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U.S.

Department of Justice

Executive Office for Immigration Review


Board ofImmigration Appeals
Office of the Clerk
5107 Leesburg Pike, Suile 2000
Falls Church, Virginia 22041

OHS/ICE Office of Chief Counsel - LOS


606 S. Olive Street, 8th Floor
Los Angeles, CA 90014

Name: CAPIENDO, GRACE LINA MORAL

A 078-029-521
Date of this notice: 10/19/2016

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

DurutL Ct1JVu
Donna Carr
Chief Clerk
Enclosure
Panel Members:
Cole, Patricia A.

Userteam: Docket

For more unpublished BIA decisions, visit


www.irac.net/unpublished/index/
Cite as: Grace Lina Moral Capiendo, A078 029 521 (BIA Oct. 19, 2016)

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Miller, Nancy Ellen


Reeves Miller Zhang and Diza
2 North Lake Ave., 9th Floor
Pasadena, CA 91101

,'

U.S. Department of Justice


Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 22041

File: A078 029 521 - Los Angeles, CA

Date:

In re: GRACE LINA MORAL CAPIENDO

OCT 1 9 2016

APPEAL AND MOTION


ON BEHALF OF RESPONDENT: Nancy E.Miller, Esquire
CHARGE:
Notice: Sec.

237(a)( l)(B), I&N Act [8 U.S.C. 1227(a)(l)(B)] In the United States in violation of law

APPLICATION: Administrative closure; continuance; remand


The respondent, a native and citizen of the Philippines, appeals from the Immigration Judge's
October 27, 2015, decision denying her request to a4tninistratively close or continue her removal
proceedings. The respondent has also moved to remand the record based on a pending Petition
for Alien Relative (Form 1-130) filed on her behalf by her United States citizen husband. The
Department of Homeland Security has not responded to the appeal or motion. The respondent's
motion will be granted and the record will be remanded for further proceedings consistent with
this decision.
We review findings of fact for clear error, including credibility findings. See 8 C.F.R.
I003.l(d)(3)(i); see also Matter of J-Y-C-, 24 l&N Dec. 260 (BIA 2007); Matter of S-H-,
23 l&N Dec. 462 (BIA 2002). We review questions of law, discretion, or judgment, and all
other issues de novo. See 8 C.F.R. 1003.1(d)(3 )(ii).
Before the Immigration Judge, the respondent requested that her removal proceedings be
administratively closed or continued so that her United States citizen boyfriend could finalize his
divorce, marry her, and file a visa petition on her behalf (I. J. at 2-3; Tr. at 14). The Immigration
Judge denied the resfondent's requests, and the respondent appealed (I.J. at 2-3; Tr. at 25-26;
Notice to Appeal). During the pendency of this appeal, the respondent married her
United States citizen boyfriend, and he filed a visa petition on her behalf with United States
1

The respondent indicated in her Notice of Appeal that she would file a brief in support of her
appeal; however, a brief was not received. The respondent does not meaningfully challenge the
Immigration Judge's basis for denying her request for administrative closure or a continuance,
and we deem those claims waived (Notice of Appeal). See Garcia-Cortez v. Ashcroft, 366 F.3d
749, 752 (9th Cir. 2004) (stating that "the alien must 'provide meaningful guidance to the BIA'
by informing the BIA of the precise issues contested on appeal ...'by setting out the reasons on
the Notice of Appeal itself or by filing a separate brief."' (internal citation omitted)); Matter of
R-A-M-, 25 l&N Dec. 657, 658 n.2 (BIA 2012) (arguments not raised on appeal are waived).
Cite as: Grace Lina Moral Capiendo, A078 029 521 (BIA Oct. 19, 2016)

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IN REMOVAL PROCEEDINGS

Aff78 029 521


Citizenship and Immigration Services ("USCIS") (Resp.'s Motion to Remand at 3-4; Tabs B, F).
Based on the foregoing, the respondent seeks a remand to the Immigration Judge to pursue
adjustment of status (Resp.'s Motion to Remand at 1, 4).

In support of her motion, the respondent has submitted evidence of the pending visa petition,
her adjustment of status application (Form I-485), evidence of her entrance into the United States
on a visitor's visa, and other evidence attesting to the bona fides of her marriage (i.e. birth
certificates of children born to her and her husband) (Resp.'s Motion to Remand at Tabs A-C,
F-G). See section 245(a) of the Immigration and Nationality Act, 8 U.S.C. 1255(a); 8 C.F.R.
1003.2(c)(l); see also Matter of Velarde, 23 I&N Dec. 253, 256 (BIA 2002) (concluding that
an alien who entered into a marriage after the commencement of proceedings can have a motion
to reopen for adjustment granted, notwithstanding the pendency of a visa petition filed on behalf
of the alien by the spouse, where the alien has presented clear and convincing evidence
indicating a strong likelihood that the marriage is bona fide); 8 C.F.R 204.2(a)(l)(iii)(B)(4).
While the Immigration Judge expressed his concerns regarding the potential application of
section 204(c) of the Act, 8 U.S.C. 1154(c), to a future visa petition filed on behalf of the
respondent (I.J. at 2-3), we note that USCIS previously granted a visa petition filed on the
respondent's behalf by her former United States citizen husband (Exh. 4 at 1, 15). Assuming
that the current visa petition is similarly approved, section 204(c) of the Act may not bar the
respondent from adjusting her status. See Matter of Samsen, 15 I&N Dec. 28 (BIA 1974)
(indicating the section 204(c) determination is to be made by the district director during the
course of the adjudication of the visa petition); see also Matter ofTaw.fik, 20 I&N Dec. 166, 167
(BIA 1990). While the respondent may be inadmissible under section 212(a)(6)(C)(i) of the Act,
8 U.S.C. 1l82(a)(6)(C)(i), the respondent has a United States citizen spouse for the purpose of
any waiver of inadmissibility that she might require under section 212(i) of the Act (Resp.'s
Motion to Remand at Tab F).
In light of the foregoing, we will grant the respondent's motion and remand the record for
further proceedings consistent with this opinion. However, we express no opinion regarding the
merits of the respondent's application for adjustment of status. Upon remand, the Immigration
Judge should consider whether any further continuances or administrative closure is warranted to
await adjudication of the visa petition filed on the respondent's behalf. See Matter ofAvetisyan,
25 I&N Dec. 688 (BIA 2012); Matter of Hashmi, 24 l&N Dec. 785 (BIA 2009). Moreover,
upon remand, the respondent retains the burden of showing that she is statutorily eligible to
adjust under section 245(a) of the Act and that she merits this relief in the exercise of discretion.
Accordingly, the following orders will be entered.

2
Cite as: Grace Lina Moral Capiendo, A078 029 521 (BIA Oct. 19, 2016)

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A motion to remand is subject to the same substantive requirements as a motion to reopen.


See Matter of Coelho, 20 I&N Dec. 464, 471-72 (BIA 1992). Generally, such a motion will not
be granted unless it states new and material facts, is supported by affidavits or other evidentiary
material, and establishes a prima facie case of statutory and discretionary eligibility for the
underlying relief sought. See 8 C.F.R. 1003.23(b)(3); see also INS v. Doherty, 502 U.S. 314
(1992); Matter of Coehlo, supra, at 472.

AQ78 029 521


ORDER: The respondent's motion to remand is granted.
FURTHER ORDER: The record is remanded to the Immigration Judge for further
proceedings and for the entry of a new decision consistent with this decision.

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3
Cite as: Grace Lina Moral Capiendo, A078 029 521 (BIA Oct. 19, 2016)

October 27, 2015

File: A078-029-521
In the Matter of
)
)
)
)

GRACE LINA MORAL CAPIENDO


RESPONDENT

IN REMOVAL PROCEEDINGS

CHARGES:

237(a)(1)(B).

APPLICATIONS:

Prosecutorial discretion; Matter of Avetisyan, Interim Decision 3135


admin close; continuance.

ON BEHALF OF RESPONDENT: DIXON WONG


600 South Lake Avenue, Suite 301
Pasadena, California 91106
ON BEHALF OF OHS: NANCY DEFRANK
ORAL DECISION OF THE IMMIGRATION JUDGE
This matter originated with another Immigration Judge in 2011. Before
that Judge the respondent admitted allegations 1 through 5 and conceded removability.
Removability has been established by clear and convincing evidence.
The ROP has documents Exhibits 2, 3, and 4. The respondent asked her
husband to testify as well.
PROSECUTORIAL DISCRETION
The Department of Homeland Security does not wish to exercise their
prosecutorial discretion in this matter. Therefore, the Court cannot grant admin close

, 1 z..J.3.&..5iiliWMc .Z.

MW

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

UNITED STATES DEPARTMENT OF JUSTICE


EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
LOS ANGELES, CALIFORNIA

under the theory of prosecutorial discretion. That does not end the analysis, though,
because the Court can still look to other vehicles for relief for the respondent.

closing under the Matter of Avetisyan approach. Under the Avetisyan approach, the
Court must look to several factors including alternate ways to adjust status; delay;
Homeland Security's position on further continuances. In total there are six categories
and I am looking at each one. In this case the Court recognizes that the Department of
Homeland Security has opposed the admin close under Avetisyan as well as PD. This
Court recognizes there is a very speculative basis to ultimately immigrate. That is
through an 1-130 by a future husband. The difficulty with that is part of the ROP filed by
counsel indicates that the respondent has been found to be a violator under 204(c) of
the Immigration and Nationality Act. This is a preclusion for any future petitions on her
behalf. This is a significant factor that the Court must consider. It must also consider
the speculative nature of the future relationship. I recognize there are children involved.
However, there is no evidence other than the testimony which I am finding credible
under the REAL ID Act that Mr. Ralleca lives with the respondent and they have two
children.
It is not clear to this Court by any means why a divorce cannot be
completed in the State of California for over three years. There are no laws that I am
aware of or made aware of that would delay a divorce during that three year period. In
the final analysis I do not believe I should look to the Avetisyan approach to substitute
my view for the prosecutorial discretion of Homeland Security.
It should be noted that if 204(c) is actually part of the problem for the
respondent, then this factor should be brought up in the future request for PD by
counsel as an additional factor. Although it is negative, if there is no other form of relief,
AO?B-029-521

October 27, 2015

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

In this case the respondent has the opportunity for an administrative

then PD may be appropriately issued by the Department of Homeland Security. But this
Court cannot step over the lines drawn through jurisdictional purposes.

the Court could admin close this case. There is no agreement. Therefore, the admin
close under this case could also be denied.
The respondent also would like a continuance for 1-130 processing. This
Court certainly is familiar with Matter of Hashmi, 24 l&N Dec. 785. Where pending an
1-130 is in process, the likelihood of success cases should generally be continued. In
this case, the likelihood of a success based on 204(c) is not available at this point in
time. Counsel would like to address that in the 1-130 processing and that would be the
appropriate place to do that. However, the Court must take notice of the prior decision
by CIS to find 204(c) relevant and applicable to the respondent. There is also no
pending 1-130 because the petitioner is still married to someone else. In the final
analysis, I cannot exercise my discretion favorably for the respondent under the totality
of the circumstances.
ORDERS
IT IS HEREBY ORDERED respondent's applications for admin close on
all basis be denied;
IT IS FURTHER ORDERED respondent's application for continuance be
denied;
IT IS FURTHER ORDERED respondent be ordered removed and
deported to the Philippines on the charges contained in the Notice to Appear.

Please see the next page for electronic


signature
A078-029-521

October 27, 2015

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The Court also recognizes Interim Decision 3135. If the parties agreed,

IRA BANK
Immigration Judge

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October 27, 201 5

A078-029-521

/Isl/
Immigration Judge IRA BANK

A078-029-521

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banki on January 8, 2016 at 2:58 PM GMT

October 27, 2015