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 20530

OHS/ICE Office of Chief Counsel - DAL

Turin Olinger & Associates, PLLC

8204 Elmbrook Dr, Suite 234
Dallas, TX 75247

125 E. John Carpenter Fwy, Ste. 500

Irving, TX 75062-2324

Name: ARTEAGA OCHOA, HECTOR

A 205-653-001

Date of this notice: 11/20/2014

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

Donna Carr
Chief Clerk

Enclosure

Panel Members:
Adkins-Blanch, Charles K.
Guendelsberger, John
Manuel, Elise

Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: Hector Arteaga Ochoa, A205 653 001 (BIA Nov. 20, 2014)

Immigrant & Refugee Appellate Center | www.irac.net

Turin, Joshua, Esquire

U.S. Department of Justice

Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 20530

File:

NOV 2 0 2014

Date:

A205 653 001 -Dallas, TX

In re: HECTOR ARTEAGA OCHOA

APPEAL
ON BEHALF OF RESPONDENT:

Joshua Tmin, Esquire

APPLICATION: Administrative closure

The respondent, a native and citizen of Mexico, appeals the decision of the Immigration
Judge, dated May 1, 2013, denying his request for administrative closure and ordering his
1
These proceedings will be administratively closed.

removal from the United States.

Considering the totality of the circumstances presented in this specific case, we conclude that
it is appropriate to exercise this Board's very limited authority and administratively close these
removal proceedings for the limited purpose of allowing the respondent to pursue an Application
for Provisional Unlawful Presence Waiver (Form I-601A) with United States Citizenship and
2
Immigration Services ("USCIS").
See Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012).
Before the Immigration Judge, the Department of Homeland Security ("DHS") was not opposed
to the respondent's request for administrative closure (Tr. at 9-10).

See Matter o/Yewondwosen,

21 l&N Dec. 1025 (BIA 1997). Before this Board, the DRS has not filed an opposition to the
respondent's appeal.

Moreover, on appeal, the respondent has presented evidence that his

spouse, who is originally from Nicaragua, has recently naturalized and filed a Petition for Alien
Relative (Form 1-130) on his behalf.
For the reasons set forth above, the following orders are entered.
ORDER: The respondent's appeal is sustained and the Immigration Judge's decision, dated
May 1, 2013, ordering his removal from the United States is vacated.
FURTHER ORDER: These removal proceedings are administratively closed.

The respondent, through counsel, has conceded that he is subject to removal from the United
States as charged in the Notice to Appear (1.J. at 1; Tr. at 8; Exh. 1). See section 212(a)(6)(A)(i)
of the Immigration and Nationality Act, 8 U.S.C. 1182(a)(6)(A)(i).
2

An alien, such as the respondent, who is subject to removal proceedings, is ineligible to file a

Form I-601A with USCIS unless the removal proceedings are administratively closed and have
not been recalendared at the time of filing the Form I-601A.

8 C.F.R. 212.7(e)(4)(v).

As

jurisdiction to adjudicate a Form I-601A lies exclusively with USCIS, we express no opinion
regarding the ultimate
merits
of Arteaga
the respondent's
yet-to-be
application.
Cite as:
Hector
Ochoa, A205
653 001 filed
(BIA Nov.
20, 2014)

Immigrant & Refugee Appellate Center | www.irac.net

IN REMOVAL PROCEEDINGS

A205 653 00 1
NOTICE: If either party to this case wishes to reinstate the proceedings, a written request to
reinstate the proceedings may be made to the Board. The Board will take no further action in the
case unless a request is received from one of the parties. The request must be submitted directly
to the Clerk's Office, without fee, but with certification of service on the opposing party.

Immigrant & Refugee Appellate Center | www.irac.net

Cite as: Hector Arteaga Ochoa, A205 653 001 (BIA Nov. 20, 2014)

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
DALLAS, TEXAS

In the Matter of

HECTOR ARTEAGA OCHOA

IN REMOVAL PROCEEDINGS

RESPONDENT

CHARGES:

212(a)(6)(A)(i) present without admission

APPLICATIONS:

None

ON BEHALF OF RESPONDENT: JOSHUA TURIN

ON BEHALF OF OHS: ROSLYN GONZALEZ

ORAL DECISION OF THE IMMIGRATION JUDGE

The respondent is a 38-year-old male, native and citizen of Mexico, who
entered the United States without inspection in 2007. A Notice to Appear was issued on
September 19, 2012 charging the respondent with removability under the above-cited
section. During a master calendar hearing the respondent admitted the allegations,
conceded the charge and designated Mexico as the country of removal. Based on the
admissions and concessions the respondent was found removable by clear and
convincing evidence.
The respondent was offered an opportunity to apply for any relief and the

Immigrant & Refugee Appellate Center | www.irac.net

May 1, 2013

File: A205-653-001

respondent did not apply for relief, however did request administrative closure for the
purpose of seeking a provisional waiver and also requested a continuance. Both of

With respect to the request for administrative closure, that request was
denied because the respondent failed to demonstrate that he was eligible either for a
provisional waiver or for eventual immigration to the United States, in that the
respondent does not have an approved 1-130 with a currently available visa number
and, in addition to that, the respondent does not have a visa petition that is pending
adjudication.
With respect to the request for a continuance, that request was denied
because it was premised on a series of future events which were speculative and also
were open-ended in terms of the amount of time that it would have taken to have
completed each step in the process. Specifically, the respondent wanted the following:
he wanted time to have an N-400 for the spouse adjudicated; that was filed on March
15th 2013 based on a marriag e that was entered into in February of 2013. That is
subsequent to the issuance of the charging document and also subsequent to the first
master calendar hearing. The marriage therefore is presumed to be fraudulent pursuant
to Section 204(g) of the Act. If the N-400 had been approved, the respondent then
wanted to file an 1-130 and await adjudication of the 1-130. If the 1-130 had been
approved, then the respondent wanted to seek a provisional waiver, either through
simultaneous filing or sequential filing. I was not clear on that, but it makes no
difference either way to my analysis because the respondent essentially has not filed an
1-130 although he has had an opportunity. The marriage is considered fraudulent and
the respondent also has only very recently filed the N-400, that is his spouse filed it, and
in fact the marriage itself is fairly recent. The respondent has not been in the United

A205-653-001

May 1,

2013

Immigrant & Refugee Appellate Center | www.irac.net

those requests were denied.

States for a lengthy period of time. The Court will cite to the Board's decision in Matter
of Apathy (phonetic sp.) and Matter of Perez-Andrade. The Apathy case is an
unpublished decision; case A 097 448 437. In that case, the Board stated that good

which may occur at some indefinite time in the future and the outcome of which may or
may not be favorable to the respondent. And the Board cited as authority 8 C. F. R.
1003.29 and Matter of Perez-Andrade, 19 l&N Dec. 433 (BIA 1987). In this case the
collateral applications are one, it is speculative, and two, it is indefinite. And in addition
to that it may also be consecutive and for these reasons I do not feel that a continuance
would be justified and the request for a continuance was denied.
The respondent was given an opportunity to apply for voluntary departure
but declined to do so and declined to apply for any other relief. Therefore, the following
order will be entered:
ORDER
IT IS ORDERED that the respondent be removed from the United States
to Mexico on the charges contained in the Notice to Appear.

Please see the next page for electronic

signature

R. WAYNE KIMBALL
Immigration Judge

A205-653-001

May 1,

2013

Immigrant & Refugee Appellate Center | www.irac.net

cause for a continuance is not demonstrated to await the results of a collateral event

/Isl/
Immigration Judge

R.

WAYNE

KIMBALL

kimballr on July 24, .2013 at

8:51 PM GMT

Immigrant & Refugee Appellate Center | www.irac.net

A205-653-001

May 1,

2013