U.S.

Department of Justice
Executive Office for Immigration Review
Board oflmmigration Appeals
Office of the Clerk
5107 Leesburg Pike, Suite 2000
Falls Church, Virginia 2204/

OHS/ICE Office of Chief Counsel - EAZ

Eloy Detention Ctr, 1705 E. Hanna Rd
Eloy, AZ 85131

Name: MIRANDA-DUARTE, GILDARDO ...

A 206-466-550
Date of this notice: 8/26/2016

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

bOWtL Ct1AAJ
Donna Carr
Chief Clerk
Enclosure
Panel Members:
O'Leary, Brian M.
O'Connor, Blair
Mann, Ana

Userteam: Docket

For more unpublished BIA decisions, visit

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Cite as: Gildardo Daniel Miranda-Duarte, A206 466 550 (BIA Aug. 26, 2016)

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Alexandrovich, Marina N., Esq.

Marina Alexandrovich, Esq., PLLC
405 W. Southern Avenue, Suite 1-24
Tempe, AZ 85282

U.S. Department of Justice

Decision of the Board of Immigration Appeals

Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A206 466 550-Elroy, AZ

Date:

AUG 'L 6 2016

In re: GILDARDO DANIEL MIRANDA-DUARTE

APPEAL
ON BEHALF OF RESPONDENT: Marina N. Alexandrovich, Esquire
APPLICATION: Administrative closure; voluntary departure; change of venue
The respondent, a native and citizen of Mexico, has appealed from the Immigration Judge's
decision dated January 22, 2015, denying his motion for administrative closure. The respondent
also appeals the Immigration Judge's denial of his motion to change venue and contests the
terms imposed on the Immigration Judge's grant of voluntary departure. The record will be
remanded.
The Board reviews an Immigration Judge's findings of fact, including findings as to the
credibility of testimony, under a clearly erroneous standard. See 8 C.F.R. 1003.l(d)(3)(i). The
Board reviews questions of law, discretion, and judgment, and all other issues raised in an
Immigration Judge's decision de novo. See 8 C.F.R. 1003.l(d)(3)(ii).
An Immigration Judge must identify and fully explain her decision so that the parties will not
be deprived of the opportunity to contest her determination and the Board will be able to exercise
its responsibility of reviewing the decision in light of the arguments advanced on appeal. See
Matter of A-P-, 22 l&N Dec. 468 (BIA 1999); Matter of M-P-, 20 I&N Dec. 786 (BIA 1994).
The Immigration Judge's decision concerning the respondent's motion for administrative closure
is merely a conclusory statement that "[i]n consideration of the Avetisyan factors, the Court finds
administrative closure to be inappropriate, unnecessary, and imprudent" (I.J. at 5).1 The decision
does not indicate the specific factors the Immigration Judge considered or their relative weight.2
The "factors" outlined for consideration in the Board's decision in Matter of Avetisyan,
25 I&N Dec. 688 (BIA 2012) (providing guidance on the adjudication of motions to
administratively close proceedings), include, but are not limited to: (1) the reason administrative
closure is sought; (2) the basis for any opposition to administrative closure; (3) the likelihood the
respondent will succeed on any petition, application, or other action he or she is pursuing outside
of removal proceedings; (4) the anticipated duration of the closure; (5) the responsibility of either
party, if any, in contributing to any current or anticipated delay; and (6) the ultimate outcome of
removal proceedings.
2

The only factor of the six outlined in Matter ofAvetisyan that is mentioned in the Immigration
Judge's decision is the Department of Homeland Security's (DHS) opposition to administrative
closure, and is only noted in passing in the "Procedural History" section of her decision (I.J. at 2).
However, the transcript of the proceedings does not reflect that the Immigration Judge inquired
(continued...)
Cite as: Gildardo Daniel Miranda-Duarte, A206 466 550 (BIA Aug. 26, 2016)

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IN REMOVAL PROCEEDINGS

A206 466 550

Therefore, as presently constituted, the decision does not contain sufficient findings of fact or
legal analysis to provide us with a meaningful basis for review. See generally Matter ofS-H-, 23
I&N Dec. 462, 463-65 (BIA 2002). We will return the record to the Immigration Judge for the
entry of a more complete decision.

Accordingly, the following orders will be entered.

ORDER: The appeal is sustained.
FURTHER ORDER: The record is remanded for further action consistent with the foregoing
optmon.

(...continued)
into the DHS' reasons for opposing the motion (Tr. at 74-75). Thus, it is not even clear what
weight or consideration was given to that factor.

2
Cite as: Gildardo Daniel Miranda-Duarte, A206 466 550 (BIA Aug. 26, 2016)

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We note that the Immigration Judge's prior decision granting voluntary departure rendered
moot the respondent's motion for a change of venue. If the respondent requests additional forms
of relief or further proceedings become otherwise necessary on remand, the Immigration Judge
should revisit the respondent's request for a change of venue and provide appropriate analysis
and findings to support a determination granting or denying the motion.

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
1705 EAST HANNA ROAD, SUITE 366
ELOY, AZ 85131
IN REMOVAL PROCEEDINGS

MIRANDA-DUARTE, Gildardo Daniel

File No. A206-466-550

RESPONDENT

January 22, 2015

CHARGE:

INA 237(a)(l)(B); after admission, the alien has remained in the United
States for a time longer than permitted.

APPLICATION:

Post-Conclusion Voluntary Departure

ON BEHALF OF THE RESPONDENT:

C. Patrick Pratt, Esq.
Law Office of Marina Alexandrovich
405 West Southern Ave., Suite 1-24
Phoenix, Arizona 85282

ON BEHALF OF THE DEPARTMENT:

Daniel Crimmins, Assistant Chief Counsel
Department of Homeland Security
1705 E. Hanna Rd.
Eloy, AZ 85131

DECISION AND ORDER OF THE IMMIGRATION COURT

I.

PROCEDURAL HISTORY

The respondent admits that he is a native and citizen of Mexico, who was admitted to the
United States at Douglas, Arizona, on July 19, 2001, as a non-immigrant temporary visitor for
pleasure (B2), with authorization to remain in the United States for a temporary period not to
exceed January 18, 2002. (Exh. l, Form 1-862 at 1.) The respondent remained in the United
States beyond January 18, 2002, without authorization from the Immigration and Naturalization
Service or its successor the Department of Homeland Secwity.
On August 21, 2014, the respondent was issued a Notice to Appear ("NTA") by the
Department of Homeland Security ("OHS" or "the Department") charging him with
removability. On August 27, 2014, the OHS filed the NTA with the Court, commencing
proceedings and vesting jurisdiction with this Court. 8 C.F.R. 1003.14(a):
The respondent admitted all allegations, and conceded the charge of removal, pursuant to
1

In removal proceedings, the NTA shall be served in person on the alien or, if personal service is
not practicable, through service by mail to the alien or the alien's counsel of record. INA 239; 8 C.F.R.
1 003 .13. Here, the respondent conceded proper service of the NTA. Based upon the respondent's
admissions, and the certificate of service contained in the NTA, the Court finds that the NTA was
properly served.

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IN THE MATTER OF

' /

MIRANDA-DUARTE, Gildardo Daniel

A206-466-550
INA 237(a)(l)(B}, in that after admission, the alien has remained in the United States for a
time longer than permitted.

II.

STATEMENT OF THE LAW

A. Removability

The Department has the burden to prove by clear and convincing evidence that the
respondent is removable as charged. No decision on deportability shall be valid unless it is
based upon reasonable, substantial, and probative evidence. See INA 240(c)(3)(A). Any
document prepared by the court in which the conviction was entered, that indicates the existence
of a conviction, constitutes proof of that conviction. INA 240(c)(3)(B)(vi).
Applicable regulations provide in pertinent part that "the immigration judge may
determine that removability as charged has been established by the admissions of the
respondent." 8 C.F.R. 1240. lO(c) (2008). The distinct and formal admissions, made by
respondent during his removal hearing, are binding on the respondent as judicial admissions. See
Matter of Velasquez, 19 I&N Dec. 377, 382 (BIA 1986); 8 C.F.R. 1003.1 (d)(2)(i)(B) (2008);
see also Matter of Pichardo, 21 I&N Dec. 330, 333 n.2 (BIA 1996) (noting that "had the
respondent admitted to the Service's factual allegation or conceded his deportability.. . it would
have been unnecessary for the Service to present a record of conviction or other documents
admissible as evidence in proving a criminal conviction").
B. Burden of Proof
The respondent has the burden of proof on applications for relief. INA 240(c)(4)(A),
208(b)(l )(B)(ii); Chebchoub v. INS, 257 F.3d 1038, 1042 (9th Cir. 2001). More specifically, the
respondent "shall have the burden of establishing that he is eligible for any requested benefit or
privilege and that it should be granted in the exercise of discretion. If the evidence indicates that
one or more of the grounds for mandatory denial of the application for relief apply, the alien
shall have the burden of proving by a preponderance of the _evidence that such grounds so not
apply." 8 C.F.R. 1240.S(d).
An alien whose application for relief was filed after the May 11, 2005, effective date of
the REAL ID Act has the burden to prove that he satisfies the applicable eligibility requirements
and merits a favorable exercise of discretion under INA 240(c)(4)(A), and must provide
corroborating evidence requested by the Immigration Judge pursuant to INA 240(c)(4)(B),
unless it cannot be reasonably obtained. Matter of Almanza-Arenas, 24 l&N Dec. 771 (BIA
2009); see also Young v. Holder, 691 F.3d 976, 988-89 (9th Cir. 2012).
2

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Based on all evidence of record, the Court sustained removal as charged, by clear and
convincing evidence. The respondent designated Mexico as the country of removal, and
expressed no fear of return to that country. The respondent seeks post-conclusion voluntary
departure. The respondent also seeks administrative closure, however, the Department opposes
administrative closure.

MIRANDA-DUARTE, Gildardo Daniel

A206-466-550
C. Voluntary Departure

As cited in Gamboa, at 248, "The mere fact that an alien may be eligible for some form
of discretionary relief does not mean that he must be granted that relief; discretion must still be
exercised, Hintopoulos v. Shaughnessy, 353 U.S. 72 (1957)." See also Matter ofM-J 4 I&N Dec.
626 (BIA 1952); Matter ofPimentel, 12 l&N Dec. 50 (BIA 1967); Matter of Wong, 13 I&N Dec.
242 (BIA 1969). Discretion may be favorably exercised in the face of adverse factors where
there are compensating elements such as long residence here, close family ties in the United
States, or humanitarian needs. Matter of S-, 6 I&N Dec. 692 (A.G. 1955) (as cited in GamboaJ
supra, at 248).
The burden of proof to show worthiness for a favorable exercise by the immigration court
is on the respondent. Matter of Turcotte, 12 I&N Dec. 206 (BIA 1967). The respondent cannot
carry this burden by standing mute. If a respondent stands mute on the advice of counsel and
refuses to answer relevant questions, voluntary departure should be denied because the
respondent has failed to meet this burden of proof. Matter of Yam, 12 I&N Dec. 676 (BIA 1968);
Matter of Chen, 12 I&N Dec. 603 (BIA 1968). In addition, an applicant must show that he has
the means and intention to depart immediately.
At the conclusion of removal proceedings, the Court may grant voluntary departure in
lieu of removal. INA 240B(b); 8 USC 1229c(b). To establish eligibility, the alien must
prove that he (A) has been physically present in the United States for at least one year
immediately preceding the date the notice to appear was served under section 239(a) [8 USC
I229(a)]; (B) is, and has been, a person of good moral character2 for at least five years
immediately preceding his application for voluntary departure; (C) the alien is not deportable
under 237(a)(2)(A)(iii) (aggravated felony) or 237(a)(4) (security and related grounds) [8
USC 1227(a)(2)(A)(iii), or I227(a)(4)]; and (D) has established by clear and convincing
evidence that he has the means to depart the United States and intends to do so. INA
240B(b)(l). The alien must be in possession of a valid travel document. 8 C.F.R.
1 240.26(C)(2).
2

Certain aliens described in INA IOl(f) cannot be found to be persons of good moral character.
Even if the alienis not barred by INA lOl(f), the Immigration Judge retains discretion to evaluate the
alien's moral character by weighing the negative against the favorable factors. See Matter of Garcia, 24
I&N Dec. 179 (BIA 2007); Matter of Ortega-Cabrera, 23 l&N Dec. 793, 797-798 (BIA 2005); see also
Matter of Guadarrama de Contreras, 24 l&N Dec. 625 (BIA 2008).
3

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Voluntary departure is a form of discretionary relief and involves a weighing of positive

and negative factors present in the case. Among these factors are the alien's prior immigration
history, criminal history, the length of his residence in the United States, the extent of his family,
business, and societal ties in the United States, and any evidence of bad character and/or the
undesirability of the applicant as a permanent resident. Matter of Gamboa, 14 I&N Dec. 244
(BIA 1972); see also Matter ofArguelles, 22 I&N Dec. 811, 817 (BIA 1999); Matter of Thomas,
21 I&N Dec. 20, 22 (BIA 1995).

MIRANDA-DUARTE, Gildardo Daniel

A206-466-550
D.

Administrative Closure

Under the regulations, an Immigration Judge has the authority to direct the course of the
hearing and to take any action consistent with applicable law and regulations as may be
appropriate. 8 C.F.R. 1240.l(a)(l)(iv), (c). An Immigration Judge must exercise his or her
independent judgment and discretion and may talce any action consistent with the Act and
regulations that is appropriate and necessary for the disposition of such cases. Id 1003.1O(b).
"Administrative closure, which is available to an Immigration Judge and the Board, is
used to temporarily remove a case from an Immigration Judge's active calendar .. . . " Matter of
Avetisyan, 25 l&N Dec. at 692 (citing Matter of Gutierrez, 21 I&N Dec. at 480). "In general,
administrative closure may be appropriate to await an action or event that is relevant to
immigration proceedings but is outside the control of the parties or the court and may not occur
for a significant or undetermined period of time." Id. (emphasis added). The Board has made
clear that "Immigration Judges have the authority to administratively close proceedings under
appropriate circumstances, even if a party opposes." Id at 694, 697.
When evaluating whether administrative closure is proper, it is appropriate for an
Immigration Judge to weigh all relevant factors presented in the case, including but not limited
to:
(I) the reason administrative closure is sought; (2) the basis for any opposition to
administrative closure; (3) the likelihood the respondent will succeed on any
petition, application, or other action he or she is pursuing outside of removal
proceedings; (4) the anticipated duration of the closure; (5) the responsibility of
either party, if any, in contributing to any current or anticipated delay; and (6) the
ultimate outcome of removal proceedings . . . when the case is recalendared
before the Immigration Judge or the appeal is reinstated before the Board.
Id. at 694.
III.

LEGAL ANALYSIS AND FINDINGS OF LAW

The respondent through counsel admitted all allegations and conceded removal.
Therefore, considering all evidence of record, the Court sustains removal by clear and
convincing evidence. The respondent expressed no fear of returning to his home country of
Mexico. The respondent admits that he does not have the requisite time to qualify for
Cancellation of Removal under INA 240A(b)(l).

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"Administrative closure is a procedural tool created for the convenience of the

Immigration Courts and the Board [of Immigration Appeals (BIA)].'' Matter of Avetisyan, 25
I&N Dec. 688, 690 (BIA 2012) (citing Matter of Gutierrez, 21 l&N Dec. 479, 480 (BIA 1996)).
"[A]n Immigration Judge or the Board may find it necessary or, in the interests of justice and
fairness to the parties, prudent to defer further action for some period of time." Id

MIRANDA-DUARTE, Gildardo Daniel

A206-466-550

In consideration of the Avetisyan factors, the Court finds administrative closure to be

inappropriate, unnecessary and imprudent. That is, the Court is not convinced that proceeding
with removal hearings would be a wise use of judicial resources; as noted, the respondent is
seeking voluntary departure, and the Court is willing to grant him this privilege.
IV.

CONCLUSION

The respondent has conceded removability and the Court sustains removability by clear
and convincing evidence. The respondent has requested, in the alternative, relief in the form of
voluntary departure. The Court concludes that the respondent is eligible for voluntary departure
under INA 240B, and further concludes that he merits such relief as a matter of discretion. In
order to accept voluntary departure, the Court Orders that the respondent must file a $500.00
bond with the Department's ICE Field Office Director within five (5) business days from the
date of this Order, and he must depart the United States, under safeguards, within five (5) days
from the date of this Order. Accordingly, the Court will enter the following Orders:
IT IS ORDERED that the respondent be GRANTED the privilege to voluntarily depart,
under safeguards, from the United States within five (5) days from the date of this Order. The
respondent is also required to file a $500.00 bond with the Department of Homeland Security
within five (5) business days from the date of this Order. Should the respondent fail to leave as
and when ordered, this Order shall automatically become an Order of removal from the United
States to Mexico upon the charge contained in the NTA. Furthermore, the respondent will be
subject to a civil penalty of $3,000, and shall be ineligible, for a period of ten (1 0) years, to
receive any further relief under sections 240A, 240B, 245, 248, and 249 of the Act.
NOTICE:
The respondent's failure to post the required voluntary departure bond
within the time required does not terminate his obligation to depart within the period allowed, or
exempt him from the consequences for failure to depart voluntarily during the period allowed. 8
C.F.R. 1240.26(c)(4). If the respondent fails to depart the United States in accordance with
these conditions, he will be subject to a civil penalty of $3,000, and shall be ineligible, for a
period of ten ( 1 0) years, to receive any further relief under sections 240A, 240B, 245, 248, and
249 of the Act. See INA 240B(d); 8 C.F.R. I240.26(j). The respondent may choose to
decline the Court's grant of voluntary departure if he is unwilling to accept the amount of the
bond or the other conditions. 8 C.F.R. 1 240.26(c)(3). Should the respondent wish to decline
the grant of voluntary departure, he must notify the Court within five (5) days of the date of this
Order.
WARNING: Should the respondent choose to file an appeal of this Court's order with
the Board of Immigration Appeals, the respondent must, within thirty (30) days of filing his
5

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Through counsel, the respondent advised the Court that he did not wish to be considered
for pre-conclusion voluntary departure; rather, he wished to be considered for post-conclusion
voluntary departure because he intended to file an appeal. The Court finds that the respondent is
marginally deserving of voluntary departure; that is, the positive factors narrowly outweigh the
negative factors.

.
.
.. ; h
Jjl

"

MIRANDA-DUARTE, Gildardo Daniel

A206-466-550
appeal with the Board, submit sufficient proof of having posted the required voluntary departure
bonds. 8 C.F.R. 1240.26(c)(3)(i). If the respondent does not provide timely proof to the Board
that the required voluntary departure bond has been posted with DHS, the Board will not
reinstate the period of voluntary departure in its final order. Id.

SO ORDERED.

APPEAL RIGHTS: Both parties have the right to appeal the decision of the Immigration Judge
in this case. Any appeal is due in the hands of the Board of Immigration Appeals on or before
thirty calendar days from the date of service of this decision.

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WARNING: If the respondent files with this Court a post-decision motion to reopen or
reconsider during the period allowed for voluntary departure, the grant of voluntary departure
will be automatically terminated, and the alternate order of removal will take effect immediately.
8 C.F.R. 1240.26(b)(3)(iii). The penalties for failure to depart voluntarily under section
240B(d) of the Act will not apply if the respondent has filed a post-decision motion to reopen or
reconsider during the period allowed for voluntary departure. Id.