U.S.

Department of Justice Executive Office for Immigration Review

Board ofImmigration Appeals Office ofthe Clerk

5107 leesburg Pike, Suite 2000 Falls Church, Virginia 20530

Behne, Audra R., Esq Law Offices of Audra R. Behne., PC 15915 Ventura Blvd., Suite 202 Encino, CA 91436

OHS/ICE 606 S. Olive Street, 8th Floor LOS ANGELES, CA 90014

Immigrant & Refugee Appellate Center | www.irac.net

Name: RUIZ, OMAR DANIEL

A 095-640-803

Date of this notice: 1/23/2014

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

DOWtL ct1/\A)
Donna Carr Chief Clerk

Enclosure Panel Members: Adkins-Blanch, Charles K.

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Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: Omar Daniel Ruiz, A095 640 803 (BIA Jan. 23, 2014)

U.S. Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals Office ofthe Clerk

Falls Church, Virginia 20530

5107 Leesburg Pike, Suite 2000

RUIZ, OMAR DANIEL A095-640-803 C/O CUSTODIAL OFFICER 501 THE CITY DRIVE SOUTH ORANGE, CA 92868

OHS/ICE 606 S. Olive Street, 8th Floor LOS ANGELES, CA 90014

Immigrant & Refugee Appellate Center | www.irac.net

Name: RUIZ, OMAR DANIEL

A 095-640-803

Date of this notice: 1/23/2014

Enclosed is a copy of the Board's decision in the above-referenced case. This copy is being provided to you as a courtesy. Your attorney or representative has been served with this If the attached decision orders that you be decision pursuant to 8 C.F.R. 1292.5(a).

removed from the United States or affim1s an Immigration Judge's decision ordering that you be removed, any petition for review of the attached decision must be filed with and received by the appropriate court of appeals within 30 days of the date of the decision. Sincerely,

DOWtL ct1/lA)
Donna Carr Chief Clerk

Enclosure Panel Members: Adkins-Blanch, Cha rles K.

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Userteam:

Docket

Cite as: Omar Daniel Ruiz, A095 640 803 (BIA Jan. 23, 2014)

U.S. Department of Justice Executive Office for Immigration Review

-,

Decision of the Board of Immigration Appeals

Falls Church, Virginia 20530

File:

A095 640 803 - Los Angeles, CA

Date:

JAN .2 3 2014
In re: OMAR DANIEL RUIZ

IN REMOVAL PROCEEDINGS APPEAL ON BEHALF OF RESPONDENT: Audra R. Behne, Esquire

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ORDER: The respondent, a native and citizen of Mexico, appeals from the Immigration Judge's decision dated September 9, 2013, which denied his request for a continuance, denied voluntary departure under section 240B of the Immigration and Nationality Act, 8 U.S.C. has not replied to the respondent's brief on appeal. The record will be remanded. We review Immigration Judges' findings of fact for clear error, but we review questions of law, discretion, and judgment, and all other issues in appeals de novo. 8 C.F.R. ordered him removed from the United States. 1 The Department of Homeland Security (DHS)

1229c, and

1003.l(d)(3)(i), (ii).
The record shows that the DHS charged the respondent as removable under section 237(a)(l)(D)(i) of the Act, 8 U.S.C. 1227(a)(l)(D)(i) (conditional resident status terminated) (Exh. 2). The respondent provided to the Immigration Court a copy of the Form 1-751, Petition to Remove Conditions on Residence, he filed with the United States Citizenship and Immigration Services (USCIS) on August 22, 2013 (Exh. 4). We agree with the contention on appeal that, pursuant to Board precedent, the Immigration Judge should have continued proceedings.

See

Matter of Stowers,

22 I&N Dec. 605 (BIA 1999) (where an alien is prima facie eligible for a

waiver under section 216(c)(4) of the Act and wishes to have the USCIS adjudicate an application for such waiver, proceedings should be continued in order to allow the USCIS to adjudicate the application). See also Matter of E-L-H-, 23 l&N Dec. 814, 817 (BIA 2005). Accordingly, the appeal is sustained, and the record is remanded to the Immigration Judge for further proceedings consistent with the foregoing opinion and for the entry of a new decision.

The respondent does not challenge the denial of voluntary departure.

Cite as: Omar Daniel Ruiz, A095 640 803 (BIA Jan. 23, 2014)

..._./

UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW UNITED STATES IMMIGRATION COURT LOS ANGELES, CALIFORNIA

File: A095-640-803 In the Matter of:

September 9, 2013

Immigrant & Refugee Appellate Center | www.irac.net

) OMAR DANIEL RUIZ, RESPONDENT ) ) ) IN REMOVAL PROCEEDINGS

CHARGE:

237 A(1)(d)(i) status was terminated after admission

ORAL DECISION OF THE IMMIGRATION JUDGE

Respondent is a male, native and citizen of Mexico. Removal proceedings were originally commenced with the issuance of a Notice to Appear dated August 8, 2013 which has been marked and admitted as Exhibit 1. Under the original Notice to Appear the respondent was charged with being present without inspection under 212A(6) [indiscernible]. The respondent admitted allegations one and two of the original Notice to Appear, denied allegations three and four and the charge. The government subsequently filed the 1-261 form, which is Exhibit 2 dated August 28, 2013, alleging the respondent was admitted to the United States on the conditional basis August 21, 2004 and that his status was terminated on April 21, 2006 because he failed to file the petition to remove the condition and therefore he was removable under 237A(1)(b)(i) and that his status was terminated. The respondent admitted allegation three of [indiscernible] I-

....._/

261 and denied the charge. The court at this time received the case central index system from OHS indicating that the respondent's permanent residence was originally in April 21, 2004 and that the card has expired on Apil 21, 2006. At that time it indicates that it was a conditional residence under CR6, the respondent does bear the burden to

Immigrant & Refugee Appellate Center | www.irac.net

establish that the status has continued. Since he has admitted alienage and there is evidence that the status expired. The respondent makes legal arguments that he is not to be considered out of status because he has an 1-751 pending. However the court notes that the submission which is Exhibit 4, paginated 165 at A and B, indicates that the respondent's 1-751 was received August 22, 2013. Therefore there is nothing to indicate that the respondent status was between 2006 until 2013, that there was an 1751 pending. Therefore the respondent has not established that after 2006 he maintained any status. And Exhibit 3 indicates that the status, conditional status, and the card were expiring in 2006, there is no evidence that in between 2006 and 2013 the respondent had a pending 1-751. Therefore the court finds allegation four and sustains the charge. The respondent therefore at this time seeks for the court to continue this matter so that the recently filed 1-751 can be adjudicated before CIS. Respondent cites authority from the Board as to the continuance of proceedings while the 1-751 is pending. However that authority is guidance and the circumstances of this case where the respondent is in custody and where the respondent can pursue collaterally his 1-751, the court declines to continue the matter for proceedings or relief that the court has no authority or jurisdiction to consider. The respondent argues that in the event that the 1751 is denied, the court will acquire jurisdiction. However again, this court finds that as speculative and will not continue the matter for speculative relief considering particularly

A095-640-803

September 9,

2013

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that there is no prejudice to the respondent because he can pursue that laterally and this does not intervene or cause him to give up that relief. Therefore the court will not continue the matter. With regard to any other relief the respondent is also seeking voluntary departure, however because he is seeking post hearing VR because he seeks

Immigrant & Refugee Appellate Center | www.irac.net

to appeal this decision, he must establish good moral character. Respondent concedes that in March of 2013 he was convicted of driving under the influence and sentenced to serve 16 months and admits that he in fact served seven months and 10 days which is approximately 110 days, 103 days and therefore the respondent cannot establish good moral character because he has served more than 180 days under the INA he is foreclosed from establishing good moral character and therefore ineligible for voluntary departure. At this time, he is ordered removed.

LORRAINE J. MUNOZ Immigration Judge

A095-640-803

September 9,

2013

CERTIFICATE PAGE

I hereby certify that the attached proceeding before JUDGE LORRAINE J. MUNOZ, in the matter of:

Immigrant & Refugee Appellate Center | www.irac.net

OMAR DANIEL RUIZ

A095-640-803

LOS ANGELES, CALIFORNIA

was held as herein appears, and that this is the original transcript thereof for the file of the Executive Office for Immigration Review.

Kathleen Maccarone (Transcriber) NATIONAL CAPITOL CONTRACTING December 18, 2013 (Completion Date)