U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals
Office of the Clerk
5107 leesburg Prke. Suite 2000
Palls Ch11rch, Virginia 22041

Name: M-0-1-

Date of this notice: 10/8/2015

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

DonrtL Ct1AAJ
Donna Carr
Chief Clerk
Enclosure
Panel Members:
Neal, David L
Greer, Anne J.
O'Herron, Margaret M

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/
Cite as: O-I-M-P, AXXX XXX 085 (BIA Oct. 8, 2015)

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DHS/ICE Office of Chief Counsel - DAL

125 E. John Carpenter Fwy, Ste. 500
Irving, TX 75062-2324

Hawkins, Brent A., Esq.

Brent A Hawkins Law Office, PLLC
4815 S. Harvard Ave., Ste. 395
Tulsa, OK 74135

Decision of the Board of Immigration Appeals

.U. Department of Justice

Executive Office for Immigration Review

Falls Church, Virginia 22041

File: 085 - Dallas, TX

Date:

In re: ---p-

OCT iB 20,s

APPEAL
ON BEHALF OF RESPONDENT: Brent A. Hawkins, Esquire
APPLICATION: Reopening
The respondent, a native and citizen of Guatemala, appeals from the decision of the
Immigration Judge, dated May 11, 2015, denying his motion to reopen removal proceedings.
The appeal will be sustained and these proceedings will reopened.
We review the findings of fact made by the Immigration Judge, including the determination
of credibility, for clear error. 8 C.F.R. 1003.l(d)(3)(i). We review all other issues, including
questions of judgment, discretion, and law, de novo. 8 C.F.R. 1003.l(d)(3)(ii).
The respondent was determined to be an unaccompanied minor by the Office of Refugee
Resettlement. The Immigration Judge ordered him removed on February 10, 2015, finding him
inadmissible as charged and further finding that he did not claim to be eligible for any relief. On
May 8, 2015, the respondent filed a timely motion to reopen. In his motion, the respondent
sought reopening in order to pursue Special Immigrant Juvenile (SIJ) status. See section
101(a)(27)(J) of the Immigration and Nationality Act, 8 U.S.C. 110l(a)(27)(J). In support of
his motion the respondent submitted an affidavit, an "order appointing general guardian" issued
by the District Court of Wagoner County, Oklahoma, a copy of a Petition for Amerasian,
Widow(er), or Special Immigrant (Form 1-360), and a copy of an Application to Register
Permanent Residence or Adjust Status (Form 1-485).
We conclude that the Immigration Judge erred in denying the respondent's motion to reopen.
The Immigration Judge's denied the respondent's timely motion to reopen based solely on a
finding that it was not accompanied by a fee receipt and that ''a review of the record reveals that
no filing fee was paid" (I.J. at 1). However, contrary to the Immigration Judge's decision, the
record reveals that a filing fee was paid. The respondent's counsel executed an affidavit that
indicates the filing fee was paid but that the respondent did not receive a receipt from the United
States Citizenship and Immigration Service (USCIS) at the time the motion was filed
(Respondent's Motion at 52). The record also includes a copy of a check that was used to pay
the filing fee and an account statement indicating that the filing fee had been debited from the
account (Respondent's Motion at 62-63). Moreover, on appeal the respondent has proffered a
fee receipt that includes the respondent's alien number and that indicates a fee of $110 was paid
for the motion on May 5, 2015. Based on the foregoing, we conclude that the Immigration Judge
erred in denying the respondent's motion on the basis that the filing fee was not paid.

Cite as: O-I-M-P, AXXX XXX 085 (BIA Oct. 8, 2015)

&&

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

IN REMOVAL PROCEEDINGS

.085

The issuance of the "order appointing general guardian" and pendency of the 1-360 and 1-485
provide a sufficient basis for reopening these proceedings. Considering this new evidence, we
will remand these proceedings to allow the respondent to request a continuance or administrative
closure while he pursues SIJ status with USCIS. 1 See Matter ofSanchez Sosa, 25 I&N Dec. 807,
815 (BIA 2012) (stating, "[a]s a general rule, there is a rebuttable presumption that an alien who
has filed a prima facie approvable application with the USCIS will warrant a favorable exercise
of discretion for a continuance for a reasonable period of time.") (internal citation omitted);
Matter ofAvetisyan, 25 l&N Dec. 688 (BIA 2012) (discussing the standards for administratively
closing proceedings); 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). Accordingly, the following orders will be
issued.
ORDER: The respondent's appeal is sustained.
FURTHER ORDER: The respondent's motion to reopen is granted.
FURTHER ORDER: The record is remanded for additional proceedings consistent with the
foregoing opinion and for the e :try of a new d cision.

Guidance provided to Immigration Judges by the Chief Immigration Judge states that 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 (March 24, 2015) (Docketing Practices
Relating to Unaccompanied Children and Adults with Children Released on Alternatives to
Detention Cases in Light of New Priorities). Moreover, the Chief Immigration Judge noted
additionally that "appropriate time must be given for U.S. Citizenship and Immigration Services
to adjudicate the Form 1-360 after the requisite state or juvenile court findings have been made."
Id.

2
Cite as: O-I-M-P, AXXX XXX 085 (BIA Oct. 8, 2015)
@

ffii. ..WN-ZW#M

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

We also conclude that the respondent has established a sufficient basis to reopen these
proceedings. A motion to reopen "shall state the new facts that will be proven at a hearing to be
held if the motion is granted and shall be supported by affidavits or other evidentiary material."
8 C.F.R. 1003.2(c)(1). In addition, a motion to reopen "shall not be granted unless it appears to
the Board that evidence sought to be offered is material and was not available and could not have
been discovered or presented at the foniler hearing." Id. Where an alien seeks to renew an
application for relief, a showing of changed circumstances since the time of the hearing must
also be made. Id. Moreover, a movant must satisfy the "heavy burden" of establishing that if the
proceedings were reopened, with all the attendant delays, the new evidence would likely change
the result in the case. Matter ofCoelho, 20 l&N Dec. 464 (BIA 1992).

:;,,

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRA'l'ION COURT
1100 COMMERCE ST., SUITE 1060
DALLAS, TX 75242

Ste.

395

Tulsa, OK

74135

IN THE MATTER OF
MACARIO-PAXTOR, OSMAN ISAIAS

F'ILE A-085

DATE: May 15, 2015

UNABLE TO FORWARD - NO ADDRESS PROVIDED

ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE. THIS DECISION
IS FINAL UNLESS AN APPEAL IS FILED WITH THE BOARD OF IMMIGRATION APPEALS
WITHIN 30 CALENDAR DAYS OF THE DATE OF THE MAILING OF THIS WRITTEN DECISION.
SEE THE ENCLOSED FORMS AND INSTRUCTIONS FOR PROPERLY PREPARING YOUR APPEAL.
YOUR NOTICE oF APPEAL, ATTACHED DOCUMENTS, AND FEE OR FEE WAIVER REQUEST
BOARD OF IMMIGRATION APPEALS
MUST BE MAILED TO:
OFFICE OF THE CLERK
5107 Leesburg Pike, Suite 2000
FALLS CHURCH-,..\J.A.. 20530
ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE AS THE RESULT
OF YOUR FAILURE TO APPEAR AT YOUR SCHEDULED DEPORTATION OR REMOVAL HEARING.
THIS DECISION IS FINAL UNLESS A MOTION TO REOPEN IS FILED IN ACCORDANCE
WITH SECTION 242B(c) (3) OF THE IMMIGRATION AND NATIONALITY ACT, 8 U.S.C.
SECTION 1252B{c} (3) IN DEPORTATION PROCEEDINGS OR SECTION 240{c} (6},
8 U.S.C. SECTION 1229a(c) {6) IN REMOVAL PROCEEDINGS. IF YOU FILE A MOTION
TO REOPEN, YOUR MOTION MUST BE FILED WITH THIS COURT:
IMMIGRATION COURT
1100 COMMERCE ST., SUITE 1060
DALLAS, TX 75242

OTHER:

CC: WARBURTON, MELISSA

125 E. HWY 114, STE 500
IRVING, TX, 75062

a&

.a .

COURT CLERK
IMMIGRATION COURT

.t4&&

FF

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

Brent A Hawkins Law Office, PLLC

Hawkins, Brent Andrew
4815 S. Harvard Ave.,

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United States Department of Justice

Executive Office for Immigration Review
United States Immigration Court
Dallas, Texas
I

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

In Re: O

Case No. --085

Order Denying Motion to Re-Open

This matter is before the Court pursuant to the Respondent's May 8, 2015 Motion
to Re-Open. For the reasons set forth below, the Motion will be Denied.
The Court is without jurisdiction to hear the current Motion to Re-Open because
no filing fee has been paid. 8 C.F.R. 1003.23(b)(l)(ii) specifies that a motion "must be
filed in duplicate with the Immigration Court, accompanied by a fee receipt."(emphasis
supplied). A review of the record reveals that no filing fee was paid. None of the
exceptions allowing for the Motion to Re-Open to be filed without a filing fee set forth in
8 C.F.R. 1003.24(b)(2) apply in this case. Therefore a filing fee is required. The Motion
to Re-Open was improvidently filed and the Court has no jurisdiction over the issues
presented.
Additionally, there is no sua sponte basis upon which to re-open the proceedings.
The automatic stay of removal is vacated.

United States Immigration Judge

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