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

DHS/ICE Office of Chief Counsel - BUF

130 Delaware Avenue, Room 203
Buffalo, NY 14202

Name: REYNOSO-MENDEZ, WILSON

A 206-077-560

Date of this notice: 11/18/2016

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

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Greer, Anne J.
Kendall-Clark, Molly
O'Herron, Margaret M

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/
Cite as: Wilson Reynoso-Mendez, A206 077 560 (BIA Nov. 18, 2016)

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

Antos, Sarah Lorien

Anne E. Doebler, P .C.
14 Lafayette Square
Suite 1800
Buffa lo, NY 14203

U.S. Department of Justice

Executive Office

fot Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 22041

File: A206 077 560 - Buffalo, NY

Date:

NOV 1 8 2016

In re: WILSON REYNOSO-MENDEZ a.k.a. Wilson Reynosa Mendez

APPEAL
ON BEHALF OF RESPONDENT: Sarah Lorien Antos, Esquire
CHARGE:
Notice: Sec.

212(a)(6)(A)(i), I&N A ct [8 U.S.C. 1182(a)(6)(A)(i)] Present without being admitted or paroled

APPLICATION: Continuance

The respondent, a native and citizen of Guatemala, appeals from the Immigration Judge's
decision dated March 21, 2016, denying his request for a continuance and ordering him removed
from the United States to Guatemala. The record will be remanded.
We review the findings of fact, including the determination of credibility, made by the
Immigration Judge for clear error. 8 C.F.R. 1003.l(d)(3)(i). We review all other issues,
including questions of law and issues of discretion, de novo. 8 C.F.R. 1003.1(d)(3)(ii).
On June 4, 2014, the respondent appeared in court pro se with this uncle (Tr. at 3). The
Immigration Judge continued proceedings to allow the respondent time to retain an attorney, and
changed venue to Buffalo, New York (Tr. at 4-7). On October 10, 2014, the respondent again
appeared pro se. Counsel for the Department of Homeland Security ("DHS") requested that the
case be reset for a hearing on voluntary departure, noting the possibility that the respondent
would retain counsel prior to the next hearing (Tr. at 17). The Immigration Judge provided the
respondent with a list of free legal services, and advised him to call the providers on the list
(Tr. at 20, 21). The Immigration Judge stated that if, before the next hearing, the respondent
retained an attorney and discovered that he was eligible for a form of relief, he should inform the
court at the next hearing (Tr. at 23). On March 21, 2014, the respondent returned to court with
counsel, who informed the court that the respondent would be seeking special immigrant juvenile
("SIJ") status, and that a guardianship petition had been filed in state court on March 17, 2014
(Tr. at 27). The respondent sought a continuance to allow the state court to adjudicate the
petition so that he could ultimately apply for SIJ status (Tr. at 27-28). Counsel for the
respondent provided the court with a copy of the petition that had been filed in state court
(Tr. at 28, 32). DHS objected to the continuance, and the Immigration Judge denied the motion
for a continuance (Tr. at 28-29).

Cite as: Wilson Reynoso-Mendez, A206 077 560 (BIA Nov. 18, 2016)

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

IN REMOVAL PROCEEDINGS

A206 071560

Here, the Immigration Judge encouraged the respondent to retain legal counsel to ascertain
whether he qualified for any form of immigration relief. After two continuances, the respondent
returned to court with counsel and provided evidence that a petition for guardianship was
pending in state court and requested a continuance so that he could pursue SIJ status before U.S.
Citizenship and Immigration Services. While we understand the Immigration Judge's frustration
that the respondent did not file his motion in advance of the hearing, given that the respondent
retained his immigration counsel only days prior to the hearing, we conclude that a continuance
was warranted under the circumstances. Accordingly, we will remand for the respondent to
update the record with respect to the status of his guardianship petition and SIJ petition.
ORDER: The record is remanded to the Immigration Judge for further proceedings
consistent with the foregoing opinion and for the entry of a new decision.

2
Cite as: Wilson Reynoso-Mendez, A206 077 560 (BIA Nov. 18, 2016)

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

We conclude that the respondent established good cause for a continuance given his pending
state court guardianship petition, which was a prerequisite to pursing SIJ status. See 8 C.F.R.
1003.29, 1240.6 (providing that the Immigration Judge may grant a reasonable adjournment
either at his or her own instance or, for good cause shown, upon application by the respondent or
the OHS); see also Matter of Hashmi, 24 I&N Dec. 785 (BIA 2009) (setting forth a framework
to analyze whether good cause exists to continue proceedings to await adjudication by USCIS of
a pending family-based visa petition); section I0l(a)(27)(J) of the Immigration and Nationality
Act, 8 U.S.C. 1101(a)(27)(J). According to the guidance provided to Immigration Judges by
the Chief Immigration Judge, if an unaccompanied child is seeking SIJ status, "the case must be
administratively closed or reset for that process to occur in state or juvenile court."
See Memorandum from Brian M. O'Leary, Chief Immigration Judge, to Immigration Judges
(Mar. 24, 2015) ("Docketing Practices Relating to Unaccompanied Children Cases and Adults
with Children Released on Alternatives to Detention Cases in Light of New Priorities").

March 21, 2016

File: A206-077-560
In the Matter of

WILSON REYNOSA-MENDEZ
RESPONDENT

)
)
)
)

IN REMOVAL PROCEEDINGS

CHARGES:
APPLICATIONS:
ON BEHALF OF RESPONDENT: Ms. Santos
ON BEHALF OF OHS: Lisa Schultz

ORAL DECISION OF THE IMMIGRATION JUDGE

On September 20th, 2013, the U.S. Department of Homeland Security
issued the respondent its Notice to Appear alleging, among other things, the respondent
is not a citizen or national of the United States; that he is a native and citizen of
Guatemala; that he arrived in the United States at or near Sasabe, Arizona on or about
September 17th, 2013; and he was not then admitted or paroled after inspection by an
immigration officer. Based on these allegations, the Department of Homeland Security
charged the respondent with being subject to removal from the United States pursuant
to INA 212(a)(6)(A)(i), present without permission or parole. The respondent first

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

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
BUFFALO, NEW YORK

appeared pro se before the U.S. Immigration Court at New York City, New York on June
4, 2014. Respondent's guardian, purportedly, that is his uncle according to what has

two years. Then, on October 10, 2014, the respondent appeared pro se before the U.S.
Immigration Court in Buffalo, New York. That's almost a year and a half ago. The
respondent indicated he had been living with his uncle while in the United States and
the respondent indicated he was currently attending school. The respondent then
stated he left Guatemala because of crime and poverty. No request for asylum has
ever been made to this court, or withholding of removal, or relief under the Convention
Against Torture, including today. Respondent also stated he came to the United States
to go to school and for financial reasons. And the respondent acknowledged service
and process of the Notice to Appear and admitted all the factual allegations contained
therein. Again, based on these admissions, the court then found the respondent was
and continues to be removable pursuant to INA 212(a)(6)(A)(i).
The Department of Homeland Security requested at that time the matter
be placed on the court's voluntary departure docket. There was no objection to that.
The court continued the matter to allow the respondent the opportunity to retain counsel
and placed the matter on the court's voluntary departure docket. In an abundance of
caution, the court also gave the respondent the Form 1-589, application for asylum, for
his consideration.
Now, at the 11th hour today, with all due respect, counsel has filed a
Notice of Appearance that either could've been filed earlier or should've been filed
earlier, or the respondent should've proceeded earlier than he did. There is no
guardianship application that has been approved by any court in the jurisdiction. At the
earliest point, the court has given to understand, would be four months for now, and
A206-077-560

March 21, 2016

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

been stated, was present for that hearing. That's June of 2014. That's coming up on

even then, there is no assurance that that would be granted. And the court has not
even seen the guardian petition that purportedly has or will be filed. The court does not

the government, likewise, has not acquiesced in any further continuances.

Therefore, based upon that, the court is denying the respondent's request
for any further continuances. The court finds that the respondent has admitted the
factual allegations contained in the Notice to Appear. The court also has heard from
counsel for the respondent that he is no longer seeking voluntary departure. Therefore,
the court deems that request for relief abandoned and dismissed for lack of prosecution.
The court has also heard counsel represent that there are no other forms of relief that
he is eligible for. Therefore, the court is left with no alternative but to proceed and I
hereby find that the respondent is hereby removable from the United States to
Guatemala on the charges as set forth and contained in the Notice to Appear as
received as part of court filing marked as Exhibit Number 1 on the record of proceedings
herein. And again, the respondent is hereby removed from the United States to
Guatemala on the charges set forth and contained herein.

Please see the next page for electronic

signature

A206-077-560

PHILIP J. MONTANTE JR
Immigration Judge

March 21, 2016

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find that there is any justification for any further delays under the circumstances. And

.....

/Isl/
Immigration Judge PHILIP J. MONTANTE JR

A206-077-560

. ... . -c-

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montanp on June 9, 2016 at 4:53 PM GMT

March 21, 2016