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 - SNA

8940 Fourwinds Drive, 5th Floor
San Antonio, TX 78239

Name: BARRIENTOS-VIVAS, DERMITH ...

A 205-164-292
Date of this notice: 6/25/2015

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

[)on,u_ c{1/V\)
Donna Carr
Chief Clerk
Enclosure
Panel Members:
Creppy, Michael J.
Mullane, Hugh G.
Geller, Joan B

Userteam: Docket

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Cite as: Dermith Orlando Barrientos-Vivas, A205 164 292 (BIA June 25, 2015)

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Gordon, Nicholas Drew

De Mott, McChesney, Curtright
& Armendariz
800 Dolorosa Street
Suite 100
San Antonio, TX 78207

U.S. Department of Justice

Executive Office for Immigration Review

Decision of the Board oflmmigration Appeals

Falls Church, Virginia 20530

File: A205 164 292 - San Antonio, TX

Date:

JUN ti 2015

In re: DERMITH ORLANDO BARRIENTOS-VIVAS

APPEAL
ON BEHALF OF RESPONDENT: Nicholas Drew Gordon, Esquire
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

APPLICATION: Reopening; administrative closure

The respondent, a native and citizen of Honduras, appeals from the Immigration Judge's
March 19, 2014, decision denying his motion to reopen his removal proceedings. During the
pendency of this appeal, the respondent filed a motion for administrative closure. The
Department of Homeland Security ("DHS") has not responded to the appeal or the motion. The
record will be remanded.
We review for clear error the findings of fact, including the determination of credibility,
made by the Immigration Judge. 8 C.F.R. 1003.l(d)(3)(i). We review de novo all other issues,
including whether the parties have met the relevant burden of proof, and issues of discretion.
8 C.F.R. 1003. l(d)(3)(ii).
The respondent seeks reopening of his removal proceedings and subsequently administrative
closure so that he may pursue a provisional waiver of his unlawful presence while in the United
States in connection with his application for an immigrant visa through consular processing as
the immediate relative of a United States citizen. See 8 C.F.R. 212.7(e); see also Provisional
Unlawful Presence Waivers of Inadmissibility for Certain Immediate Relatives, Final Rule,
78 Fed. Reg. 536 (January 3, 2013). Although an alien in removal proceedings is generally
barred from pursuing the provisional waiver, the pertinent regulation and related regulatory
history expressly contemplate the possible grant of administrative closure (followed by a request
for termination or dismissal of proceedings without prejudice where the waiver is ultimately
approved) for aliens in removal proceedings who would otherw ise be eligible to apply for
provisional waivers. See 8 C.F.R. 212.7(e)(4)(v); Provisional Unlawful Presence Waivers of
Inadmissibility for Certain Immediate Relatives, supra, at 538.
The Immigration Judge denied the respondent's timely motion to reopen because he
concluded that the respondent had not identified any relief for which he was eligible. We
disagree with the Immigration Judge that denial of the respondent's motion to reopen is
warranted on this basis. Rather, we conclude that administrative closure under the circumstances
Cite as: Dermith Orlando Barrientos-Vivas, A205 164 292 (BIA June 25, 2015)

Immigrant & Refugee Appellate Center, LLC | www.irac.net

IN REMOVAL PROCEEDINGS

A205 164 292

For these reasons, we will sustain the appeal and reopen the respondent's removal
proceedings. While we acknowledge that the respondent also filed a motion for administrative
closure with the Board, we will remand the record to the Immigration Judge to consider in the
first instance, in accordance with our decision in Matter of Avetisyan, whether administrative
closure is appropriate in this case.
ORDER: The appeal is sustained, and the respondent's removal proceedings are reopened.
FURTHER ORDER: The record is remanded to the Immigration Court for further
proceedings consistent with the foregoing opinion and for the entry of a new decision.

Board Member Hugh G. Mullane dissents without opinion.

2
Cite as: Dermith Orlando Barrientos-Vivas, A205 164 292 (BIA June 25, 2015)

Immigrant & Refugee Appellate Center, LLC | www.irac.net

described by the respondent may constitute relief for the purpose of reopening. It appears that
the Immigration Judge also based his denial of the respondent's motion to reopen on the
objection of the DHS. The Immigration Judge's decision reflects that he would have granted a
joint motion to reopen and administratively close these proceedings. However, as the Board
recently explained in our decision in Matter of Avetisyan, 25 l&N Dec. 688 (BIA 2012), the
concurrence of the DHS is not a dispositive factor in the analysis of whether administrative
closure is appropriate.

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
800 DOLOROSA STREET, SUITE 300
SAN ANTONIO, TX 78207

FILE A 205-164-292
IN THE MATTER OF
BARRIENTOS-VIVAS, DERMITH ORLANDO

DATE: Mar 20, 2014

UNABLE TO FORWARD - NO ADDRESS PROVIDED

ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE. THIS DECISION
IS FINAL UNLESS AN APPEAL IS FILED WITH THE BOARD OF IMMIGRATION APPEALS
WITHIN 30 CALENDAR DAYS OF THE DATE OF THE MAILING OF THIS WRITTEN DECISION.
SEE THE ENCLOSED FORMS AND INSTRUCTIONS FOR PROPERLY PREPARING YOUR.APPEAL.
YOUR NOTICE OF APPEAL, ATTACHED DOCUMENTS, AND FEE OR FEE WAIVER REQUEST
BOARD OF IMMIGRATION APPEALS
MUST BE MAILED TO:
OFFICE OF THE CLERK
5107 Leesburg Pike, Suite 2000
FALLS CHURCH, VA 20530
ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE AS THE RESULT
OF YOUR FAILURE TO APPEAR AT YOUR SCHEDULED DEPORTATION OR REMOVAL HEARING.
THIS DECISION IS FINAL UNLESS A MOTION TO REOPEN IS FILED IN ACCORDANCE
WITH SECTION 242B(c) (3} OF THE IMMIGRATION AND NATIONALITY ACT, 8 U.S.C.
SECTION 1252B(c} (3} IN DEPORTATION PROCEEDINGS OR SECTION 240(c) (6),
8 U.S.C. SECTION 1229a(c) (6) IN REMOVAL PROCEEDINGS. IF YOU FILE A MOTION
TO REOPEN, YOUR MOTION MUST BE FILED WITH THIS COURT:
IMMIGRATION COURT
800 DOLOROSA STREET, SUITE 300
SAN ANTONIO, TX 78207
OTHER:

COURTCLERK

CC: ERIC C. BALES

8940 FOURWINDS DR., STH FLOOR
SAN ANTONIO, TX, 78297

IMMIGRATION COURT

FF

Immigrant & Refugee Appellate Center, LLC | www.irac.net

De Mott, Mcchesney, Curtright & Armendariz

Gordon, Nicholas Drew
800 Dolorosa Street Suite 100
San Antonio, TX 78207

UNITED STATES DEPARTMENT OF JUSTICE

Executive Office for Immigration Review
Immigration Court

Dermith Orlando Barrientos-Vivas

File A205 164 292

In Removal Proceedings

Order of the
Immigration Judge

The above-named respondent had a hearing on November 26, 2013, presented (with counsel) a request that
the case be continued further, which was denied, requested voluntary departure, which was granted, and waived
appeal. On February 21, 2014 the respondent, with the same counsel, filed a timely motion to reopen requesting
reopening to consider administrative closure. The respondent also requested sua sponte reopening. The motion will
be denied.
The respondent has not identified any new relief under the jurisdiction of the court that he would wish to present.
The respondent is present without admission. As such, the respondent is not eligible for Adjustment of Status. The
respondent may only receive a visa by applying at a United States consulate abroad. If the Department of Homeland
Security wishes to allow the respondent to remain in the United States for an indefinite period before departing a
motion filed jointly by the parties to reopen and administratively close the case, as has been filed in other cases, can
be presented to the court at any time. With no prospect for relief identified other than departing the United States to
seek a visa abroad the case will not be reopened. Sua sponte reopening will not be considered, even on the
respondent's motion, where there is no relief identified under the jurisdiction of the court.
No prima facie eligibility for any relief before the court has been identified by counsel in the motion and this
would be a requirement for reopening. See MatterofTuakoi, 19 l&N Dec. 341 (BIA 1994). The motion to reopen shall
be and is hereby DENIED. SO ORDERED.

Date: March 19, 2014

Place: San Antonio, Texas

Immigration Judge

CERTIFICATE OF SERVICE

(M)
THIS DOCUMENT WAS SERVED BY: MAIL
PERSONAL SERVICE (P)
,. [ J .A.UEN [ ] ALIEN c/oodial Officer
LIEN'S ATT/REP [
,.____
BY: CO!.:RT STAFF
;FT:ents: [ 1 EO\R-33 [ l EOIR-28
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