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 2204/

DHS/ICE Office of Chief Counsel -BLM

(MSP)
1 Federal Drive, Suite 1800
Ft. Snelling, MN 55111

Name: IVARRA, ANTONIO

A 205-506-209

Date of this notice: 6/20/2016

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

Don.ru... c

t1/VL)

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Mann. Ana
Grant, Edward R.
O'Connor. Blair

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/
Cite as: Antonio Ivarra, A205 506 209 (BIA June 20, 2016)

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Nguyen, Khanh Ngoc

Khanh Nguyen Law Office
8200 Humboldt Ave. South
Suite 315
Bloomington, MN 55431

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals
Qffice ofthe Clerk
5107 Leesburg Pike, Suite 2000
Falls Church. Virginia 22041

DHS/ICE Office of Chief Counsel -BLM

(MSP)
1 Federal Drive, Suite 1800
Ft. Snelling, MN 55111

Name: IVARRA, ANTONIO

A 205-506-209
Date of this notice: 6/20/2016

Enclosed is a copy of the Board's decision in the above-referenced case. This copy is being
provided to you as a courtesy. Your attorney or representative has been served with this
decision pursuant to 8 C.F.R. 1292.5(a). If the attached decision orders that you be
removed from the United States or affirms an Immigration Judge's decision ordering that you
be removed, any petition for review of the attached decision must be filed with and received
by the appropriate court of appeals within 30 days of the date of the decision.
Sincerely,

bonn.L

{!t1/lA)

Donna Carr
Chief Clerk
Enclosure
Panel Members:

Mann, Ana
Grant, Edward R.
O'Connor 1 Blair

Userteam:

Cite as: Antonio Ivarra, A205 506 209 (BIA June 20, 2016)

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IVARRA, ANTONIO
A205-506-209
C/0 ICE/DHS
P.O. DRAWER 170
ALBERT LEA, MN 56007

U.S. Department of Justice

Decision of the Board of Immigration Appeals

Executive, Office for Immigration Review

Falls Church, Virginia 22041

File: A205 506 209 - Fort Snelling, MN

Date:

JUN 2 0 2016

In re: ANTONIO IVARRA a.k.a. Diego Reynoso-Chumil

APPEAL
ON BEHALF OF RESPONDENT: Khanh N. Nguyen, Esquire
ON BEHALF OF DHS:
APPLICATION:

Amy K.R. Zaske

Assistant ChiefCounsel

Continuance; voluntary departure under section 240B(b) ofthe Act

The respondent, a native and citizen of Guatemala, appeals the decision of the Immigration
Judge, dated January 22, 2016, concluding these proceedings by granting the respondent 10 days
to voluntarily depart the United States. See section 240B(b) of the Immigration and Nationality
Act, 8 U.S.C. 1229c(b). 1 The Department of Homeland Security ("DHS") is opposed to the
respondent's appeal. The respondent's appeal will be sustained with respect to the issue of the
posting ofa voluntary departure bond. His appeal will otherwise be dismissed.
We review Immigration Judges' findings of fact for clear error. 8 C.F.R. 1003.l(d)(3)(i).
We review questions of law, discretion, and judgment, and all other issues in appeals de nova.
8 C.F.R. 1003.l(d)(3)(ii).
As an initial matter, we reject any claim that the respondent's removal proceedings were
unfair or prejudicial. A Spanish language interpreter was provided at the respondent's hearings
(Tr. at 3, 8, 17, 22, 25, 29, 32, 39, 43, 46, 50, 57). When the Immigration Judge was inquiring
into the respondent's ability to depart the United States at his own expense, he indicated that he
was "not understanding well" (Tr. at 13). As such, the Immigration Judge explained that he was
attempting to ascertain his eligibility for relieffrom removal (Tr. at 13). See generally Matter of
Cordova, 22 I&N Dec. 966, 970-71 (BIA 1999). While, initially, there was confusion regarding
the respondent's desire to apply for asylum, he eventually indicated that he did not wish to
pursue such a claim (Tr. at 29). See Matter of C-B-, 25 I&N Dec. 888 (BIA 2012).

The respondent does not dispute that he is subject to removal from the United States because
he is an alien who is present in this country without being admitted or paroled by an immigration
office or who arrived at any time or place other than as designated by the Attorney General
(I.J. at 1-2; Tr. at 9-11; Exh. 1). Section 212(a)(6)(A)(i) ofthe Act, 8 U.S.C. l 182(a)(6)(A)(i).
The Notice to Appear has been admitted into the record as Exhibit 1. The Record ofDeportable
/ Inadmissible Alien (Form 1-213), dated August 6, 2015, has been admitted into the record as
Exhibit 2. The Form 1-213, dated June 3, 2013, has been admitted into the record as Exhibit 3.
Cite as: Antonio Ivarra, A205 506 209 (BIA June 20, 2016)

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IN REMOVAL PROCEEDINGS

A205 506 209

The evidence that the respondent has presented on appeal regarding his pursuit of a U visa
does not warrant a remand for further consideration ofhis request for a continuance. See Matter
of Coelho, 20 I&N Dec. 464 (BIA 1992). Among other documents, the respondent has presented
evidence that USCIS returned his original Form 1-918 to him because it was not properly signed.
Moreover, he has presented a copy ofhis request for a law enforcement certification. However,
he has not presented evidence that a law enforcement agency has actually signed his proposed
U Nonimmigrant Status Certification. While the respondent has presented police and medical
reports, such reports do not establish that a law enforcement agency is actually willing to certify
him for a U visa. Thus, as the respondent's eligibility for a U visa based upon a yet-to-be
properly filed Form 1-918 remains speculative, a remand is not warranted for further
consideration ofhis claims.
Finally, the Immigration Judge granted the respondent voluntary departure under
"safeguards" and ordered that he post a $500 voluntary departure bond (I.J. at 5). In other
words, the respondent is required to remain in DHS custody until he departs the United States.
See Matter ofM-A-S-, 24 l&N Dec. 762, 766 (BIA 2009). We agree with the respondent that the
voluntary departure bond is unnecessary in this case. As explained in Matter of M-A-S-, "it
makes no sense to require a bond, because the purpose ofthe bond - to assure that the respondent
will appear for departure - is already fully served by the continued detention."
For the reasons set forth above, the following orders are entered.
ORDER: The respondent's appeal is sustained solely with respect to the issue of the
voluntary departure bond and othetwise dismissed.
FURTHER ORTHER: The Immigration Judge's order that the respondent post a voluntary
departure bond is vacated.
FURTHER ORDER: With the exception of the posting of a voluntary departure bond,
pursuant to the Immigration Judge's order and conditioned upon compliance with conditions set
forth by the Immigration Judge and the statute, the respondent is permitted to voluntarily depart
2
Cite as: Antonio Ivarra, A205 506 209 (BIA June 20, 2016)

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The respondent did not demonstrate that his desire to pursue a request for nonimmigrant
status under section I01(a)(l5)(U) of the Act, 8 U.S.C. llOl(a)(lS)(U), amounted to "good
cause" for a continuance (I.J. at 3-4). See 8 C.F.R. 1003.29, 1240.6. The respondent did not
present any evidence that he had filed a Petition for U Nonimmigrant Status (Form I-918) with
United States Citizenship and Immigration Services ("USCIS") (1.J. at 3). He also did not
present any evidence which indicates that he obtained a U Nonimmigrant Status Certification
(Form 1-918, Supplement B) from a law enforcement agency. See 8 C.F.R. 214.14(c)(2)(i).
Considering these circumstances, the respondent's speculation that he is potentially eligible for a
U visa was insufficient to amount to good cause warranting a further continuance of these
proceedings. Compare Matter of Sanchez Sosa, 25 I&N Dec. 807, 815 (BIA 2012) (recognizing
that a continuance should not be granted where it is being sought "as a dilatory tactic to forestall
the conclusion ofremoval proceedings"), with Matter of Hashmi, 24 l&N Dec. 785 (BIA 2009)
(recognizing that a continuance may be warranted where an alien has demonstrated that he is the
beneficiary of a pending immigrant visa petition and established a likelihood of success on an
application for adjustment ofstatus).

A205 506 209

NOTICE: If the respondent fails to voluntarily depart the United States within the time
period specified, or any extensions granted by the DHS, the respondent shall be subject to a civil
penalty as provided by the regulations and the statute and shall be ineligible for a period of
10 years for any further relief under section 2408 and sections 240A, 245, 248, and 249 of the
Act. See section 2408(d) of the Act.
WARNING: If the respondent files a motion to reopen or reconsider prior to the expiration
of the voluntary departure period set forth above, the grant of voluntary departure is
automatically terminated; the period allowed for voluntary departure is not stayed, tolled, or
extended. If the grant of voluntary departure is automatically terminated upon the filing of a
motion, the penalties for failure to depart under section 240B(d) of the Act shall not apply. See
8 C.F.R. 1240.26(e)(l).
WARNING: If, prior to departing the United States, the respondent files any judicial
challenge to this administratively final order, such as a petition for review pursuant to
section 242 of the Act, 8 U.S.C. 1252, the grant of voluntary departure is automatically
terminated, and the alternate order of removal shall immediately take effect. However, if the
respondent files a petition for review and then departs the United States within 30 days of such
filing, the respondent will not be deemed to have departed under an order of removal if the alien
provides to the DHS such evidence of his or her departure that the Immigration and Customs
Enforcement Field Office Director of the DHS may require and provides evidence DHS deems
sufficient that he or she has remained outside of the United States. The penalties for failure to
depart under section 240B(d) of the Act shall not apply to an alien who files a petition for review,
notwithstanding any period of time that he or she :remains in the United States while the petition
for review is pending. See 8 C.F .R. 1240.26(i). ',

3
Cite as: Antonio Ivarra, A205 506 209 (BIA June 20, 2016)

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the United States under safeguards, without expense to the Government, within 10 days from the
date of this order or any extension beyond that time as may be granted by the Department of
Homeland Security ("DHS"). See section 2408(b) of the Immigration and Nationality Act,
8 U.S.C. 1229c(b); see also 8 C.F.R. 1240.26(c), (t). In the event the respondent fails to
voluntarily depart the United States, the respondent shall be removed as provided in the
Immigration Judge's order.

January 22, 2016

File: A205-506-209
In the Matter of

)
)
)
)

ANTONIO IVARRA.l
RESPONDENT

IN REMOVAL PROCEEDINGS

CHARGE:

Section 212(a)(6)(A)(i) of the Immigration and Nationality Act present without admission or parole.

APPLICATION:

Voluntary departure.

ON BEHALF OF RESPONDENT: ANTONIO IVARRA, Pro Se

c/o ICE
1 Federal Dr., Suite 1800
Fort Snelling, Minnesota 55111
ON BEHALF OF OHS: AMY ZASKE, Esq.
Asst. Chief Counsel/ICE
1 Federal Dr., Suite 1800
Fort Snelling, Minnesota 55111

ORAL DECISION OF THE IMMIGRATION JUDGE

Background
The respondent is a 28-year-old, unmarried, male, native and citizen of
Guatemala, who last entered the United States at or near Brownsville, Texas on or
1

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

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
FORT SNELLING, MINNESOTA

about January 5, 2009. At that time he was not admitted or paroled after inspection by
an Immigration officer.

commenced removal proceedings against the respondent by the issuance of a Notice to

Appear (hereinafter "NTA") dated January 3, 2013, charging the respondent with being
removable pursuant to the above-captioned section of the Immigration and Nationality
Act (hereinafter "the Act").
Removability
At the respondent's removal hearing, the respondent appeared pro se and
conceded to the service of the NTA (Exhibit 1 ). The respondent has admitted all the
factual allegations and conceded removability based on the charge. Therefore,
removability is not at issue in these proceedings. The Court finds that removability has
been established by clear and convincing evidence. See Section 240(c)(2) of the Act.
The respondent has designated Guatemala should removal become necessary.
Relief
The respondent has not sought any relief in this country other than voluntary
departure and a U-visa. The respondent is not eligible for cancellation of removal
pursuant to Section 240A(b) of the Act because he does not have the requisite ten
years residence or the family ties as required.
The respondent has no claim to adjustment of status pursuant to Section 245 of
the Act. He has no petitions that have been filed on his behalf to allow him to adjust
status.
The Court inquired whether respondent had any claim to citizenship, either in his
own right or through his parents. The respondent has never been a lawful permanent
resident of the United States, so he does not derive citizenship in his own right. The
A205-506-209

January 22, 2016

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The Department of Homeland Security (hereinafter "the Government") has

Court inquired into the status of his parents to determine if he derived citizenship
through them. But the respondent indicated that his parents were born in Guatemala,

does not derive citizenship through his parents.

The Court also inquired into whether or not the respondent had any fears of
persecution or torture if he returned back to Guatemala. The respondent has indicated
that he has no such fears. Therefore, he does not derive any benefits through those
forms of relief.
U-visa
The Court notes that the respondent has indicated that a U-visa has been filed.
A check with the CIS database prior to going on the record today indicated that no
application has been filed in this individual's name or A-number. In questioning the
respondent and his girlfriend, it is unclear whether or not the U-visa was certified as
required by the police authorities in the county in which he was victimized.
Respondent has been given repeated continuances since September to
complete a U-visa application. Respondent was given an opportunity to bring in a
completed application and provide that to the Court so that we could ascertain whether
or not a continued hearing for U-visa processing would be warranted.
The Court notes that it lacks jurisdiction to consider the respondent's application
for a U-visa. The regulations pertaining to U-visas provide that United States
Citizenship and Immigration Services (USCIS) has "sole jurisdiction over all petitions for
U non-immigrant status." 8 C.F.R. Section 214.14(c)(1). The regulations further
provide that respondents who are denied U-visas may appeal only to the administrative
appeals office of USCIS rather than the Immigration courts. 8 C.F.R. Section
214.14(c)(5)(ii). The regulations do allow respondents who are the subject of a final
A205-506-209

January 22, 2016

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live in Guatemala, are citizens of Guatemala, as were his grandparents. Therefore, he

order of removal to file a petition for U non-immigrant status with USCIS, but explicitly
provides that the "filing of a petition for U-1 non-immigrant status has no effect on ICE's

pursuant to 8 C.F. R. Section 214.6(a) and 8 C.F. R. Section 1241.6(a)." 8 C.F.R.

Section 214.14(c)(1)(ii).
Furthermore, the Court would note that the respondent can seek a U-visa at the
U.S. consulate in his home country should the application be approved.
Therefore, considering the extensive amount of continuances that have already
been accorded the respondent, a further continuance is not warranted for a U-visa, and
he can take advantage of these other alternatives before the other agencies.
Voluntary Departure
At the conclusion of removal proceedings, the Court may grant voluntary
departure in lieu of removal. Section 24B(b) of the Act. The alien bears the burden to
establish both that he is eligible for relief and that he merits a favorable exercise of
discretion. See Matter of Gamboa, 14 l&N Dec. 244 (BIA 1972); see also Matter of
Arguelles, 22 l&N Dec. 811 (BIA 1999). To establish eligibility, the alien must prove that
he: (1) has been physically present in the United States for at least one year
immediately preceding service of the Notice to Appear; (2) is, and has been, a person of
good moral character for at least five years immediately preceding his application for
voluntary departure; (3) is not removable under Sections 237(a)(2)(A)(iii) (aggravated
felony) or 237(a)(4) (security and related grounds); and (4) has established by clear and
convincing evidence that he has the means to depart the United States as intended to
do so. Matter of Arquelles, supra; Section 240B(b)(1) of the Act. The alien must be in
possession of a valid travel document. 8 C.F.R. Section 1240.26(c)(2). He must also
post a voluntary departure bond in the amount necessary to ensure that he will depart;
A205-506-209

January 22, 2016

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authority to execute a final order, although the alien may request a stay of removal

the amount must be at least $500 and must be posted within five days of the voluntary
departure order. Section 240B(b)(3) of the Act; 8 C. F.R. 1240.26(c)(3).

the requested relief. Thus, the Court will grant voluntary departure under safeguards
pursuant to the terms outlined below.
Accordingly, the Court enters the following order:
ORDER
IT IS HEREBY ORDERED that the respondent be granted the privilege of
voluntarily departing the United States under safeguards, at no expense to the
Government, on or before February 1, 2016, or an extension that may be granted by the
Field Office Director, Department of Homeland Security, and under any other conditions
the Field Office Director may direct.
IT IS FURTHER ORDERED that respondent post a voluntary departure bond in
the amount of $500 to the Department of Homeland Security within the next five
business days.
IT IS FURTHER ORDERED that respondent be required to post the cost of travel
($743.76) with ICE on or before February 1, 2016.
IT IS FURTHER ORDERED that if respondent fails to comply with any of the
terms of this order, then an alternative order of removal will be entered against him
ordering him removed from the United States to Guatemala based on the charge
contained in the Notice to Appear.
IT IS FURTHER ORDERED that if respondent fails to voluntarily depart the
United States within the time specified, respondent will be subject to a civil penalty of
not less than $1,000 nor more than $5,000; the Court has set the presumptive amount
of $3,000.
A205-506-209

January 22, 2016

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The Court finds that the respondent is eligible for voluntary departure and merits

IT IS FURTHER ORDERED that if the respondent fails to voluntarily depart as

ordered, respondent would be ineligible, for a period of ten years, to receive

of non-immigrant status.
IT IS FURTHER ORDERED that the if respondent has reserved the right to
appeal, then he has an absolute right to appeal the decision. If respondent does
appeal, he must provide the Board of Immigration Appeals, within 30 days of the filing of
an appeal, sufficient proof of having posted the voluntary departure bond. The Board
will not reinstate the voluntary departure period in its final order if respondent does not
timely prove to the Board that the voluntary departure bond has been posted. 8 C.F.R.
Section 1240.26(c)(3)(ii).
IT IS FURTHER ORDERED that if respondent does not appeal and instead files
a motion to reopen or reconsider during the voluntary departure period, the period
allowed for voluntary departure will not be stayed, tolled, or extended, the grant of
voluntary departure will be terminated automatically, the alternative order of removal will
take effect immediately, and the penalties for failure to depart voluntarily under Section
240B(d) of the Act will not apply. 8 C.F. R. Sections 1240.26(c)(3)(iii), (e)(1).

Please see the next page for electronic

signature

A205-506-209

WILLIAM J. NICKERSON, JR.

Immigration Judge

January 22, 2016

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cancellation of removal, adjustment of status, registry, voluntary departure, or a change

//s//
Immigration Judge WILL IAM J . NICKERSON , JR .

A205-506-209

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January 22, 201 6