverent attorey stated tat she had no objection to the
agreement.
The 1-130 was not approved prior to September 20, 2010, and tus te
Respondent accepted the Cour's grant of voluntary departre on October 12, 2010. The
Respondent was ordered to depart the United States on or befre Jaua 10, 2011.
Te United States Citizenship and Imigration Service (USCIS or te Service)
approved the 1-130 Petition on January 5, 2011.
The Respondent, through current counsel, submtted a Motion to Reopen her
removal proceedings on Janua 10, 2010. However, tat Motion was not accompanied
by a fee receipt. See 8 C.F.R. 1003.23(b)(iii).
The Respondent ad te Goverment submted a Joint Motion to Reopen on
Februa 7, 2011.
Page 2 of 6
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On July 18, 2011 te Cour held a hearing regading te Respondent's Motion to
Reopen. At te hearing te lnigraton Judge stated tat, upon initial review of the fle,
ony te Joint Motion to Reopen had appeaed i te fle, and tus the Court had
concluded tat te Motion to Reopen was submted well beyond te close of te 90-day
voluntay departure period.
At the hearing on July 18, 2011 te Imigration Judge stated that, upon a later
review of te fle, he fund te Respondent's Motion to Reopen submtted to te Cout
on Jauar 10, 2011. The Imigration Judge stated that this occured due to a eror by
the Court staf, because when he frst reviewed te fle it did not contain te January 10,
2011 Motion to Reopen.
At te heaing te Imigration Judge stated that, while it appeas the Motion to
Reopen was timely submited to te Court, it was uaccompaied by a fe receipt.
1
Thus,
i accordace wth 8 C.F.R. 1003.23(b)(iii), te Moton was not properly "fled" by te
expiraton of the voluty departe period.
The Respondent's counsel made te argument to the Court tat the Motion
submited on Janua 10, 2011 was actually a Joint Motion to Reopen, because te
Goverent stated at the hearig on June 21, 2010 tat it would not object to reopening
te Respondent's case if the Respondent's petition were approved duing the voluntary
departure period. As joint motions to reopen do not require a fling fe, te Janua 10,
1 Te Respondent submited a fling fe receipt to the Cour at the July 18, 2011 hearig. Te flig fee
receipt sates tat te fe was submitte to the DHS on Janua I 0, 2011. I a afdavit atached to te
Motion to Reopen submited on Janua 10, 2011, a employee of the Respondent's counsel aed tat
she attempted to deliver to te flng fee to te DHS on Jaua 7, 2011, but was uable to do so because
te DHS does not accept flig fees afer 2:00 p.m., ad she was infred that evdence of a fling fe
submission is not produced by the DHS until later i te day or te fllowing day. Te Respondent's
counsel should have been aware of te time restctions related to te submission of fling fees to te DHS,
ad should have properly accounted fr them while preparig ad attemptig to fle te Motion. Presently,
te Cour notes
.
tat the regulation requies tat motions to reopen are accompaied by fe receits. If the
fe receit is not present ten the Motion is not properly fled under te regulation.
Page 3 of6
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2011 Motion, if constued as a joint motion, would be considered timely fled. See 8
C.F.R. 1003.25(b)(2)(vii).
The Cou concludes that it wll not reopen tese proceedings fr te reasons
stated in this Opinion.
ANALYSIS
First, the Cou fnds tat the Motion to Reopen submited on Jaua 10, 2011
wa a not a joint motion to reopen. Te DHS stated at te heaing on June 21, 2010 that
it would not oppose reopening if te I-130 Petition were approved during te volunt
depae period. Non-opposition is not synonymous wth joint fling; fermore, te
Janua 10, 2011 Motion was not even signed by te Goverent.
As the Motion to Reopen submitted on Jaua 10, 2011 does not qualif a a
joint motion to reopen, it required a flig fee. 8 C.F.R. 1003.23(b)(l)(ii) provides tat
motions to reopen must be accompanied by a fe receipt when submitted to te Cout.
As te Jauay 10, 2011 Motion to Reopen was uaccompaied by a fe receipt, it was
not properly "fled" within te voluta depare period; the Motion was actually fled
on July 18, 2011 when te fe receipt was fnally submtted.
IA 240B(d) provides the penalties that apply to aiens who fil to depart
during the voluntay depare period:
(d) Civil penalty fr filure to depart
( 1) In general
Subject to paragaph (2), if a alien is permited to depar volutaily under this
section and voluntaily fils to depa te United States witin the time period
specifed, te aien-
(A) shall be subject to a civil penaty of not less tha $1,000 ad not more than
$5,000; and
(B) shall be ineligible, fr a period of 10 yeas, to receive ay fer relief under
tis section ad sections 240A, 245, 248, and 249 of this title.
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8 C.F.R. 1240.26(e)(1) provides, however, tat these penalties do not apply
when a motion to reopen is properly fled duing the voluntary departre period. When a
motion to reopen is not properly fled prior to the expiration of the volunty deparre
period, as in this case, the fling of that moton afer the expiration does not have te
efect of vitiating or vacatig those penalties, even if that motion is grated. See 8 C.F.R.
1240.26(e)(2). Thus, when an alien fils to depart and no motion to reopen is properly
fled by the expiration of the voluntary departure period those penalties imediately
attach, and they cannot be cured by a motion to reopen fled afer te expiration of that
volunty depaure period. Fuherore, as 8 C.F.R. 1240.26(e)(2) uses te phrase
"motions to reopen" generally, it appears tat no specifc type of motion to reopen,
wheter fled by the respondent, the Goverment or jointly-fled, ca cure or vitiate these
penalties included at IA 2408( d).
Accordingly, the Respondent's Motion to Reopen submitted on Januay 10, 2011
but not actually fled until July 18, 2011, in addition to the Joint Motion to Reopen fled
by te Respondent and the Goverment on February 7, 2011, both will be denied by tis
Court. When the volunty departre period expired and the Respondent had not
departed, the penalties at IA 240B(d) took efect and, under the regulations, te fling
of the Motions to Reopen afer that expiration could not remove or modif tose
penalties. As such, the Respondent is barred, fr a period of ten yeas, to receive ay
relief under Section 245 of the Act. Accordingly, the Court will not reopen te
Respondent's case to allow her to apply fr adjustment of status, a she is ineligible to
adjust her status fr te next ten years.
Page 5 of6
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CONCLUSION
Accordingly, te fllong Order shall be entered:
ORDER
It is hereby ORDERED that te Respondent's Motion to Reopen BE ad IS
DENED.
Date:
( ' J 1 2 O I f
Dallas, Texas
Page 6of6
Deitich H. Sims
Imgration Judge
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