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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

DHS/ICE Office of Chief Counsel - ATL


180 Ted Turner Dr., SW, Ste 332
Atlanta, GA 30303

Name: LOPEZ-DE DIOS, JULIO

A 206-011-402

Date of this notice: 3/1/2016

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

Doruu.. C

t1/lA)

Donna Carr
Chief Clerk
Enclosure
Panel Members:

Pauley, Roger

Userteam: Docket

For more unpublished BIA decisions, visit


www.irac.net/unpublished/index/
Cite as: Julio Lopez-De Dios, A206 011 402 (BIA March 1, 2016)

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

Echols, Eli A
Socheat Chea, P .C.
3500 Duluth Park Lane
Bldg 300
Duluth, GA 30096

U.S. Department of Justice

Decision of the Board of Immigration Appeals

Executive Office for Immigration Review


Falls Church, Virginia 22041

Date:

File: A206 011 402 - Atlanta, GA

MAR - 1 2016

IN REMOVAL PROCEEDINGS
APPEAL AND MOTION
ON BEHALF OF RESPONDENT: Eli A. Echols, Esquire
ON BEHALF OF DHS:

Greg Radics
Assistant Chief Counsel

CHARGE:
Notice: Sec.

212(a)(6)(A)(i), l&N Act [8 U.S.C. 1182(a)(6)(A)(i)] Present without being admitted or paroled (conceded)

APPLICATION: Continuance; remand


The respondent, a native and citizen of Mexico, appeals from the Immigration Judge's
May 14, 2015, decision denying his request for a continuance. He also requests remand of the
record so that the Immigration Judge may consider new evidence that he has submitted for the
first time on appeal (Respondent's Brief at 2-4). The respondent's request for oral argument is
denied. See 8 C.F .R. 1003.1(e)(7). The record will be remanded for further proceedings
consistent with this opinion and for the entry of a new decision.
We review findings of fact, including any credibility finding, for clear error. 8 C.F.R.
1003.l(d)(3)(i). We review questions of law, discretion, or judgment, and all other issues de
novo. 8 C.F.R. 1003. l(d)(3)(ii).
The respondent was placed into proceedings through the filing of a Notice to
Appear (NTA) with the Immigration Court on July 11, 2013 (Exh. 1). The respondent appeared
before the Immigration Judge on April 7, 2015, and his case was continued for attorney
preparation (I.J. at 2; Tr. at 2). At his final hearing on May 14, 2015, the respondent again
requested a continuance, indicating that he had married his United States citizen girlfriend and
that she planned on filing an Alien Relative Petition (Form 1-130) with United States Citizenship
and Immigration Services ("USCIS") on the respondent's behalf (I.J. at 2; Tr. at 4). 1
The Immigration Judge determined that the respondent's request for a further continuance
was unsupported by good cause, because any relief for which he might be eligible was
1

On appeal, the respondent submitted the couple's May 11, 2015, marriage certificate
(Respondent's Brief at Tab B).
Cite as: Julio Lopez-De Dios, A206 011 402 (BIA March 1, 2016)

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

In re: JULIO LOPEZ-DE DIOS a.k.a. Julio Dedios Lopez a.k.a. Urias Lopez de Dios a.k.a. Julio
de Dios Lopez

A206 011 402


speculative (I.J. at 2).2 See 8 C.F.R. 1003.29, 1240.6; Matter of Perez-Andrade, 19 I&N
Dec. 433 (BIA 1987).

Assuming, arguendo, that the respondent did not previously establish that good cause existed
for a continuance, we conclude, upon review of the evidence that he has presented on appeal,
that remand is warranted in order for the Immigration Judge to determine whether there is now
good cause to continue these removal proceedings while USCIS adjudicates the visa petition
filed on the respondent's behalf. See generally Matter of Coelho, 20 I&N Dec. 464, 471
(BIA 1992) (explaining that a request for remand must generally meet the same requirements as
a motion to reopen and be supported by previously unavailable evidence). Notably, although the
respondent acknowledges that he entered without inspection, such that he is not statutorily
eligible for adjustment of status pursuant to section 245(a) of the Act, 8 U.S.C. 1255(a), should
the visa petition filed by his wife be approved, he may be eligible for stateside processing of a
Provisional Unlawful Presence Waiver (Form I-601A), if these proceedings are administratively
closed. See 8 C.F.R. 212.7(e)(4), (5).
Upon remand, the Immigration Judge should address the evidence that the respondent has
presented on appeal, provide the respondent with a reasonable opportunity to file additional
evidence, adjudicate the respondent's request for a continuance in accordance with this Board's
decision in Matter of Hashmi, 24 I&N Dec. 785 (BIA 2009), and take any other action that he
deems appropriate. At the present time, we express no opinion regarding the ultimate outcome
of this case. Accordingly, the following order is entered.
ORDER: The record is remanded to the Immigration Court for further proceedings
consistent with the foregoing opinion and the entry of a new decision.

In considering whether the respondent had established good cause, the Immigration Judge
stated that the respondent requested the continuance so that he might have the opportunity to
marry his long-term United States citizen girlfriend (I.J. at 2). This was a misstatement of fact.
During the respondent's final hearing, his counsel indicated that the respondent had recently
married his girlfriend, not that he was seeking to do so in the future (Tr. at 4). Thus, we find
clear error in the Immigration Judge's factual determination regarding the respondent's marital
status. 8 C.F.R. 1003.l(d)(3)(i).
2

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

On appeal, the respondent maintains that the Immigration Judge erred in concluding that his
continuance request is unsupported by good cause (Respondent's Brief at 3-4). He has also
submitted new evidence on appeal, including evidence that his wife has filed a visa petition on
his behalf, that we construe as a motion to remand (Respondent's Brief at 3, Tabs A-B).
Matter of Fedorenko, 19 I&N Dec. 57, 74 (BIA 1984) ("The Board is an appellate body whose
function is to review, not to create, a record.").

File: A206-011-402

May 14, 2015

In the Matter of

LOPEZ-DE JULIO DIOS


RESPONDENT

)
)
)
)

IN REMOVAL PROCEEDINGS

CHARGES:
APPLICATIONS:
ON BEHALF OF RESPONDENT: Andrew Hewitt
3500 Duluth Park Lane, Suite 300
Duluth, Georgia 30096
ON BEHALF OF OHS: Greg Raddick
Assistant Chief Counsel

ORAL DECISION OF THE IMMIGRATION JUDGE


This case came before the court as the result of a Notice to Appear that
was issued by the Department of Homeland Security. The charging document alleges
that the respondent is a native and citizen of Mexico and that he is removable from the
United States pursuant to Section 212 of the Immigration and Nationality Act. The
respondent admits each allegation in the Notice to Appear and concedes removability.
The court designates Mexico.

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

UNITED STATES DEPARTMENT OF JUSTICE


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

At the last hearing on April 7th, the respondent request a continuance in


order to adequately determine what forms of relief he might be eligible for. At today's

The respondent's says that he wants a further continuance in order to see


whether he can be married to a long-term girlfriend who is a United States citizen.
There is no evidence the respondent is presently eligible to adjust his status or that any
1-130 has been filed on his behalf. He seeks speculative relief based on the speculation
that he might sometime down the road be married and that his girlfriend would then file
an 1-130 on his behalf. However, the respondent has taken no steps since the last
hearing to establish any eligibility for relief. The government objects to a further
continuance. The respondent is not currently eligible for any relief that would allow him
to remain in the United States.
The respondent requests an order of removal in the absence of a
continuance. The court understands that the respondent has reserved his right to
appeal that decision. The court will enter the following order.
ORDER
IT IS HEREBY ORDERED the respondent be removed from the United
States based on the charge set forth in the Notice to Appear and that he be deported to
Mexico.

Please see the next page for electronic


signature

A206-011-402

EARLE 8 WILSON
Immigration Judge

May 14, 2015

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

hearing, the respondent has not identified any relief thaf s presently available to him.

'

/Isl/
Immigration Judge EARLE B WILSON

A206-0ll-402

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

wilsone on July 24, 2015 at 12:00 PM GMT

May 14, 2015

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