PEREZ-BRIZO, ARACELI

GOMEZ& ASSOCIATES
5
33 WOFKMAN MILL ROAD
LA PUENTE, CA 91746
U.S. Department of Justice
Executive Offce fr Iigration Review
Board of Immigation Appeals
Ofce of the Clerk
510 7 Leeburg Pke, Suite 2000
Falls Chttrcl, Vrginia 20530
DHS/ICE Ofice of Chief Counsel - LOS
606 S. Olive Street, 8th Floor
Los Angeles, CA 90014
Name: SAENZ-LEDESMA, FERNANDO A 024-938-852
Date of this notice:
6
/1.
3
/
2014
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosu ri
Panel Mcrnbers:
Malphru, Garr D.
Mullane, Hugh G.
Liebowitz, Ellen C
Sincerely,
DO Ct
Donna Carr
Chief Clerk
Trane
Userteam: Docket
For more unpublished BIA decisions, visit www.irac.net/unpublished
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Cite as: Fernando Saenz-Ledesma, A024 938 852 (BIA June 13, 2014)
U.S. Deparment of Justice
Executive Offce fr Immigation Review
Decision of the Board of Immigation Appeals
,
Falls Churcht Wirginia 20530
File: A024 938 852 - Los Angeles, CA
In re: FERANDO SAENZ-LEDESMA
I REMOVAL PROCEEDINGS
APPEAL
Date:
ON BEHALF OF RESPONDENT: Araceli S. Perez-Brizo, Esquire
ON BEHALF OF DHS: Elena Kusky
Assistant Chief Counsel
CHARGE:
t ' ..
JUN 1 3 2014
Notice: Sec. 212(a)(6)(A)(i), I&N Act [8 U.S.C.
l l 82(a)(6)(A)(i)]
-
Present without being admitted or paroled
APPLICATION: Continuace; adjustment of status
The respondent appeals fom the Immigration Judge's decision dated September 4, 2012,
denying his request fr continuance, and denying his application fr adjustment of status under
section 245 of the Immigration and Nationality Act, 8 U.S.C. 1255. The appeal will be
sustained in part, and the record remanded to the Immigration Cour fr additional proceedings.
We review fr clear eror the fndings of fct made by the Immigration Judge. 8 C.F.R.
1003.
l
(d)(3)(i). We review de novo all other issues, including whether the paries have met
the relevant burden of proof, and issues of discretion. 8 C.F.R. 1003.1 (d)(3)(ii). As the
respondent's application was fled afer May 11, 2005, it is govered by the provisions of the
RAL ID Act. Matter of Almanza, 24 l&N Dec. 771 (BIA 2009).
The record refects that the Immigrtion Judge denied the respondent's renewed request fr a
brief continuance to obtain and revie the contents of his entire Alien fle ("A-fle") in an
attempt to establish that he had been; admitted a a temporary resident and was eligible fr
adjustment of status (Tr. at 118-30; Respondent's Brief at 10-15). Dent v. Holder, 627 F.3d 365
(9th Cir. 2010). At the prior hearing on July 3, 2012, the respondent and DHS had agreed to
work together to secure the necessary confdentiality waivers to permit the review of the
respondent's A-fle (Tr. at 92-98, 104-07). However, at the fnal heaing it was revealed that the
respondent had not received the documents and that the attoreys had not secured the necessay
waiver. As this point, DHS counsel indicated that her work schedule had impeded her ability to
coordinate with the respondent on te is. sue (Tr. at 117-21).
Upon ou de novo review, and considering the totality of the circumstances in this mater, we
conclude that the respondent demonstrated good cause fr the requested continuance. 8 C.F .R.
1003.l(d)(3)(ii), 1003.29. The A-fle appeas to be signifcant fr the respondent's ability to
substantiate his assertions a to his admission. Thus, we will remand this matter to enable the
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Cite as: Fernando Saenz-Ledesma, A024 938 852 (BIA June 13, 2014)
. .
'
A024 938 852
' .
parties to frther develop the record; :;jncludihg the opportunity fr the respondent to obtain his
A-fle, subject to any confdentiality issues as to specifc documents or any other privilege claims.
Our decision to remand this matter should not be read to indicate a position a to the ultimate
resolution of the respondent's applications fr relief. Matter of L-0-G-, 21 I&N Dec. 413, 422
(BIA 1996). Given tis result, we need not reach any other issues raised on appeal. We do point
out, however, that the respondent . correctly notes that the Immigration Judge's decision
incorrectly states the respondent conceded removability (l.J. at 2; Respondent's Brief at 4-5). On
remand the Immigration Judge should clarif her fndings on removability.
Accordingly, the fllowing order will be entered.
ORDER: The record is remanded to the Immigation Judge fr frther proceedings in
accordance with the fregoing opinion and te entry of a new decision
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Cite as: Fernando Saenz-Ledesma, A024 938 852 (BIA June 13, 2014)
(
(
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMIGRATION COURT
LOS ANGELES, CALIFORNIA
File: A024-938-852 Septemer 4, 2012
In the Matter of
FERNANDO SAENZ-LEDESMA IN REMOVAL PROCEEDINGS
RESPONDENT
CHARGE: Section 212(a) (6) (A) (i) of the Immigration and
Nationality Act, as amended - as an alien present
in the United States not having been admitted or
paroled.
APPLICATIONS: Adjustment of status pursuant to Section 245.
ON BEHALF OF RESPONDENT: ARACELI PEREZ-RIZO
ON BEHALF OF DHS: ELENA KUSKY
ORAL DECISION AND ORDER OF THE IMMIGRATION JUDGE
The respondent is a male native and citizen of Mexico. The
Department of Homeland Security has brought these removal
proceedings against the respondent pursuant to the authority
contained within Imigration and Nationality Act. The
proceedings were comenced with the filing of the Notice to
Appear with the Immigration Court. See Exhibit No. 1.
1
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On July 30, 2007, Exhibit No. 1 was taken into the record
before Imigration Judge Rose Peters. At that time, apparently,
the admissions were not done. I took it over on Novemer 14,
2007. At that time, the respondent admitted the allegations and
the charge of removal. At a later date when it became evident
that the respondent's application was going to be adjustment of
status, he claimed that he came in as a temporary resident and
withdrew and denied the allegations. Well, anyway, those are
related to the allegations.
Exhibit No. 1-A is the I-261, which was served by the
Government on August 22, 2011. That was taken into the record on
August 22, 2011. Respondent was then charged with allegation
five on or about May 4, 1988, he was admitted as a temporary
resident under the Legalization Program, and, six, on November
3rd, 1990, the status of temporary residence expired. The
respondent admitted the allegations and then admitted the new
charge of 237(a) (1) (B) of the Imigration and Nationality Act, as
amended, as an alien present in the United States in violation of
law. However, the Government withdrew that particular allegation
on May 17, 2012 and withdrew the whole thing. Withdrew
allegation five and six and withdrew the charge and the
allegations of the I-261, hereby withdrawn, and continues with
the allegations on the NTA. So the charge remains
212(a) (6) (A) (i) of the Immigration and NationalityAct, as an
alien present in the United States not having been admitted or
A024-938-852 2 September 4, 2012
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paroled.
On the basis the respondent has aditted alienage that he is
a native and citizen of Mexico, it is incumbent upon the
respondent to show time, place and manner of entry. I find that
based upon the documentation in the file that the respondent has
submitted that he has not shown that he made a legal entry. He
has given a very poor copy of a front side without his picture
with the date of his file number with a fingerprint to show that
that is proof that he had a temporary resident card. However, I
do not find that that rises to the level of proving the burden of
proof that it shows that he had a temporary resident card.
The Government has presented a document, which is Exhibit
No. 4, which is a redacted notice of intent to deny, which is
dated August 4, 1992. It does not show the reason. It does not
show anything. It simply says notice of a decision with December
24, 1992 in the application for benefits of temporary resident
was and is hereby denied. Based upon the fact that the
respondent has a number of court documents in the file for his
adjustment of status showing that in 1990, he was under the
influence. He had an unlicensed driver. He had another driving
under the influence in 1990. He had another driving under the
influence. Based upon the fact that in order to get your
temporary resident, you could not have I believe two misdemeanors
or three. The California Department of Justice for 2007 shows
that the respondent had in 1982 a receipt of stolen property, a
A024-938-852 3 September 4, 2012
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felony. In 1978, a vehicle misdemeanor drunk driving. In 1983,
deportation proceedings and the two other drunk driving
convictions. It appears that the respondent may not have been
statutorily eligible for that particular document.
But more than that, I find that the respondent has failed in
his burden of proof to show that he is statutorily eligble for
the +elief requested, that of adjustment of status. I make this
on jurisdictional grounds only. Because the respondent has not
come forward other than with a very poor copy of a back of what
appears to be what he believes to be the temporary resident card,
but it does not show that it is a temporary resident card. It
has a thumb print on it and that is it. It does not have his
picture. It does not show that it is a temporary resident. It
does not even say that. I, therefore, find that he has not shown
the burden of proof.
And although there were objections to the Government's
evidence on the redacted information, the redacted information I
do give some weight to to the sense that it counterbalances what
the respondent has shown as far as what he believes that he did
have a temporary resident. So, therefore, it is the same name.
It is the same A numer and it shows that he was not given a
temporary resident card. So based upon that and based upon the
respondent's failure to provide any further documentation to show
that he did have a temporary resident card, I find that he has
failed to meet his burden that this Court can then do his
A024-938-852 4 September 4, 2012
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{
adjustment of status for statutory grounds, because unless he
made a legal entry, I have no jurisdiction to adjust his status.
I, therefore, deny the adjustment of status on statutory grounds
only. I make no decision on whether or not he can get it on
discretionary grounds because it is a statutory denial.
ORDER
IT IS HEREBY ORDERED that the respondent's application for
adjustment of status is denied. The respondent is ordered
removed, therefore, to Mexico on the charge as contained in the
Notice to Appear.
A024-938-852
DOROTHY DUNKEL-BRADLEY
Immigration Judge
5 September 4, 2012
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/Isl/
Imigration Judge DOROTHY DUNKEL-BRADLEY
bradleyd on Decemer 12, 2012 at 3:48 PM GMT
A024-938-852 6 Septemer 4, 2012
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(
CERTIFICATE PAGE
I hereby certify that the attached proceeding before JUDGE
DOROTHY DUNKEL-BRADLEY, in the matter of:
FERNANDO SAENZ-LEDESMA
A024-938-852
LOS ANGELES, CALIFORNIA
is an accurate, verbatim transcript of the recording as provided
by the Executive Office for Imigration Review and that this is
the original transcript thereof for the file of the Executive
Office for Imigration Review.
LESLIE BUMP (Transcriber)
FREE STATE REPORTING, Inc.
NOVEMBER 19, 2012
(Completion Date}
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