Abell, Maureen

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals Office of the Clerk

5/07 Leesburg Pike, Suite 2000 Falls Church, Virginia 22041

Legal Services of Southern Piedmont 1431 Elizabeth Ave.

DHS/ICE Office of Chief Counsel - CHL 5701 Executive Ctr Dr., Ste 300 Charlotte, NC 28212

Charlotte, NC 28204

Name: M-T- K-

Date of th is notice: 5/31/2016

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

Enclosure

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

Sincerely,

DOn.rtL Ca.AA) Donna Carr Chief Clerk

Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished/index/

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Cite as: K-N-M-T-, AXXX XXX 495 (BIA May 31, 2016)

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U.S. Department of Justice Executive Office fof Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 22041

File: �495 - Charlotte, NC

In re:�N-­

IN REMOVAL PROCEEDINGS

APPEAL

Date:

ON BEHALF OF RESPONDENT: Maureen L. Abell, Esquire

CHARGE:

MAY 3 1 2016

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

APPLICATION: Continuance

The respondent appeals the Immigration Judge's December 14, 2015, decision denying her request for a continuance and ordering her removed. 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 .1 ( 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).

At a hearing on March 30, 2015, the IS-year-old respondent indicated through counsel that she intended to seek Special Immigrant Juvenile status ("SUS") (Tr. at 10). The Immigration Judge instructed the respondent to provide evidence that a dependency petition was being pursued in state court at the subsequent hearing (Tr. at 10). 1 At the next hearing on June 1, 2015, the respondent provided evidence to the Immigration Judge that the petition had been filed in state court, and the Immigration Judge continued proceedings (Tr. at 13-14). On September 2, 2015, the respondent informed the Immigration Judge that she was still waiting for the scheduling of a hearing on the petition in the Mecklenburg County Court and requested a continuance (Tr. at 15-16). The Department of Homeland Security ("DHS") did not oppose the request for a continuance (Tr. at 16). The Immigration Judge stated that he would continue proceedings one more time, stating that since the respondent had been in proceedings for approximately 14 months that was sufficient time for her to pursue an application for SIJS with the United States Citizenship and Immigration Services ("USCIS") (Tr. at 16). At the subsequent hearing on December 14, 2015, the Immigration Judge declined to further continue

1 A necessary precondition to SUS is the declaration of a juvenile court that the respondent is deserving of protection because reunification with her parent(s) was not viable due to abuse, neglect, or abandonment. See section I01(a)(27)(J) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(27){J).

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the proceedings and ultimately ordered the respondent removed to Honduras. The record does not reflect whether the DHS opposed a further continuance before the Immigration Judge.2 The respondent now appeals.

On appeal, the respondent argues that the Immigration Judge erred in denying a further continuance to await the scheduling of a hearing in state court on her dependency petition. In support of her argument, she has attached evidence along with her brief that subsequent to the Immigration Judge's decision, a dependency hearing has been scheduled for August 3, 2016.

The Immigration Judge erred in denying a continuance in this case where there was no dispute that a dependency petition had been filed in the appropriate state court. Absent compelling reasons, an Immigration Judge should continue proceedings or grant administrative closure to await adjudication of a pending state dependency petition in cases such as the one before us.3 See section I01(a)(27)(J) of the Act, 8 U.S.C. § l 10I(a)(27)(J); section 245(h) of the Act, 8 U.S.C. § 1255(h); see also Matter of Sanchez Sosa, 25 I&N Dec. 807, 815 (BIA 2012) (stating, "[a]s a general rule, there is a rebuttable presumption that an alien who has filed a prima facie approvable application with the USCIS will warrant a favorable exercise of discretion for a continuance for a reasonable period of time.,,) (internal citation omitted); Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012) ( discussing the standards for administratively closing proceedings); Matter of Hashmi, 24 I&N Dec. 785 (BIA 2009) (setting forth a framework to analyze whether good cause exists to continue proceedings to await adjudication by USCIS of a pending family-based visa petition).

In light of the foregoing, we will remand the record for further proceedings to await adjudication of the pending dependency petition. On remand, the parties should be provided the opportunity to supplement the record with evidence relevant to the respondent's eligibility for SIJS. 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 entry of a new de · sio

2 There is no transcript for the December 14, 2015, hearing, as it appears from our review of the Digital Audio Recording database that the December 14, 2015, hearing was not recorded. Moreover, the Immigration Judge issued only a summary order and did not issue an oral or written decision in this case. 8 C.F.R. § 1240.12(b); Matter of A-P-, 22 l&N Dec. 468 (BIA 1999).

3 We defer to the former Chief Immigration Judge's guidance, which provides that, where an unaccompanied child is seeking SIJS, "the case must be administratively closed or reset for that process to occur in state or juvenile court." See Memorandum from Brian M. O'Leary, Chief Immigration Judge, to Immigration Judges (Sept. 10, 2014) (Docketing Practices Relating to Unaccompanied Children Cases in Light of New Priorities).

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Cite as: K-N-M-T-, AXXX XXX 495 (BIA May 31, 2016)

IMMIGRATION COURT 5701 EXECUTIVE CENTER DR. #400

CHARLOTTE, NC 28212 In the Matter of

Case No.: A 495 M T ,�N

Respondent IN REMOVAL PROCEEDINGS

ORDER OF THE IMMIGRATION JUDGE

This is a summary of the oral decision entered on 1"2 { ILf ) IS- . This memorandum is solely for the convenience of the parties. If the proceedings should be appealed or reopened, the oral decision will become t

x official opinion in the case.

[ ] The respondent was ordered removed from the United States to HONDURAS gr iR ehe sleernatiue to,,

[ ] Respondent's application for voluntary departure was denied and respondent was ordered removed to HONDURAS or in the alternative to . Respondent's application for voluntary departure was granted until

upon posting a bond in the amount of$ with an alternate order of removal to HONDURAS.

Respondent's application for: [ ] Asyium was ( )granted )denied( )withdrawn. [ ] Withholding of removal was ( )granted ( )denied )withdrawn. [ ] A Waiver under Section was ( )granted ( }denied { )withdrawn. [ ] Cancellation of removal under section 240A(a) was ( )granted ( )denied

( ) withdrawn. Respondent's application for: [ ] Cancellation under section 240A(b) (1) was ( ) granted ) denied

]

]

]

]

cX] [ ]

( ) withdrawn. If granted, it is ordered that the respondent be issued all appropriate documents necessary to give effect to this order. Cancellation under section 240A(b) (2) was ( )granted ( )denied ( )withdrawn. If granted it is ordered that the respondent be issued all appropriated documents necessary to give effect to this order. Adjustment of Status under Section was ( )granted ( )denied ( )withdrawn. If granted it is ordered that the respondent be issued

all appropriated documents necessary to give effect to this order. Respondent's application of ( ) withholding of removal ( ) deferral of removal under Article III of the Convention Against Torture was ( ) granted ( ) denied ( ) withdrawn. Respondent's status was rescinded under section 246. Respondent is admitted to the United States as a until As a condition of admission, respondent is to post a$ �nd.

----

Respondent knowingly filed a frivolous asylum application after proper notice. Respondent was advised of the limitation on discretionary relief for failure to appear as ordered in the Immigration Judge's oral decision. Proceedi gs were termi�ated.

' J Other: (!) 01 Date:

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