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Department of Justice
Executive Office for Immigration Review
A 206-011-402
Enclosed is a copy of the Board's decision and order in the above-referenced case.
Sincerely,
Doruu.. C
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Donna Carr
Chief Clerk
Enclosure
Panel Members:
Pauley, Roger
Userteam: Docket
Echols, Eli A
Socheat Chea, P .C.
3500 Duluth Park Lane
Bldg 300
Duluth, GA 30096
Date:
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)
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)
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
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
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
In the Matter of
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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
A206-011-402
EARLE 8 WILSON
Immigration Judge
hearing, the respondent has not identified any relief thaf s presently available to him.
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/Isl/
Immigration Judge EARLE B WILSON
A206-0ll-402