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U.S.

Department of Justice
Executive Office for Immigration Review

Board of Immigration Appeals


Office ofthe Clerk
5107 Leesburg Pike, Suite 2000

Falls Church, Virginia 20530

OHS/ICE Office of Chief Counsel - SOC

A205-308-999

146 CCA Road


Lumpkin, GA 31815

Stewart Detention Center


146 CCA Road
Lumpkin, GA 31815

Name: CRUZ-ORTIZ, JOSE LUIS

A 205-308-999

Date of this notice: 11/21/2014

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

Donna Carr
Chief Clerk

Enclosure

Panel Members:
Grant, Edward R.

Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: Jose Luis Cruz-Ortiz, A205 308 999 (BIA Nov. 21, 2014)

Immigrant & Refugee Appellate Center | www.irac.net

CRUZ-ORTIZ, JOSE LUIS

U.S. Department of Justice

Decision of the Board of Immigration Appeals

Executive Office for Immigration Review

Falls Church; Virginia 20530

File:

A205 308 999

Date:

Lumpkin, GA

NOV 212014

In re: JOSE LUIS CRUZ-ORTIZ a.k.a. Jose Ortiz a.k.a. Jose Cruz-Ortiz

IN REMOVAL PROCEEDINGS

ON BEHALF OF RESPONDENT:
APPLICATION:

Pro se

Motion to remand

The respondent, a native and citizen of Mexico, has filed an appeal of the Immigration
Judge's decision dated July 24, 2014, ordering the respondent removed from the United States to
1
Mexico. The Department of Homeland Security ("DHS") has not filed a brief in opposition to
the motion to remand or to the appeal. We will remand the record to the Immigration Court for
further proceedings.
The respondent has submitted evidence that the Petition for Alien Relative ("Form 1-130"),
filed on his behalf by his United States citizen wife, has been approved. A final rule has been
published that allows certain immediate relatives of United States citizens to request provisional
unlawful presence waivers prior to departing from the United States for consular processing of
their immigrant visa applications.

Presence Waivers,

See 8 C.F.R.

212.7(e) (2014);

see also Provisional Unlawful

78 Fed. Reg. 536 (Jan. 3, 2013). An individual in removal proceedings may

only seek an unlawful presence waiver if proceedings are administratively closed.

See 8 C.F.R.

212.7(e)(4)(v). We will remand the record for the Immigration Judge to determine whether,
given the circumstances of this case, administrative closure is appropriate so that the respondent
may pursue his request for an unlawful presence waiver.

See Matter ofAvetisyan,

25 I&N Dec.

688, 696 (BIA 2012) (setting forth a non-exhaustive list of factors to be considered when
determining whether to administratively close proceedings, including the likelihood of success
on any application or petition by the respondent and the ultimate outcome of removal
proceedings when the case is recalendared before the Immigration Judge).

In light of the

foregoing, the following order will be entered.


ORDER: The record is remanded to the Immigration Judge for further proceedings in
accordance with this opinion.

The respondent is subject to removal as

ien who is present in the United States without

being admitted or paroled or who arrived in

e United States at a time or place other than as

designated by the Attorney General (I.J. at 2; Exh. 1).

Cite as: Jose Luis Cruz-Ortiz, A205 308 999 (BIA Nov. 21, 2014)

Immigrant & Refugee Appellate Center | www.irac.net

APPEAL

UNITED STATES DEPARTMENT OF JUSTICE


EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
LUMPKIN, GEORGIA

In the Matter of

)
)
)
)

JOSE LUIS CRUZ-ORTIZ


RESPONDENT

IN REMOVAL PROCEEDINGS

CHARGES:

Section 212(a){6){A)(i) - present without being admitted or paroled.

APPLICATIONS:

None.

ON BEHALF OF RESPONDENT: PRO SE


ON BEHALF OF OHS: DIANE L. DODD

ORAL DECISION OF THE IMMIGRATION JUDGE


EXHIBITS:
Exhibit 1, Notice to Appear.
Exhibit 2, Form 1-213.
WITNESS:
1 . Respondent.
In arriving at my findings of fact and conclusions of law, I have considered
all the documentary and testimonial evidence in this case. My failure to comment on a
specific exhibit or particular testimony does not mean that I failed to consider it.

Immigrant & Refugee Appellate Center | www.irac.net

July 24, 2014

File: A205-308-999

CREDIBILITY
Based upon the totality of the circumstances, I find respondent to be
credible.

Exhibit 1 was served on respondent on January 31, 2013.


On July 24, 2014, in accordance with the respondent's pleas, the
allegations in Exhibit 1 were sustained, and the respondent was found by clear and
convincing evidence to be removable as charged in Exhibit 1. Mexico was designated
as the country of removal.
Respondent stated that he first arrived in the United States on January 6,
2005.
Respondent indicated that his wife has already applied so that he could
become a lawful permanent resident. She submitted her Form 1-130 in 2013 and
USCIS is in the process of adjudicating the 1-130. I explained to respondent that he
would need to process through the United States Consulate in Mexico in order to take
advantage of his wife's application assuming that USCIS approved it.
Respondent is married to a United States citizen and has been since
2007. Respondent has a 4-year-old daughter who was born in the United States.
Respondent's wife also has a son who is 16 years old. Respondent claims that he has
adopted his wife's son as his stepson.
Respondent indicated that neither he nor either child has been abused in
a domestic violence situation; and furthermore, respondent indicated that the only fear
he has of returning to Mexico is that he might be the victim of a crime. Respondent
explained that in 1998 or 1999, his father was almost killed. Respondent's father had
surgery and did not die from the wounds inflicted by an unknown person for an unknown

A205-308-999

July 24, 2014

Immigrant & Refugee Appellate Center | www.irac.net

FINDINGS OF FACT AND CONCLUSIONS OF LAW

reason back in 1998 or 1999. Respondent indicated that other than being afraid, that
he also might be the victim of a crime in Mexico"-!here is no other reason why he
believes that someone in Mexico might harm him if he returns.

this case because he could not pay for his airfare away from the United States.
Accordingly, I have determined that an Immigration Judge will be unable
to grant any relief for which the respondent is eligible. Therefore, I have entered the
following order:
ORDER
Respondent will be removed from the United States to Mexico.
A written. order reflecting the above decision will be provided separately
and made part of the record.

Please see the next page for electronic


signature

DAN TRIMBLE
Immigration Judge

A205-308-999

July 24, 2014

Immigrant & Refugee Appellate Center | www.irac.net

Respondent stated that he did not want to ask for voluntary departure in

//s//
Immigration

Judge DAN

TRIMBLE

trirnbled on

September

3,

2014 at 2:17 PM GMT

Immigrant & Refugee Appellate Center | www.irac.net

A205-308-999

July 24 2 014
,

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