Luis Alejandro Enriquez-Palafox, A075 446 189 (BIA March 29, 2011)
Uploaded by
Immigrant & Refugee Appellate Center, LLCLuis Alejandro Enriquez-Palafox, A075 446 189 (BIA March 29, 2011)
Uploaded by
Immigrant & Refugee Appellate Center, LLCU.S.
Department of Justice
Executive Office for Immigration Review Board ofImmigration Appeals Office ofthe Clerk
5107 leesbiirg Pike, S11ite 2000 Falls Church, Virginia 22041
PETER R. HILL, ESQUIRE Peter R. Hill, P.C. 2250 N. Druid Hills Rd., Suite 290 Atlanta, GA 30329-0000
OHS/ICE Office of Chief Counsel -ATL 180 Spring Street, Suite 332 Atlanta, GA 30303
Immigrant & Refugee Appellate Center | www.irac.net
Name: ENRIQUEZ-PALAFOX, LUIS ALEJANDRO
A075-446189
Date of this notice: 3/29/2011
Enclosed is a copy of the Board's decision and order in the above-referenced case. Sincerely,
Donna Carr Chief Clerk
Enclosure
Panel Members: Cole, Patricia A. Pauley, Roger Wendtland, Linda S.
Cite as: Luis Alejandro Enriquez-Palafox, A075 446 189 (BIA March 29, 2011)
. U.S. Department of Justic Executive Office for Immigration Review
Falls Church, Virginia 22041
Decision of the Board of Immigration Appeals
File:
A075 446 189- Atlanta, GA
Date:
-.. n :\
:'1
c:
f"'. )
r; "'"
L '
; I
In re: LUIS ALEJANDRO ENRIQUEZ-PALAFOX IN REMOVAL PROCEEDINGS APPEAL ON BEHALF OF RESPONDENT: ON BEHALF OF OHS: Peter R. Hill, Esquire
Immigrant & Refugee Appellate Center | www.irac.net
Nichole S. Lillibridge Assistant Chief Counsel
CHARGE: Notice: Sec. 212(a)(6)(A)(i), l&N Act [8 U.S.C. 1182(a)(6)(A)(i)] Present without being admitted or paroled 212(a)(2)(A)(i)(I), I&N Act [8 U.S.C. 1182(a)(2)(A)(i)(I )] Crime involving moral turpitude
Lodged: Sec.
APPLICATION:
Continuance
The respondent, a native and citizen of Mexico, appeals the Immigration Judge's March 23, 2010, decision denying his motion to continue proceedings to await the adjudication of a family based visa petition (Form I-130), which he contends, if approved, would render him prima facie eligible for adjustment of status in conjunction with a waiver of inadmissibility. See sections 212(h) and 245(i) of the Immigration and Nationality Act, 8 U.S.C. 1182(h), 1255(i). The appeal will be sustained. The respondent's request for oral argument is denied. 8 C.F.R. 1003.l(e)(7) (2010). We disagree with the Immigration Judge's decision to deny the respondent's motion to continue as such decision was based upon an erroneous determination that the respondent was barred from establishing eligibility for adjustment of status under section 245(i) of the Act solely because the Form 1-130 filed on his behalf on October 28, 1996, was ultimately denied by the Immigration and Naturalization Service (l.J. at 2; Exh 4 at Tab B). Pursuant to 8 C.F.R. 1245.IO(i), the denial of a qualifying immigrant visa petition that was properly filed on or before April 30, 200I, and that was "approvable when filed," will not preclude its grandfathered alien beneficiary from seeking adjustment of status under section 245(i) of the Act on the basis of another approved visa petition. For a visa petition to be deemed "approvable when filed" and thus eligible for "grandfathering" under section 245(i) of the Act, it must have been: (1) properly filed; (2) meritorious in fact; and (3) not frivolous. Matter of Riera and Espinol, 24 I &N Dec. 267, 268 (BIA 2007). We will remand this matter so the Immigration Judge may properly determine whether the respondent has satisfied his
Cite as: Luis Alejandro Enriquez-Palafox, A075 446 189 (BIA March 29, 2011)
A075 446 189
burden of establishing that his prior Form 1-130 was "approvable when filed," such that he would be grandfathered under section 245(i) of the Act, and could pursue adjustment of status in the event that the pending Form 1-1 30 filed on his behalf is approved. On remand, the parties may submit additional evidence bearing on this issue. Should the respondent establish that he is a grandfathered alien, the Immigration Judge should consider the factors outlined in Matter ofHashmi, 24 I&N Dec. 785 (BIA 2009), to determine if a further continuance of these proceedings is warranted.
Immigrant & Refugee Appellate Center | www.irac.net
ORDER: The respondent's appeal is sustained. FURTHER ORDER: The record is remanded to the Immigration Court for further proceedings consistent with the foregoing opinion and for the entry of a new decision.
Cite as: Luis Alejandro Enriquez-Palafox, A075 446 189 (BIA March 29, 2011)
U.S. DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT Atlanta, Georgia
File A 75 446 189
Date:
March 23,
2010
Immigrant & Refugee Appellate Center | www.irac.net
In the Matter of
LUIS ALEJANDRO ENRIQUEZ-PALAFOX Respondent
IN REMOVAL PROCEEDINGS
CHARGE:
212 (a} (6) (A} (i} ,
212 (a} (2) (A} (i} (I}
APPLICATION:
Continuance for adjudication of an I-130
APPEARANCES: ON BEHALF OF RESPONDENT: ON BEHALF OF THE DEPARTMENT OF HOMELAND SECURITY: Nicole S. Lillibridge, Esquire
Peter Reed Hill, Esquire
ORAL DECISION OF THE IMMIGRATION JUDGE The Respondent is a male, native and citizen of Mexico, who was issued a Notice to Appear on September 28, 2008. He was
charged with being subject to removal pursuant to the provisions of Section 212 (a} (6) (A} (i} , and an I-261 that was filed on April 13, 2009, in which two additional allegations were provided, See Exhibit 2. and
an additional charge of removability. pleadings, marked as Exhibit 3,
In written
the Respondent admitted
(
allegations one through four and "the essence of the charges" on the I-261, and conceded 212 (a) (2) {A) {i) {I) on the I-261. The The
Court found that he was, however, removable as charged.
Respondent sought a Velardi continuance for an I-130 adjudication. The issue here is that the Respondent had entered the United States without being admitted or paroled, so the only way
Immigrant & Refugee Appellate Center | www.irac.net
in which he could adjust his status in the United States would be if he had had an I-130 visa application that was filed on or before April 30, 2001, which was approvable when filed. The
matter was continued to provide proof of that. The Government provided evidence, see Exhibit 4, which Those
includes a denial of the I-130 and the 485 that were filed. denials took place on September 24, 199 7. application, the I-130, The fact that the
was denied indicates to this Court that it No appeal was taken of see Exhibit 5, argues that if they
was not in fact approvable when filed. this decision. Respondent's counsel,
only CIS can make a determination of whether or not, adjudicated a second I-130, filed. However,
that the first one was approvable when
this reasoning is not persuasive because CIS can The
approve an I-130 without any regard to the previous I-130.
fact of the matter is that the first I-130 that was filed prior to April 30, 2001, was not approved. Accordingly, Thus, it was not approvable
when filed.
the Court finds that the Respondent and eligible to
cannot establish that he would be grandfathered,
seek adjustment of status in the United States pursuant to the A 75 446 189 2 March 23, 2010
provisions of Section 24S (i} . Because there are no applications that this Court can consider, the Court will not grant a continuance for the adjudication of the I-130. The Court will, however, grant the
Respondent 60 days voluntary departure, until May 24, 2010,
that period of time to run
Immigrant & Refugee Appellate Center | www.irac.net
thus preserving the Respondent1s right to
appeal this decision to the Board of Immigration Appeals. The following order will be thereby entered. ORDER IT IS HEREBY ORDERED that the Respondent is found removable as charged on the Form I-261. IT IS FURTHER ORDERED that the Respondent's request for a continuance pursuant to Velardi for the adjudication of another I-130 be, and the same is hereby denied. IT IS FURTHER ORDERED that the Respondent be granted 60 days voluntary departure, that period to run until May 24, 2010.
Should he fail to depart by this date, reviewing court,
or by any date set by any
this will automatically become an Order of
Removal to his country of nativity and citizenship on the charges
A 75 446 189
March 23,
2010
contained in the Notice to Appear,
and the Respondent will be
liable for a $3000 civil money penalty.
Immigrant & Refugee Appellate Center | www.irac.net
t::A.
SEASE Immigration Judge
A 75 446 189
March 23,
2010
(
CERTIFICATE PAGE
I hereby certify that the attached proceeding before GRACE A. SEASE, in the matter of: LUIS ALEJANDRO ENRIQUEZ-PALAFOX
Immigrant & Refugee Appellate Center | www.irac.net
A 75 446 189 Atlanta, was held as herein appears, Georgia
and that this is the original
transcript thereof for the file of the Executive Office for Immigration Review.
Nicola Delph, Transcriber
YORK STENOGRAPHIC SERVICES, INC. 34 North George Street York, Pennsylvania 17401-1266 (717} 854-0077
