BIA Remands of Immigration Judge Theresa Holmes-Simmons from 01/01/2014 to 05/26/2016

U.S. Department of Justice
Executive Office for Immigration Review
'
Falls Church, Virginia 20530
File: Charlotte, NC
In re:
lN REMOVAL PROCEEDINGS
APPEAL
Decision of the Board of Immigration Appeals
Date: JLIN 262014
ON BEHALF OF RESPONDENT: Stefan R. Latorre, Esquire
ON BEHALF OF DHS:
CHARGE:
Colleen E. Taylor
Assistant ChiefCounsel
Notice: Sec. 212(a)(6)(A)(i), I&N Act [8 U.S.C. § I182(a)(6)(A)(i)] -
Present without being admitted or paroled
APPLICATION: Cancellation ofremoval
The Department of Homeland Security ("DHS") has appealed from an Immigration Judge's
October 3, 2012, decision granting the respondent's application for cancellation of removal
pursuant to section 240A(b)(J) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b)(I).
The respondent has filed a brief in opposition to the DHS's appeal. The record will be remanded
for further proceedings and for the Immigration Judge to issue a separate decision.
The Immigration Judge did not issue a separate oral or written decision explaining her
findings of fact and rationale, but rather, she used a fonn order wherein she checked a box
indicating a grant of cancellation of removal. The DHS states in its brief that the Immigration
Judge erred by issuing a decision without summarizing her factual findings or explaining her
legal conclusions but argues that the issues presented are clear and that judicial economy is best
served ifthe Board decides the case on the merits without a remand.
However, we conclude that the Immigration Judge's fonn order decision does not contain the
findings of fact and conclusions of law necessary to allow for a meaningful appellate review.
The decision of the Immigration Judge may be either oral or written. Even a transcribed oral
decision, however, must include a finding as to deportability, provide the reasons for granting or
denying any request, and end with the lmmigration Judge's order. In addition, the transcribed
oral decision must be separate from the remainder of the transcript. See 8 C.F.R. § 1240.12(a);
,!,.fatter of A-P-, 22 I&N Dec. 468 (BIA 1999). In this case, the Immigration Judge did not
provide an oral or written decision that is separated from the transcript. Nor does the transcript
of hearing contain any statements or reasoning by the Immigration Judge for her decision in this
case. Therefore, we will remand these proceedings for the parties to be given an opportunity to
present further evidence regarding the respondent's eligibility for relief from removal, and for
the Immigration Judge to issue a decision in compliance with Matter ofA-P-, supra, thereafter.
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Accordingly, the following order is entered.
ORDER: The record is remanded for further proceedings consistent with the foregoing
opinion and for the issuance ofa new decision.
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' U.S. Department of Justice
Executiv_e- Office for Immigration Review
Files: - Charlotte, NC
Decision ofthe Board of Immigration Appeals
Date: DEC - 42014
In re:
IN REMOVAL PROCEEDINGS
APPEAL
ON BEHALF OF RESPONDENTS: Jack Rockers, Esquire
ON BEHALF OF DHS: Colleen E. Taylor
Assistant Chief Counsel
APPLICATION: Asylum; withholding ofremoval; Convention Against Torture
The respondents, natives and citizens of El Salvador, 1
appeal from the hnmigration
Judge's November 15, 2012, decision denying the respondents' applications for asylum,
withholding of removal, and protection under the Convention Against Torture (CAT).2
The
Department of Homeland Security (DHS) seeks dismissal of the appeal The record will be
remanded.
The respondents testified that their mother departed El Salvador and left the respondents
in the custody ofrelatives who abused the respondents (I.J. at 10-12; Tr. at 19-26, 31-40).
On appeal, the respondents argue that they were harmed on account of the particular
social group defined as "Salvadoran children in abusive domestic relationships." Subsequent to
the Immigration Judge's decision, the Board decided that depending on the facts and evidence in
an individual case, "married women in Guatemala who are unable to leave their relationship" can
constitute a cognizable particular social group that forms the basis of a claim for asylum or
withholding of removal. Matter ofA-R-C-G- et al, 26 I&N Deq. 388 (BIA 2014). In light of the
intervening precedent, we will remand to the Immigration Judge for further consideration and
analysis regarding the respondents' putative particular social group.
1
The respondents are siblings, who were ages and at the time of the hearing (Tr. at
11).
2
As the respondents' asylum applications were filed after May 11, 2005, they are governed by
the provisions ofthe REAL ID Act. See Matter ofS-B-, 24 I&N Dec. 42 (BIA 2006).
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I
et al.
. The respondents also contend that they suffered harm rising to the level of persecution.
Persecution is "an extreme concept that does not include every sort of treatment that our society
regards as offensive." Liv. Gonzales, 405 F.3d 171, 177 (4th Cir. 2005) (noting that minor
beatings do not amount to persecution). To qualify for asylum, the alien must show that the
persecution suffered or feared was or would be committed by the government or by forces that
the government is unwilling or unable to control. See Crespin-Valladares v. Holder, 632 F.3d
117, 128 (4th Cir. 2011). "Whether a government is unable or unwilling to control private actors
... is a factual question that must be resolved based on the record in each case." Id. at 128.
The Immigration Judge concluded that because the respondents did not report the abuse
to authorities, they failed to establish that the government was either unable or unwilling to
protect the respondents (I.J. at 11-12). However, the respondents testified that they were hit and
threatened not to say anything to anyone about the abuse (Tr. at 30-31). Moreover, at the time of
the abuse, the respondents were young children (Tr. at 11, 21-22). On remand, the Immigration
Judge should reconsider whether the respondents established that the government is unable or
unwilling to protect the respondents. Considering the respondents' ages and particular
circumstances at the time the abuse occurred, it may not be reasonable to require that they have
reported the abuse to authorities.
On remand, the Immigration Judge should also reexamine whether, considering their ages
and particular circumstances, it is reasonable to expect the respondents to internally relocate (I.J.
at 13). See 8 C.F.R § 1208.13(b); Matter of M-Z-A.1-R-, 26 I&N Dec. 28 (BIA 2012) (in
assessing an asylum applicant's ability to internally relocate, an Immigration Judge must
determine whether the applicant could avoid future persecution by relocating to another part of
the applicant's country of nationality and whether, under all the circumstances, it would be
reasonable to expect the applicant to do so). We note that the respondents' grandparents also at
times abused them (Tr. at 25-26), and the maternal aunt who treated the respondents well has
since departed El Salvador for the United States (Tr. at 29).
For the foregoing reasons, we remand for the Immigration Judge to reconsider whether
the respondents have established membership in a particular social group and nexus between
such membership and their past and feared harm; whether the abuse suffered by the respondents
rises to the level ofpersecution; whether the record establishes that the Salvadoran government is
unable or unwilling to protect them; and whether the respondents could internally relocate. On
remand, the Immigration Judge should afford the parties the opportunity to update the
evidentiary record.
While we conclude that remanded proceedings are warranted, we express no opinion
regarding the ultimate outcome of these proceedings at the present time. See Matter ofL-0-G-,
21 I&N Dec. 413 (BIA 1996).
ORDER: The record is remanded for further proceedings and the entry of the new
decision consistent with the foregoing opinion.
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· Dep:artment of Justice
Falls Chnrch, Virginia 20530
I
File: Charlotte, NC
- - - - - - - -
Date:
JAN - 92015
In re:
APPEAL
ON BEHALF OF APPLICANT: Prose
ON BEHALF OF DHS: Susan Leeker
The respondent, a native and citizen of Honduras, appeals from the January 14, 2013,
decision of the Immigration Judge denying her application for asylum, withholding of
removal, and protection under the Convention Against Torture ("CAT"). Sections 208(b)(l)(A)
and 24l(b)(3)(A) of the Immigration and Nationality Act ("Act"), 8 U.S.C.
§§ l 158(b)(l)(A), 123 l(b)(3)(A); 8 C.F.R. §§ 1208.16(c)-.l 8. The respondent's request for a
fee waiver is granted, and her request for oral argument is denied. See 8 C.F.R. § l003.l(e)(7).
The Department of Homeland Security has requested swnmary affirmance of the appeal. The
record will be remanded for further proceedings.
We review for clear error the findings of fact, including the determination of credibility,
made by the Immigration Judge. 8 C.F.R. § l003.l(d)(3)(i). We review de novo all other issues,
including whether the parties have met the relevant burden of proof, and issues of discretion.
8 C.F.R. § 1003.l(d)(3)(ii). The respondent filed her application after May 11, 2005, and it is
governed by the REAL ID Act. •lv!atter ofS-B-, 24 l&N Dec. 42 (BIA 2006).
The respondent claims past persecution on account of her membership in a particular social
group consisting of young women targeted for rape by MS-13 gang members, or alternatively
young women raped by MS-13 gang members and targeted for kidnapping or death because they
refuse to become sexual property. See I.J. at 13-14; Tr. at 17. The bnmigration Judge found that,
although the respondent was a credible witness who, at the age of was kidnapped and raped
by a gang member, she failed to establish a cognizable particular social group (I.J. at 15-16).
She further found that even if the respondent's social group were recognized as such, she
did not demonstrate the requisite nexus between any past or feared harm in Honduras and a
protected ground. See section 10l(a)(42) of the Act, 8 U.S.C. § 110l(a)(42); sections
208(b)(l)(A), 241(b)(3)(A) ofthe Act; 8 C.F.R. § 1208.l6(b).
We find, however, that a remand is appropriate in this case in view ofthe evolving law on the
issue of particular social group. See, e.g. Matter ofW-G-R-, 26 I&N Dec. 208 (BIA 2014), and
Matter of lvf-E-V-G-, 26 I&N Dec. 227 (BIA 2014) (clarifying what is required to establish a
particular social group); see also Matter ofA-R-C-G-, 26 I&N Dec. 388 (BIA 2014) (discussing
domestic violence in particular social group determinations).
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On•remand, and considering the evolving law, the hnmigration Judge should reconsider
whether the respondent has established a cognizable particular social. The parties should also
have the opportunity to update the record, and to make any additional legal and factual
arguments regarding particular social group and nexus, as well as the government's ability and
willingness to protect the respondent, as they may apply to this case. The Board expresses no
opinion regarding the ultimate outcome ofthese proceedings.
Accordingly, the following order will be entered.
ORDER: The record is remanded for further proceedings consistent with the foregoing and
for the entry ofa new decision by the hnmigration Judge.
FOR TIIE BOARD
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U.S. Department ofJustice
File: - Charlotte, NC
In re:
APPEAL AND MOTION
Date: MAR 1 0 2014
ON BEHALF OF RESPONDENT: Ibrahim Ghantous, Esquire
APPLICATION: Administrative Closure; remand
The respondent, a native and citizen of Pakistan, appeals from an Immigration Judge's
decision dated January 23, 2013, denying the lead respondent's application for
asylum, withholding of removal, and protection under the Convention Against Torture (CAT).
Sections 208(b)(I)(A) and 24I(b)(3)(A) ofthe Immigration and Nationality Act ("Act"), 8 U.S.C.
§§ 1158(b)(l)(A) and 123l(b)(3)(A); 8 C.F.R. §§ 1208.16(c) - 1208.18. While the respondents'
appeal was pending, the respondents filed a motion to remand, in part, for consideration of
new evidence-namely, a Form I-797A indicating that on February 21, 2013, the respondent
was granted Temporary Protected Status (TPS). However, it does not appear that
the Secretary of Homeland Security has designated Pakistan under the TPS Program. Further,
the respondents' motion to remand indicates that the respondent has been granted
Deferred Action for Childhood Anivals ("DACA"), and makes no reference to TPS. The
Department of Homeland Security has not filed a response to the motion to remand. The motion
to remand will be granted and the record remanded for further proceedings.
As it is not clear from the record before us what type relief, if any, the respondent
has been granted, the record will be remanded to the Immigration Judge to resolve
this issue
The respondent's case will be severed from that of her parents and siblings ( ,
, , ), and the record remanded for further proceedings.
ORDER: The record is remanded for further proceedings consistent with the foregoing
opinion and the entry of a new decision.
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l - -
File: - Charlotte, NC Date: OCT i 02C·!3
In re:
APPEAL
ON BEHALF OF RESPONDENT: Kelli Y. Allen, Esquire
The respondent has appealed the Immigration Judge's decision rendered on February 26,
2013. The respondent, through counsel, has advised the Board that 30 minutes to one hour of
the testimony heard at the March 12, 2012, hearing is missing. A review of the record reveals
that during the midst of the March 12, 2012, hearing, the Immigration Judge called a brief recess.
However, when Court was resumed, it appears that an unknown period of testimony was missed
(Tr. at 23). As we consider a complete transcript necessary for our review ofthis matter, we will
return the record to the Immigration Court for further action. Upon receipt of the record, the
Immigration Court shall take such steps as are necessary and appropriate to enable preparation of
a complete transcript ofthe proceedings including a new hearing, ifnecessary.
ORDER: The record is returned to the Immigration Court for further action as appropriate
and certification to the Board by the Immigration Judge thereafter.
FOR Tiffi BOARD
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U.S.DepartloentofJustice
Executive Office for Inunigmtion Review
Falls 9mrd!, Vgginia20530
In re:
APPEAL
Date:
ON BEHALF OF RESPONDENT: Louis F. Massard, Esquire
ON BEHALF OF OHS: Susan Leeker
APPLICATION: Cancellation ofremoval under section 240A
JUL 31 2014
The respondent, a native and citizen of Honduras, appeals the Immigration Judge's decision
dated March 6, 2013, in which his application for cancellation ofremoval was denied. The appeal
will be sustained and the case will be remanded.
Pursuant to ow- holding in Matter of Ortega-Cabrera, 23 I&N Dec. 793 (BIA 2005), the
application for cancellation ofremoval is acontinuing one for the purposes ofevaluating an alien's
good moral character, and the IO-year period during which good moral character must be
established ends with the entry ofa final administrative decision. Consequently we find that the
respondent is eligible to apply for cancellation of removal because the smuggling incident
occurred in 2003, more than 10 years earlier. Accordingly, the respondent's appeal will be
sustained and the record remanded to the Immigration Cow-t to give the respondent an opportunity
to apply for cancellation ofremoval.
ORDER: The appeal is sustained.
FURTHER ORDER: The record is remanded for further proceedings consistent with this
opinion.
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In re:
JN REMOVAL PROCEEDINGS
APPEAL
Decision ofthe Board oflmrnigration Appeals
Date:
ON BEHALF OF RESPONDENT: Alma C. Defillo, Esquire
CHARGE:
Notice: Sec. 212(a)(6)(A)(i), I&N Act [8U.S.C.§J182(a)(6)(A)(i)] -
Present without being admitted or paroled (sustained)
APPLICATION: Asylum; wi1hholding ofremoval; Convention Against Torture
The respondent, a native and citizen of Guatemala, appeals from the decision of the
Irmnigration Judge, dated March 27, 2013, denying his applications for asylum and withholding
of removal pursuant to sections 208 and 24l(b)(3) of the Immigration and Nationality Act,
8 U.S.C. §§ 1158, J231(b)(3), and protection under the Convention Against Torture. See
8 C.F.R. §§ 1208.16-.18. The record will be remanded.
We review the findings of fact made by the Immigration Judge, including the determination
of credibility, for clear error. 8 C.F.R. § 1003.J(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's application for relief, which was filed after May 11, 2005, is governed by the
Amendments made to the Act by the REAL ID Act. See Matter of S-B-, 24 I&N Dec. 42
(BIA 2006).
The respondent contends that he is eligible for asylum based on his fear of being harmed in
relation to a long-standing violent conflict between his village in Guatemala and a neighboring
village. The respondent claims that he will be harmed by people from his own village, because
he does not want to take up arms and participate in the conflict by defending the town, as well as
by people from the other village in the continuing violent conflict between the two communities
(l.J. at 6-8).
. Though the respondent's application for asylum indicates that he is applying for asylum
based on his membership in a particular social group, it does not articulate any specific particular
social group in which he claims membership (Exh. 2). In a pre-hearing memorandum filed with
the Immigration Court on March 13, 2013, the respondent articulated his particular social group
as "Guatemalan expatriates who fear returning to their country due to the possibility of
victimization, torture and/or death at the hands of village members in the region and the entirety
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ofthe country." Upon listening to the respondent's testimony, the hnmigration Judge formulated
the particular social groups as "land owner in the conflict zone" and "a member of the family
from the village" (l.J. at 6).1
On appeal, the respondent now characterizes the particular
social group as "Guatemalans victims [sic] of the conflict between the villages '
' and ' ' land and support [sic] in , , Guatemala"
(Respondent's Br. at 4).
We will therefore remand the record to provide the respondent an opportunity to clearly
articulate the particular social group of which he claims to be a member. See Matter of
A-T-, 25 l&N Dec. 4, 10 (BIA 2009) (stating that "[i]t is essential that the respondent clearly
indicate on remand what enumerated ground(s) she is relying upon in making her claim,
including the exact delineation ofany particular social group(s) to which she claims to belong.").
Once the proposed particular social group(s) is clarified, the hnmigration Judge should
address whether it constitutes a valid particular social group under recent precedent decisions,
including A-fatter of M-E-V-G-, 26 I&N Dec. 227 (BIA 2014) (clarifying Board's particular
social group analysis) and Matter of W-G-R-, 26 l&N Dec. 208 (BIA 2014) (same). The
hnmigration Judge should make clear findings of fact regarding the alleged persecution,
including the motivation ofthe alleged persecutors. See Matter ofN-M-, 25 l&N Dec. 526 (BIA
2011); see also Quinteros-Mendoza v. Holder, 556 F.3d 159 (4th Cir. 2009). The Immigration
Judge should then provide a clear, distinct analysis of whether the respondent has shown past
persecution on account of a protected ground and whether the respondent possesses a
well-founded fear under the appropriate burden of proof allocation. The Immigration Judge
should also make clear findings with respect to the government's ability and willingness to
protect the respondent and the respondent's ability to internally relocate according to the proper
burden of proof allocation. See Matter ofA-T-, supra at 11. The parties may supplement the
record with additional evidence on remand.
ORDER: The record will be remanded for further proceedings consistent with the foregoing
opinion and the entry ofa new decision.
1
During the merits hearing the Immigration Judge specifically asked the respondent's counsel to
articulate what the nexus was between the harm the respondent fears and a ground protected
under the Act (Tr. at 50-52). The respondent's counsel did not clearly articulate a particular
social group despite this invitation to do so.
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File: -Charlotte, NC
In re:
APPEAL
Date:
NOV 242014
ON BEHALF OF RESPONDENT: Ethan 0. Beattie, Esquire
The respondent, a native and citizen of Honduras, appeals the decision of the Immigration
Judge, dated March 25, 2013, denying her Application for Asylum and for Withholding of
Removal (Form I-589) and ordering her removal from the United States.1
The Department of
Homeland Security is opposed to the respondent's appeal.
Based upon the totality of the circumstances presented in this case, we conclude that it is
appropriate to remand the record to the Immigration Judge to reconsider the respondent's claims
in light of this Board's decision in Matter of A-R-C-G-, 26 I&N Dec. 388 (BIA 2014). The
respondent's claim to relief is based upon the purported particular social group of "Honduran
women in abusive relationships" (Respondent's Br. at 2). While the Immigration Judge held that
the respondent's particular social group was not cognizable under the Act (I.J. at 8-9), the
subsequent decision in Matter ofA-R-G-C- determined that, in certain circumstances, "married
women in Guatemala who are unable to leave their relationship" can constitute a cognizable
particular social group. Accordingly, we will remand the record to the Immigration Judge for
further action as she deems appropriate, including, but not limited to, issuing a new decision.
The following order is entered.
ORDER: The record is remanded to the Immigration Court for further action consistent with
the foregoing opinion and the entry ofa new decision.
'·
1
The respondent, through counsel, has conceded that she is subject to removal from the United
States as charged in the Notice to Appear (I.J. at 1-2; Tr. at l; Exh. 1). Section 212(a)(7)(A)(i)(l)
ofthe Immigration and Nationality Act, 8 U.S.C. § 1182(a)(7)(A)(i)(I).
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t:.S. Department ofJustice
File: Charlotte, NC
Date: DEC 18 2014
In re:
APPEAL
ON BEHALF OF RESPONDENT: Ian R. Ali, Esquire
ON BEHALF OF DHS: Caroline Youngblade
APPLICATION: Asylum; withholding of removal; Convention Against Torture
The respondent, a native and citizen of Guatemala, appeals from the May I, 2013, decision
of the Immigration Judge denying the applications for asylum under section 208 of the
Immigration and Nationalicy Act, 8 U.S.C. § 1158, withholding of removal under section
24l(b)(3) of the Act, 8 U.S.C. § 1231, and protection under the United Nations Convention
Against Torture (CAT), 8 C.F.R. § 1208.16. The record will be remanded.
The Board reviews an Immigration Judge's findings of fact, including fmdings as to the
credibility of testimony, underthe "clearly erroneous" standard. 8 C.F.R. § 1003.l(d)(3)(i). The
Board reviews questions of law, discretion, and judgment and all other issues in appeals from
decisions oflmmigration Judges de novo. 8 C.F.R. § !003.l(d)(3)(ii); Matter ofA-S-B-, 24 I&N
Dec. 493 (BIA 2008).
At the hearing before the Immigration Judge, the respondent testified that her husband
physically abused, raped, and threatened to kill her during their marriage, and she was seeking
asylum as a domestic violence victim from Guatemala (Tr. at 82). The Immigration Judge found
the claimed particular social group defined as "domestic violence victims from Guatemala," was
too broad and not clearly defined (l.J. at 9-10). However, during the pendency of the appeal, the
Board issued precedent decisions pertaining to particular social groups. In particular, the Board
has recently clarified prior precedent decisions concerning the definition of social distinction and
particularity. Matter ofS-E-G-, 24 I&N Dec. 579, 585, 587-88, clarified by Matter of W-G-R-,
26 I&N Dec. 208 (BIA 2014), and Matter of M-E-V-G-, 26 I&N Dec. 227 (BIA 2014). In
addition, the Board's decision in Matter ofA-R-C-G-, 26 I&N Dec. 388 (BIA 2014) held that,
depending on the facts and evidence in an individual case, "married women in Guatemala who
are unable to leave their relationship" can constitute a cognizable particular social group that
forms the basis of a claim for asylum or withholding of removal under sections 208(a) and
241(b)(3) of the Act.
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Inasmuch as the Immigration Judge did not have the opportunity to consider these cases, and
given that consideration ofthe new cases may require additional fact-finding by the Immigration
Judge, a remand is warranted. See 8 C.F.R. § 1003.l(d)(3)(iv). We recognize that the
Immigration Judge, in a very thorough decision, also found that the respondent, while credible in
her testimony, failed to adequately corroborate her claims of abuse. We state no opinion on that
issue at present, but the Immigration Judge should consider that issue on remand in light of the
guidance set forth in Matter ofA-R-C-G-, supra. The Immigration Judge should thereafter issue
a new decision.
ORDER: The record is remanded the Immigration Judge for further proceedings.
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•
'Executive Office for Immigration Review
In re:
APPEAL
Decision ofthe Board oflmmigration Appeals
Date: JUN 112015
ON BEHALF OF RESPONDENT: Vivian N. Szawarc, Esquire
CHARGE:
Notice: Sec. 212(a)(6)(A)(i), I&N Act (8 U.S.C. § 1l82(a)(6)(A)(i)] -
Present without being admitted or paroled (sustained)
APPLICATION: Asylum; withholding ofremoval
The respondent, a -year old native and citizen of Mexico, has appealed the May 29, 2013,
decision of the Immigration Judge denying his application for asylum, withholding of removal,
and protection under the Convention Against Torture (CAT). 1
See sections 208 and 241(b)(3) of
the Immigration and Nationality Act, 8 U.S.C. §§ 1158, 1231(b)(3); 8 C.F.R. § 1208.16(c). The
record v1ill be remanded.
On appeal, the respondent challenges the Immigration Judge's determination that he is
ineligible for asylum because he has not shown extraordinary circumstances sufficient to justify
the untimely filing of his asylum application (l.J. at 5-6). See sections 208(a)(2)(B) and (D) of
the Act; 8 C.F.R. § 1208.4(a)(S). The respondent last entered the United States in 1998, as an
adult, and did not apply for asylum until 2011, many years beyond the I-year deadline. The
respondent argues on appeal that his mental health issues prevented him from timely filing his
application. However, the Immigration Judge addressed this issue in some detail, and the
respondent's bare claims on appeal are not sufficient to warrant reversing the Immigration Judge
on this issue.
We tum next to the issue of withholding of removal. The respondent contends, and the
Immigration Judge found, that as a child in Mexico, he, his mother, and siblings suffered severe
domestic violence perpetrated by his father, and that as a result he became mentally ill (J.J. at 13-
14; Exh. 3, tab A). He fears return to Mexico and argues on appeal that he is a member of a
particular social group of "seriously mentally ill adult males in Mexico who would be targeted
1
The respondent has not meaningfully appealed the Immigration Judge's denial of protection
under the CAT. Therefore, we do not address it.
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for criminal activity by gangs, discriminated [against] and persecuted by the government and
unable to obtain medical care" (Respondent's Br. at 3).
Since the time of the respondent's hearing, the Board has issued several decisions addressing
the issue of particular social group. See Matter ofM-E-V-G-, 26 J&N Dec. 227 (BIA 2014), and
Matter of W-G-R-, 26 I&N Dec. 208 (BIA 2014) (clarifying what is required to establish a
particular social group); Matter ofA-R-C-G-, 26 I&N Dec. 388 (BIA 2014) (discussing particular
social group in the context of cases involving domestic violence). Given the severity of the
abuse the respondent suffered as a child, and the serious mental health issues raised in this case,
we find that a remand is appropriate to allow the parties to present evidence and arguments on
the effect these new decisions may have on this case.
We note that if the respondent is found to have suffered past persecution on account of a
protected ground, his claims regarding future persecution should be considered consistent with
8 C.F.R. § 1208.!6(b)(I); see Matter ofA-R-C-G-, supra, at 395. On remand, the parties will
have the opportunity to present further evidence and arguments regarding any issues relevant to
this case.
ORDER: The record is remanded to the Immigration Judge for further proceedings
consistent with this opinion, and for the entry ofa new decision.
FOR THE BOARD
2
The respondent was represented by an attorney before the Immigration Judge and is
represented by the same attorney on appeal and has not claimed that he was not mentally
competent to participate in his removal proceedings. See generally Matter of M-A-M-,
25 I&N Dec. 474 (BIA 2011).
2
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· U.S. Department of Justice
Executive Office for lnmigration Review
In re:
APPEAL
ON BEHALF OF RESPONDENT: Pro se
APPLICATION: Administrative closure
Date: OCT J4201J
The respondent, a native and citizen of Mexico, appeals the decision of the Immigration
Judge, dated June 5, 2013, ordering his removal from the United States. The Department of
Homeland Security ("DHS") is opposed to the appeal.
Considering the totality of the circumstances, we will remand the record to the Immigration
Judge in order provide the respondent with a renewed opporrunity to request that these removal
proceedings be administratively closed.1
See Matter ofAvetisyan, 25 I&N Dec. 688 (BIA 2012).
The respondent intends to eventually request adjustment of status under section 245(i) of the
Immigration and Nationality Act, 8 U.S.C. § 1255(i), as a third-preference employment based
immigrant because he is the beneficiary of a certified Application for Permanent Employment
Certification (Form ETA 9089) which was filed with the Department of Labor in May 2012.
The Immigration Judge denied the respondent's request for a continuance because, even if an
Immigrant Petition for Alien Worker (Form 1-140) was subsequently filed and approved, he
would, in the Immigration Judge's opinion, need to wait approximately 5 years in order to be
eligible to adjust his status (1.J. at 2). While, at the time of the Immigration Judge's decision,
third-preference employment based immigrant visas were only available to Mexican nationals
who had a priority date before September 1, 2008, said visas are now available to said nationals
who have a priority date before June 1, 2012. Department of State Visa Bulletins, Vol. IX,
No. 74 (Nov. 2014), Vol. IX, No. 57 (June 2013). Thus, considering the significant increased
availability of the applicable immigrant visas, we conclude that it is appropriate to remand the
record to provide the respondent with a renewed request to request that these proceedings be
administratively closed.
At the present time, we express no opinion regarding the ultimate outcome ofthis case or the
other issues presented on appeal.
1
While we are remanding these proceedings for the specific purpose of administrative closure,
the parties are not precluded from raising other issues upon remand. See Matter of Patel,
16 I&N Dec. 600 (BIA 1978).
(b) (6)
(b) (6)

' For the reasons set forth above, the following 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.
··..
2
(b) (6)

File: - Charlotte, NC Date:
In re:
APPEAL
ON BEHALF OF RESPONDENT: Louis F. Massard, Esquire
CHARGE:
Notice: Sec. 212(a)(6)(A)(i), I&N Act [8U.S.C.§I182(a)(6)(A)(i)] -
AUG 11 2014
The respondent, a native and citizen of Mexico, appeals the June 10, 2013, denial of his
application for cancellation of removal under section 240A(b)(1) of the Immigration and
Nationality Act, 8 U.S.C. § 1229b(b)(l). The Immigration Judge held that the respondent did not
demonstrate the requisite good moral character. See section 240A(b)(l)(B) of the Act. The
record will be remanded.
The Board reviews an Immigration Judge's findings of fact for clear error.
§ 1003.l(d)(J)(i). We review issues of law, discretion, or judgment de novo.
§ 1003.l(d)(J)(ii).
8 C.F.R.
8 C.F.R.
Since an application for cancellation of removal is a continuing one for purposes of good
moral character, the period during which good moral character must be established ends with the
entry of a final administrative order. Matter ofOrtega-Cabrera, 23 I&N Dec. 793 (BIA 2005).
Thus, to demonstrate eligibility for cancellation under section 240A(b)(I) of the Act, the alien
must show good moral character for a period of 10 years, which is calculated backward from the
date on which the application is fmally resolved by the Immigration Judge or the Board. Id.
No final administrative order has yet been entered in this case.
"Good moral character" is defmed in section 101(!) of the Act, 8 U.S.C. § 1101(!). As
relevant here, no person shall be regarded as a person of good moral character who, "during the
period for which good moral character is required to be established," section 101(!) of the Act,
"has been confined, as a result of conviction, to a penal institution for an aggregate period of one
hundred and eighty days or more, regardless of whether the offense, or offenses, for which he
has been confined were committed within or without such period." Section IO1(f)(7) of the Act.
(b) (6)
(b) (6)

The respondent's incarceration is related to an 18-month sentence he received on ,
2000, for driving while intoxicated in violation ofNorth Carolina law (Exh. 2, Tab Eat 46). The
record contains a court document showing that the respondent violated his probation several
years later (Exh. 4). Thus, on , 2011, the respondent voluntarily requested
revocation of probation and activation of his suspended sentence (Exh. 4). The document states
that "the defendant shall be given credit for 152 days spent in confinement prior to the date of
this Judgment as a result of this charge" (Exh. 4).
The Immigration Judge found that ''the respondent was arrested and incarcerated on
2011, and remained incarcerated until 2012" (I.J. at 2; ExJi. 4). Also,
"'[i]n the calculations, that does include 259 days - and that he was incarcerated for
approximately 259 days" total (I.J. at 2). The Immigration Judge determined that the
respondent's incarceration occurred within the I0-year look-back period for establishing good
moral character (l.J. at 2). See Matter of Ortega-Cabrera, supra. Therefore, she held that the
respondent is not eligible for cancellation of removal (I.J. at 2-4). See id.
On appeal, the respondent breaks down the 259 days of incarceration that he served in
connection with the relevant conviction. The respondent states that the evidence shows that he
served 152 days in confinement prior to the entry of the judgment on , 2000.
Moreover, after violating probation, he was confmed for 107 more days from 2011,
until 2012. Since, under this scenario, only 107 days of confinement occurred
during the I0 years preceding final adjudication of his application for cancellation of removal,
the respondent argues that he is not defmed as lacking good moral character. See section
I0I(f)(7) of the Act (requiring 180 days or more of confinement); Matter of Ortega-Cabrera,
supra.
Reading section IOl(f)(7) of the Act in conjunction with the prefatory language of section
I01 (f), for an alien to be defined as lacking good moral character on the basis of confinement, he
or she must have served at least 180 days of confinement "during the period for which good
moral character is required to be established." See Matter of Briones, 24 I&N Dec. 355,
361 (BIA 2007) (stating that in questions of statutory interpretation, the "'touchstone of our
analysis is the plain language of the statute") (internal citation omitted). Therefore, since
the respondent is seeking cancellation of removal, he would only be defined as lacking good
moral character under section IOl(f)(7) if he was confined for at least 180 days during the
10 years preceding the entry of a final administrative order by the Immigration Judge or the
Board. See Matter ofOrtega-Cabrera, supra. If the 152 days in question represent credit for
time served more than 10 years ago, these 152 days may not be considered in determining
whether the respondent is statutorily defined as lacking good moral character during the relevant
look-back period. See sections 101(!) and l01(f)(7) of the Act. In contrast, the respondent
concedes that the I07 days he recently served must be considered since he clearly served this
portion of his sentence within the IO-year look-back period. See sections !Ol(f) and 10l(t)(7) of
the Act. As the Board may not engage in fact-finding, we will remand for the Immigration Judge
to determine when the respondent served the 152 days of confinement for which he received
credit upon violating probation. See 8 C.F.R. § I003.1 (d)(3)(iv). The Immigration Judge should
then newly determine whether the respondent has established eligibility for cancellation of
2
(b) (6)
(b) (6) (b) (6)
(b) (6)
(b) (6)
(b) (6)
(b) (6)
(b) (6)

-------
removal. See 8 C.F.R. § 1240.S(d) (stating that a respondent bears the burden of demonstrating
eligibility for relief); see also Salem v. Holder, 647 F.3d 111. 115 (4th Cir. 2011).
On remand, the parties should have the opportunity to update the record and to provide any
additional evidence, both testimonial and documentary, regarding the respondent's application
for cancellation of removal or any other form of relief for which the respondent may be eligible.
We express ne> opinion regarding the outcome of the proceedings on remand.
Accordingly, the following order is entered.
ORDER: The record is remanded for further proceedings consistent with this opinion and
the entry ofa new decision.
3
(b) (6)

File: - Charlotte, North Carolina
In re:
APPEAL
Date:
FEB 13 2015
ON BEHALF OF RESPONDENT: Jack Rockers, Esquire
The respondent has appealed from the Immigration Judge's decision dated June 10, 2013.
A review of the record of proceeding reveals that the transcript containing the testimony of the
hearing and the Immigration Judge's decision is defective. The transcript of the testimony and
the oral decision contains several "indiscernible" references. Because we consider the transcript
and oral decision essential to our complete review of this matter, we will return the record to the
Immigration Court for further action. Upon receipt of the record, the Immigration Court shall
take such steps as are necessary and appropriate to enable preparation of a complete transcript of
the proceedings, and the oral decision, including a new hearing, ifnecessary.
(b) (6)
(b) (6)

U.,S. Dep,artment of Justice
In re:
APPEAL
Date:
ON BEHALF OF RESPONDENT: Joseph Baker, Esquire
ON BEHALF OF DHS: Scott D. Criss
APPLICATION: Cancellation ofremoval under section 240A ofthe Act
The respondent, a native and citizen of Mexico, has appealed the Immigration Judge's
decision dated December 10, 2013, denying his application for cancellation of removal under
section 240A(b)(l) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b)(l). The
respondent and the Department of Homeland Security ("DHS") have filed appellate briefs in
support oftheir respective positions. The record will be remanded.
The Immigration Judge determined that the respondent had paid a smuggler to bring his wife
to the United States in 2004. See l.J. at 3-4. Citing to section 10l(f)(3) of the Act, 8 U.S.C.
§ 110l(f)(3), the Immigration Judge found that the Respondent was unable to demonstrate the
requisite good moral character to qualify for cancellation ofremoval as a result of his conduct in
2004. On appeal, the respondent argues that the conduct specified in the Immigration Judge's
decision occurred more than 10 years ago, and it is therefore outside the requisite period during
which he must demonstrate good moral character. The DHS urges this Board to affirm the
Immigration Judge's decision.
Upon review, the record will be remanded. We agree with the respondent's argument that
his conduct, as described in the Immigration Judge's factual finding, is now outside the 10 year
period preceding the application for cancellation of removal as it currently stands. In Matter of
Garcia, 24 I&N Dec. 179 (BIA 2007), this Board found that applications for special rule
cancellation, as well as cancellation of removal under section 240A(b) of the Act, are
"continuing applications." Id, at 181, fn. I; Matter ofOrtega-Cabrera, 23 I&N Dec. 793 (BIA
2005), reaffirmed. It is undisputed that the respondent paid a smuggler to bring his wife into the
United States in 2004. Counting backwards 10 years' from the date of this Board's decision, the
respondent's conduct now falls outside the requisite period of good moral character for
cancellation of removal. Thus, the conduct is no longer a statutory bar to such relief.
Accordingly, we will remand this matter to the Immigration Judge since the respondent may
be able to establish the requisite 10-year period of good moral character necessary to apply for
(b) (6)
(b) (6)

discretionary relief through cancellation of removal.1
In light of our decision to remand this
matter, we do not address the other arguments raised on appeal. For the foregoing reasons, the
following order will be entered. ,
consistent with the foregoing opinion and the entry of a new decision.
1
Upon remand, both parties may supplement the record with additional evidence related to the
request for cancellation ofremoval or other relief for which the respondent may be eligible.
2
(b) (6)

..
"
.-
File: Charlotte, NC Date:
In re:
APPEAL
ON BEHALF OF RESPONDENT: Charles A. Phipps, Esquire
ON BEHALF OF DHS: Melissa K. Metz
- 82015
The respondent, a native and citizen of Mexico, appeals from the January 7, 2014, decision
of an Immigration Judge, denying bis application for cancellation of removal under section
240A(b) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b). Insofar as the
respondent's application for relief was filed after May 11, 2005, it is governed by the
amendments to the Act brought about by the passage of the REAL ID Act of2005. See Matter
ofS-B-, 24 l&N Dec. 42 (BIA 2006). The record will be remanded.
The Board reviews an Immigration Judge's findings of fact under the clearly erroneous
standard of review. 8 C.F.R. § 1003.l(d)(3)(i). The Board may review questions of law,
discretion, and judgment and all other issues in appeals from decisions of Immigration Judges de
novo. 8 C.F.R. § 1003.l(d)(3)(ii).
The Irrunigration Judge held that the respondent does not qualify for cancellation of removal
because he did not prove that his removal would result in exceptional and extremely unusual
hardship to his qualifying relatives, his three United States citizen children (ages 10, 8 and 1 at
the time of the hearing). His children are healthy and while his daughter has asthma, she is not
on any daily medications to control her asthma, and there has been no showing, moreover, that
his daughter could not obtain the necessary medical treatment in Mexico (l.J. at 5; Tr. at 20-22,
40, 45). 'bile the respondent alleges that their removal from the United States would cause
them emotional hardship, a loss of good medical care and a difference in their economic standard
of living as well, the Immigration Judge disagreed that these factors would be substantially
beyond what is normally expected when someone is removed from the United States (l.J. at 2,5).
Specifically, as to the possibility of emotional hardship, the Immigration Judge found that
based on the respondent's testimony, his children would accompany him to Mexico (Tr. at 35).
(b) (6)
(b) (6)

Thus, while they "will likely have difficulty in transitioning to a life in Mexico," the Immigration
Judge found that their father, the respondent, would be with them (I.J. at 5).
We find that a remand of the record is warranted for further findings of fact as to the
respondent's wife's ability to relocate to Mexico with the family. 1
See 8 C.F.R.
§ 1003.l(d)(3)(iv) (stating that the Board may not engage in fact finding in the course of
deciding appeals except for taking administrative notice of commonly known facts). The record
reflects that the respondent's wife is a native and citizen of Guatemala, she does not have any
status in the United States, and the respondent has indicated that she would accompany the
family to Mexico (I.J. at 2; Tr. at 6, 7, 17-18, 35). See also Exh. 2 at 2 (Application for
Cancellation of Removal and Adjustment of Status for Certain Nonpermanent Residents).
However, in making a determination that there was not exceptional and extremely unusual
hardship in this case, the Immigration Judge failed to address whether the respondent's wife
would, in fact, be able to accompany the family to Mexico. In fact, the respondent's attorney
had indicated during the proceedings that it was unclear if she would be able to go to Mexico as
a Guatemalan national (Tr. at 2). We find as well that the Immigration Judge relied on Board
precedent which is not directly on point. In this regard, the analysis regarding hardship to a
qualifying relative child (or children) with parents who are not citizens of the same country
differs from the analysis used in our precedent cases where the parents were either single or from
the same country as their spouses. See Matter ofMonreal, 23 l&N Dec. 56 (BIA 2001); Matter
ofAndazola, 23 l&N Dec. 319 (BIA 2002); Matter ofRecinas, 23 I&N Dec. 467 (BIA 2002).
Accordingly, given the lack offindings offact on this issue, the respondent shall be given the
opportunity to provide additional testimony on the potential hardship to his children, if his wife
is unable to accompany the family to Mexico. The parties may submit any evidence relating to
the possibility of avoiding permanent separation (i.e. evidence regarding the ability of the
respondent's wife to lawfully immigrate to Mexico) as well as any updates on the country
conditions in Guatemala and Mexico, including evidence of violence in Mexico, specifically. If
the facts show that tl1e respondent's wife cannot accompany the family to Mexico, then, the
Immigration Judge must assess this evidence of potential and permanent family separation in
addition to the evidence already of record in its totality. A new decision on the respondent's
eligibility for cancellation ofremoval shall be entered.
The following order will be entered.
ORDER: The record is remanded to the Immigration Judge for further proceedings consistent
v.rith the foregoing opinion and the entry ofa new decision.
FOR THE BOARD
Board Member Anne J. Greer respectfully dissents without opinion.
1
This specific factor was brought up during proceedings as a factor bearing on hardship to the
respondent's children (Tr. at 2, 6).
2
(b) (6)

·u.s. Department of Justice
In re:
APPEAL
ON BEHALF OF RESPONDENTS: Pro se1
Date: ;JUL tf2015
APPLICATJON: Asylum; withholding; Convention Against Torture; cancellation;
voluntary departure.
The respondents, natives and citizens of Guatemala, have appealed from the Immigration
Judge's decision dated January 7, 2014, denying their applications for relief. The appeal from
the respondents' application for cancellation of removal will be dismissed. However, the record
will be remanded for clarification concerning the respondents' other applications for relief.
The respondents have made no substantive argument concerning the Immigration Judge's
determination that they failed to establish that their removal would result in exceptional and
extremely unusnal hardship to their United States citizen child. See section 240A(b)(l)(D) of the
Immigration and Nationality Act, 8 U.S.C. § 1229b(b)(l)(D). Therefore, we affirm the denial of
their application for cancellation ofremoval on that basis.
The record reflects that one of the co-respondents in this case ( ) also filed an
application for asylum, withholding of removal, and protection under the Convention Against
Torture on her own behalf (LJ. at 2; Exh. 4). The Immigration Judge stated on the record that
she would issue a written decision concerning those claims, but her decision only addresses the
merits of the respondents' applications for cancellation of removal and voluntary departure. A
review of the Immigration Court's docket indicates that the claims for asylum and withholding
were withdrawn the day before the hearing at which the Immigration Judge provided the
1
The appeal was filed on the respondent's behalf by Robert D. Watt Jr., Esquire. The Board
does not recognize Mr. Watt as the attorney of record for the respondent as he has not submitted
the required Form EOJR-27 (Notice of Entry of Appearance as Attorney or Representative
Before the Board of Immigration Appeals). We will, however, send a courtesy copy of the
decision to Mr. Watt.
(b) (6)
(b) (6)
(b) (6)

et al.
respondents with a copy ofher written decision. However, the withdrawal is not otherwise noted
in the Immigration Judge's written opinion or summary order, and is not reflected in the
transcript. Under the circumstance, we find it necessary to return the record to the Immigration
Court to clarify or confirm the disposition ofthose claims for relief.
ORDER: The record is remanded to the Immigration Court for further proceedings.
consistent with the foregoing opinion.
2
(b) (6)

Decision ofthe Board ofImmigration Appeals
File - Charlotte, NC Date:
AUG 5
In re
APPEAL
ON BEHALF OF RESPONDENT: Patrick M. Killen, Esquire
ON BEHALF OF OHS: Scott D. Criss
The respondent, a native and citizen of Mexico, has appealed from the Immigration Judge's
decision dated January 7, 2014. We review questions oflaw, discretion, and judgment arising in
appeals from decisions of Immigration Judges de novo, whereas we review findings of fact in
such appeals under a "clearly erroneous" standard. See 8 C.F.R. § 1003.l(d)(3). The record will
be remanded.
The Immigration Judge denied the respondent's application for cancellation ofremoval under
section 240A(b) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b), after determining
that he had not established that (1) he was physically present in the United States for at least
IO years immediately preceding the service of the Notice to Appear; (2) he had been a person of
good moral character for the last 10 years; and (3) his wife would suffer exceptional and
extremely unusual hardship upon his removal from the United States. We find it appropriate to
remand the record to allow the Immigration Judge to reconsider the respondent's application,
particularly with regard to the issue of continuous physical presence. The Immigration Judge
should assess whether the respondent's testimony, found credible by the Immigration Judge, is
sufficient, when viewed with the respondent's documentary evidence, to establish that he has
been continuously physically present in the United States since June I, 2001.
ORDER: The record is remanded for further proceedings.
(b) (6)
(
b
)
(
6
)
(b) (6)

Executive Office for Imm1gration Review
Falls Church, V1tgmia 2204 I
File: Charlotte, NC Date:
In re:
APPEAL AND MOTION
ON BEHALF OF RESPONDENT: Rob Heroy, Esquire
ON BEHALF OF OHS:
CHARGE:
Colleen E. Taylor
NOV 10 2015
Notice: Sec. 212(a)(6)(A)(i). I&N Act (8 U.S.C. § l 182(a)(6)(AJ(i)] -
Present without being admitted or paroled (sustained}
Sec. 212(a)(2)(A)(i)(II), l&N Act (8 U.S.C. § I 182(a}(2}(A)(i}(Il)] •
Controlled substance violation (sustained}
Sec. 212(a)(2)(A)(i)(I), l&N Act (8U.S.C.§l182(a)(2)(A)(i)(I)] •
Crime involving moral turpitude (sustained)
APPLICATION: Voluntary departure; remand
The respondent, a native and citizen of Mexico, appeals from the Immigration Judge's
March 4, 2014, decision to deny her application for voluntary departure. While this appeal was
pending, the respondent filed a motion to remand. The Department of Homeland Security has
filed its opposition to the appeal and has not responded to the motion to remand. The record will
be remanded for further proceedings. The motion to remand will be denied as moot.
We review for clear error the findings of fact. including the determination of credibility,
made by the Immigration Judge. 8 C.F.R. § 1003.l(d)(3)(i). We review de novo all other issues,
including issues of law, judgment, and discretion. 8 C.F.R. § 1003.l(dj(3}(ii).
The Immigration Judge denied the respondent's request for voluntary departure due to her
"numerous convictions for fraud. larceny and forgery" (l.J. at 2).1
However. the Immigration
Judge did not explain why these convictions render the respondent ineligible for this benefit
1
It is unclear from the record whether the respondent requested pre- or post-conclusion
voluntary departure. See sections 240B(a}. (b) of the Immigration and Nationality Act, 8 U.S.C.
§§ 1229c(a), (b); 8 C.F.R. §§ 1240.26(b), (c).
(b) (6)
(b) (6)

'
(l.J. at 2). An Immigration Judge's decision must contain the reasons underlying his or her
determinations; reflect the analysis of the applicable statutes, regulations, and legal precedents;
and clearly set forth his or her legal conclusions. 8 C.F.R. § 1240.12(a); Maller ofA-P-, 22 l&N
Dec. 468, 473-75 (BIA 1999). The instant decision does not provide us with a basis for
meaningful appellate review. See generally Maller of S-H-, 23 l&N Dec. 462, 463-65
(BIA 2002) (instructing Immigration Judges to include in their decisions clear and complete
findings of fact that are supported by the record and comply with controlling law). Accordingly,
we will remand the record for further proceedings so that the Immigration Judge may enter a new
decision setting forth-pursuant to the applicable statutes, regulations, and case law-her basis
for denying the respondent's request for voluntary departure. See 8 C.F.R. § 1240.12(a); Maller
ofA-P-, supra; Matter ofS-H-, supra.
In addition, the Immigration Judge on remand should assess the effect, if any, of the
intervening decision in Mellouli v Lynch, 135 S. Ct. 1980 (2015), on her determination that the
respondent's State drug convictions render her inadmissible under section 2I2(a)(2)(A)(i)(ll) of
the Act, 8 U.S.C. § ll82(a)(2)(A)(i)(ll) (see 1.1. at 1-2; Exhs. 1, 2; Tr. at 1-9). Insofar as we are
remanding the record for further proceedings, the respondent's motion to remand will be denied
as moot.
ORDER: The record is remanded for further proceedings and the entry of a new decision
consistent with the foregoing opinion.
FURTHER ORDER: The respondent's motion to remand is denied as moot.
I FOR THE BOARD
2
(b) (6)

' tJ.s. Department of Justice
ln re:
APPEAL
ON BEHALF OF RESPONDENTS: Hila Moss, Esquire
ON BEHALF OF OHS: Scott D. Criss
Date:
'JUN ·- 9Z015
The respondents are a mother ("lead respondent") and child ("minor respondent") who are
natives and citizens of El Salvador. They appeal an Immigration Judge's April 15, 2014, written
decision denying their applications for asylum and withholding of removal under the
Immigration and Nationality Act, as well as protection under the Convention Against Torture
(CAT). 1
The Department of Homeland Security (OHS) has filed a brief in opposition to the
appeal. The appeal will be sustained, and the record will be remanded for further proceedings.
We review the findings of fact made by an Immigration Judge under a "clearly erroneous"
standard. 8 C.F.R. § 1003.l(d)(3)(i). We review all other issues, including whether the parties
have met the relevant burden of proof and issues of discretion, under a de nova standard.
8 C.F.R. § I003.l(d)(3)(ii). Because the respondents' applications were filed after May 11,
2005, they are subject to the provisions of the REAL ID Act of 2005, Pub. L. No. 109-13, Div.
B. 119 Stat. 231.
The Immigration Judge found the lead respondent's testimony credible because it was
"plausible, internally consistent, and consistent with the documentary evidence of record." (l.J.
Decision at 5).2
However, the Immigration Judge ultimately found that the lead respondent
failed to meet her burden of proof for asylum because she did not fully corroborate her claim of
past persecution, and because she lacked the requisite nexus between her claimed persecution
and a protected ground under the Act (l.J. at 5-11).
1
The individual hearing on the respondents' applications was conducted on November 25, 2013.
However, the Immigration Judge issued her written decision on April 15, 2014.
2
The minor respondent did not testify in this case since she was a child (Tr. at 8). Although an
independent asylum application was filed on her behalf, she was also listed as a derivative
beneficiary on the lead respondent's application (Exh. 2). The Immigration Judge only
adjudicated the lead respondent's asylum application (Tr. at 11-12).
(b) (6)
(b) (6)

t al.
Upon de nova review, we disagree with the Immigration Judge's decision. Under applicable
law, the credible testimony of an asylum applicant may be sufficient to sustain the applicant's
burden of proof without corroboration. Section 208(b)(l)(B)(ii) of the Act, 8 U.S.C.
§ 1158(b)(l)(B)(ii). The lead respondent credibly testified that lv1S-13 gang members shot and
killed her common-law husband after he evaded the gang's efforts to extort him for money and
reported their criminal activity to police (I.J. at 2-3; Tr. at 16-19, 35-36). Just before shooting
her common-law husband, the same individuals shot the lead respondent 8 times after asking her
if she was her common-law husband's "woman." (l.J. at 2; Tr. at 19, 26). During and after a
lengthy hospitalization for her injuries, the lead respondent continued to be threatened by
members ofthe gang, before she ultimately fled El Salvador (l.J. at 3; Tr. at 20-23, 29-35).
We acknowledge that, where an Immigration Judge determines that an asylum applicant
should provide evidence that corroborates otherwise credible testimony, such evidence must be
provided unless the applicant does not have the evidence and cannot reasonably obtain the
evidence. See J.1atter of L-A-C-, 26 l&N Dec. 516, 518 (BIA 2015) (citing section
208(b)(l)(B)(ii) of the Act). The Immigration Judge faulted the lead respondent for not
corroborating her credible testimony with "police reports or other documentary evidence that
establishes [her common-law husband] was cooperating with the police or testified against
members ofthe MS-13 gang before the shooting." (l.J. at 6). However, the respondent offered a
reasonable explanation for not providing such evidence (Tr. at 40). And, as was noted by the
Immigration Judge, the respondent did provide other evidence to corroborate her claim (l.J. at 6;
Exh. 3, Tab A at 42-53). On the whole, and on this record, we find sufficient corroboration of
the respondent's credible testimony.
The incidents described by the respondent, viewed cumulatively, resulted in harm rising to
the level of past persecution. See, e.g., Cordova v. Holder, 759 F.3d 332, 337 (4th Cir. 2014)
(stating that "[p]ersecution involves the infliction or threat of death, torture, or injury to one's
person or freedom[]" (internal citation omitted)); Crespin-Valladares v. Holder, 632 F.3d 117,
126 (4th Cir. 2011) (stating that "the threat of death qualifies as persecution[]" (internal citation
omitted)). The lead respondent also showed that her perceived familial relationship to her
common-law husband, who was actively seeking prosecution of the MS-13 members who were
extorting him, was "at least one central reason" for her past persecution. See section
208(b)(I )(B)(i) of the Act (stating that a protected ground must serve as "at least one central
reason" for the feared persecution); Quinteros-Nfendoza v. Holder, 556 F.3d 159, 164 (4th Cir.
2009) (noting that the protected ground need not be the central reason or even a dominant reason
for persecution, but must be more than an incidental, tangential, superficial or subordinate
reason); Crespin-Valladares, supra, at 125 (noting that membership in a nuclear family qualifies
as a particular social group for asylum purposes). This is so notwithstanding other evidence
indicating that the lead respondent was also, herself, targeted for extortion, and that the lead
respondent's common-law husband was killed before he could actually testify publicly against
MS-13 (l.J. at 6).
For the foregoing reasons, we conclude that the Immigration Judge erred in finding that the
lead respondent did not suffer past persecution on account of a protected ground under the Act.
Because the lead respondent has suffered proscribed past persecution, she is entitled to a
2
(b) (6)

et al.
rebuttable presumption of having a well-founded fear of future persecution, for purposes of
establishing her ultimate eligibility for asylum. See 8 C.F.R. § l 208. l3(b)(I); Hernandez-Avalos
v. Lynch, _ F.3d _, 2015 WL 1936721, at *4 (4th Cir. April 30, 2015). Because the
Immigration Judge did not address whether the lead respondent has a well-founded fear of future
persecution, we will remand this matter for her to address that issue in the first instance (l.J. on
11). Upon remand, the Immigration Judge shall also address whether the Salvadoran
government would be unable or unwilling to control any future persecution of the respondent.
See Crespin-Valladares. supra, at 128.
Given our disposition of this matter, we need not address the respondents' remammg
arguments on appeal. However, on remand, the parties shall also not be precluded from offering
additional evidence, both testimonial and documentary, with respect to any and all relevant
issues in this case.
Accordingly, the folloving orders will be entered.
ORDER: The appeal is sustained.
FURTHER ORDER: The record is remanded for further proceedings consistent with the
foregoing order and for the entry of a new decision.
FOR THE BOARD
3
(b) (6)

1 falls Church, Virginia 22041
In re:
APPEAL
ON BEHALF OF RESPONDENT: Jordan Grace Forsythe, Esquire
ON BEHALF OF OHS: Colleen E. Taylor
CHARGE:
Date:
Notice: Sec. 212(a)(6XA)(i), l&N Act (8 U.S.C. § l 182(a)(6)(A)(i)] -
DEC 18 2015
The respondent appeals the Immigration Judge's May 6, 2014, decision denying her
applications for asylum and withholding of removal under sections 208 and 241(b)(3) of the
Immigration and Nationality Act, 8 U.S.C. §§ 1158 and 123l(b)(3), and for protection under the
Convention Against Torture, 8 C.F.R. §§ 1208.16-.18 (2015). The record will be remanded to
the Immigration Judge for further proceedings consistent with this opinion and for entry ofa new
decision.
In her decision, the Immigration Judge found the respondent did not meet her burden in
establishing that she fell into a particular social group based on the domestic violence she
experienced, including being forced into prostitution, in her relationship with a man, the father of
her child, in Guatemala (l.J. at 12-13). In particular, the Immigration Judge, citing the "unsettled
law regarding asylum as it relates to domestic violence victims," and the vacated decision in
Matter ofR-A-, 22 I&N Dec. 906 (A.G. 2001 ), relied upon the general law regarding the issue of
particular social groups in finding the respondent did not meet her burden ofproof(I.J. at 12-13).
Subsequent to the Immigration Judge's decision in this case, the Board issued its decision in
Matter ofA-R-C-G-, 26 I&N Dec. 388 (BIA 2014), in which we held that "married women in
Guatemala who cannot leave their relationship" constitutes a particular social group for purposes
of asylum and withholding of removal. In that case, we found that the social group proposed by
the alien constituted a valid social group for purposes of asylum and withholding of removal
under the Act. See id. at 393. In addition, we found that the treatment received by the alien rose
to the level of persecution such that she established past persecution on account of her
membership in a particular social group. See id. at 393-94.
(b) (6)
(b) (6)

The facts of this case are sufficiently similar to those in Matter ofA-R-C-G- that we cannot
adjudicate the respondent's appeal based on the Immigration Judge's current findings which are
predicated upon the unsettled state of the law prior to our decision in Matter of A-R-C-G-.
Therefore, we find that a remand is provident in order for the Immigration Judge to reevaluate
the respondent's application in accordance with our precedent decision.
Upon remand, the Immigration Judge should consider whether the respondent has established
a particular social group and has shown past persecution based on the treatment she described in
her testimony, which the Immigration Judge found credible (l.J. at 9 and 12-13). 1
The
Immigration Judge should also consider whether the Guatemalan government is unable or
unwilling to control the abuse in this case. If, on remand, the Immigration Judge finds that the
respondent has established past persecution, there is a presumption of a well-founded fear of
persecution in the future and the burden shifts to the Department of Homeland Security to prove
by a preponderance of the evidence that there are changed country conditions, or that the
respondent could avoid future persecution by relocating, and that it would be reasonable to do so
under all of the circumstances. See Matter of D-1-M-, 24 I&N Dec. 448, 449-50 (BIA 2008);
8 C.F.R. §§ 1208.IJ(b)(l)(ii), 1208.16(b)(3)(ii); see also Matter of M-Z-M-R-, 26 l&N Dec.
28 (BIA 2012).
Accordingly, the record will be remanded to the Immigration Judge for further proceedings
consistent with this opinion and for entry of a new decision.
consistent with this opinion and for entry ofa new decision.
FOR THE BOARD '
1
In her decision, the Immigration Judge noted the lack of corroboration submitted by the
respondent and found portions of the respondent's story to be irreconcilable (l.J. at 9). The
Immigration Judge, however, found the respondent credible and that she suffered abuse at the
hands ofa domestic partner in Guatemala (l.J. at 9).
2
(b) (6)

•
!'alls Church, Virginia 22041
In re
APPEAL AND MOTION
Date:
AUG 2820!5
ON BEHALF OF RESPONDENT: William R. Heroy, Esquire
The respondent appeals the Immigration Judge's April 15, 2014, decision sustaining the
charge of removability and denying her request for a cancellation of removal under section
240A(b)(2) of the Act. The respondent has also submitted a motion to remand the record for
further proceedings regarding her application for adjustment of status. The Department of
Homeland Security (DHS) opposes both the appeal and the motion to remand. The record will
be remanded for further proceedings.
In her motion to remand, the respondent has submitted evidence that she now has a pending
Form 1-130 filed on her behalf. Notwithstanding the DHS' argument that her visa has not yet
been granted, there is no showing in the record which would preclude us from finding that she is
otherwise prima facie eligible for adjustment of status. See generally Matter ofHashmi, 24 l&N
Dec. 785 (BIA 2009). As such, we will remand the record for further proceedings regarding the
respondent's request for adjustment of status.
ORDER: The record is remanded to the Immigration Court for further proceedings consistent
with the foregoing decision.
(b) (6)
(b) (6)

•
•
Date:
In re:
APPEAL
ON BEHALF OF RESPONDENT: Thomas E. Fulghum, Esquire
The respondent, a native and citizen of Honduras, appeals the decision of the Immigration
Judge dated July 8, 2014, denying her applications for asylum, withholding of removal, and
protection under the Convention Against Torture. See sections 208(b)(l)(A) and 241(b)(3)(A) of
the Immigration and Nationality Act ("Act"), 8 U.S.C. §§ ll58(b)(l)(A) and l23l(b)(3)(A);
8 C.F.R. §§ 1208.l3(a), l208.l6(b)-l208.l8. The Board has not received a response from the
Department ofHomeland Security. The record will be remanded.
We review for clear error the findings of fact, including the determination of credibility,
made by the Immigration Judge. 8 C.F.R. § 1003.l(d)(3)(i). We review de novo all other issues
including whether the parties have met the relevant burden of proof, and issues of discretion.
8 C.F.R. § l003.l(d)(3)(ii). The respondent's applications were filed after May l l, 2005, and
are subject to the statutory requirements made by the REAL ID Act of2005 (Exh. 2). Matter of
S-B-, 24 l&N Dec. 42, 45 (BIA 2006).
The respondent testified that she was abused by her former partner who resides in Honduras
(Tr. at 22-33). The respondent claims persecution on account of her membership in a proposed
social group defined as "women in abusive domestic relationships in Honduras" or "Honduran
women who have been involved intimately with Honduran male companions, who believe that
women are to live under male domination, or, put another way, Honduran women who are
viewed as property by virtue of their positions within a domestic relationship." See
Respondent's Appeal Br. at 3; Respondent's Memo. dated April 15, 2014; Tr. at 58.
Upon review of the record, we reverse the Immigration Judge's adverse credibility
determination as the factors relied upon by the Immigration Judge do not adequately support a
finding that the respondent is not credible (l.J. at 5-7). See 8 C.F.R. § 1003.l(d)(3)(i); section
208(b)(l)(B)(iii) of the Act; Runga v. Holder, 777 F.3d 199, 206 (4th Cir. 2015); Matter of
J-Y-C-, 24 l&N Dec. 260, 262 (BIA 2007). The Immigration Judge found inconsistencies and
omissions in the respondent's testimony as to when her former partner began to abuse her, details
about the harm she suffered during the and 2012 incidents, and her marital
relationship to her former partner, which differed to some extent from her written statement and
the statements from her credible fear interview (I.J. at 5-6; Exhs. 2, 4 at Tab I; Tr. at 39-47,
49-56). The Immigration Judge also relied on the respondent's demeanor which she found, in
(b) (6)
(b) (6)
(b) (6) (b) (6)

'·
.part, lacked a sense of fear, insecurity or grief because she was virtually emotionless and failed
to make eye contact during her testimony (l.J. at 6). However, the hnmigration Judge also found
that the respondent was an unfortunate victim ofdomestic violence and sexual abuse (I.J. at 13).
Given the sensitive and complex issue involved, we find that the respondent's explanations to be
adequate, and that the factors relied upon by the hnrnigration Judge do not support an adverse
credibility determination (Respondent's brief at 6-12). Considering the totality of the
circumstances presented in this case, we will reverse the Immigration Judge's adverse credibility
determination and deem the respondent to be credible. See section 208(b)(l)(B)(iii) of the Act;
Ounga v. Holder, supra; Matter ofJ-Y-C-, supra.
In view of the above, the record will be remanded for the Immigration Judge to assess
whether the respondent has met her burden to establish past persecution or a well-founded fear of
persecution on account of her membership in a particular social group. Subsequent to the
Immigration Judge's decision, the Board issued Matter of A-R-C-G-, 26 I&N Dec. 388
(BIA 2014), which discussed particular social group in the context ofcases involving domestic
violence. On remand, the parties will have the opportunity to present further evidence and
arguments regarding the issues of particular social group, nexus, and other relevant issues as
deemed appropriate and necessary by the Immigration Judge for the proper resolution of the
case. We express no opinion as to the outcome of this case. See Matter ofL-0-G-, 21 I&N
Dec. 413 (BIA 1996). Accordingly, the following order will be entered.
consistent with the foregoing opinion and for the entry ofa new decision.
2
(b) (6)

Executive Office for Immigrat10n Review
Decis10n of the Board of Immigration Appeals
Date:
2j •.-.-
APR '• c: .J
In re:
APPEAL
ON BEHALF OF RESPONDENTS: Julio E. Moreno, Esquire
The respondent has appealed the Immigration Judge's decision rendered on November 12,
2014. A review of the record of proceeding reveals that the transcript is defective and that the
Immigration Judge's oral decision is missing. The record reflects that the Immigration Judge
had continued proceedings and set a hearing that was to be held on November 12, 2014 (seep. 4,
Trans.). However, the recording of the November 12, 2014, hearing is inaudible as there is no
sound. As we consider the transcript and the Immigration Judge's oral decision necessary for
our review of this matter, we will return the record to the Immigration Court for further action.
Upon receipt of the record, the Immigration Court shall take such steps as are necessary and
appropriate to enable preparation of a complete transcript of the proceedings including a new
hearing, ifnecessary.
FOR THE BOARD
(b) (6)
(b) (6)

U.S. Qepartment of.Justice
FaUs Church, Virginia 22041
In re:
APPEAL AND MOTION
Date:
Jt..iJ 29 ZG16
ON BEHALF OF RESPONDENT: Ala Arnoachi, Esquire
APPLICATION: Remand; adjustment ofstatus
The respondent has appealed from an Immigration Judge's decision dated January 6, 2015.
While the appeal was pending before this Board, the respondent filed a motion to remand. The
motion will be granted and the record will be remanded.
In conjunction with the motion to remand, the respondent submitted evidence that an I-
360 Visa Petition had been filed on her behalf. Accordingly, the respondent moves to remand
this case to the Immigration Judge in order to apply for adjustment of status under section 245(a)
of the Immigration and Nationality Act, 8 U.S.C. § l255(a). The petition appears to have been
approved by the Department of Homeland Security, Citizenship and Immigration Services. The
Department ofHomeland Security has not filed a response to the respondent's motion to remand.
We thus deem the motion unopposed. See 8 C.F.R. §1003.2(g)(3).
Because the respondent is the beneficiary of an approved I-360 visa petition, we find it
appropriate to grant the unopposed motion and remand this case to the Immigration Judge. In
light of our decision to grant the motion to remand, we do not reach the merits of the
respondent's appeal at this time. For the foregoing reasons, the following order will be entered.
consistent with the foregoing opinion and the entry ofa new decision.
(b) (6)
(b) (6)

"
I
Falls Church, Virginia 2204 I
File: Charlotte, NC Date: SEP 14 2015
In re:
CERTIFICATION
ON BEHALF OF RESPONDENT: Pro se
APPLICATION: Remand
The respondent appeals an Immigration Judge's May 5, 2015, decision, ordering the
respondent removed from the United States. On appeal, the respondent filed new evidence,
which we will deem to be a motion to remand, 8 C.F.R. § 1003.2(c)(4). The record will be
rernanded.1
The respondent's request for oral argument is denied. 8 C.F.R. § 1003.I(e)(7).
We review for clear error the Immigration Judge's findings of fact, including determinations
of credibility. 8 C.F.R. § 1003.l(d)(3)(i). We review all other issues de novo, including whether
the parties have met the relevant burden of proof and issues of discretion. 8 C.F.R.
§ 1003.J(d)(3)(ii).
On appeal, the respondent argues that her attorney failed to advise her that she could apply
for asylum relief, and she has submitted evidence in support of her claimed fear of persecution in
El Salvador. The respondent has also submitted a receipt from the United States Citizenship and
Immigration Services ("USCIS") reflecting that she filed an asylum application with the USCIS
on June 30, 2015, after the issuance ofthe Immigration Judge's decision.
As the respondent's asylum application is currently pending before the USCIS, we will
remand these proceedings to the Immigration Judge to allow the respondent to request a
continuance or administrative closure while she pursues her asylum claim with users. See
Matter of Sanchez Sosa, 25 r&N Dec. 807, 815 (BIA 2012) ("As a general rule, there is a
rebuttable presumption that an alien who has filed a prima facie approvable application with the
users will warrant a favorable exercise of discretion for a continuance for a reasonable period
of time.") (internal citation omitted); }.fatter of Avetisyan, 25 I&N Dec. 688 (BIA 20I2)
(discussing the standards for administratively closing proceedings); Maller ofHashmi, 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).
1
Although the Immigration Judge found that the respondent waived her right to appeal, we will
consider the appeal on certification pursuant to 8 C.F.R. § 1003.l(c), given the particular
circumstances ofthis case.
(
b
)
(
6
)
(b) (6)
(b) (6)

•
Although the record reflects that the respondent waived her right to appeal, we accept her
representation that the waiver was not knowing and intelligent.
consistent with the foregoing opinion and for the entry of a new decision.
2
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