Ricardo Garcia-Diaz, A202 026 513 (BIA June 29, 2017)

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U.S. Department of Justice
Executive Office for Immigration Review
Board ofImmigration Appeals

Office ofthe Clerk
5107 Leesburg Pike, Suite 2000

Falls Church, Virginia 22041
Immigrant & Refugee Appellate Center, LLC | www.irac.net

TSANG, SIMON DHS/ICE Office of Chief Counsel - ORL
SIMON TSANG, ESQ. 3535 Lawton Road, Suite 100
3853 NORTHDALE BLVD 302 Orlando, FL 32803
TAMPA, FL 33624
Name: GARCIA-DIAZ, RICARDO A 202-026-513
Date of this notice: 6/29/2017
Enclosed is a copy of the Board's decision and order in the above-referenced case.
Sincerely,
/'7
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,
Cynthia L. Crosby
Deputy Chief Clerk
Enclosure
Panel Members:
Adkins-Blanch, Charles K.
Userteam: Docket
For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/
Cite as: Ricardo Garcia-Diaz, A202 026 513 (BIA June 29, 2017)
U.S. Department of Justice
Board oflmmigration Appeals

Office of the Clerk
5107 Leesburg Pike, Suite 2000


GARCIA-DIAZ, RICARDO DHS/ICE Office of Chief Counsel - ORL
130184/A202-026-513 3535 Lawton Road, Suite 100
C/O BAKER COUNTY JAIL Orlando, FL 32803
1 SHERIFFS OFFICE DRIVE
MCCLENNY, FL 32063
Name: GARCIA-DIAZ, RICARDO A 202-026-513
Date of this notice: 6/29/2017
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.
c cl.
Sincerely,
Cynthia L. Crosby
Deputy Chief Clerk
Enclosure
Panel Members:
Adkins-Blanch, Charles K.
:i.
Userteam:
- .U:S. Department of Justice Decision of the Board of Immigration Appeals
File: A202 026 513 - Orlando, FL Date: JUN 2 9 2017

In re: RICARDO GARCIA-DIAZ a.k.a. Gregorio Salinas, Jr.

IN REMOVAL PROCEEDINGS
APPEAL
ON BEHALF OF RESPONDENT: Simon Tsang, Esquire
ON BEHALF OF DHS: Stacie L. Chapman

Assistant Chief Counsel
CHARGE:
Notice: Sec. 212(a)(2)(A)(i)(II), I&N Act [8 U.S.C. 1182(a)(2)(A)(i)(Il)] -

Controlled substance violation
Sec. 212(a)(6)(A)(i), I&N Act [8 U.S.C. 1182(a)(6)(A)(i )] -

Present without being admitted or paroled
Sec. 212(a)(7)(A)(i)(I), I&N Act [8 U.S.C. 1182(a)(7)(A)(i)(I)] -

Immigrant - no valid immigrant visa or entry document
APPLICATION: Continuance
The respondent appeals from an Immigration Judge's April 26, 2017, decision denying his
request for a continuance and ordering him removed from the United States. The record will be
remanded to the Immigration Court for further proceedings consistent with this opinion and the
entry of a new decision.
We review the findings of fact, including the determination of credibility, made by the
Immigration Judge under the "clearly erroneous" standard. 8 C.F.R. 1003. l(d)(3)(i). We
review all other issues, including issues of law, discretion, or judgment, under a de novo
standard. 8 C.F.R. 1003.l(d)(3)(ii).
The respondent, a native and citizen of Mexico, does not dispute that he is inadmissible and
subject to removal as charged. The only issue presented on appeal concerns the Immigration
Judge's denial of his continuance request while awaiting adjudication of his pending
nonimmigrant U visa petition and supporting documentation he filed with the United States
Citizenship and Immigration Services ("USCIS").
The record reflects the respondent has applied for classification as a nonimmigrant U visa
applicant, and the USCIS appears to have determined the respondent is prima facie eligible for
that classification. Accordingly, the respondent requested that his removal proceedings
be continued to await the USCIS' final adjudication of his U visa petition. The record reflects
I A202 026 513
the DRS indicated it had requested the USCIS place the adjudication of the U visa petition on an
expedited track (Tr. at 39-40). Although the record reflects that at the April 26, 2017, hearing,
the respondent suggested the USCIS appeared to be approximately 2 months away from
processing the application, the DHS indicated to the Immigration Judge that it could not give a
specific timeline for the expedited adjudication (Tr. at 47-48). The record indicates that prior
continuances for the adjudication of the U visa petition were granted in this case. However,

although not addressed in his decision, the record reflects the Immigration Judge denied the
respondent's request for a further continuance (Tr. at 48).
"As a general rule, there is a rebuttable presumption that an alien who has filed a prima facie
approvable [U visa petition] with the USCIS will warrant a favorable exercise of discretion for a
continuance for a reasonable period of time." See Matter of Sanchez Sosa, 25 I&N Dec. 807,
815 (BIA 2012). In addition, we held in Matter of Sanchez Sosa, that, in determining whether
good cause exists to continue removal proceedings to await the adjudication of an alien's
pending U visa petition, an Immigration Judge should consider the following: (1) the DHS's
position with respect to the request; (2) whether the underlying visa petition is prima facie
approvable; and (3) the reason for the continuance request, along with any other relevant
procedural factors. See id. at 812-13. Moreover, "[i]f the DHS does not oppose 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."' Id. at 813 (quoting
Matter ofHashmi, 24 I&N Dec. 785, 790 (BIA 2009)).
There is no indication from the record that the respondent has engaged in dilatory behavior;
rather, the delay associated with the processing of his U visa petition appears to be attributable to
the USCIS administrative process. "Any delay not attributable to the alien 'augurs in favor of a
continuance."' Matter of Sanchez Sosa, supra, at 814 (quoting in part Matter of Hashmi, supra,
at 793); see also Ma/ilia V. Holder, 632 F.3d 598, 606 (9th Cir. 2011) (" [D] elays in the users
approval process are no reason to deny an otherwise reasonable continuance request.").
Nonetheless, even in those instances where the DHS opposes the continuance, the
Immigration Judge should consider the likelihood of success of the U visa application by (1) first
inquiring whether the respondent has demonstrated that he suffered substantial physical or
mental abuse as the victim of a qualifying crime, and if so, (2) next exploring whether the
respondent has been, is being, or will be helpful to the authorities. See id. at 813-14.
A respondent may demonstrate his cooperation with the authorities by providing a signed LEC,
as he has done in this case. See id. at 813. As we also noted in Matter of Sanchez Sosa, the
record reflects the respondent in this case provided the Immigration Judge with copies of the
Form 1-918 and the Form I-918 Supplement B that have been filed in this case, as well as copies
of other relevant supporting documents (Group Exh. 3). See id. at 814. It does not appear,
however, the Immigration Judge considered the factors we outlined in Matter of Sanchez Sosa,
supra, in determining whether a continuance was warranted in this case, or even addressed the
denial of the request for a further continuance in his written decision.
Therefore, we will remand the record to the Immigration Judge to apply the factors set forth
in Matter of Sanchez Sosa, supra, to determine whether the respondent established good cause
for a reasonable further continuance of his removal proceedings to await USCIS' s expedited
2
-A.202 026 513
adjudication of his pending U visa petition, and to address that issue m a written
decision supported by the requisite legal analysis.
Accordingly, the following order will be entered.
ORDER: The record is remanded to the Immigration Court for further proceedings

consistent with this opinion and the entry of a new decision.
FOR THE BOARD
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
ORLANDO, FLORIDA

File: A202-026-513 April 26,2017
In the Matter of
)
RICARDO GARCIA-DIAZ ) IN REMOVAL PROCEEDINGS
)
RESPONDENT )
CHARGES:
APPLICATIONS:
ON BEHALF OF RESPONDENT: Simon Singh
ON BEHALF OF DHS: Stacey Chapman

Assistant Chief Cousnel
ORAL DECISION OF THE IMMIGRATION JUDGE

The respondent's a 53-year-old male, native and citizen of Mexico, who's
admitted to the factual allegations set forth and contained in the Notice to Appear and
has conceded removal and based upon this admission for removal has established by
clear and convincing and unequivocal evidence and the court not only, based upon his
admissions but the submissions entered into the record and the record of proceedings
herein, show that the respondent is removable under 2(12)(a)(5), 2(12)(a)(7), and
2(12)(a)(2) of the Immigration and Nationality Act. The court does not find that he has
any viable forms of relief that the court has jurisdiction of, that the court didn't see at this
particular time. Therefore, it's the order and the judgment of the court that the
respondent is hereby removed and deported from the United States to Mexico on the
charges as set forth and contained in the Notice to Appear.

PHILIP J. MONTANTE JR
Immigration Judge
A202-026-513 2 April 26, 2017

(
CERTIFICATE PAGE
I hereby certify that the attached proceeding before JUDGE PHILIP J.

MONTANTE JR, in the matter of:
RICARDO GARCIA-DIAZ
A202-026-513
ORLANDO,FLORIDA
was held as herein appears,and that this is the original transcript thereof for the file of
the Executive Office for Immigration Review.
CHRISTIANA BEHRINGER (Transcriber)
NATIONAL CAPITOL CONTRACTING
May 22, 2017

(Completion Date)

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Executive Office for Immigration Review

Board ofImmigration Appeals

5107 Leesburg Pike, Suite 2000

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

Name: GARCIA-DIAZ, RICARDO A 202-026-513

Date of this notice: 6/29/2017

For more unpublished BIA decisions, visit

Executive Office for Immigration Review

Board oflmmigration Appeals

5107 Leesburg Pike, Suite 2000

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

Name: GARCIA-DIAZ, RICARDO A 202-026-513

Date of this notice: 6/29/2017

Falls Church, Virginia 22041

File: A202 026 513 - Orlando, FL Date: JUN 2 9 2017

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

ON BEHALF OF RESPONDENT: Simon Tsang, Esquire

ON BEHALF OF DHS: Stacie L. Chapman

Notice: Sec. 212(a)(2)(A)(i)(II), I&N Act [8 U.S.C. 1182(a)(2)(A)(i)(Il)] -

Sec. 212(a)(6)(A)(i), I&N Act [8 U.S.C. 1182(a)(6)(A)(i )] -

Sec. 212(a)(7)(A)(i)(I), I&N Act [8 U.S.C. 1182(a)(7)(A)(i)(I)] -

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

Accordingly, the following order will be entered.

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

FOR THE BOARD

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

ON BEHALF OF RESPONDENT: Simon Singh

ON BEHALF OF DHS: Stacey Chapman

ORAL DECISION OF THE IMMIGRATION JUDGE

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

A202-026-513 2 April 26, 2017

I hereby certify that the attached proceeding before JUDGE PHILIP J.

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

the Executive Office for Immigration Review.

CHRISTIANA BEHRINGER (Transcriber)

NATIONAL CAPITOL CONTRACTING

May 22, 2017

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