UNITED STATES DEPARTMENT OF JUSTICE

IMMIGRATION AND NATURALIZATION SERVICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

BOARD OF IMMIGRATION APPEALS (BIA)

In the matter of

XXXXX, JJJJJJJJ A#XXXXXX

Respondent

______/

George P. Mann (P-24888)

Law Offices of George P. Mann & Associates

Pineview Office Park

33505 W. Fourteen Mile Rd., Suite 20

Farmington Hills, MI 48331

(248) 932-0990

RESPONDENT’S MOTION FOR LATE ACCEPTANCE OF BRIEF

RESPONDENT’S MOTION ADMINISTRATIVELY CLOSE CASE OR ALTERNATIVELY TO REMAND PER HASHMI

REPPONDENT’S OPPOSITION TO DHS MOTION TO DISMISS

BRIEF IN SUPPORT OF APPEAL

AND

REQUEST FOR PANEL

AND

OPPOSITION TO SUMMARY AFFIRMANCE


RESPONDENT’S MOTION FOR LATE ACCEPTANCE OF BRIEF

Respondent respectfully moves for late acceptance of brief. This is the first and only motion for late acceptance of a brief that undersigned counsel has ever made in over thirty years of practicing immigration law, except for very rare occasions when there was a delivery delay of an overnight courier service such as DHL or Fedex. See Declaration of George Mann annexed hereto as Exhibit A. In light of this exceptional instance and the availability of this extraordinary grace, it is respectfully requested that this late brief be accepted. In addition, kindly accept the incorporated Motions for remand, opposition to dismissal, motion for panel and opposition for summary affirmance. Pursuant to the EOIR practice manual, motions may be brought at any time an appeal is pending.

Respondent timely notified this honorable Board that it did not furnish the prior decision of IJ Antone and that neither Respondent nor undersigned counsel possessed any of the records or files or submissions to the Board made by Respondent’s prior counsel. The Board instructed counsel to file a freedom of information act request (Foia) to the Executive Office of Immigration Review (EOIR) in order to obtain a copy of the Board’s full file. Respondent did file a FOIA request, waited for the Board to comply with the FOIA request and then received an exceptionally long record of 1,469 pages which is many times the size of typical records (200-400 pages). In addition, to piece together the entire record, Respondent did a FOIA request on USCIS and ICE for all records. One of the key issues regards whether respondent was ever given notice that she had an affirmative obligation to notify USCIS, the Court or her counsel about her divorce and remarriage to her same first marriage. As a foreigner, she was not aware of the impact of divorce and remarriage to the same individual. This resulted in a mistaken impression on the part of the IJ that Respondent had bad moral character. On or about November 5, 2009, Respondent received notice from ICE that the records were finally forthcoming and then they were received by Respondent shortly thereafter. See FOIA letter from ICE dated October 29, 2009 annexed as Exhibit B.

In light of this being undersigned counsel’s sole and first request for the extraordinary acceptance of late brief in any case during more than thirty years of practicing immigration law, the unusual great size of this record, the pursuit of the complete file from EOIR and USCIS, the fact that counsel did not know what had previously been filed with the Board by prior counsel and the compelling fact that Ms. JJJJJJ’s case is still pending and has been pending since 1991, it would be extreme and exceptional hardship to Ms. JJJJJJ and her U.S. citizen husband if she were removed after making deep ties in the United States residing here since approximately 1986, more than 20 years of residence in the U.S., and Ms. JJJJJJ having suffered psychological trauma due to her experiences in her native Yugoslavia where she was imprisoned and due to having suffered mentally cruelty by being married to a mentally abusive recidivist criminal, kindly accept this brief and incorporated motions. See Paginated Administrative Record furnished to Respondent as a result of the FOIA to EOIR (PAR) at pp 659-668 (psychological evaluation by Dr. Harry Capps (also annexed as Exhibit C for the Board’s convenience); PAR at pp 669-670 (resume of Dr. Capps, highlights include Ph.D. in counseling from Wayne State University MI, M.A. in clinical psychology University of Detroit Mercy, M.A. in counseling Central Michigan University, and M.A in Divinity from Princeton Theological Seminary). PAR pp 671-703 (affidavit of Respondent with supporting exhibits A-E).

Because this record is large, having a Paginated Administrative Record of the complete file was essential. Throughout this brief, Respondent cites to the PAR for all sorts of pleadings and evidence that was submitted. This brief would not have had clear references to the record if it was not put together and paginated by the EOIR, which Respondent deeply appreciates.

Of course, Respondent has no objection whatsoever to the government submitting a supplemental brief or order to reply to Respondent’s motion and brief in support of appeal.

MOTION TO ADMINISTRATIVELY CLOSE CASE OR ALTERNATIVELY TO REMAND PENDING ADJUDICATION OF PRIMA FACIE BONA FIDE I-130 BASED ON MARRIAGE TO A U.S. CITIZEN. THE IJ DENIED THE MOTION TO CONTINUE PRIOR TO PROMULGATION OF MATTER OF HASHMI.

Respondent is the beneficiary of an I-130 filed by her U.S. citizen husband Lauren Vickery. PAR 370-389 (Transcript of hearing date March 28, 2007 pp 246-285). At the hearing he established his U.S. citizenship, his love and the bona fides of his marriage to JJJJJJJJ (Respondent). See copy of I-130 based on marriage to Lauren Vickery and supporting documents annexed as Exhibit C. See PAR 445 and copy of USCIS receipt of I-130 dated February 12, 2007 annexed hereto as Exhibit D. Undersigned counsel has send requests to expedite the processing of the I-130 to USCIS and have notified USCIS that Respondent is in removal proceedings and time is of the essence. See emails to USCIS annexed as Exhibit E.

Due to the great equities in this case, the interests of family unity, it is respectfully requested that this case be administratively closed or, in the alternative remanded, to give Respondent an opportunity to adjust status based on a bona fide marriage.

Matter of Lopez-Barrios, 20 I& N Dec. 203 (BIA 1990), prevents the IJ or the BIA to administratively close a case if it is unilaterally opposed by one of the parties, i.e. even if mercurial prosecutors may object to administrative closure for any or no reason or as a matter of policy in a particular district.

Melnitsenko v. Mukasey, 06-3189 (2nd Cir. February 6, 2008) held that there is no justification for the imposition of a mechanism by which DHS, an adversarial party in the proceeding, may unilaterally block a motion to reopen or administratively close a case with no effective review of the BIA. The Second Circuit invoked and relied Saar v. Gonzales, 485 F3d 354, 363 (6th Cir. April 19, 2007); see also Matter of Velarde, 23 I & N Dec. 253 (BIA 2002). This case is bound by Saar because it arises in the 6th Circuit.

The discretionary decision to hold a case in abeyance via administrative closure is akin to the discretionary decision to grant a continuance. The administrative closure decision is not one of the statutorily designated discretionary decisions that the Attorney General is delegated to exercise such as granting asylum or cancellation of removal. Imagine how rarely a continuance would be granted if the decision hinged on prosecutorial discretion not to oppose it as a first step, before the IJ or BIA ever got to rule on the application for a continuance. This is the ironic situation with administrative closure of cases. If this honorable Board refuses to administratively close this case or grant a remand solely based on opposition by DHS, then this honorable Board has failed to use any discretion. See Patel v. Gonzales, 470 F.3d 216, 220 (6th Cir. 2006):


Patel also raises the argument that the BIA failed to use any discretion, in that, while it adopted and affirmed the IJ's decision, it rejected the IJ's determination that Patel was a persecutor. Because the IJ based his decision to deny Patel's request for voluntary departure exclusively on the grounds that Patel was a persecutor himself, it was illogical for the BIA ultimately to affirm the IJ's decision in full. The BIA Decision was silent on the question of voluntary departure.
The only way to make sense of the BIA Decision is to conclude that the BIA did not exercise any discretion whatsoever. We conclude that, as a matter of law, HN8when the BIA rejects the underlying reason for an IJ's decision to deny voluntary departure, and then makes no determination of its own on the voluntary departure issue, the BIA has not exercised any discretion. Therefore, we remand to the BIA so that it may exercise its discretion on the question of whether Patel is entitled to voluntary departure.


Patel v. Gonzales, 470 F.3d 216, 220 (6th Cir. 2006).

The Sixth Circuit has indicated that aliens should not be beholden to the whims of

whether DHS agrees to administrative closure of a case:


The Perez-Vargas court further hypothesized that, if the immigration judge could not make the § 204(j) portability decision in the first instance, then "it would effectively deny the benefits of § 204(j) to those aliens who are in removal proceedings." Perez-Vargas, 478 F.3d at 195. The court explained: [If] an alien in removal proceedings cannot invoke the protections of § 204(j) before the IJ but, instead, must seek administrative closure of the removal proceedings and ask DHS to determine the continuing validity of his visa petition pursuant to § 204(j) . . . [then], because administrative closure requires the consent of DHS, the alien's access to § 204(j) lies within the discretion of the government. If DHS were to refuse the alien's request for administrative closure -- as it did in this case -- the alien would be unable to avail himself of the process which Congress provided in § 204(j).
Matovski v. Gonzales, 492 F.3d 722, 742 (6th Cir. 2007).

This honorable Board has held and reaffirmed recently the importance of family unity and approvable I-130’s weighing significantly. Matter of HASHMI, 24 I&N Dec. 785 (BIA 2009) AND Matter of Garcia, 16 I&N Dec. 653 (BIA 1978). The 2nd, 7th and 9th circuits have weighed the existence of approved immediate relative visa petitions heavily in petitioner’s favor. Singh v. Ganzales, 2006 U.S. App Lexis 10156 (2nd Cir. April 19, 2006); Chowdhury v. Ashcroft, 241 F.3d 848 (7th Cir. 2001) Singh v. INS, 295 F.3d 1037 (9th Cir. 2002). These courts have held that it is an abuse of discretion for an IJ to deny reopening of a deportation order where the denial leads to the unconscionable result of deporting an individual eligible for relief from deportation. Singh v. INS, supra at 1040. Similarly, Respondent should be granted a remand, at least a limited remand, for the purposes of applying for adjustment of status after his I-130 is approved. Or, this case should be administratively closed without a removal order pending adjudication of the I-130.

The IJ abused his discretion in denying a continuance of her Individual Hearing so that the I-130 pending in this matter may be adjudicated and the I-485 considered by this Court. Respondent had a previously approved I-130 petition filed in 1994; therefore she has $245(i) coverage for the I-130 petition filed by Mr. Vickery, her U.S. Citizen spouse. Therefore she is prima facie eligible for adjustment of status under INA § 245 once the I-130 is approved by USCIS. Under Matter of Velarde, 23 I&N Dec. 253 (BIA 2002), the Immigration Judge may continue a Master or Individual Hearing in order to allow for USCIS to make a decision in a pending I-130 as long as the Respondent is able to show that her marriage is bona fide. Evidence that Respondent’s marriage to Mr. Vickery is bona fide has been previously admitted by the Court (Exhibit #12, Tab A). Moreover, recently Respondent and Mr. Vickery purchased a home in the hope that they may establish their future in the United States. (See PAR at pp. 462 and 464-467(proof of joint home ownership).

REQUEST FOR A PANEL DECISION

AND OPPOSITION TO SUMMARY AFFIRMANCE

Respondent requests that a panel, pursuant to 8 CFR § 1003.1, decide his case. If the IJ had properly evaluated good moral character and the amount of hardship in this case, he would have granted NACARA relief or would have continued this case pending adjudication of the I-130 based on Respondent’s bona fide marriage to a U.S. citizen. NACARA relief has a lower burden than asylum, withholding and CAT.

Respondent requests that a panel, pursuant to 8 CFR § 1003.1(6), decide his case due to:

(ii) The need to establish a precedent construing the meaning of laws, regulations, or procedures;

(iii) The need to review a decision by an immigration judge or the Service that is not in conformity with the law or with applicable precedents;

(v) The need to review a clearly erroneous factual determination by an immigration judge; or

(vi) The need to reverse the decision of an immigration judge or the Service, other than a reversal under §1003.1(e) (5).

Summary affirmance is not appropriate, because, among other defects in the decision, the IJ made numerous mistakes of fact.

In S-M-J-, the BIA opened its analysis with a discussion of the unique

nature of asylum/withholding/CAT proceedings. The BIA explained:


Although we recognize that the burden of proof in asylum and withholding of deportation cases is on the applicant, we do have certain obligations under international law to extend refuge to those who qualify for such relief. See United Nations Convention Relating to the Status of Refugees, July 5, 1951, 189 U.N.T.S. 150. Congress incorporated the international obligation into domestic United States law when it enacted the withholding of deportation provision of the Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102, prohibiting the refoulement of refugees. Going beyond the refoulement provision, Congress also established asylum as a discretionary form of relief for those who could meet a lesser standard of proof. See section 208 of the Immigration and Nationality Act, 8 U.S.C. § 1158 (1994). Because this Board, the Immigration Judges, and the Immigration and Naturalization Service are all bound to uphold this law, [**28] we all bear the responsibility of ensuring that refugee protection is provided where such protection is warranted by the circumstances of an asylum applicant's claim.
Although the burden of proof in establishing a claim is on the applicant, the Service and the Immigration Judge have a role in introducing evidence into the record.
21 I. & N. Dec. at 723-26.