U.S. Department of J1..

_te
Executive Office for Immigration Review
Board of Immigration Appeals
Office of the Clerk
5/07 Leesburg Pike, Suite 2000
Falls Church, Virginia 22041

OHS/ICE Office of Chief Counsel - IMP

1115 N. Imperial Ave.
El Centro,CA 92243

Name: ESTRADA-PACHECO,ROBERTO

A 071-608-938
Date of this notice: 2/3/2016

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

DCinltL C

l1AA)

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Grant, Edward R.
Guendelsberger, John
O'Leary, Brian M.

Usertea m: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/
Cite as: Roberto Estrada-Pacheco, A071 608 938 (BIA Feb. 3, 2016)

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ESTRADAACHECO,ROBERTO
A071-608-938
C/0 MTC-IRDF
1572 GATEWAY ROAD
CALEXICO,CA 92231

U.. Department of Justice

Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 22041

File: A071 608 938 - Imperial, CA

In re: ROBERTO ESTRADA-PACHECO

Date:

FEB - 3 2016

APPEAL
ON BEHALF OF RESPONDENT: Pro se
ON BEHALF OF OHS:

D. Holliday
Assistant Chief Counsel

John

The Department of Homeland Security ("DHS") appeals the decision of the Immigration
Judge, dated October 6, 2015, terminating these removal proceedings. The DHS's appeal, which
has not been opposed by the respondent, will be sustained.
We review Immigration Judges' 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. 1003.l(d)(3)(i),
(ii).
We recognize that these removal proceedings are potentially amenable to dismissal under the
provisions of 8 C.F.R. 1239.2(c) as the respondent may be subject to the reinstatement of a
prior order of removal. See section 241(a)(S) of the Immigration and Nationality Act, 8 U .S.C.
1231(a)(5). However, in lieu of reinstating a prior order of removal, the OHS has decided, as a
matter of its unreviewable prosecutorial discretion, to pursue the present Notice to Appear
("NTA") in these removal proceedings (DHS's Br. at 8). Thus, considering the totality of the
circumstances presented in this case, we agree with the OHS that the Immigration Judge erred in
terminating these removal proceedings. See, e.g., Villa-Anguiano v. Holder, 727 F.3d 873, 879
(9th Cir. 2013) ("Thus, ICE agents, to whom 123l(a)(S) delegates the decision to reinstate a
prior removal order, may exercise their discretion not to pursue streamlined reinstatement
procedures."); Matter of Sanchez-Herbert, 26 I&N Dec. 43, 44 (BIA 2012) ("Once a notice to
appear has been properly filed with the Immigration Court, jurisdiction vests."); Matter of
Quintero, 18 I&N Dec. 348, 350 (BIA 1982) ("Once deportation proceedings have been initiated
by the District Director, the immigration judge may not review the wisdom of the District
Director's action, but must execute his duty to determine whether the deportation charge is
sustained by the requisite evidence in an expeditious manner."). Accordingly, we will sustain
the DHS's appeal, reinstate these removal proceedings, and remand the record to the
Immigration Judge for further proceedings.
The Immigration Judge has sustained the charge of removability (Tr. at 15; Exh. 1). See
section 212(a)(6)(A)(i) of the Act, 8 U.S.C. 1182(a)(6)(A)(i). As such, upon remand, the
respondent should be provided with an opportunity to pursue an Application for Asylum and for
Withholding of Removal (Form 1-589) and other forms of relief from removal. At the present
time, we express no opinion regarding the ultimate outcome of these proceedings.
Cite as: Roberto Estrada-Pacheco, A071 608 938 (BIA Feb. 3, 2016)

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

IN REMOVAL PROCEEDINGS

A071608 938
For the reasons set forth above, the following orders are entered.
ORDER: The Department of Homeland Security's appeal is sustained.
FURTHER ORDER: These removal proceedings are reinstated and the record is remanded
to the Immigration Court for further proceedings consistent with the foregoing opinion and the
entry of a new decision.

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

2
Cite as: Roberto Estrada-Pacheco, A071 608 938 (BIA Feb. 3, 2016)

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UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE E'OR IMMIGRATION REVIE1tl
IMMIGRATION COURT
2409 LA BRUCHERIE ROAD
"' .._h.'
IMPERIAL, CA 92251

.......
....
'I

Date: Oct 6, 2015

File A071-608-938
In the Matter of:
ESTRADA-PACHECO, ROBERTO
Attached is a copy of the written decision of the Immigration Judge.
This decision is final unless an appeal is taken to the Board of
Immigration Appeals. The enclosed copies of FORM EOR 26,
Notice of Appeal, and FORM EOIR 27, Notice of Entry as Altorney or
Representative, properly executed, must be filed with the Board of
Immigration Appeals on or before
The appeal must be accompanied by proof o( paid f 4 {S110.00).
Enc)osed is a copy o( the oral decision.

'

. ..

Enclosed is a transcript of the testimony of record.

to submit a brief
You are granled until
to this office in support of your appeal.

_k_

Opposing counsel is gr.anted until

brief in opposition to the appeal.

to submit a

Enclosed is a copy of the order/decision of the Immigration Judge.

All papers fjled with the Court shall be accompanied by proof
of service upon opposing counsel.
Sincerely,

cc: OHS/DISTRICT COUNSEL

1115 N IMPERIAL AVE
EL CENTRO, CA 92243

L
Immigration

Court Clerk

UL

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ESTRADA-PACHECO, ROBERTO
C/0 MTC-IRDF
1572 GATEWAY ROAD
CALEXICO, CA 92231

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
2409 La Brucherie Road
Imperial, California 92251

In the Matter of

)
)
)

) IN REMOVAL PROCEEDINGS
)

Roberto ESTRADA-PACHECO,
a.k.a. Alfredo Jose Aviles; Oscar Figueroa )
Martinez; Ricardo Gonzales; Jorge
)
Jimenez Ayala; and Jose Pacheco Sanchez, )
Respondent

)
)

ON BEHALF OF RESPONDENT:

ON BEHALF OF THE DEPARTMENT OF

HOMELAND SECURITY:

Pro se

John D. Holliday, Esquire

1115 North Imperial Avenue
El Centro, California 92243

CHARGE:

Section 212(a)(6)(A)(i) of the Immigration and Nationality Act,

(Alien Present Without Being Admitted or Paroled).
DECISION AND ORDER OF THE IMMIGRATION JUDGE

Respondent is a native and citizen of El Salvador. He unlawfully entered the United

States on or about May of 1990 and was placed in deportation proceedings on January 30, 1992.
On February 7, 1992 an Immigration Judge ordered Respondent deported from the United States.
(Order of the Immigration Judge, Feb. 7, 1992.) That order was executed on February 8, 1992.
The respondent illegally entered the United States again in 2001 and on January 13, 2010,
immigration officials reinstated the 1992 order of deportation and executed that reinstatement on
February 10, 2010. On October 27, 2014, Respondent attempted to unlawfully enter the United
States at or near Calexico, California; Border Patrol Agents apprehended him and again referred
him for reinstatement of his 1992 deportation order. On February 18, 2015, the Department of
Homeland Security ("OHS") served upon Respondent a Notice to Appear ("NTA"). The DHS
alleged in the NTA that Respondent arrived in the United States at or near Calexico, California
on or about October 27, 2014. The DHS charged Respondent as removable from the United
States under section 212(a)(6)(A)(i) of the Immigration and Nationality Act ("Act"). On
February 19, 2015, the DHS filed the NTA with the Immigration Court in Imperial, California
thereby commencing removal proceedings. See 8 C.F.R. 1003.14(a) (2015).

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

File No.: A071 608 938

The Court may properly terminate removal proceedings as improvidently begun upon a
determination that the alien is subject to reinstatement. See Matter of W-C-B-, 24 I&N Dec. 118
(BIA 2007); Matter of G-N-C-, 22 I&N Dec. 281 (BIA 1998); see also Memo, Brian M.
O'Leary, Chieflmmigration Judge, Operating Policies and Procedures Memorandum 15-01:
Hearing Procedures for Cases covered by New DHS Priorities and Initiatives, Apr. 6, 2015, at 3.
Section 241(a)(5) of the Act states in pertinent part:
If the Attorney General finds that an alien has reentered the United States illegally
after having been removed or having departed voluntarily, under an order of
removal, the prior order of removal is reinstated from its original date and is not
subject to being reopened or reviewed, the alien is not eligible and may not apply
for any relief under this Act, and the alien shall be removed under the prior order
at any time after the reentry.
INA 24l(a)(5) (emphasis added.) Section 1003.43(i) of Title 8 of the Code of Federal
Regulations ("Regulations") provides guidance in these circumstances:
Only an alien with a reinstated final order, or an alien with a newly issued final
order that was issued based. on the alien having reentered the United States
illegally after having been 1emoved or having departed voluntarily under a prior
order of removal that was subject to reinstatement under section 241 (a)(S) of the
Act, may file a motion to reopen with the Immigration Court or the Board
pursuant to this section. An alien whose final order has not been reinstated and as
to whom a newly issued final order, as described in this section, has not been
issued may apply for suspension of deportation or special rule cancellation of
removal before the Service pursuant to section 309(h)(l) of IIRIRA, as amended
by section 1505( c) of the LIFE Act Amendments, 1 according to the jurisdictional
1

See Section 1505(c) of the Legal Immigration Family Equity Act Amendments ("LIFE Act
Amendments"), Pub. L. No. 106-554, 114 Stat. 2763 (2000).
A071 608938

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On September 14, 2015, the Court notified the parties that it did not believe it had
jurisdiction to proceed in the case because the DHS had referred Respondent for reinstatement
proceedings. At that hearing the DHS stated that ifthe Court found on the Record that
Respondent was not eligible for Nicaraguan Adjustment and Central American Relief Act
("NACARA"), then the DHS would move to terminate proceedings and if granted, move
foiward with reinstatement. On September 16, 2015, the DHS filed its position regarding the
Court's jurisdiction. (See DHS Position on Jurisdiction and Reinstatement.) In its brief, the
DHS makes the factual contention that "due to concerns that the Respondent might be eligible
for NACARA due to his original date of enter, [sic] OHS issued an NTA in this case." (Id. at 2.)
The OHS argues, relying solely on Villa-Anguiano v. Holder, 727 F.3d 873 (9th Cir. 2013), that
this Court does have jurisdiction in this case because the DHS, in its discretion, decided not to
reinstate the prior deportation order and instead initiated removal proceedings against
Respondent. (See id.)

provisions for applications before the Service set forth in 8 C FR 240.62(a) or

before the Immigration Court as set forth in 8 C FR 240. 62(b).
8 C.F.R. 1003.43(i)(l) (emphasis added.)

order." (Emphasis added.) That section of the Regulations does not direct the DHS to file an
NTA with the Immigration Court where an alien has not applied for adjustment of status under
NACARA. See 8 C.F .R. 241.8(d). The DHS has not produced any evidence that Respondent
has applied for adjustment of status under NACARA and there is no such application in the
Record.
Accordingly, because Respondt.t is subject to a final order of deportation and "has
entered the United States illegally," and has not applied for NACARA, Villa-Aguiano dicta does
not control. In Villa-Anguiano, the Court held that the OHS improperly reinstated a prior
removal order after a district court found that the underlying removal proceedings had violated
the alien's due process rights. Villa-Angu.iano, 727 F.3d at 880-81. The Villa-Anguiano Court
did not hold that the OHS "may exercise its discretion" to disregard section 24l(a)(5) of the
Act's reinstatement requirement when there is no indication that a prior deportation order carries
any due process violations, and instead initiate new removal proceedings under section 240 of
the Act because "Respondent might be eligible for NACARA." See id. at 879.
Because Respondent has not filed an application for NACARA relief, the Court does not
have exclusive jurisdiction over Respondent's application.2 See 8 C.F.R. 240. 62(b)(1). Thus,
if OHS does not reinstate Respondent's prior deportation order, Respondent may file a
NACARA application with the United States Citizenship and Immigration Services ("USCIS").
Likewise, notwithstanding Respondent's reinstated deportation order, Respondent may file a
motion to reopen proceedings with the Immigration Court if he is primafacie eligible for such
relief and the Court may limit "the scope of the reopened proceedings . . . to a detennination of
the alien's eligibility for" NACARA related relief. 8 C.F.R. 1003.42(i)(2).
In sum, the Court finds that Respondent's unauthorized reentry into the United States
after having previously been ordered deported makes him subject to having the prior deportation
order reinstated pursuant to section 241(a)(5) of the Act. Whether an alien meets the factual
predicates for reinstatement is made by the DHS, not a judge, and the alien has no right to be
The DHS indicated that it believes Respondent may be eligible for NACARA because of his
original date of entry. It is unclear whether Respondent is eligible to apply for NACARA
because he is an ABC class member pursuant to 8 C.F.R. 240.60.
2

The Record indicates that Respondent is not prima facie eligible for NACARA because the
border patrol apprehended him when he attempted to enter the United States on October 27, 2014
and because he may have been convicted of at an aggravated felony after he entered the United
States in May of 1990. See 8 C.F.R. 1240. 6l(a)(l), (b).
A071 608 938

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Furthermore, section 241.8(d) of the Regulations provides that if an alien "has applied
for adjustment of status under" NACARA, an immigration officer "may not reinstate the prior

heard by a judge prior to reinstatement of a removal order. See Morales-Izquierdo, 486 F.3d
484, 493-95, 497 (9th Cir. 2007). The Court will terminate proceedings to allow the OHS to
determine whether Respondent's final order of deportation is reinstated again. Notwithstanding,
the Regulations provide Respondent with avenues to apply for NACARA.

ORDERS
IT IS ORDERED that these proceedings are hereby terminated without prejudice.
IT IS FURTHER ORDERED that Respondent's hearing scheduled for October 15,
2015, is hereby vacated.

l -I

Date: _..__/b------'
- "--- S'
=c....____

A071 608 938

CHRISTINE A. BITHER
Immigration Judge

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

Accordingly, the following orders will be entered:

900 " d 1"\f.10.L

heard by a judge prior to reinstatement of a removal order. See Morales-Izquierdo, 486 F.3d
484, .493-95, 497 (9th Cir. 2007). The Court will terminate proceedings to allow the DRS to
determine whether Respondent's final order of deportation is reinstated again. Notwithstanding,
the Regulations provide Respondent with avenues to apply for NACARA.

ORDERS
IT IS ORDERED that these proceedings arc hereby terminated without prejudice.
IT IS FURTHER ORDERED that Respondent's hearing scheduled for October 15,
2015, is hereby vacated.

)
=----/.
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Date: -
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CHRISTINE A BlTHER
Immigration Judge

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A071 608 938

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I I Other

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Accordingly, the following orders will be entered: