U.S.

Department of Justice
Executive Office for Immigration Review

Board of Immigration Appeals

Office of the Clerk
5107 Leesburg P;ke. SuUe 2000
Falls Ch11rch, Virginia 20530

OHS/ICE Office of Chief Counsel - NYC

26 Federal Plaza, 11th Floor
New York, NY 10278

Name: SOLCOVA, KATERINA

A 200-383-523

Date of this notice: 3/16/2015

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

DCWtL ct1JVU
Donna Carr
Chief Clerk

Enclosure

Panel Members:
Grant, Edward R.

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index
Cite as: Katerina Solcova, A200 383 523 (BIA March 16, 2015)

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Palladino, Ricky Anthony

Solow, Isbell & Palladino, LLC
1601 Walnut St., Suite 1523
Philadelphia, PA 19102

U.S. Department of Justice

Decision of the Board of Immigration Appeals

Executive Office for Immigration Review

Falls Church: Virginia 20530

File:

A200 383 523 - New York, NY

Date:

MAR J

6 2015

In re: KATERINA SOLCOVA

IN REMOVAL PROCEEDINGS

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APPEAL AND MOTION

ON BEHALF OF RESPONDENT:
ON BEHALF OF DHS:

Ricky Palladino, Esquire

ArnandaJeannopoulos
Assistant Chief Counsel

APPLICATION:

Adjustment of status; remand

The respondent, a native and citizen of the Czech Republic, has appealed from the
ImmigrationJudge's decision dated September 1 1 , 2013. While the appeal was pending before
this Board, the respondent filed a motion to remand for adjustment of status under section 245 of
the Immigration and Nationality Act; 8 U.S.C. 1 255. 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. 1003.l(d)(3)(i), (ii).
1
granted.

The motion to remand will be

The respondent's motion seeks a remand to allow an Immigration Judge to consider an

application for adjustment of status based on a vha petition filed on the respondent's behalf by
her United States citizen spouse. In Matter of Velarde, 23 l&N Dec. 253 (BIA 2002), this Board
held that a motion to reopen for adjustment of status based on a marr iage entered into after the
commencement of proceedings may be granted in the exercise of discretion where: (1) the
motion to reopen is timely filed; (2) the motion is not numerically barre d by the regulations; (3)
the motion is not barre d by Matter of Shaar, 21 I&N Dec. 541 (BIA 1996), or on any other
procedural grounds; (4) clear and convincing evidence is presented indicating a strong likelihood
that the marriage is bona fide; and (5) the DHS does not oppose the motion or bases its
opposition solely on Matter ofArthur, 20 I&N Dec. 475 (BIA 1 992).
In support of the motion to remand, the respondent has submitted evidence of the bona tides
of her marriage. The evidence includes a certificate of marriage reflecting her marriage to a
United States citizen, a copy of the couple's rental agreement for their home, a joint bank
account statement, copies of their wedding and vacation photographs, and other supportive

evidence.

Because we grant the respondent's motion to remand, we do not reach the merits of the appeal

at this time.

Cite as: Katerina Solcova, A200 383 523 (BIA March 16, 2015)
!ri...

. .O:: U:J!&S

A200 383 523

We acknowledge the DHS opposition to the motion. Nevertheless, we find that the evidence
submitted in support of the motion qemonstrates a strong likelihood that the marriage is valid
under Matter of Velarde, supra.
Further, a motion to reopen to apply for adjustment of status based on a marriage entered into
after the commencement of removal proceedings may not be denied under the fifth factor

DHS's opposition alone is not dispositive in evaluating motions filed pursuant to Matter of
Velarde, supra). Thus, the motion to remand will be granted. At the remanded hearing, the
parties shall be afforded the opportunity to present additional evidence and argument in support
of their respective positions.
Accordingly, the following order will be entered.
ORDER:

The motion is granted and the record is remanded to the Immigration Judge for

further proceedings consistent with the foregoing opinion and the entry of a new decision.

Cite as: Katerina Solcova, A200 383 523 (BIA March 16, 2015)

Immigrant & Refugee Appellate Center | www.irac.net

enumerated in Matter of Velarde, supra, based on the mere fact that the DHS has filed an
opposition to the motion, without regard to the merit of that opposition. See Matter of Lamus,
25 l&N Dec. 61 (BIA 2009). See also Melnitsenko v. Mukasey, 517 F.3d 42 (2nd Cir. 2008) (the

(
"

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
NEW YORK,NEW YORK

In the Matter of

)
)
)
)

KATERINA SOLCOVA
RESPONDENT

CHARGE:

IN REMOVAL PROCEEDINGS

INA Section 237(a)(1)(B), overstay.

APPLICATIONS: None.

ON BEHALF OF RESPONDENT: THOMAS KWIATKOWSKI,Esquire

304 Park Avenue South, 11th Floor
New York,NY 10010
ON BEHALF OF DHS: SCOTT SWANBERG, Assistant Chief Counsel
DHS/ICE Office of Chief Counsel
26 Federal Plaza,Room 1130
New York, NY 10278

ORAL DECISION OF THE IMMIGRATION JUDGE

Respondent is a 35-year-old female,citizen of the Czech Republic. She was
admitted to the United States on September 7, 1998, as a B-2 non-immigrant visitor.
She remained for a time longer than permitted by her non-immigrant visa. The
Department of Homeland Security issued a Notice to Appear in her case on
September 14, 2010. See Exhibit 1. The filing of that document in the Immigration
Court vested the Court with jurisdiction. See 8 C.F.R. 1003.14(a). At a Master

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September 11,2013

File: A200-383-523

Calendar Hearing on January 13, 2012, respondent admitted the factual allegations in
the NTA and conceded the sole charge of removability. Czech Republic was
designated as the country of removal. Upon receiving the pleadings, the Court has

been established by respondent's own admissions. See 8 C.F.R. 1240.1 O(c).

This case has been pending since January 2011, and respondent has attended
approximately ten Immigration Court hearings. The record reflects the respondent
married a United States citizen who filed a Form 1-130 petition on her behalf, but that
petition was denied. During these proceedings,respondent sought multiple
adjournments because she had filed the Form 1-360 petition. The Court had granted
adjournments for the adjudication of that petition. Respondent's counsel acknowledges
that this petition has now been denied. Respondent has requested that the Department
exercise prosecutorial discretion and agree to administratively close these proceedings.
The Department has declined to exercise prosecutorial discretion in this case.
Respondent now suggests that she is still married to a United States citizen but plans to
marry a different United States citizen who would then file another Form 1-130 petition
on her behalf. The Court does not find good cause for a continuance based on this
purely hypothetical relief.
The Court notes that respondent's counsel had, at a prior hearing, stated that
respondent has some psychological issues. For the Court, this triggered a duty to
investigate the issue of competency. See Matter of M-A-M-, 25 l&N Dec. 474 (BIA

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determined that no issues of law or fact remain and that removability as charged has

2011). As a threshold issue, the Court considered whether there is any evidence of
actual incompetency. The Board of Immigration Appeals has stated that the decisive
factor in assessing competency is whether the respondent understands the nature and
the object of the proceedings, whether she can consult with the attorney or

A200-383-523

September 11, 2013

. :w

representative, and whether she has a reasonable opportunity to examine adverse

evidence and present favorable evidence and cross-examine Government witnesses.
See 25 l&N Dec. at 479; see also INA Section 240(b)(4)(B); 8 C.F.R. 1240.10(a)(4).

proceedings to gather certain evidence. However, he also stated that in his estimation,
the respondent understands the nature and object of the proceedings and concedes
that she has assisted him in preparing her case. Most recently, respondent assisted
counsel in gathering evidence in support of her request for prosecutorial discretion.
Based on counsel's representations, the evidence in the record shows respondent's
participation in the preparation of her case. In the absence of any medical records
suggesting incompetency, the Court does not find that respondent is incompetent to
proceed. To the extent she may have a psychological condition that the Court has not
been made aware of, she is represented by able counsel. That counsel has conceded
that she is not eligible for any form of relief at this point.
Because respondent is removable as charged in the NTA and has not filed any
application for any other form of relief, the following order is entered.
ORDER
Respondent is ordered removed from the United States to the Czech Republic on
the charge set forth in the Notice to Appear.

JESSE B. CHRISTENSEN
U.S. Immigration Judge

A200-383-523

September 11, 2013

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Counsel has stated that respondent was reluctant during some stages of the

CERTIFICATE PAGE

I hereby certify that the attached proceeding before JUDGE JESSE 8.

CHRISTENSEN,in the matter of:

A200-383-523

NEW YORK,NEW YORK

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

FREE STATE REPORTING, lnc.-2

NOVEMBER 23,2013
(Completion Date)

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KATERINA SOLCOVA