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Marshak, Russell L, Esquire

Popkin, Shamir & Golan


3600 Wilshire Blvd, Suite 1118
Los Angeles, CA 90010-0000
Name: PASCUAL, MYLEEN CUYSON
U.S. Department of Justice
Executive Ofce fr Immigration Review
Board of Immigration Appeals
Ofce of the Clerk
JI07I.cc1hurgFikc, 5aitc JJJ
Idhr Church, Irgiuid 2J01!
OHS/ICE Ofice of Chief Counsel - LOS
606 S. Olive Street, 8th Floor
Los Angeles, CA 90014
A086-963-266
Date of this notice: 4/30/2012
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosure
Panel Members:
Creppy, Michael J.
Grant, Edward R.
Malphrus, Garry D.
Sincerely,
Donna Carr
Chief Clerk
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Cite as: Myleen Cuyson Pascual, A086 963 266 (BIA Apr. 30, 2012)
For more unpublished BIA decisions, visit www.irac.net/unpublished
.
' ,
U.S. Department of Justice
Executive Ofce fr Imigation Review
Decision of the Board oflmigation Appeals
Falls Chuch, Virginia 22041
File: A086 963 266 - Los Angeles, CA
In re: MYLEEN CUYSON PASCUAL
IN REMOVAL PROCEEDIGS
APPEAL
Date:
ON BEHALF OF RESPONDENT: Russell L. Marshak, Esquire
ON BEHALF OF OHS: Elena Kusky
Assistant Chief Counsel
APPLICATION: Motion to recalendar
APR ao201z
The Department of Homeland Security (OHS) has fled an interlocutor appeal fom the decision
of the Immigration Judge dated November 16, 2009, denying the DHS's motion to reinstate and
recalendar these removal proceedings, which were subject to an order of administrative closure
entered on September 28, 2009. We do not ordinarily entertain interlocutory appeals. See Matter
of Ruiz-Campuzano, 17 I&N Dec. 108 (BIA 1979). We have, however, on occasion ruled on the
merits of interlocutor appeals where we deemed it necessar to address important jurisdictional
questions regarding the administration of the immigation laws or to corect recurring problems in
the handling of cases by Immigration Judges. See, e.g., Matter of Guevara, 20 I&N Dec. 238 (BIA
1990, 1991 ); Matter of Dobere, 20 I&N Dec. 188 (BIA 1990). This is such a case, particularly as
declining to review this matter on an interlocutory basis would efectively freclose review of this
case entirely and prevent us fom reviewing an import jurisdictional issue. For te reasons
discussed below, the appeal will be sustained.
I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native ad citizen of the Philippines who entered the United States as a B-2
visitor on August 2, 2003, and was later granted authorization to remain until Januar 30, 2007. The
respondent was issued a Notice to Appear (NTA) on May 1, 2008, conceded removability, and
sought adjustment of status based on a approved family-based visa petition fled by her lawfl
permanent resident (LPR) fther. The visa petition, which was fled in April 2005 and was approved
in March 2009, is not curent. However, the respondent argues that based on the Child Status
Protection Act (CSPA) her priority date should be deemed to be current based on a furth
prefrence visa petition that was fled by the respondent's U.S. citizen pateral grandmother in 1988
on behalf of the respondent's fther while the respondent was a young child. The respondent argued
that her furth-prefrence visa categor, which was later reclassifed as a third-preference category,
automatically converted to a second-prefrence category under section 203(h) of the Act, thus
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Cite as: Myleen Cuyson Pascual, A086 963 266 (BIA Apr. 30, 2012)
A086 963 266
peritting her to retain the furth-prefrence categor date fom 1988 and thus to be currently
eligible to adjust status.
1
While te case was pending befre the Immigration Judge,
^
the Board held in Matter of Wang,
25 I&N Dec. 28 (BIA 2009), that the automatic conversion and priority retention provisions of the
CSP A apply only to petitions fled by the original petitioner (in that case the respondent's aunt on
behalf of the respondent's fther) and do not apply to a petition fled by a diferent petitioner (in that
case a lawfl peranent resident fther). The Board rejected the argument that a furth-prefrence
visa categor should be deemed to automatically convert to a second-preference categor under
section 203(h) of te Act, thereby permitting an alien to use the priority date of an earlier petitioner
rather than the priority date fr the petition on which the alien seeks adjustment of status. Matter
of Wang, 25 I&N Dec. at 38. We explained that accepting this argument would efectively allow the
alien to displace other aliens who had already been waiting fr visas in the same preference categor,
some fr lengthy periods. Id.
At the hearing befre the Immigation Judge held afer Matter of Wang was decided, DHS argued
that the Immigration Judge had ered in her interpretation of the CSP A as applied to the respondent's
case. The respondent then moved to "hold the case in abeyance," arguing that there was class action
litigation pending in the U.S. District Court in Los Angeles, of which the respondent apparently
qualifed as a member, challenging the Goverent's interpretation of the CSPA. Coste/o v.
Chertof-F .Supp.-, 2009 WL 4030516 (C.D.Cal. 2009); Zhang v. Napolitano, 663 F.Supp. 2d 913,
917 n.3 (C.D. Cal. 2009).
3
The respondent also argued that the Board's decision in Matter of Wang,
was under review in the Sixth Circuit and that there was also a pending class action lawsuit in Ohio
challenging the goverent's interretation of the CSPA, and which was certifed as a class one
month afer the Board's decision in Matter of Wang. Wang v. Holder, 2009 WL 3116348 (N.D.
Ohio 2009).
The Immigration Judge administratively closed these proceedings on September 28, 2009, in a
written order without explanation.
4
DHS did not appeal this decision, but instead, on October 27,
1
By the time the visa fr the respondent's fther became current in 2005, the respondent was 28
years old and thus the respondent was not eligible to adjust on that basis.
^
The Immigration Judge agreed with the respondent's position in an interim written decision issued
in May 2009, and scheduled the case fr an individual hearing to be held in July 2009.
While the case at hand was pending on appeal to the Board, the Ninth Circuit Court of Appeals
fund our interpretation of section 203(h) of the Act to be reasonable and accorded it Chevron
defrence. Cuellar de Osorio v. Maorks, 656 F.3d 954 (9th Cir. 2011).
4
During a hearing on September 14, 2009, DHS orally objected to the Immigration Judge's
suggestion that DHS agee to administratively close the proceedings. The Immigration Judge then
asked DHS to put its opposition in writing within ten days, but DHS did not fle anyting frther.
The Immigration Judge did not explain in the order why she administratively closed the case and did
(continued ... )
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Cite as: Myleen Cuyson Pascual, A086 963 266 (BIA Apr. 30, 2012)
A086 963 266
2009, DHS fled a motion to recalendar. The Immigration Judge denied the motion to recalendar
on November 16, 2009, and DHS fled an interlocutor appeal of that decision on December 15,
2009. The Immigration Judge indicated in a short written order denying the motion tat she would
not recalendar the case until the Ohio litigation was resolved.
II. ANALYSIS
In Matter of Avetisyan, 25 I& N Dec. 688 (BIA 2012), the Board held that an Immigation Judge
is no longer required to deny a motion to administratively close proceedings solely because one party
objects to the motion, and established guidance fr evaluating such motions. Although each case
depends on its individual circumstances, the primary consideration is the likelihood that the
respondent will succeed on a petition, application, or similar action that may aford him legal
immigation status, so long as the determinative event or action is not speculative and is likely to
occur within a period of time that is reasonable under the circumstances. Id.
As discussed in Matter of Avetisyan, DHS, the Immigration Courts and the Board have distinct
roles and responsibilities in the Nation's civil immigration system. DHS has exclusive jurisdiction
to deterine whether to institute immigration proceedings against an individual and what charges
to lodge. Matter ofBahta, 22 l&N Dec. 1381, 1391(BIA 2000); see also Matter of E-R-M-& L-R
M-, 25 l&N Dec. 520, 522 (BIA 2011 ). Also, pursuant to the charges brought by DHS, the
Immigation Court and the Board have the responsibility to determine whether to enter an order of
removal or gant relief fom removal based on whether the evidence and the law supports such a
fnding. See Maller of Yazdani, 17 I&N Dec. 626, 630 (BIA 1981); see also 8 C.F.R. 1003.10
(2011) (Immigration Judges shall seek to resolve matters in a timely and impartial manner consistent
with the Act ad regulations). Immigration Judges and the Board lack the authority to decide matters
of prosecutorial discretion or to decide fr humanitarian reasons whether an order of removal should
be entered or is in the national interest. See Matter of Quintero, 18 l&N Dec. 348 (BIA 1982)
(noting that permitting individuals to remain in the United States indefnitely is a matter of
prosecutorial discretion); Matter of Yazdani, 17 l&N Dec. at 630 (noting that is fr the INS, now
DHS, to decide whether "to initiate proceedings against an alien and whether to prosecute those
proceedings to a conclusion"). Such matters are within the exclusive jurisdiction of DHS. See id.
These principles regarding the separate roles and responsibilities fr the Immigration Court and DHS
are directly implicated when DHS moves to recalendar a case afer the case has been administratively
closed because DHS is making a specifc, renewed efort to proceed to a fnal resolution of the case.
If DHS is denied its request to recalendar proceedings afer action on the case has been defered fr
a period of time, particularly when DHS is not contributing to any delay in resolving any petition,
collateral matter or other action that fred the basis fr the administrative closure, the denial of the
motion could undermine DHS's ability to enfrce the immigration laws.
` ( continued)
not say whether DHS's filure to fle its opposition in writing impacted her decision. We have held
that Immigration Judges should explain the reasons fr their fctual fndings and legal conclusions
in a separate oral or written decision. See Matter of A-P-, 21 I&N Dec. 468, 477 (BIA 1999).
3
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Cite as: Myleen Cuyson Pascual, A086 963 266 (BIA Apr. 30, 2012)
AQ86 96 266
In the case at had, the fcts and circumstances ae ver diferent than in Matter of Avetisan,
ad the Immigration Judge erred in denying the motion to recalendar. Precedent fom the Board is
binding nationwide in immigration proceedings absent circuit court authority to the contar in the
circuit in which the Immigation Cour is located. Matter of U Singh, 25 l&N Dec. 670, 672 (BIA
2012); see also 8 C.F .R. 1003 .10( c ). The Immigration Judge here administratively closed the case
based on pending litigation. However, it was speculative to conclude that the Federal courts would,
either on direct appeal or though collateral litigation, ultimately reject the Board's interpretation of
the automatic conversion and priorit retention provisions of the CSPA in a manner fvorable to the
respondent.
In fct, as an indication of the uncertainty of collateral civil actions, the status of the Califria
class action lawsuits were such that while they were pending at the time the Immigration Judge
granted administrative closure, the U.S. District Court Judge in Los Angeles had defred to the
Board's adjudication in Matter of Wang and had granted summary judgment to the Goverent in
both cases by the time the Immigration Judge considered the motion to recalendar. Even then, the
Immigration Judge denied the motion, saying she would await the outcome of the Ohio litigation
befre taking frther action, even though the litigation was pending in a diferent circuit. Wang v.
Holder, 2009 W 31 16348 (.D. Ohio 2009). The posture of the case at hand befre the
Immigration Judge was that the Board had issued precedential authority that was directly applicable
to the fcts. There was no pending petitions or applications that would aford the alien legal
immigration status that would likely be decided within a reasonable period of time. Thus, the
Immigration Judge should have applied Matter of Wang to those fcts and adjudicated the case, and
ered in denying the motion to recalendar fr that purpose. Accordingly, we will sustain the appeal
and remand fr fer proceedings.
ORDER: The appeal of the Department of Homeland Security is sustained.
FURTHER ORDER: The record is remanded fr frther proceedings consistent with the
fregoing opinion and fr the entry of a new decision.

FOR
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Cite as: Myleen Cuyson Pascual, A086 963 266 (BIA Apr. 30, 2012)
POPKIN, SlIR GOt
MSHK, RUSSELL, mso.
UITED STATES DEPATMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMIGRATION COURT
606 SOUTH OLIVE ST., lSTH FL.
LOS AGELES, 90014
3600 WILSHIRE BLV., STE. 122
LOS AGELES, CA 90010
IN THE MATTER
PASCUAL, MN CUYSON
FILE A 096-963-266 DATE: OV J Z

UALE TO FORWAD - NO ADRESS PROVIDED


ATTACHED IS P COPY OF THE DECISION OF THE IMMIGRTION JUGE. THIS DECISION
IS FINA ULESS A APPEA IS FILED WITH THE BOA OF IMMIGRTION APPEALS
WITHIN 30 CALENDAR DAYS OF THE DATE OF THE MILING OF THIS WRITTEN DECISION.
SEE THE ENCLOSED FORMS P INSTRUCTIONS FOR PROPERLY PREPAING YOUR APPEA .
. YOU NOTICE OF APPEAL, ATTACHED DOCUMENTS, AD FEE OR FEE WAIVER REQUEST
MUST BE MAILED TO: BOARD OF IMMIGRTION APPEALS
OFFICE OF THE CLERK
.1. BOX 9530
FALLS CHURCH, VA 22041
ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE AS THE RESULT
OF YOU FAILUE TO APPEA AT YOUR SCHEDULED DEPORTATION OR REMOVAL HEAING,
THIS DECISION IS FINAL UNLESS A MOTION TO REOPEN IS FILED IN ACCORDACE
WITH SECTION 242B(c) (3) OF THE IMMIGRATION P NATIONALITY ACT, U.S.C.
SECTION 1252B(c) (3) IN DEPORTATION PROCEEDINGS OR SECTION 240 (c) (6),
..1. SECTION 1229a (c) (6) IN REMOVAL PROCEEDINGS. IF YOU FILE A MOTION
TO REOPE, YOUR MOTION MUST BE FILED WITH THIS COURT:
IMMIGRATION COURT .
606 SOUTH OLIV . lSTH F.L.
LOS AGELES, CA 90014
XX OTHER: Please see attached IJ order
CC: KSKY, ELENA, ESQ.
606 S. OLIVE ST., BTH FLOOR
LOS AGELES, CA, 900140000
CJaojoco
COURT CLERK
IMMIGRTION COUT FF
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UITED STATES DEPATNT OF JSTICE
EXCUTIV OFFICE FR IMGTION RVIEW
IMGRTION COUT
LS AGELES, CAIFRIA
In the Matter of: Myleen Cuyson Pascual
266
ORER OF THE IMIGRTION G
A Number: A86 963
Upon consideration of the Departent of Homeland Security's Mtion to
Recalendar It is HRBY ORDERED THAT THE MOTION BE [ ) GD DENIED
because:

OHS does not oppose the motion.
The respondent does not oppose the motion.
A response to the motion has not been filed with the court.
Good cause has been established for the motion.
The court agrees with the reasons stated in the opposition to the
motion.
[ ) The motion is untimely per
[
p
Other:

Deadlines:
The application(s) for relief must be filed by
The respondent must comply with OHS biometrics instructions by _
Certificate of Serice
This document was served by: [ 6il Personal Service
To: [ ) Alien

[ ) Alien c/o Custodial Officer [ J Alien's
Atty/Rep [ OHS
Date: 11 f 1
.I,
By: Court Staff
% P N . "! s. " I J
d.. l1/l/2, J 11 u
iv r1J c t ^
c -J b r J -
tJ


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