U.S.

Department of Justice
Executive Office for Immigration Review

Board of Immigration Appeals

Office of the Clerk
5107 Leesb11rg Pike, Suite 2000
Falls Church, Virginia 2204/

Name: R

DHS/ICE Office of Chief Counsel - CHL

5701 Executive Ctr Dr.,Ste 300
Charlotte,NC 28212

,K-F...
Date of this notice: 6/14/2016

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

DOYLJUL C

Q/vl.)

Donna Carr
Chief Clerk
Enclosure

Panel Members:
Greer, Anne J.
Kendall-Clark, Molly
O'Herron, Margaret M

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/
Cite as: K-F-R-F-, AXXX XXX 533 (BIA June 14, 2016)

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

McCoy,Alanna Michele
Eduardo Soto, P.A.
999 Ponce de Leon Blvd.,Suite 1040
Coral Gables, FL 33134

U.S. Department of Justice

Executive Office for Immigration Review
Board of Immigration Appeals
Office of the Clerk
5/07 leesburg Pike, S11ite 2000
Falls Ch11rch. Virginia 22041

Name: R

-F

,K

F...

-533

Date of this notice: 6/14/2016

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
decision pursuant to 8 C.F.R. 1292.S(a). If the attached decision orders that you be
removed from the United States or affirms 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,

bcnrtL

{!a/lAJ

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Greer, Anne J.
Kendall-Clark, Molly
O'Herron, Margaret M

Userteam:

Cite as: K-F-R-F-, AXXX XXX 533 (BIA June 14, 2016)

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

F-F- OHS/ICE Office of Chief Counsel - CHL

5701 Executive Ctr Dr., Ste 300
A
-533
Charlotte, NC 28212
YORK COUNTY DETENTION CENTER
1675-A YORK HIGHWAY
YORK, SC 29745

U.S. Department of Justice

xecutive Office for Immigration Review

Decision of the Board oflmmigration Appeals

Falls Church, Virginia 22041

File: 533 - Charlotte, NC

In re: KalllllF

Date:

F-

JUN 1 't 2016

APPEAL
ON BEHALF OF RESPONDENT: Alanna M. McCoy, Esquire
APPLICATION: Reopening; reconsideration
The respondent, a native and citizen of Honduras, appeals from the Immigration Judge's
decision dated February 2, 2016, denying his motion to reconsider the denial of his sua sponte
motion to reopen. The Department of Homeland Security ("DHS") has not opposed the appeal.
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).
Although there is no transcript in the record, the audio recording of the proceedings reflects
that at the January 12, 2015, hearing, the respondent indicated through counsel that he intended
to seek Special Immigrant Juvenile (SIJ) status (Audio recording, Jan. 12, 2015, at 1:20-1:30).
The attorney informed the Immigration Judge that she herself was not licensed to represent the
respondent before the state court in dependency proceedings, but that she had referred the
respondent to another attorney for this purpose. Id. at 1 :25-1 :30. The respondent requested, and
was granted, a continuance on this basis.
At the continued hearing on April 6, 2015, the attorney explained that the lawyer to whom
she had referred the respondent did not pursue the case (Audio recording, April 6, 2015, at 1: 151 :30). The respondent's attorney requested a second continuance to allow the respondent to file
a dependency petition in state court through another lawyer she had recommended. Id at 1:351 :45. The Immigration Judge denied the continuance request, but advised the respondent that he
could file a motion to reopen at a later date if he obtained a state court dependency order and
filed a special immigrant visa petition (Form 1-360) with the United States Citizenship and
Immigration Services ("USCIS"). Id. at 5 :08-5: 15.
On November 16, 2015, the respondent filed a motion to reopen, requesting that the
Immigration Judge exercise his authority to reopen proceedings sua sponte.
8 C.F.R.
1003.23(b). In support of the motion, the respondent submitted an order issued by the state
court granting permanent custody to his father and finding that the respondent had been
abandoned by his biological mother (Motion, Tab F, at 38). He also submitted evidence that he

Cite as: K-F-R-F-, AXXX XXX 533 (BIA June 14, 2016)

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IN REMOVAL PROCEEDINGS

filed a Form I-360 visa petition with USCIS (Motion, tab F, at 24-35). In a form order dated
November 16, 2015, the Immigration Judge denied the motion as untimely, and he declined to
exercise his discretion to reopen proceedings sua sponte, without explanation.

On appeal, the respondent argues that the Immigration Judge abused his discretion in failing
to reopen proceedings sua sponte. An Immigration Judge's power to reopen or reconsider cases
sua sponte is limited to exceptional situations and is not meant to cure filing defects or
circumvent the time andnumber regulations for motions, where enforcing them might result in
hardship. Matter of G-D-, 22 I&N Dec. 1132, 1133 34 (BIA 1999); see also Matter of J-J-,
21 I&N Dec. 976, 984 (BIA 1997); 8 C.F.R. I003.23(b). The approval of a visa petition
generally does not constitute an exceptional situation that would excuse an untimely motion to
reopen.
According to the guidance provided to Immigration Judges by the Chief Immigration Judge,
if an unaccompanied child is seeking SIJ status, "the case must be administratively closed or
reset for that process to occur in the appropriate state or juvenile court." See Memorandum from
Brian M. O'Leary, Chief Immigration Judge, to Immigration Judges (Mar. 24, 2015)
("Docketing Practices Relating to Unaccompanied Children Cases and Adults with Children
Released on Alternatives to Detention Cases in Light of New Priorities"). Although the
Immigration Judge had already granted one continuance, the USCIS memo advises that the
length of that process varies by jurisdiction, but "several months may be necessary in many
locales." Id at 2. The memo goes on to advise that appropriate time must be given for USCIS to
adjudicate the SIJ adjustment application, and that therefore "several continuances or
administrative closure might be warranted" in such cases.
Thus, the Immigration Judge in this case should have granted a further continuance to the
respondent at the April 6, 2015, hearing to allow him to pursue his dependency petition in state
court. Given that the respondent has since filed evidence that the dependency petition was
granted in state court on October 12, 2015, and that his Form I-360 visa petition was approved
by USCIS on December 9, 2015 (Motion to Reconsider, Tab 2; Motion to Reopen, Tab D),
1 Because the motion to reconsider contained new and previously unavailable evidence, it was
also a motion to reopen. See 8 C.F.R. 1003.23(b)(3). Although such a motion would be time
and number-barred under the regulations, the respondent was requesting that the Immigration
Judge reopen proceedings sua sponte.

Cite as: K-F-R-F-, AXXX XXX 533 (BIA June 14, 2016)

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

On December 22, 2015, the respondent filed a motion to reconsider, along with proof that his
SIJ visa petition had been approved by USCIS on December 9, 2015 (Motion to Reconsider,
1
Tab 2; Motion to Reopen, Tab D). The Immigration Judge denied the motion, finding no error
in his prior decision and once again declining to reopen proceedings sua sponte. The
Immigration Judge also noted that the record contained conflicting school records which raised
questions as to when the respondent entered the United States and whether his mother was still in
Honduras (I.J. Denial of Motion to Reconsider, at 1-2). He thus found that the state court order
was "factually deficient," and that the USCIS approved the visa petition "as a result of a material
misrepresentation of fact" (I.J. Denial of Motion to Reconsider, at 2).

53
proceedings will be reopened and the record will be remanded to allow the respondent to pursue
his application for adjustment of status.

Accordingly, the following order will be entered.

ORDER: The record is remanded to the Immigration Judge for further proceedings
consistent with the foregoing opinion and for the entry of a new decision.

Cite as: K-F-R-F-, AXXX XXX 533 (BIA June 14, 2016)

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

With regard to the Immigration Judge's finding that the grant of the visa petition was based
on a material misrepresentation of fact, Immigration Judges do not have the authority to decide
whether a visa petition should be granted or revoked. Matter of Marca/ Neto, 25 I&N Dec. 169,
174 (BIA 2010); see also Matter of H-A-. 22 l&N Dec. 728, 736 (BIA 1999) (noting the Board's
lack of jurisdiction to assess the evidence submitted in support of a visa petition). Moreover,
USCIS retains the authority to revoke its approval of the petition at any time, if the evidence
warrants it. See 8 C.F.R. 205.2.

:,;

- -;..-

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) '

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UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
5701 EXECUTIVE CENTER DR. #400
CHARLOTTE, NC 28212

Date: Feb 2, 2016

File A

533

In the Matter of:

F

, K-F

- Attached is a copy of the written decision of the Immigration Judge.

This decision is final unless an appeal is take to the Board of
Inunigration Appeals. The enclosed copies of FORM EOIR 26,
Notice of Appeal, and FORM EOIR 27, Notice of Entry as Attorney or
Representative, pr_operly executed, must be filed with the Board of
Irrunigration Appeals on or before
The appeal must be accompanied by proof of paid fee ($110.00).
Enclosed is a copy of the oral decision.
Enclosed is a transcript of the testimony of record.
to submit a brief
You are granted until
to this office in support of your appeal.
Opposing counsel is granted until
brief in opposition to the. appeal.

to submit a

/"
Enclosed is a copy of the order/decision of the Immigration Judge.
All papers filed with the Court shall be accompanied by proof
of service upon opposing counsel.
Sincerely,
Immigration
cc: LISA DURANT., ESQ
5701 EXECUTIVE CENTER DR, 300
CHARLOTTE, NC 28212

UL

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

Eduardo Soto, P.A.

McCoy, Alanna Michele
999 Ponce de Leon Blvd
Suite 1040
Coral Gables, FL 33134

- -

..

..

__ _ _ _ ______

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______

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UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
CHARLOTTE, NORTH CAROLINA

Respondent.

) Date: December 22, 2015

COMES NOW the Court upon review and consideration o f Respondent' s Motion to
Reconsider these proceedings, and enters the following ORDERS :
[ ]

The motion is GRANTED and the case is adjourned to an individual / master calendar

hearing on

c)Q

[ ]
[ ]

at

am / pm.

The motion is DENIED. 8 C.F.R. I 003.23(b)(2) per attached minute order.

A telephonic appearance of counsel [ ] is [ ] is not authorized for the next hearing only.

Respondent shall file all [ ] applications for relief and [ ] supporting documents no later
than ______ or they may be deemed waived and abandoned by the Court pursuant to
8 C.F.R. 1 003.3 l (c).
[ ]

Other : -----------------------

2/

2. /tft,
Date

'v.siiiARTcoUCH
United States Immigration Judge
__ ,_ Charlotte, North Carolina

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- CERTIFICATE
RVICE
THIS DOCUMENT WAS SERVED BY: MAIL PER.8t)NAL SERVICE (P) /
TO : [ ] ALIEN [ ] ALIEN c/o Custodial Of 1cer [ Alien's ATT / P [
DHS

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BY: COURT STAFF ----;...;;..c.,
DATE:
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Immigrant & Refugee Appellate Center, LLC | www.irac.net

) IN REMOVAL PROCEEDINGS
)
) File No. --533
)
) ORDER TO RECONSIDER
)

iN fflE MATTER OF