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 220./ I

Name: RUIZ BAHENA, ALEYDA

Riders

A 208-123-196

Date of this notice: 12/15/2015

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

bonnL Cwvu
Donna Can
Chief Clerk
Enclosure
Panel Members:
Holmes, David B.

Userteam: Docket

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Cite as: Aleyda Ruiz Bahena, A208 123 196 (BIA Dec. 15, 2015)

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OHS/ICE Office of Chief Counsel - SFR

P.O. Box 26449
San Francisco, CA 94126-6449

Decision of the Board oflmmigration Appeals

U.S. Department of Justice

Executive Office for Immigration Review

Falls Church, Virginia 22041

Files: A208 123 196 - San Francisco, CA

Date:

DEC 1 5 2015

IN REMOVAL PROCEEDINGS
APPEAL
ON BEHALF OF RESPONDENTS: Pro se
ON BEHALF OF DHS:

Joseph Y. Park
Deputy Chief Counsel

ORDER:
This Board has been advised that the Department of Homeland Security's ("DHS") appeal
has been withdrawn. See 8 C.F.R. 1003.4. Since there is nothing now pending before the
Board, the record is returned to the Immigration Court without further action.

(n--FOR THE BOARD

Cite as: Aleyda Ruiz Bahena, A208 123 196 (BIA Dec. 15, 2015)

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In re: ALEYDA RUIZ BAHENA

September 2, 2015

In the Matters of
)
)
)
)
)
)

ALEYDA RUIZ BAHENA

RESPONDENTS

IN REMOVAL PROCEEDINGS

CHARGES:
APPLICATIONS:
ON BEHALF OF RESPONDENTS: PRO SE
ON BEHALF OF OHS: MARY J. HANNETT

ORAL DECISION AND ORDER OF THE IMMIGRATION JUDGE

The lead respondent is a native and citizen of Mexico. The two child rider
respondents are also natives and citizens of Mexico. They are the children of the lead
respondent. The respondents applied for admission to the United States on March 7,

1
Cite as: Aleyda Ruiz Bahena, A208 123 196 (BIA Dec. 15, 2015)

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UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
SAN FRANCISCO, CALIFORNIA

2015. At that time they did not have any documentation to live legally in the United
States or travel to the United States. The Government granted the respondents parole
At a Master Calendar hearing held on September 2, 2015, the respondent sought
to seek withdrawal of admission. Respondent made a great attempt to seek approval
from the Department of Homeland Security to be able to withdraw her application for
admission. However, such request was denied by the Department of Homeland
Security. She now, therefore, requests withdrawal of admission before this Court.
The Court took brief testimony on September 2 with the assistance of our
volunteer pro bona attorney, Ms. Helen Beasley. The respondent acknowledged that
she wanted to leave the United States along with her children and spoke on behalf of
her minor children. She also indicated that she has the willingness and intent to leave
the United States and has the funds or is able to borrow the funds to purchase to leave
the United States. Respondent was advised of the consequences of withdrawing her
admission, but indicated that despite being aware of the consequences, she still wishes
to withdraw her admission and the admission of her children so that she can return back
to her home country to assist her mother who is ill. Respondent acknowledged that
although she is fearful of returning, she nevertheless has given up her right to apply for
asylum.
STATEMENT OF THE LAW
The Immigration and Nationality Act Section 235(a)(4) provides an alien applying
for admission may in the discretion of the Attorney General and at any time be permitted
to withdraw that application for admission and depart immediately from the United
States. Federal regulation specifies an Immigration Judge may allow only an arriving
alien to withdraw an application for admission and that such withdrawal shall not be
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in order to seek asylum in the United States.

permitted unless the alien demonstrates that he possesses the intent and the means to
depart immediately from the United States and establishes factors relating to the issue

justice. 8 C.F.R. Section 1240.1(d). Once the issue of inadmissibility has been
resolved, permission to withdraw will ordinarily be granted only with the concurrence of
OHS. !.g.
Section 235(a)(4) and 8 C.F.R. Section 1240.1(d) effectively codified the
standard set out in Matter of Gutierrez, 19 l&N Dec. 562 at 564-565 (BIA 1988). In
Gutierrez, the Board of Immigration Appeals held that an Immigration Judge should not
allow withdrawal unless the alien, in addition to demonstrating he possesses both the
intent and means to depart immediately from the United States, establishes that factors
relating to the issue of this inadmissibility indicate that a granting of withdrawal will be in
the interest of justice and that justice will be ill served if an order of removal was
entered. J.Q.. Additionally, though the Board failed to specify the term of interest of
justice, it specifies that a balancing of equities test is not an appropriate method by
which to determine whether an alien merits a condition to withdraw. lg. at 564. Instead,
a narrow focus is intended of one looking to factors directly relating to the issue of the
alien's inadmissibility. !Q.. at 564. Because the alien in this case has attempted to enter
the United States, the Board ultimately, however, could discern no facts or
circumstances relevant to the issue of inadmissibility which would suggest justice
demands he be allowed to withdraw. The Ninth Circuit has since adopted this approach
borrowing from a Customs Border Protection (CBP) Inspector Field Manual (IFM) for
guidance on determining whether a particular withdrawal would be in the interest of
justice. See,. United States v. Raya-Vaca, 771 F.3d 1195 at 1207-09 (9th Cir.
2014), United States v. Barajas-Alvarado, 655 F.3d 1077 at 1090 (9th Cir. 2011).
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NM.

September 2, 2015

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of inadmissibility indicate that the granting of the withdrawal would be in the interest of

The IFM enumerates six factors relevant to the question of relief: (1) the
seriousness of the Immigration violation, (2) the previous finding of inadmissibility
overcome the ground of inadmissibility, for example, lack of documents, (5) age or poor
health of the alien, (6) other humanitarian or public interest considerations. CBP IFM,
Section 17.2(a). However, it specifies these factors are non-exhaustive and a careful
balancing of relevant factors and unfavorable factors should be conducted to reach
equitable decisions. Id. Finally, the IFM identifies several germane considerations
noting that withdrawal should ordinarily not be permitted in situations where there is
deliberate fraud on the part of the applicant. For example, where counterfeit, fraudulent
documents are involved, an expedited removal order is normally the appropriate
response. On the other hand, in a situation where the alien may have innocently or
through ignorance, misinformation or bad advice obtained an inappropriate visa or has
not concealed information during the course of the inspection, withdrawal should be
ordinarily permitted.
In Barajas-Alvarado, the principal published Ninth Circuit decision case on this
matter, the alien conceded he had deliberately presented false documents to inspection
officers in an effort to gain admission to the United States and had been subject to two
previous expedited removal orders. 655 F.3d at 1090. As a result, there are multiple
findings of inadmissibility against him and he could not easily overcome such grounds of
inadmissibility. Moreover, he was neither a youth nor elderly and did not allege he was
in poor health. Accordingly, in light of the factors articulated in the IFM, the Court found
it implausible that the alien would have been allowed to withdraw and dismissed his
appeal on this basis. lg. at 1090-91.
In Raya-Vaca, the Ninth Circuit applied Barajas-Alvarado and came to the
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against the alien, (3) intent on the part of the alien to violate the law, (4) ability to easily

opposite conclusion. 771 F.3d at 1208-09. In that case the alien had a history of six
illegal re-entries into the United States. As well, a stipulated an order of removal

or his age supported the assertion that relief was plausible and the same was true for
his ability to easily overcome the ground of inadmissibility. He had no petitions for
status pending and was not officially married to a U.S. citizen. However, the alien had
committed no fraud, let alone obvious or deliberate fraud when entering the United
States and, accordingly, a crucial consideration that ordinarily mitigates against
withdrawal was absent. Additionally, both the long-term partner and brother were
citizens suggesting the alien may have a relatively straightforward path to legal status.
Finally, the alien's partner and the children, in addition to his mother, siblings and other
extended family, lived in the United States and there were compelling humanitarian
reasons for keeping the family united.
Borrowing from the principles and case law outlined above, an IJ may seemingly
grant a withdrawal of admission in lieu of removal proceedings in any case where the
alien (1) is an arriving alien, (2) intends to demonstrate the ability to immediately depart
the United States and (3) establishes to the satisfaction of the Immigration Judge a
granting of the withdrawal will be in the interest of justice. INA Section 235(a ) (4), 8
C.F.R. Section 1235.4 or 1240.1(d). The concurrence of OHS is ordinarily required only
in the event that withdrawal of an application for admission is requested after the
issuance of inadmissibility has been resolved. 8 C.F.R. Section 1240.1 (d). Additionally,
the outside situations involving deliberate fraud which mitigates against withdrawal and
seemingly little additional analysis and the interest of justice factor can be analyzed
using with an individualized totality of circumstances type test as long as each
consideration is tied to or with the confines of the factors directly relating to the issue of
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constituted a prior finding of inadmissibility. In addition, the alien's apparent good health

the alien's inadmissibility is outlined in CBP IFM. See Raya-Vaca, 771 F.3d at 1207-09,
Barajas-Alvarado, 655 F.3d 1090-91, Gutierrez. 19 l&N Dec. 564.

also has a family member here in the United States, an uncle. Respondent indicated
that she would like to return to her home country. She acknowledged that she did not
have status. However, she would like to withdraw her application. She is aware of the
circumstances and the consequences of doing so. She also testified that she wishes to
return to assist her mother who is very ill. She discussed that she does intend to depart
immediately.
She made efforts to contact CBP to see if they would agree to withdrawal in this
case. They have declined to do so. However. this Court believes in the interest of
justice that she should be allowed to withdraw her admission. There has been no fraud
here. This is the first time she has been placed in removal proceedings, although she
has in the past entered as evidenced by the birth of her two U.S. citizen children. There
has been no fraud here and respondent did not misrepresent to OHS at the time of entry
that she had any documents. She in fact presented herself. Although she did indicate
that she is fearful of returning to her home country, she nonetheless wishes to go home
and acknowledges that she is giving up her opportunity to apply for asylum.
In light of these factors, the Court notes that respondent has made great efforts
to get CBP to approve her withdrawal. In light of her situation, this Court believes that it
is in the interest of justice to terminate these proceedings and allow the respondent and
her two children to withdraw their application for admission. The Court is granting her
until October 2, 30 days from today, to depart the United States.
She has been advised to keep information relating to the date of departure. It will
terminate without prejudice to the Government to re-instituting these proceedings
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Respondent in this case has fou children, two of whom are U.S. citizens. She

against the respondent at any time, and the respondent's children who are also in
proceedings at any time, in the future should they not comply with this grant.

LORETO S. GEISSE
United States Immigration Judge

Seternber 2, 20'\ 5

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So ordered this 2nd day of September 2015.