U.S.

Department of Justice
Executive Office for Immigration Review
Board oflmmigration Appeals
Office of the Clerk
5107 Leesburg Pike, Suite 2000
Falls Church, Virginia 20530

Name: S

-P

OHS/ICE Office of Chief Counsel - ATL

180 Spring Street, Suite 332
Atlanta, GA 30303

, R

-593

Date of this notice: 5/11/2015

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

DOYUtL ctViA)
Donna Carr
Chief Clerk

Enclosure
Panel Members:
Holmes, David B.

Userteam: Docket

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Cite as: R-S-P-, AXXX XXX 593 (BIA May 11, 2015)

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Salmon, Rebeca E.
Access To Law Foundation
PO Box 1614
Norcross, GA 30091

U.S. Department of Justice

pffice fn,r Immigration Review

Decision of the Board of Immigration Appeals

Executive

Fajls Church, Virginia 20530

593 - Atlanta, GA

File:
In re: R

-P

MAY tll011

REMOVAL PROCEEDINGS

APPEAL AND MOTION

ON BEHALF OF RESPONDENT: Rebeca E. Salmon, Esquire
ON BEHALF OF DHS:

Hayden Colby
Assistant Chief Counsel

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; termination

The respondent appeals from the Immigration Judge's November 24, 2014, decision denying
his requested continuance and ordering him removed to Guatemala. 8 C.F.R. 1003.29.
On appeal, the Department of Homeland Security ("DHS") has filed a brief that requests a
remand or, in the alternative, to summarily affirm the Immigration Judge's decision.
The respondent has filed a reply brief that also moves to terminate proceedings. 1 We will
vacate the November 24, 2014, decision and removal order, and remand the record for further
proceedings and issuance of a new decision.
We review for clear error the findings of fact, including determinations of credibility,
made by the Immigration Judge. 8 C.F.R. 1003.l(d)(3)(i). We review de novo all other issues,
including whether the parties have met the relevant burden of proof, and issues of discretion.
8 C.F.R. 1003.l(d)(3)(ii).
We agree with the respondent that he demonstrated the requisite good cause to support his
requested 90-day continuance when he provided the Immigration Court with a copy of a hearing
notice reflecting that the state juvenile court had scheduled a hearing for December 18, 2014, on
his petition for "dependent child" status under GA. CODE ANN. 15-11-2(22) (See Respondent's
November 10, 2014, Motion to Continue). 8 C.F.R. 1003.29. Thus, the Immigration Judge
erred in denying the requested 90-day continuance (l.J. at 2).

The DHS has not filed a response to the respondent's motion to terminate.

Cite as: R-S-P-, AXXX XXX 593 (BIA May 11, 2015)

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IN

Date:

593

The respondent has filed a reply brief that requests termination of removal proceedings based
on evidence that on April 9, 2015, the United States Citizenship and Immigration Services
("USCIS") approved the respondent's visa petition for classification as a special immigrant
juvenile (Form 1-360)). See 8 C.F.R. 204.ll(a), (d)(2)(i). 3 As the facts underlying the
respondent's eligibility for relief from removal have changed during the pendency of the
respondent's appeal, we will remand the record for the Immigration Court to consider in the first
instance the new evidence filed on appeal and any other applications for relief, including the
respondent's motion to terminate removal proceedings, and any response from the DHS.
Accordingly, the following orders will be issued:
ORDER: The Immigration Judge's November 24, 2014, decision and removal order are
vacated.
FURTHER ORDER: The record is remanded to the Immigration Court for further
proceedings consistent with the foregoing opinion and for entry of a new decision.

FOR THE BOARD

The DHS's appeal filing argues in the alternative that we should summarily affirm the
Im.migration Judge's decision and removal order.

3. The respondent also requests that the Board issue a ruling that will serve as guidance to the
Immigration Court on various issues raised in his appeal brief, including whether the
Im.migration Judge erred in requiring that the respondent provide a copy of his state court filings
to support his requested continuance. 8 C.F.R. 1003.29. As we agree with the respondent
that he demonstrated the requisite good cause to support his requested continuance and we are
remanding the record for further proceedings based on new developments during the pendency
of the appeal, we will not address these additional issues.

2
Cite as: R-S-P-, AXXX XXX 593 (BIA May 11, 2015)

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The DHS's appeal brief requests that the Board remand the record based on evidence that on
December 18, 2014, the state court issued an order granting the respondent's petition for
"dependent child" status under GA. CODE ANN. 15-11-2(22), and finding that reunification of
the respondent with one or both of his parents was not viable due to "abuse, neglect,
abandonment or similar basis found under State law." See section 10l(a)(27)(J) of the
Immigration and Nationality Act, 8 U.S.C. 1101(a)(27)(J) (DHS's Motion to Remand; see also
Respondent's Brief at 38-41 (state court order)).2

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFrICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
ATLANTA, GEORGIA

-P

,R

Respondent

In Removal Proceedings
File No. A#

-593

CHARGE:

Section 212(a)(6)(A)(i) of the Immigration and Nationality Act ("INA" or

"Act"), as amended, in that the Respondent is an alien present in the
United States without being admitted or paroled, or who arrived in the
United States at any time or place other than as designated by the Attorney
General.

APPLICATIONS:

Motion to Continue
APPEARANCES

ON BEHALF OF THE RESPONDENT:

ON BEHALF OF THE GOVERNMENT:

Rebeca E. Salmon, Esq.

P.O. Box 1644
Norcross, Georgia 30071

Assistant Chief Counsel

Department of Homeland Security
180 Spring Street SW, Suite 332
Atlanta, Georgia 30303

DECISION AND ORDER OF THE IMMIGRATION JUDGE

I.

PROCEDURAL HISTORY

The Respondent, R
S
-P
, is a 15-year-old native and citizen of
Guatemala. The Respondent arrived in the United States at or near Hidalgo, Texas on or about
May 16, 2014 and was not then admitted or paroled by an immigration officer.
On May 17, 2014, the Department of Homeland Security ("Department") placed the
Respondent into removal proceedings through the issuance of a Notice to Appear (''NTA"). Exh.
1. The NTA charges the Respondent with removability pursuant to INA 212(a)(6)(A)(i), as
amended, in that the Respondent is an alien present in the United States without being admitted
or paroled, or who arrived in the United States at any time or place other than as designated by
the Attorney General.
On September 9, 2014, the Court conducted a master calendar. hearing at which the
Respondent appeared pro se. The Court granted the Respondent a continuance in order to seek
counsel.
1

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)
)
)
)
)

IN THE MATTER OF:

On October 7, 2014, the Court conducted a master calendar hearing at which

Respondent's counsel, Ms. Rebeca Salmon, made her first appearance. Ms. Salmon requested a
continuance to allow for attorney preparation, and the Court granted her the requested
continuance. See Notice of Hearing in Removal Proceedings, dated October 7, 2014 (continuing
case until October 30, 2014). The Court informed counsel, and Respondei;it, that all applications

admitted all the allegations contained in the NTA and conceded the charge of removability
contained therein. Exh. 4.
On October 30, 2014, the Court conducted another master calendar hearing at which the
Respondent, through counsel, requested a continuance to allow the Respondent to seek Special
Immigration Juvenile Status ("SIJS"). Respondent's counsel filed a cover letter addressed to a
Georgia state juvenile court (Exh.

5).

The Court requested a copy of the petition and complaint

filed with the juvenile court, but the Respondent's counsel refused to provide these documents to
the Court. The Court continued the case to allow both parties to research the issue of which
documents should be filed with the Immigration Judge when applying for a continuance to allow
an SIJS application to be adjudicated. See Notice of Hearing in Removal Proceedings, dated
October 30, 2014 (continuing case until November 6, 2014).
On November 6, 2014, the Court conducted another master calendar hearing at which the
Respondent's counsel provided oral argument in support of her request for a continuance. At this
hearing, the Respondent's attorney made clear that she was still refusing to file either the petition
or complaint that was filed with the juvenile court. She confirmed that if her request for a
continuance was denied, she was not seeking any other relief before the Court. At the conclusion
of this hearing, the Court reserved decision.
The Court has carefully reviewed the arguments of both parties and considered the entire
record before it. All evidence in the record has been considered, even if not discussed further in
this written decision. For the reasons set forth below, the Court will deny the Respondent's
Motion to Continue.
II.

DISCUSSION

The Respondent, through counsel, has requested a continuance to allow him to seek
Special Immigrant Juvenile Status ("SIJS"). The Court may grant a request for a continuance if
good cause is shown. 8 C.F.R.

facie

1003.29. Because the Respondent has not demonstrated prima

eligibility for SUS, the Court finds that he has not shown good cause for a continuance and

will thus deny his request for a continuance.

The Court would analogize this case to Matter of Hashimi, 24 l&N Dec. 785

(BIA 2009),

where the Board set forth criteria to consider when deciding whether to grant a continuance
based on the opportunity to apply for adjustment of status based on a pending visa petition. The
Board set forth the following factors:

"(I) the DHS response to the motion; (2) whether the

underlying visa petition is prima facie approvable; (3) the respondent's statutory eligibility for
adjustment of status; (4) whether the respondent's application for adjustment of status merits a

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for relief should be filed at the next hearing, scheduled for October 30, 2014. At this master
calendar hearing, the Respondent, through counsel, also submitted written pleadings wherein he

favorable exercise of discretion; (5) the reason or the continuance and other procedural factors."
Matter of Hashimi, 24 I&N Dec. 785, 790 (BIA 2009). The Board made clear that these factors
are "illustrative, not exhaustive .. .

[T]he focus of the inquiry should be the apparent ultimate

likelihood of success on the adjustment of status." Id (emphasis added).
.

to apply for relief based on an underlying, pending petition that is not before the Court. Thus, the
principles underlying demonstrating good cause for. a continuance are the same:

the focus of the

inquiry should be the respondent's apparent likelihood of success on the relief that he seeks.

Thus, in order to show good cause for a continuance in this case the Respondent must show that
he is prima

facie

eligible for a grant of SIJS.

The Respondent, through counsel, has submitted only two documents in support of his
request for a continuance. First, he submitted a copy of a cover letter mailed to Forsyth Juvenile
Court. See Exh.

5.

This cover letter to the juvenile court does not address the Respondent's

eligibility whatsoever but merely states that supporting documents are attached; the Court has
not received copies of any of these attached documents. Second, the Respondent submitted a
Notice of Hearing from the juvenile court stating that the Respondent's case had been scheduled
for a hearing. Again, this document provides no evidence of the Respondent's eligibility
whatsoever but is merely a procedural document informing the Respondent that his case has been
set for hearing. Thus, the evidence submitted by the Respondent does not show that he is prima

facie

eligible for SIJS.

The Respondent, through counsel, argues that the SIJS scheme is based on the division of

adjudication between federal and state authorities; that is, the state court retains primary
responsibility to ensure child welfare and the federal agencies may not "look behind" the final
order of the juvenile court or "re-adjudicate" the underlying juvenile court petition. The Court
fully acknowledges the role of the state courts in the SIJS process and does not intend to usurp
the jurisdiction or role of the state courts in the SIJS process. Instead, the Court seeks a copy of
the complaint and petition for the very limited and specific purpose of determining whether the
Respondent has shown good cause for a continuance.
In support of his request for a continuance, the Respondent, though counsel, also cited the
most recent g:uidance from the Chief Immigration Judge regarding docketing practices relating to
unaccompanied children cases. This memo states that "[ . .. ] nothing in the priority scheduling of
UC cases for the first master calendar hearing should inhibit a judge's discretion to appropriately
rest the case /or

other reasons supported by good cause."

See O'Leary Memo, page

(emphasis

added). Next, the OOPM states that if a respondent is applying for SIJS, the case should be
administratively closed or reset to allow for the SIJS process to unfold in the appropriate state or
juvenile court, and subsequently with USCIS. Respondent's counsel argued, and the Court
acknowledges, that the OOPM specifies that in SIJS cases a two-week continuance is likely
insufficient and that several months may be necessary in many locales. However, the issue
before the Court here is not the appropriate length of continuance but instead what showing is
required for a continuance to be granted. As recognized by the OOPM, the reasons for a
continuance must still be

supported by good cause.

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In this case, as in Hashimi, the issue is whether to grant a continuance for the opportunity

In conclusion, as detailed above, the Respondent has not proven his prima facie
eligibility for SIJS, the only form of relief he seeks. Because the Respondent has not shown any
likelihood of success on his SIJS application, the Court finds that he has not demonstrated good
case for a continuance. The Respondent's Motion to Continue will thus be denied.
In light of the foregoing, the Court will enter the following order:
ORDER OF THE IMMIGRATION JUDGE
It is ordered that:

The
Respondent's
Motion
Continue is hereby DENIED.

It is further ordered that:

The

to

Respondent be removed to
GUATEMALA based on the charge
contained in the Notice to Appear.

: "

# z .?.c>J'j
J)ate

an Pelletier
ed States Immigration Judge
Atlanta, Georgia

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Next, the Respondent's counsel argues that privacy laws may prevent her from
submitting the complaint and/or petition filed with the juvenile court to this Court, citing
O.C.G.A. 15-11-710. The Court notes that this statute regulates the sharing of documents
between state, county, and municipal entities and thus does not speak to the issue of sharing
documents with federal entities such as this Court. The Court is not aware of any law that would
prohibit the Respondent's counsel from sharing the complaint and petition she filed at the
juvenile court with this Court. The Court specifically notes that all other attorneys representing
SUS-seeking juveniles have filed the appropriate juvenile court complaints and petitions with
this Court without hesitation when requesting continuances. Thus, despite the Respondent's
attorney's contumacious attitude toward the Court, she has failed to provide any cogent reason
for her refusal to file the documents that would allow the Court to determine if good cause for a
continuance exists in this case.