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 22041

OHS/ICE Office of Chief Counsel - DAL

125 E. John Carpenter Fwy, Ste. 500
Irving, TX 75062-2324

Name: ORTIZ ALMANZA, JOSE ROGELIO

A 205-517-790
Date of this notice: 8/17/2016

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

DOrutL Cwvu
Donna Carr
Chief Clerk
Enclosure
Panel Members:
Pauley, Roger
Cole, Patricia A.
Greer, Anne J.

Userteam: Docket

For more unpublished BIA decisions, visit

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Cite as: Jose Rogelio Ortiz-Almanza, A205 517 790 (BIA Aug. 17, 2016)

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Riveros-Jacobsen, Natalia
Michael Brooks-Jimenez P .C
5708 S. Western Ave
Oklahoma City, OK 73109

. U.S. Department of Justice

'Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 22041

File: A205 517 790 - Dallas, TX

Date:

AUG 1 7 2016

In re: JOSE ROGELIO ORTIZ-ALMANZA a.k.a. Jose Togelio Ortiz

APPEAL
ON BEHALF OF RESPONDENT: Natalia Riveros-Jacobsen, Esquire
CHARGE:
Notice: Sec.

212(a)(6)(A)(i), I&N Act [8 U.S.C. 1182(a)(6)(A)(i)] Present without being admitted or paroled (conceded)

APPLICATION: Continuance

The respondent, a native and citizen of Mexico, appeals from the Immigration Judge's
February 2, 2015, decision denying his request for a continuance in order to pursue a U visa
application, available to certain victims of physical or mental abuse under section 101(a)(l5)(U)
of the Immigration and Nationality Act (Act), 8 U.S.C. 1101(a)(15)(U). His appeal will be
sustained and the record will be remanded to the Immigration Judge for further proceedings
consistent with this decision.
We review findings of fact, including credibility findings, for clear error. See 8 C.F.R.
1003.l(d)(3)(i); see also Matter of J-Y-C-, 24 I&N Dec. 260 (BIA 2007); Matter of S-H-,
23 I&N Dec. 462 (BIA 2002). We review questions of law, discretion, or judgment, and all
other issues de novo. See 8 C.F.R. 1003.l(d)(3)(ii).
At the respondent's initial hearing on August 13, 2014, he conceded that he is removable as
charged and his case was continued (I.J. at 2; Tr. at 1, 4-5). At his second hearing, held on
February 2, 2015, the respondent requested a further continuance to pursue a U visa application
before United States Citizenship and Immigration Services (USCIS) (I.J. at 2; Tr. at 7-10).
However, the Immigration Judge denied the respondent's request, concluding that it was
unsupported by good cause (I.J. at 2). See Matter of Perez-Andrade, 19 I&N Dec. 433, 434
(BIA 1987); Matter of Sibrun, 18 I&N Dec. 354, 355 (BIA 1983). In this regard, the
Immigration Judge concluded "there is no evidence in the record that the respondent has applied
for a U visa" notwithstanding the fact that "the respondent has had more than six months to
apply [for] and obtain a U visa" but "has failed to do so" (I.J. at 2; Tr. at 8-9).
On appeal, the respondent maintains, among other things, that the Immigration Judge's
continuance denial was in error as it was based on a clearly erroneous factual finding that the U
visa was not pending at the time of the February 2, 2015, hearing (Resp. Brief at 4-5). In support
of his assertion the respondent points to his January 28, 2015, Documentary Submission to the
Cite as: Jose Rogelio Ortiz-Almanza, A205 517 790 (BIA Aug. 17, 2016)

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IN REMOVAL PROCEEDINGS

.A205 517 790

Immigration Court, containing the USCIS receipt notices for his U visa application and a related
waiver of inadmissibility (Resp. Brief at 4-5; Resp. January 28, 2015, Documentary Submission
at Tab C).

We are left with a definite and firm conviction that the Immigration Judge committed such a
clear error here, a documentary submission from the respondent is in the record, received. by the
Immigration Court prior to the February 2, 2015, hearing, and the submission contains proof that
the respondent was then the beneficiary of a U visa application pending before USCIS (I.J. at 2;
Resp. January 28, 2015, Documentary Submission at Tab C). Accordingly, although, as the
Immigration Judge correctly notes, the assertions of counsel regarding the pendency of the U
visa are not evidence, we conclude that the Immigration Judge clearly erred in finding this was
the only support proffered by the respondent to demonstrate the pendency of his application
(I.J. at 2; Tr. at 8). See Matter of Ramirez-Sanchez, 17 l&N Dec. 503, 506 (BIA 1980).
Moreover, we conclude that the foregoing error was not harmless, because, as the respondent
correctly notes, whether a U visa application is pending before USCIS has significant bearing on
the propriety of a continuance request related to pursuing such relief (Resp. Brief at 2). See
Matter of Sanchez Sosa, 25 l&N Dec. 807, 814-15 (BIA 2012) (outlining a rebuttable
presumption favoring a continuance of proceedings in the exercise of discretion where a
respondent is the beneficiary of a prima facie approvable U visa application pending with
USCIS).
Accordingly, we conclude that remand of the record is necessary for the Immigration Judge
to further consider the respondent's continuance request while applying Matter of Sanchez Sosa,
supra, and recognizing that the respondent is the beneficiary of a pending U visa application. In
addition, in the course of remanded proceedings, the parties should have an opportunity to
present any additional documents, testimony, or arguments in assisting the Immigration Judge
with issuing a new decision.
On remand, we remind the Immigration Judge that, per Matter of Sanchez Sosa, supra, an
Immigration Judge should ordinarily, as an initial matter, consider the Department of Homeland
Security's (DHS's) position regarding the propriety of a continuance sought for purposes of
2
Cite as: Jose Rogelio Ortiz-Almanza, A205 517 790 (BIA Aug. 17, 2016)

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We discern clear error in the Immigration Judge's factual finding that the record is
unsupported by any evidence establishing that the respondent was the beneficiary of a pending U
visa application at the time of his February 2, 2015, hearing (1.J. at 2). Clear error review is
"significantly deferential" to the trier of fact, and precludes reversal even if the reviewing
authority views the evidence differently than the fact finder. See Concrete Pipe & Products of
California, Inc. v. Construction Laborers Pension Trust for Southern California, 508 U.S. 602,
623 (1993); Anderson v. City of Bessemer City, North Carolina, 470 U.S. 564, 573-74 (1985). In
other words, where there are two permissible views of the evidence, the fact finder's choice
between them is not clear error. See Anderson v. City of Bessemer City, North Carolina,
supra, at 574. Accordingly, in order to reverse a factual determination, the appellate body must,
upon consideration of "the entire evidence," be "left with the definite and firm conviction that a
mistake has been committed."
See United States v. United States Gypsum Company,
333 U.S. 364, 395 (1948).

 .A205 517 790

We also remind the respondent that the U visa application submitted to USCIS, along with all
supporting documents, may be critical to his continuance request. See Matter of Sanchez Sosa,
supra, at 814. This is because, although the Immigration Judge does not have jurisdiction over
the respondent's U visa application, these documents are relevant when assisting the
Immigration Judge with evaluating whether the application is prima facie approvable.
See id. at 811-12, 814-15.
Accordingly, the following orders will be entered.
ORDER: The respondent's appeal is sustained.
FURTHER ORDER: The record is remanded to the Immigration Judge for further
proceedings and for the entry of a new decision consistent with this opinion.

FOR THE BOARD

3
Cite as: Jose Rogelio Ortiz-Almanza, A205 517 790 (BIA Aug. 17, 2016)

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pursuing a U visa application. See id. at 813. Here, the record does not contain a clear
indication of the DHS's position regarding the continuance. Should the DHS oppose a further
continuance, then an additional inquiry by the Immigration Judge is warranted. See id.
However, if the DHS does not oppose such a continuance, "'the proceedings ordinarily should be
continued by the Immigration Judge in the absence of unusual, clearly identified, and supported
reasons for not doing so."' See id. (quoting Matter of Hashmi, 24 I&N Dec. 785, 791
(BIA 2009)).

February 2, 2015

File: A205-517-790
In the Matter of

JOSE ROGELIO ORTIZ ALMANZA

RESPONDENT

)
)
)
)

IN REMOVAL PROCEEDINGS

CHARGES:

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

(ACT), as amended in that you are an alien present in the United
States without being admitted or paroled or who arrived in the
United States any time or place other than designated by the
Attorney General.

APPLICATIONS:

Request for a continuance.

ON BEHALF OF RESPONDENT: NATALIA RIVEROS-JACOBSEN, ESQUIRE

5708 SOUTH WESTERN AVENUE
OKLAHOMA CITY,OKLAHOMA 73109
ON BEHALF OF OHS: ROSLYN GONZALEZ, ESQUIRE
ASSISTANT CHIEF COUNSEL
DALLAS, TEXAS

ORAL DECISION OF THE IMMIGRATION JUDGE

It is alleged the respondent is not a citizen or national of the United States,
that he is a native and citizen of Mexico; that he entered the United States at or near
unknown Texas on about 2004, and at that time he was not admitted or paroled after

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UNITED STATES DEPARTMENT OF JUSTICE

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

inspection by an Immigration Officer. Consequently, the Department of Homeland

Security (herein referred to as the Government) charged respondent with removal

amended in that he is an alien present in the United States without being admitted or
paroled, or who arrived in the United States at any time or place other than designated
by the Attorney General. Exhibit 1.
At a master calendar proceeding before Immigration Judge Michael Baird
on August 13, 2014, the Notice to Appear was placed in the record as Exhibit 1. Also
on that date the respondent admitted that he is not citizen or national of the United
States, that he's a native and citizen of Mexico; and that when he did enter the United
States he was not admitted or paroled after inspection by an Immigration Officer. The
respondent also conceded to the charge of removal. Therefore, removal was
established. In case removal became necessary, Mexico was designated as the
country of removal.
At today's hearing, the respondent via counsel requested a further
continuance to pursue a U visa. The Court denied that request for a continuance
because no good cause has been shown. The Court was also notified that the
respondent was recently arrested on drug related charges, with no disposition. The
Court denied the respondent's request for a continuance because there is no evidence
in the record that the respondent has applied for a U visa. The Court notes that
statements of the attorney is not evidence. See Ramirez-Sanchez. There is no
documents in the Court's record that would indicate the respondent is prima facie
eligible for a U visa. Furthermore,the Court finds the respondent has had more than six
months to apply and obtain a U visa and has failed to do so. For the above stated
reasons, the Court finds that a continuance is not warranted, and the respondent has
A205-517-790

February 2, 2015

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pursuant to Section 212(a)(6)(A)(i) of the Immigration and Nationality Act (ACT), as

failed to show good cause. The Court has considered the cases related to whether or
not a continuance should be granted as a matter of discretion when one applies for a

respondent is prima facie eligible for a U visa. Therefore, the request for a continuance
is denied.
The respondent is seeking no other relief from removal.
Accordingly, the following orders shall enter.
ORDERS
IT IS HEREBY ORDERED the respondent's request for a continuance be
denied.
IT IS FURTHER ORDERED the respondent be removed from the United
States to Mexico based on the charge contained in the Notice to Appear.
Dated this 2nd day of February 2015.

Please see the next page for electronic

signature

A205-517-790

DEITRICH H. SIMS
Immigration Judge

February 2, 2015

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visa. Again, there is no evidence in this record that would demonstrate that the


'
')

/Isl/
Immigration Judge DEITRICH H. SIMS

A205-517-790

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simsd on May 5, 2015 at 7:53 PM GMT

February 2, 2015