�.

U.S. Department of ,Justice

Executive Office for Immigration Review

Board of Jmmigmtion Appeals qffice of the Clerk

5107 leesburg Pike. Suite 2000 Falls Church. Virginia 20530

OHS/ICE Office of Chief Counsel - LOS 606 S. Olive Street, 8th Floor

Los Angeles, CA 90014

Name: RIVERA ANDRADE, JOSE RUBE ... A 094-458-895

Date of this notice: 6/13/2014

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

Enclosure

Panel Members: Grant, Edward R.

Sincerely,

Don.rtL c WvV

Donna Carr Chief Clerk

yungc Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished

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Cite as: Jose Rubesindo Rivera Andrade, A094 458 895 (BIA June 13, 2014)

Ronald Earl Behling Law Office of Ron Beh ling 3255 Wilshire Boulevard, Suite 1801 Los Angeles, CA 90010

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals Q[/ice of the Clerk

5107 Leesburg Piki!. Suite 2000 Falls Church. Virg1111a 20530

OHS/ICE Office of Chief Counsel - LOS 606 S. Olive Street, 8th Floor Los Angeles, CA 90014

Name: RIVERA ANDRADE, JOSE RUBE ... A 094-458-895

Date of this notice: 6/13/2014

Enclosed is a courtesy copy of the Board's decision in the above-referenced case.

Enclosure

Panel Members: Grant, Edward R.

Sincerely,

Donna Carr Chief Clerk

yu11•:.ic Userteam: Dod;1::t

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Cite as: Jose Rubesindo Rivera Andrade, A094 458 895 (BIA June 13, 2014)

'.U.S. Department of Justice Executive Office for lmmigrati0n·Review

Falls Church, Virginia 20530

File: A094 458 895 - Los Angeles, CA

In re: JOSE RUBESINDO RIVERA ANDRADE

IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Pro se1

APPLICATION: Temporary Protected Status

Decision ofthe Board of Immigration Appeals

�JUN 13 2014 Date:

The respondent has appealed from the Immigration Judge's decision dated January 2, 2013, denying the respondent's application for temporary protected status (TPS).2 See section 244 of the Immigration and Nationality Act, 8 U.S.C. § 1254a. The respondent seeks a remand to apply for asylum, withholding of removal and protection under the Convention Against Torture. Given the totality of the evidence now before us, including the evidence that the respondent's attorney of record before the Immigration Court and this Board, Mr. Ron Behling, has been suspended from practicing before the Board, the Immigration Courts, and the Department of Homeland Security, we find that a remand is warranted .to afford the respondent the opportunity to pursue asylum, withholding of removal and protection under the Convention Against Torture. We express no opinion on the outcome of these proceedings and note that the respondent bears the burden of establishing eligibility for relief. Accordingly, the followi�g order is entered.

ORDER: The record is remanded to.the Immigration Court for further proceedings consistent with the foregoing opinion and the entry of a new decision.

·,

1 Subsequent to the filing of this appeal, the respondent's attorney, Mr. Ron Behling, was suspended from practicing before this Board, the Immigration Judges, and the Department of Homeland Security on April 23, 2013. Accordingly, this order is being sent directly to the respondent and a courtesy copy is being furnished to Mr. Behling.

2 The respondent has not challengeq fh� Immiwatio� Judge's determination that the respondent is not eligible for TPS, and we therefore deerri that iss.ue waived.

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Cite as: Jose Rubesindo Rivera Andrade, A094 458 895 (BIA June 13, 2014)

UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

UNITED STATES IMMIGRATION COURT LOS ANGELES, CALIFORNIA

File: A094-45B-895

In the Matter of

JOSE RUBESINDO RIVERA ANDRADE

RESPONDENT

CHARGES: INA Section 212{a) (6) (A) {i).

January 2, 2013

IN REMOVAL PROCEEDINGS

APPLICATIONS: Temporary protected status and post-conclusion voluntary .departure.

ON BEHALF OF RESPONDENT: RON BEHLING

ON BEHALF OF DHS: ANGELA FIORENTINO-RIOS

ORAL DECISION OF THE IMMIGRATION JUDGE

This is the oral decision of the Immigration Judge.

It is an oral decision being issued contemporaneously from the

bench.

INTRODUCTION

The respondent is a 49-year-old native and citizen of

El Salvador. He is present in the United States without having

been admitted or paroled. See Exhibit 1.

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Removal proceedings were commenced with the filing on

October 18, 2006 of a Notice to Appear dated July 12, 2006. See

Exhibit 1. At a master calendar hearing on September 11, 2008,

the respondent admitted the fact�al allegations contained in the

Notice to Appear and conceded inadmissibility as charged. As

such, the Court finds that inadmissibility has been established

by the requisite burden of proof.

At a hearing on January 2, 2013, the respondent

confirmed that he wished to designate El Salvador as the country

for removal in the event that removal becomes necessary. The

Court directs El Salvador, the country of the respondent's

citizenship, as the country for removal in this case should

removal become necessary.

As relief from removal, the respondent seeks temporary

protected status, and, alternatively, post-hearing voluntary

departure pursuant to INA Section 240B (b) . For the reasons set

forth below, the Court denies the app�ication for temporary

protected status. The Court grants the alternative application

for voluntary departure through March 4, 2013, conditioned upon

payment of a $500 voluntary departure bond within five business

days of issuance of today's order, with an alternate order of

removal to El Salvador.

EXHIBITS

The Exhibits in this case are as follows:

Exhibit 1 is the Notice to Appear, dated July 12,

A094-458-895 2 January 2, 2013

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2006.

Exhibit 2 is form r-821, and supporting documents,

tabs 1 through 3, pages 1 through 21. These documents were

received by EOIR on January 22, 2009.

Exhibit 3 is comprised of supporting documents

submitted by the respondent, pages 1 through 8, received by EOrR

on May 14, 2009.

Exhibit 4 is a users online case status printout,

dated October 19, 2009, and received by EOIR on October 22,

2009.

Exhibit 5 is a USCrS online case status printout,

dated February 17, 2010, and received by EOIR on February 18,

2010.

Exhibit 6 is the users denial of the respondent's Form

I-765. This is dated June 3, 2010. It was received by EOIR on

June 10, 2010.

Exhibit 7 is a Form I-797e. This form reflects the

Users referral of Form I-821 to the USCIS Administrative Appeals

Office.

Exhibit 8 is comprised of supplemental documents

submitted by the respondent, pages 1 through 53, received by

EOIR on February 27, 2012.

Exhibit 9 is the respondent's "brief regarding

respondent's eligibility for TPS. " This was received by EOrR on

February 27, 2012.

A094-458-895 3 January 2, 2013

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Exhibit 10 is the USCIS Administrative Appeals Office

dismissal of the respondent's administrative TPS appeal. This

dismissal is dated February 9, 2012.

Exhibit 11 is a USCIS decision denying TPS. This is

dated February 27, 2004.

Exhibit 12 is a printout from the California

Department of Motor Vehicles, along with proof of biometrics

compliance by the respondent. These documents were received by

EOIR on August 1, 2012.

Exhibit 13 is comprised of records of conviction and

related documents submitted by the respondent on January 2,

2013.

I.

ANALYSIS: FINDINGS OF FACT AND CONCLUSIONS OF LAW

TEMPORARY PROTECTED STATUS

To be eligible for Temporary Protected Status (TPS),

an alien must establish, among other things, that he has not

been convicted of two or more misdemeanors. See 8 C. F. R.

Sections 1244. 4��' 1244.1. Here, it appears as though the

respondent has been convicted of two misdemeanors.

The record in this case discloses that the respondent,

in or about May 2001, was convicted of violating California

Vehicle Code 23152b. See Exhibits 12 and 13. Additionally, the

respondent, in or about November 2001, was convicted for

violating California Vehicle Code Section 20002a. See Exhibit

12 and Exhibit 2 at pages 14 and 16. Both of these offenses are

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misdemeanors.

Insofar as the respondent has been convicted of two

misdemeanor offenses, he is ineligible for Temporary Protected

Status. Accordingly, the application for Temporary Protected

Status is denied.

At the hearing on January 2, 2013, the respondent,

through counsel, indicated that the respondent ultimately may

pursue some action aimed at vacating or otherwise diminishing

the �immigration impact of his two misdemeanor convictions. The

respondent did not explicitly request a continuance for this

purpose. As such, no continuance motion is before the Court.

The Court hastens to add, in any event, that were a motion to

continue ee made on that basis under the facts as they exist on

January 2, 2013, the Court would have denied a motion to

continue.

In evaluating whether a denial of a continuance

constitutes an abuse of discretion, the Ninth Circuit considers,

among other things, the following factors: (1) the nature of

any evidence excluded as a result of the denial of the

continuance; (2) the reasonableness of the alien's conduct; (3)

any inconvenience to the Court; and (4) the number of

continuances previously granted. See Ahmed v. Holder, 569 F. 3d

1009 (9th Cir. 2009) .

An alien's pursuit of a collateral attack on criminal

convictions, standing al one, does not present good cause for

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continuance of removal proceedings, because a pending collateral

attack on a conviction does not affect the finality of the

conviction for ±immigration purposes. See Grageda v. INS, 12 .. ·· Formatted: Underline

F.3d 919 (9th Cir. 1993), abrogated� other grounds� c.:::_ Formatled:Underflne

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In this case, the Court notes that the respondent has "\: .. > •'\

been in proceedings since the filing of a Notice to Appear in

October 2006. See Exhibit 1. There is no evidence that the

respondent has made any significant progress on a motion to

vacate any of the convictions which impact his apparent

ineligibility for Temporary Protected Status. Temporary

Protected Status was denied by USCIS, albeit on a different

basis, going all the way back to February 2004. See Exhibit 11.

Applying the factors set forth in Ahmed, the Court

finds that the nature of any evidence excluded as the result of

a denial of continuance would be significant. It would speak,

potentially, to the eligibility of the applicant if the

respondent were to demonstrate that the convictions were vacated

or that a conviction was vacated. Nonetheless, at this

juncture, this is purely speculative. The Court also considers

the reasonableness of the respondent's conduct� a�s noted, his

convictions date all the way back to 2001, he has been in

proceedings since 2006, and there is no evidence of any

substantial progress in a motion to vacate. The Court

recognizes as well that there have been a number of continuances

A094-458-895 6 January 2, 2013

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..

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granted in this case for a variety of purposes, albeit none

under specific circumstances by which the respondent. sought a

continuance for purposes of vacating a conviction. Still, there

has been ample opportunity for the respondent to do so.

Although the Court is permitted, under Ahmed, to consider

inconvenienced the Court, the Court finds this not to be an

important factor as it relates to the resolution of the case

here. The Court does not rely upon any inconvenience to it in

finding that the respondent would not have merited a

continuance.

Applying all of these factors, the Court concludes

that the respondent, if he had made a motion to continue on the

basis of a speculative.possibility of a successful motion to

vacate, would not have demonstrated good cause for a

continuance.

II. VOLUNTARY DEPARTURE

As an alternative form of relief, the respondent seeks

&-voluntary departure pursuant to INA Section 240B(b) and 8

C.F.R. Section 1240. 26. He appears to be eligible by statute

and by regulation. The Department of Homeland Security has

indicated that it would not appeal from a decision by which the

Court granted voluntary departure.

The Court is concerned with the respondent's criminal

history. See Exhibits 2, 12, and 13. The Court nonetheless

also recognizes that it has been more than 11 years since the

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latest conviction. On balance, the Court finds that the

respondent merits a favorable exercise of discretion for the

limited purpose of voluntary departure, particularly in light of

the fact that the respondent's failure to abide by the order

will result in aH-automatic entry of an order of removal against

the respondent.

At the hearing on January 2, 2013, the Court

explicitly explained to the respondent conditions to be placed

upon his voluntary departure bond. The Court explained that the

respondent has the right to accept or reject these conditions,

and that the respondent has an absolute right to appeal

irrespective of whether he accepts or rejects the conditions.

The Court had the opportunity to observe the demeanor and the

responsiveness of the applicant throughout this colloquy and is

satisfied that the respondent understood what was described to

him. The respondent indicated that he accepted the conditions

on his voluntary departure.

Accordingly, voluntary departure is granted through

March 4, 2013, conditioned upon payment of a voluntary departure

bond in the amount of $500 within five business days of issuance

of today's order, with an alternative order of removal to El

Salvador.

ORDER

For all the foregoing reasons, IT IS HEREBY ORDERED

that the respondent's appl ication for Temporary Protected Status

A094-458-895 8 January 2, 2013

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pursuant INA Section 244 is denied.

IT IS HEREBY FURTHER ORDERED that the respondent's

application for voluntary departure pursuant to INA Section

240B(b) is granted through March 4, 2013, conditioned upon

payment of a $500 voluntary departure bond within five business

days of issuance of today's order, with an alternate order of

removal to El Salvador.

A094-458-895

P1aase sec tho next pave £or o1oatranLc siqnature

PHILIP J. COSTA Immigration Judge

9 January 2, 2013

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' '

/Isl/

Immigration Judge PHILIP J. COSTA

costap on April 4, 2013 at 6:20 PM GMT

A094-458-895 10 January 2, 2013

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