U.S.

Department of Justice

Executive Office for Immigration Review Board ofImmigration Appeals Office ofthe Clerk
Sl07 Leesburg Pike, Suite 1000 Falls 01urch. Virginia 22041

Gauzza, Lindsey, Esq. Law Offices of Cheryl R. David 299 Broadway, Suite 706 New York, NY 10007

OHS/ICE Office of Chief Counsel 26 Federal Plaza, 11th Floor New York, NY 10278

NYC

Immigrant & Refugee Appellate Center | www.irac.net

Name: ROBINSON, ALISHA RAHIM

A 075-559-747

Date of this notice: 6/18/2013

Enclosed is

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

DQ)Ua_ ctVVt.)
Donna Carr Chief Clerk

Enclosure
Panel Members: Hoffman, Sharon

Trane
Userteam: Docket

Cite as: Alisha Rahim Robinson, A075 559 747 (BIA June 18, 2013)

U.S.

Department of Jnstice

Decision of the Board of Immigration Appeals

Executive Office, for Immigration Review Falls Church, Virginia 22041

File:

A075 559 747 - New York, NY

Date:

JUN 18 2013

In re: ALISHA RAHIM ROBINSON IN REMOVAL PROCEEDINGS APPEAL ON BEHALF OF RESPONDENT: Lindsey Gauzza, Esquire

Immigrant & Refugee Appellate Center | www.irac.net

APPLICATION: Continuance; administrative closure

("OHS") did not file a brief or other response to the appeal and has not opposed the requested remand. The record will be remanded.

for the Immigration Judge to apply applicable law.2 The Department of Homeland Security

continuance and for administrative closure.1 In the respondent's appeal, she requests a remand

Immigration Judge's decision dated November

The respondent, a native and citizen of Trinidad and Tobago, has filed a timely appeal of the

15, 2011, denying the respondent's request for a

all other issues in appeals from decisions of Immigration Judges, including legal and discretionary determinations and applications of law to fact.

We review the factual findings of the Immigration Judge for clear error but review de novo

8 C.F .R. 1003. l(d)(3)(i), (ii).

See Matter of Quintero, 18 I&N Dec. 348, 350 (BIA 1982); see also Matter of Rajah, 25 I&N Dec. 127, 136 (BIA 2009) (noting that a respondent with a prima facie approvable 1-140
and adjusttnent application may not be able to show good cause for a continuance where visa availability is too remote). However, as we have held when discussing the possibility that visa availability may be too remote to constitute good cause for a continuance, ''the Immigration

inappropriate for an Immigration Judge to continue based on speculation that a respondent's priority date

immigration judges and denied the request for a continuance. We recognize that it is typically eventually removal proceedings will become indefinitely current.

factors or citation to other case law, the Immigration Judge discussed his view of the role of the

forth in

the respondent established good cause for a continuance in light of the applicable factors set

We find it appropriate to remand this matter for the Immigration Judge to consider whether

].,fatter of Hashmi, 24 I&N Dec. 785 (BIA 2009). Without reference to the Hashmi

Rajah, supra, at 136; see also Freire v. Holder, 647 F.3d 67, 71 (2d Cir. 2011) (emphasizing the application of the Hashmi factors when evaluating the specific merits of a motion for a
continuance).

Judge must evaluate the individual facts and circumstances relevant to each case."

Matter of

(I.J. at 6-7), but the respondent did not appeal the issue and it is therefore considered waived. 31, 2011, l.J. at 1; Tr. at 18, 25; Exh. 1) and does not now contest his removability. See Respondent's Brief at 2 (conceding removability as charged, including as an alien who has been convicted of a crime involving moral turpitude).
2 The respondent previously conceded removability (Oct.

The Immigration Judge also denied the respondent's request for termination of proceedings

Cite as: Alisha Rahim Robinson, A075 559 747 (BIA June 18, 2013)

A075 559 747

Here, the Immigration Judge did not discuss the relevant factors necessary for an individualized examination of whether the respondent established good cause for a continuance.

See Matter of Hashmi, supra, at 790-94; Matter of Rajah, supra,

at 135-38. Without sufficient

fact-finding and consideration of applicable law, the decision is inadequate for appellate review.

See generally Matter ofS-H-, 23 l&N Dec. 462, 465 (BIA 2002) (describing the importance of
comprehensive findings of fact).
In addition, lhe 'Immigration Judge also found that he was without authority to grant administrative closure (l.J. at 6). Since the Immigration Judge's decision, however, the Board

Immigrant & Refugee Appellate Center | www.irac.net

has found that an Iminigration Judge may administratively close a case over the objection of a party. See Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012). Therefore, upon remand the
warranted. 3 Imilligration Judge shall also consider this new guidance on when administrative closure may be

Accordingly, the following order will be entered.

ORDER: The appeal is sustained in part, and the record is remanded to the Immigration

Judge for further proceedings consist nt with this opinion and the entry of a new decision.

By remanding, we express no opinion regarding the outcome of this case.

2

Cite as: Alisha Rahim Robinson, A075 559 747 (BIA June 18, 2013)

UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW UNITED STATES IMMIGRATION COURT New York, New York

File No.:

A 075 559 747

November 15,

2011

Immigrant & Refugee Appellate Center | www.irac.net

In the Matter of ALISHA RAHIM ROBINSON Respondent CHARGE: Section 212 (a) (2) (A) 9i) (I) of the Immigration Act - an alien who has been convicted of a crime involving moral turpitude; Section 212 (a)(6) (A) (i) of the Immigration Act an alien present in the U. S. without being admitted or paroled. AP PLICATIONS: Exercise of prosecutorial discretion, for administrative closure. continuance IN REMOVAL PROCEEDINGS

ON BEHALF OF RESPONDENT: Lindsay Gauzza

ON BEHALF OF DHS: Adam Feller

ORAL DECISION OF THE IMMIGRATION JUDGE The respondent was placed in removal proceedings through Exhibit 1, 2010. the Notice to Appear, that was issued in February,

The respondent has previously admitted the factual

allegations in the Notice to Appear and did at least concede the charge of being present without admission or parole. The Court believes that the documentary evidence in the record does establish the respondent is subject to removal on 1

'

both charges.

I sustain both charges since I think there is

clear and convincing evidence. The respondent, at the present time, is present in the U.S.

without legal status.

The respondent could potentially adjust

Immigrant & Refugee Appellate Center | www.irac.net

her status in the future if she received a waiver of inadmissibility for the criminal case referenced in allegation 4 of the Notice to Appear. The respondent's priority date under

the rationing system for issuance of immigrant visas established by Congress is far away. We do not know exactly when that but it is presently about six years It

priority date may be reached, in the future.

It might possibly shorten as time goes by.

might be a four year wait or a five year wait.

The Court frankly

thinks it is likely to be close to six years because very few immigration priority number categories actually become much more current within a few years. They tend to stay in the same range but staying

varying from month to month during the fiscal year, in around the same average. The respondent, therefore,

has asked the Court to reschedule

her case or to defer action on the case for some period of time, . possibly as long as five years, longer, possibly six years, possibly

until the respondent could pursue the possibility of

adjusting her status with a waiver of inadmissibility in relation to her criminal conviction. The respondent also did make a request to the Department of Homeland Security for prosecutorial discretion, but the trial

A 0 75 559 747

November 15,

2011

attorney assigned to the case today has indicated that OHS is not willing to exercise that type of discretion for this respondent's case. The Court does not know, and actually need not know, why

DHS does not wish to exercise prosecutorial discretion,

but I

Immigrant & Refugee Appellate Center | www.irac.net

would suppose that the respondent's criminal conviction and the relatively long period of time before the case might be resolved in some way may be factors. come the U.S. a long period, Otherwise, in 1991, the respondent having

a long time ago is usually

considered as a sympathetic positive factor.

From the Court's point of view,

I do not look at the case

from exactly the same point of view that I speculate OHS may look at it because OHS may see a reason to allow a person to remain in the United States indefinitely without legal status. For the Court, however, I believe that the Court structure

establishes a system to determine in a fair way whether an alien is subject to removal, removal, the Court is, and I believe if an alien is subject to in general, has the duty to see that the as established

respondent either qualify for some type of relief, by legislation that Congress passed, required to leave the United States.

or that the person be

I think that is really the

essence of a removal proceeding and of the deportation proceeding we had before. The Court does know, and I apologize that I do not have the but the Board of

citation handy in court this afternoon,

Immigration Appeals has issued decisions in which it indicated

A 075 559 747

November 15,

2011

that Immigration judges should not reschedule cases so that a respondent will have the opportunity to become eligible for a form of relief, which could not be granted at this time. The two

cases as I recall involved Immigration judges granting a continuance in one case of six months, in another case of one

Immigrant & Refugee Appellate Center | www.irac.net

year for persons who would need to demonstrate some period of good moral character in order to qualify for certain relief that they were seeking. not proper, The Board held that such continuances were

that Immigration judges should not reset cases so

that a person becomes eligible for relief that is not actually available at the time the hearing is conducted. In the Court's view, case may be strong. the sympathetic factors in the present

It is not clear that they are necessarily

stronger than the sympathetic factors in the cases the Board considered. That sort of balancing of which case is more

appealing or in which there may be stronger humanitarian interests is actually, in the Court's view, more a matter for

prosecutorial discretion by the Department of Homeland Security. In the Court's view, I believe that I should be limited by and I believe that Congress, believes that an

the legislation passed by Congress,

and for the most part the Attorney General,

Immigration judge should not be exercising general equity powers and making rulings that the Judge thinks promote the interest of fairness or humanitarian concerns except within the confines of the statutory framework that we have.

A 075 559 747

November 15,

2011

One could view the Immigration judge's authority to grant lengthy continuances as being part of the statutory framework, but I do not think it is a substantive right. I think it is a

procedural mechanism to accomplish some goal that the statute recognizes. The court does not believe that it is justified to reset the respondent's case for a lengthy period or to administratively close or terminate the proceedings when the respondent, present time, at the

Immigrant & Refugee Appellate Center | www.irac.net

is not actually eligible for a form of relief. citizen

If the question were whether the respondent's U.S. relative had filed a visa petition,

which was being considered at

length by Department of Homeland Security to determine whether that petition should be granted, matter. that would be a different

It would be the processing procedures of OHS which were Here, the matter which delays the

delaying the activity.

respondent from trying to qualify for relief is a framework established by Congress, which Congress has left in place with That framework of priority

some alterations for many decades. dates,

times involved for a person to immigrate under the the preference system, in the Court's view

priority date system,

is an expression of an important policy by Congress. The court believes the entire idea that a person was in the U.S. without legal status should be granted the chance to stay in without legal status for five or six more years because

the U.S.

it is hoped that at that time the person might qualify for relief

A 075 559

747

November 15,

2011

is really not contemplated by the system Congress established to adjudicate applications for resident status such as the one in this case. Further, the Court believes that the Congress was even less

Immigrant & Refugee Appellate Center | www.irac.net

likely intending that such long continuances would be granted in a case where the respondent has a criminal conviction that justifies her removal from the United States and which is far from a minor technical violation of a non-turpitudinous statute. The respondent's conviction, not a crime of violence, et cetera,

but still must be considered as a fairly serious offense involving moral turpitude and obviously fraud on the part of the respondent. As far as the Court is concerned, it is quite unlikely that for

Congress intended that aliens be allowed to stay in the U. S. five or si years waiting for their chance to become legal inunigrants.

The Court believes that it is not justified to grant the continuance in the case on that basis. As far as administrative closure, the precedent decisions on

this indicate strongly that an Inunigration judge is not allowed to administratively close a removal proceeding unless both parties agree to do so, and here the Department of Homeland

Security could have obtained a similar result through the exercise of prosecutorial discretion if they wished to do so. As far as the termination, the Court does not believe there

A 075 559 747

November 15,

2011

' I
'

is a showing of legal basis for termination.

There is no and

question about the proper jurisdiction or the removability,

the Court does not believe that termination can be used by fiat by the Court to delay the process of the removal proceeding, which the Department of Homeland Security decided to set in motion and then continue in motion. The Court, therefore, believes that the request for

Immigrant & Refugee Appellate Center | www.irac.net

continuance for adm inistrative closure or termination must be denied. Respondent's counsel has stated today that respodent is not aware of any other relief application that appears to be eligible to respondent. It does not appear to the Court is, and certainly

the respondent is not actively pursuing any other type of relief application. For this reason, the Court believes that a decision ordering

the respondent's removal is consistent with the intent of Congress is justified under the law, that order. IT IS HEREBY ORDERED that the respondent be removed from the United States to Trinidad and Tobago based on the charge that is sustained in this decision. and the Court will issue

ALAN VOMACKA Immigration Judge

A 075 559 747

November 15,

2011

CERTIFICATE PAGE

e
\.

hereby

certify

that

the

attached

proceeding

before

JUDGE ALAN VOMACKA,

in the matter of: ALISHA RAHIM ROBINSON A 075 559 747 New York, New York

Immigrant & Refugee Appellate Center | www.irac.net

is an accurate,

verbatim transcript of the recording as provided by

the Executive Office for Immigration Review and that this is the original transcript thereof for the file of the Executive Office for Immigration Review.

Appe Free State Reporting,

January 2,

2012

(completion date)

By submission of this CERTIFICATE PAGE, the Contractor certifies that a Sony BEC/T-147, 4-channel transcriber or equivalent, and/or CD, as described in Section C, paragraph C.3.3.2 of the contract, was used to transcribe the Record of Proceeding shown in the above para graph.