U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals
Office ofthe Clerk
5107 leesburg P;ke, Suite 2000
Falls Church, Virginia 22041

OHS/ICE Office of Chief Counsel - TUS

P.0. Box 25158
Phoenix, AZ 85002

Name: PEREZ, JORGE

A 205-406-702
Date of this notice: 10/1/2015

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

DonrtL

t1/lA)

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Miller, Neil P.

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/

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Mccarroll, Michael Joseph

Law Offices of Mathew H. Green
130 West Cushing Street
Tucson, AZ 85701

U.S. Department of Justice

Decision of the Board of Immigration Appeals

Exe<;utive Office for Immigration Review

Falls Church, Virginia 22041

File: A205 406 702 - Tucson, Arizona

Date:

OCT -1 2015

IN REMOVAL PROCEEDINGS
APPEAL
ON BEHALF OF RESPONDENT: Michael J. McCarroll, Esquire

APPLICATION: Administrative closure

By a decision of July 25, 2014, the Immigration Judge afforded the respondent the privilege
of voluntary departure. By a separate, undated form order entered into the record on the same
date, (Exh. 18), the Immigration Judge declined to administratively close proceedings, with the
reason provided being "not judicially economical."
The respondent has appealed. The
Department of Homeland Security has not responded to the appeal. The decisions of the
Immigration Judge will be vacated and the record will be remanded for further proceedings.
The respondent has sought to have the proceedings administratively closed in order to file an
Application for Provisional Unlawful Presence Waiver (Form I-601A) with United States
Citizenship and Immigration Services ("USCIS"). See 8 C.F.R. 212.7(e). The respondent is the
beneficiary of an approved visa petition filed on his behalf by his United States citizen wife. He
is also the parent of 3 minor United States citizen children. 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 otherwise 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, Final Rule, 78 Fed. Reg.
536, 538 (January 3, 2013).
The Immigration Judge's decision relating to the motion, in its present form, does not
sufficiently explain the reason for the denial of the motion. See Matter of M-P-, 20 l&N Dec. 786
(BIA 1994) (holding that when a motion to reopen is denied, the Immigration Judge must
identify and fully explain the reasons for such decision); see also Matter of S-H-, 23 I&N Dec.
462 (BIA 2002) (holding that, as the Board has limited fact-finding ability on appeal, there is a
heightened need for Immigration Judges to include in their decisions clear and complete findings
of fact that are supported by the record and are in compliance with controlling law); see also
Matter of Avetisyan, 25 l&N Dec. 688, 692-696 (BIA 2012) (holding that Immigration Judges
may consider administrative closure as a matter of discretion, even where one party does not
consent, upon consideration of the totality of circumstances and factors such as the reason why
administrative closure is sought, the basis for opposition to such closure, the likelihood that the

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In re: JORGE PEREZ

A205 406 702

ORDER: The decisions of the Immigration Judge of July 25, 2014, are, hereby, vacated.
FURTHER ORDER: The record is remanded to the Immigration Judge for further proceedings
consistent with this opinion, including consideration of the respondent's motion and his
application for the privilege of voluntary departure.

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respondent will succeed on any pending petition or application for relief, the anticipated duration
of the closure, the responsibility of either party in contributing to the delay, and the ultimate
outcome of removal proceedings). As such, we will remand the record to the Immigration Judge
for the entry of a new decision adjudicating the respondent's motion to administratively close
proceedings. We express no opinion regarding the ultimate outcome of the respondent's motion
at the present time. See Matter ofL-0-G-, 21 I&N Dec. 413 (BIA 1996). However, as we deem it
necessary for the Immigration Judge to enter a new decision adjudicating the respondent's
motion to reopen, the following orders are entered.

File: A205-406-702

July 25, 2014

In the Matter of

IN REMOVAL PROCEEDINGS

JORGE PEREZ
RESPONDENT
CHARGES:

Section 212(a)(6)(A)(i) of the Immigration and Nationality Act (the

Act): an alien who is inadmissible as an alien present in the United
States without ever being properly admitted or paroled pursuant to
inspection by an Immigration officer.

APPLICATIONS:

Voluntary departure in accordance with Section 240(8) of the Act.

ON BEHALF OF RESPONDENT: STEPHANIE HOFFMAISTER

ON BEHALF OF OHS: GILDA TERRAZAS

ORAL DECISION OF THE IMMIGRATION JUDGE

The respondent is an adult male, alien native and citizen of Mexico who
was placed into removal proceedings by the issuance of a Notice to Appear dated July
14, 2012. That document was served on the respondent on July 14, 2012 and has
been admitted into the record as Exhibit 1.
The respondent admitted the allegations contained therein and based
upon those admissions and the concession of removability, the Court has sustained the
charge of inadmissibility/removability.

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

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
TUCSON, ARIZONA

Following a determination on the charge, respondent designated Mexico

as the country of removal and there has been no fear expressed in returning there that

that the respondent is not eligible for any form of relief under Section 208 or for any
restriction of removal under the Act under Section 241(b)(3) or under the Article 3 of the
United Nations Convention Against Torture ! and therefore, no application for relief will
be so considered.
In addition to Exhibit 1, the Court will consider the following documents.
Exhibit 2 and 3 are a motion to change venue and an indication of a request to review
the file.
Exhibit 4 is an indication of release on bond. Exhibit 5 is the order of the
Honorable Silvia R. Arellano granting the change of venue to Tucson, Arizona. Exhibit
6 is notice of hearing for May 30, 2013. Exhibit 7 are the written pleadings of the
respondent. Exhibit 8 is a motion to continue and extend a filing deadline. Exhibit 8-A
is a document in support of that. and Exhibit 9 is my order granting that.
Exhibit 10 is the coversheet of the respondent's documents in support,
and 10-A is the table of contents of those documents. Exhibit 11 are those documents,
and they have been admitted into evidence.
Exhibit 12 is the addendum to respondent's motion to administratively
close proceeding. And Exhibit 12-A is the coversheet of the table of contents. Exhibit
12-8 is that document. It has been into evidence.
13 is the respondent's motion to administratively close the proceedings.
13-A are the documents in support thereof. They have been admitted into evidence.
Exhibit 14 is the supplemental addendum to respondent's motion to
administratively close proceeding. And Exhibit 14-A is the table of contents, coversheet
A205-406-702

July 25, 2014

,)

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may be cognizant under the law, statute. treaty, or regulation. Thus, the Court finds

thereto. And Exhibit 14-8 is that document, and it has been admitted into evidence.
Exhibit 15 is the respondent's brief in support of voluntary departure. And

those documents, and they have been admitted into evidence.

Exhibit 17 is the Government's opposition to the administrative closure.
And Exhibit 18, which will be distributed to the parties by mail, is a copy of the Court's
order indicating that a motion to administratively close proceeding shall be denied as
not being judicially economical. As indicated in its preamble to the oral decision, the
Court feels that administrative closure is still of the convenience of the parties and the
convenience of the Court. In this case, because the Government could immediately
request that the case be re-calendered and there would be no basis for the Court not to
do so, the grant of administrative closure is not warranted as being judicially economical
and will not be done by this Court.
The respondent is seeking voluntary departure, and the Government does
not oppose that. The respondent is seeking voluntary departure in the post-conclusion
mode because the respondent does not want to give up his right to appeal.
The Court finds that based upon the Government's agreement with the
Court that the respondent shall be granted voluntary departure, and the Court will do so.
And the Court therefore will issue the following order.
ORDERS
THEREFORE IT IS ORDERED the respondent's application for voluntary
departure be and hereby is GRANTED;
THEREFORE IT IS FURTHER ORDERED the respondent shall have until
the 23rd of September, 2014 to depart the United States or by any extension granted to
him within the sole expression of the Department of Homeland Security;

A205-406-702

July 25, 2014

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Exhibit 16 is the table of contents and documents in support thereof. Exhibit 16-A are

THEREFORE IT IS FURTHER ORDERED that respondent shall post with

the Department of Homeland Security a bond in the amount of $500 and that such bond

THEREFORE IT IS FURTHER ORDERED that should respondent fail to

post that bond in accordance with the deadlines imposed by the Court, the grant of
voluntary departure shall be terminated and the respondent shall be ordered removed
from the United States;
IT IS FURTHER ORDERED that should the respondent not depart the
United States in accordance with instructions by the 23rd of September 2014, then the
order of voluntary departure will automatically, by law, become an order of removal to
Mexico;
IT IS FURTHER ORDERED that if the respondent does not depart as
instructed by the Court, a civil monetary penalty, and it is up to an amount of $3,000,
shall apply, and the respondent shall be liable for such;
IT IS FURTHER ORDERED that should the respondent during the
pendency of the voluntary departure file a motion to reopen or reconsider, then the
order of voluntary departure shall not be stayed and the order shall automatically
become an order of removal to Mexico;
IT IS FURTHER ORDERED that the respondent must advise the Board of
Immigration Appeals that he has posted his bond and should the respondent fail to do
so, then the Board of Immigration Appeals will not allow a voluntary departure reinstated
following the results on appeal.

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shall be posted on or before the 1st of August of 2014;

Please see the next page for electronic

signature

A205-406-702

.ill

.ZAJW l_MW4M

July 25, 2014

Q&i

THOMAS MICHAEL O'LEARY

Immigration Judge

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A205-406-702

July 25, 2014

/Isl/
Immigration Judge THOMAS MICHAEL O'LEARY

A205-406-702

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

olearyt on November 24, 2014 at 5:00 PM GMT

July 25, 2014