De Los Santos, Reynaldo A., Esq. 202 S. Main Cleburne, TX 76033

Name: MAEDGEN, VALERIE LEE

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals Office of the Clerk

5 J 07 Leesburg Pike. Suire 2000 Falls Church, Virginia 20530

OHS/ICE Office of Chief Counsel - DAL 125 E. John Carpenter Fwy, Ste. 500 Irving, TX 75062-2324

A 093-407-562

Date of this notice: 5/30/2014

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

Enclosure

Panel Members: Pauley, Roger Wendtland, Linda S. Greer, Anne J.

Sincerely,

DortltL C! t1/V1.)

Donna Carr Chief Clerk

Trane Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished

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Cite as: Valerie Lee Maedgen, A093 407 562 (BIA May 30, 2014)

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U.S; Department of Justice Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 20530

File: A0�3 407 562 - Dallas, TX

In re: VALERIE LEE MAEDGEN a.k.a. Lidia Bazan Aguilar

IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Reynaldo A. De Los Santos, Esquire

CHARGE:

Notice: Sec. 237(a)(l)(B), l&N Act (8 U.S.C. § 1227(a)(l)(B)] -In the United States in violation of law

APPLICATION: Reopening

Date: MAY 3 0 2014

The respondent, a native and citizen of Peru, has appealed from the Immigration Judge's November 22, 2011, decision. In that decision, the Immigration Judge denied the respondent's January 10, 2011, motion to reopen as well as the February 7, 2011, joint motion to reopen in order for the respondent to apply for adjustment of status on the basis of an approved Petition for Alien Relative ("Form I-130"). The respondent's appeal will be sustained, and the record of proceeding will be remanded for further proceedings.

The timeline of events culminating in the instant appeal is as follows. The respondent entered the United States on September 9, 2000, as a nonimmigrant (Exh. 1). Following the denial of an application for adjustment of status on October 27, 2009, the removal proceedings were initiated with the filing of the Notice to Appear in immigration court on January 14, 2010 (Exh. 1 ). After the initial hearing on May 24, 2010, the respondent admitted the factual allegations and conceded the charge of deportability through former counsel on June 21, 2010.

Also on June 21, 2010, the respondent indicated that a Form 1-130 had been filed on her behalf by her United States citizen spouse. As a result of the petition's pendency before United States Citizenship and Immigration Services ("USCIS"), the respondent and the Department of Homeland Security ("DHS") entered into an agreement approved by the Immigration Judge. There is no transcript of the proceedings below (transcripts are generally not prepared in an appeal from the denial of a motion to reopen, see Board of Immigration Appeals Practice Manual, 4.2(f)(ii), at 47, available at http://www.justice.gov/eoir/vll/ qapracmanual/BIAPracticeManual. pdf#page=5 5 (last visited on March 20, 2014)). However, we have independently reviewed the audio recording of the proceeding. Our review of the audio recording reflects that the salient terms of the agreement were as follows: The Immigration Judge would grant the respondent a 3-month continuance from June 21, until September 20, 2010. If the 1-130 petition was not approved by that date, then the respondent would waive her right of appeal and accept an order of voluntary departure within 90 days from that date. If USCIS subsequently "approved [the Form I-130] within the period of

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Cite as: Valerie Lee Maedgen, A093 407 562 (BIA May 30, 2014)

A093 407 562

voluntary departure, the court has indicated that it will reopen your case [and] allow you to seek adjustment of status, but if it's not approved, you have to leave on or before the voluntary departure date . . . . "

Due to the Immigration Judge's schedule, the September 20, 2010, hearing was reset for October 12, 2010. On that date, the Immigration Judge issued an order of pre-hearing voluntary departure until January 10, 2011, pursuant to section 240B(a) of the Act, 8 U.S.C. § 1229c(a). On January 5, 2011, US CI S approved the Form 1-130 filed on the respondent's behalf (I.J. at 2 of 6). On January 10, 2011, the respondent filed a motion to reopen, but it was unaccompanied by the fee receipt (l.J. at 2 of 6). On February 7, 2011, the motion to reopen was refiled as a joint motion to reopen with the DHS' support. On July 18, 2011, the Immigration Judge held a hearing on the motion to reopen.

In the November 22, 2011, decision, the Immigration Judge determined, first, that the January 10, 2011, motion to reopen was not a joint motion and was not properly filed due to the absence of the fee receipt under 8 C.F.R. § 1003.23(b)(l)(ii). Second, the Immigration Judge denied the subsequent joint motion filed on February 7, 2011, determining that the respondent is barred from adjustment of status under section 245(a) of the Act, 8 U.S.C. § 1255(a), because she failed to depart on or before January 10, 2011, in accordance with the order of voluntary departure (l.J. at 5 of 6).1 The Immigration Judge determined that section 240B(d) of the Act bars the respondent from adjustment of status and could not be cured by a motion to reopen (I.J. at 5 of 6). See Matter of Zmijewska, 24 I&N Dec. 87 (BI A 2007) ("The Board of Immigration Appeals lacks authority to apply an 'exceptional circumstances' or other general equitable exception to the penalty provisions for failure to depart within the time period afforded for voluntary departure under section 240B(d)(l) of the Immigration and Nationality Act, 8 U.S.C.A. § 1229c(d)(1) (West Supp. 2006).").

However, the respondent has a statutory right to file one motion to reopen. See Garcia­Carias v. Holder, 697 F.3d 257, 261-62 (5th Cir. 2012). Furthermore, according to the literal terms of the June 21, 2010, agreement, the respondent's Form 1-130 was "approved " by US CIS "within the period of voluntary departure." Hence, the respondent, who, proceeding through current counsel, showed sufficient diligence in filing the motion to reopen after the Form I-130's approval, was entitled to expect that the Immigration Judge would "reopen your case [and] allow you to seek adjustment of status .... " Under these particular factual circumstances, therefore, we conclude that the respondent's failure to depart was not voluntary under section 240B( d)(l) of the Act. See Matter of Zmijewska, supra, at 95 (determining that the alien had not "voluntarily" failed to depart in part because the alien was "erroneously instructed by the Immigration Judge that the penalty provisions would not apply in the event that she could demonstrate exceptional circumstances for having failed to depart within the time afforded.").

In conclusion, section 240B( d) of the Act has not rendered the respondent ineligible for adjustment of status. Accordingly, if otherwise eligible, on remand she should be permitted to

1 The Immigration Judge's decision reflects that another motion to reopen was filed on July 18, 2011 (I.J. at 5 of 6); however, we have not been able to identify any such motion in the record of proceeding.

2

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Cite as: Valerie Lee Maedgen, A093 407 562 (BIA May 30, 2014)

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apply for adjustment of status based on the approved Form I-130. The following orders will be entered.

O RDER: The respondent's appeal is sustained, and the record of proceeding is remanded for further proceedings.

FURTHER ORDER: The Immigration Judge's November 22, 2011, decision is vacated.

FO R THE BOARD

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Cite as: Valerie Lee Maedgen, A093 407 562 (BIA May 30, 2014)

UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

IMMIGRATION COURT

IN THE MATTER OF:

Maedgen, Valerie Lee

RESPONDENT

CHARGE:

APPLICATION:

DALLAS, TEXAS

) ) ) ) ) ) )

IN REMOVAL PROCEEDINGS

A093-407-562

Section 237(a)(l)(B) of the Immigration and Nationality Act (Act), as amended, in that after admission as a nonimmigrant under Section 101(a)(l5) of the Act, you have remained in the United States for a time period longer than permitted, in violation of the Act or any other law of the United States.

Motion to Reopen

ON BEHALF OF THE RESPONDENT ON BEHALF OF THE DEPARTMENT OF HOMELAND SECURITY

Rey De Los Santos _

De Los Santos & Associates, P. C. 202 South Main Cleburne, TX 76033

Margaret Price, Esq. Assistant Chief Counsel - ICE 125 E. John Carpenter Freeway, Suite 500 Irving, TX 75062

WRITTEN DECISION OF THE IMMIGRATION JUDGE

FACTUAL BACKGROUND

The Respondent is a 19-year-old female, native and citizen of Peru. Exhibit I.

The Respondent entered the United States on September 9, 2000 at Dallas, Texas, as a

nonimmigrant with authorization to remain in the United States for a temporary period.

Id.

On January 8, 2010 the Department of Homeland Security (DHS or the

Government) served the Respondent with a Notice to Appear (NTA) charging her with

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removability under Section 237(a)(l)(B) of the Immigration and Nationality Act (INA or

Act), in that after being admitted as a nonimmigrant, she remained in the United States

beyond the temporary period without authorization from the Government. Id

At a hearing on June 21, 2010 the Respondent, through prior counsel, Moved for

a Continuance to await the adjudication of an I-130 P�tition pending on the Respondent's

behalf. The Court granted a three-month continuance, until September 20, 2010. The

Court asked the Respondent if she would accept voluntary departure with a 90-day

departure period and waive her right to appeal if the 1-130 were not approved by

September 20, 2010. The Court stated that, in conjunction with its offer, if the 1-130 was

approved within the 90-day voluntary departure period, it would reopen the Respondent's

case to allow her to seek adjustment of status. The Respondent accepted and agreed to

the Court's offer, and the Government attorney stated that she had no objection to the

agreement.

The 1-130 was not approved prior to September 20, 2010, and thus the

Respondent accepted the Court's grant of voluntary departure on October 12, 2010. The

Respondent was ordered to depart the United States on or before January 10, 2011.

The United States Citizenship and Immigration Service (USCIS or the Service)

approved the 1-130 Petition on January 5, 2011.

The Respondent, through current counsel, submitted a Motion to Reopen her

removal proceedings on January 10, 2010. However, that Motion was not accompanied

by a fee receipt. See 8 C.F.R. 1003.23(b)(iii).

The Respondent and the Government submitted a Joint Motion to Reopen on

February 7, 2011.

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On July 18, 2011 the Court held a hearing regarding the Respondent's Motion to

Reopen. At the hearing the lnunigration Judge stated that, upon initial review of the file,

only the Joint Motion to Reopen had appeared in the file, and thus the Court had

concluded that the Motion to Reopen was submitted well beyond the close of the 90-day

voluntary departure period.

At the hearing on July 18, 2011 the Immigration Judge stated that, upon a later

review of the file, he found the Respondent's Motion to Reopen submitted to the Court

on January 10, 2011. The Immigration Judge stated that this occurred due to an error by

the Court staff, because when he first reviewed the file it did not contain the January 10,

2011 Motion to Reopen.

At the hearing the Immigration Judge stated that, while it appears the Motion to

Reopen was timely submitted to the Court, it was unaccompanied by a fee receipt.1 Thus,

in accordance with 8 C.F.R. § 1003.23(b)(iii), the Motion was not properly "filed" by the

expiration of the voluntary departure period.

The Respondent's counsel made the argument to the Court that the Motion

submitted on January 10, 2011 was actually a Joint Motion to Reopen, because the

Government stated at the hearing on June 21, 2010 that it would not object to reopening

the Respondent's case if the Respondent's petition were approved during the voluntary

departure period. As joint motions to reopen do not require a filing fee, the January 10,

1 The Respondent submitted a filing fee receipt to the Court at the July 18, 2011 hearing. The filing fee receipt states that the fee was submitted to the DHS on January I 0, 2011. In an affidavit attached to the Motion to Reopen submitted on January 10, 2011, an employee of the Respondent's counsel affirmed that she attempted to deliver to the filing fee to the DHS on January 7, 2011, but was unable to do so because the DHS does not accept filing fees after 2:00 p.m., and she was informed that evidence of a filing fee submission is not produced by the DHS until later in the day or the following day. The Respondent's counsel should have been aware of the time restrictions related to the submission of filing fees to the DHS, and should have properly accounted for them while preparing and attempting to file the Motion. Presently, the Court notes

.that the regulation requires that motions to reopen are accompanied by fee receipts. If the

fee receipt is not present, then the Motion is not properly filed under the regulation.

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2011 Motion, if construed as a joint motion, would be considered timely filed. See 8

C.F.R. § 1003.25(b)(2)(vii).

The Court concludes that it will not reopen these proceedings for the reasons

stated in this Opinion.

ANALYSIS

First, the Court finds that the Motion to Reopen submitted on January 10, 2011

was a not a joint motion to reopen. The DHS stated at the hearing on June 21, 2010 that

it would not oppose reopening if the I-130 Petition were approved during the voluntary

departure period. Non-opposition is not synonymous with joint filing; furthermore, the

January 10, 2011 Motion was not even signed by the Government.

As the Motion to Reopen submitted on January 10, 2011 does not qualify as a

joint motion to reopen, it required a filing fee. 8 C.F.R. § 1003.23(b)(l)(ii) provides that

motions to reopen must be accompanied by a fee receipt when submitted to the Court.

As the January 10, 2011 Motion to Reopen was unaccompanied by a fee receipt, it was

not properly "filed" within the voluntary departure period; the Motion was actually filed

on July 18, 201 1 when the fee receipt was finally submitted.

INA § 240B(d) provides the penalties that apply to aliens who fail to depart

during the voluntary departure period:

(d) Civil penalty for failure to depart ( 1) In general Subject to paragraph (2), if an alien is permitted to depart voluntarily under this section and voluntarily fails to depart the United States within the time period specified, the alien-(A) shall be subject to a civil penalty of not less than $1,000 and not more than $5,000; and (B) shall be ineligible, for a period of 10 years, to receive any further relief under this section and sections 240A, 245, 248, and 249 of this title.

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8 C.F.R. § 1240.26(e)(1) provides, however, that these penalties do not apply

when a motion to reopen is properly filed during the voluntary departure period. When a

motion to reopen is not properly filed prior to the expiration of the voluntary departure

period, as in this case, the filing of that motion after the expiration does not have the

effect of vitiating or vacating those penalties, even if that motion is granted. See 8 C.F.R.

§ 1240.26(e)(2). Thus, when an alien fails to depart and no motion to reopen is properly

filed by the expiration of the voluntary departure period those penalties immediately

attach, and they cannot be cured by a motion to reopen filed after the expiration of that

voluntary departure period. Furthermore, as 8 C.F.R. § 1240.26(e)(2) uses the phrase

"motions to reopen" generally, it appears that no specific type of motion to reopen,

whether filed by the respondent, the Government or jointly-filed, can cure or vitiate these

penalties included at INA § 2408( d).

Accordingly, the Respondent's Motion to Reopen submitted on January 10, 2011

but not actually filed until July 18, 2011, in addition to the Joint Motion to Reopen filed

by the Respondent and the Government on February 7, 2011, both will be denied by this

Court. When the voluntary departure period expired and the Respondent had not

departed, the penalties at INA § 240B(d) took effect and, under the regulations, the filing

of the Motions to Reopen after that expiration could not remove or modify those

penalties. As such, the Respondent is barred, for a period of ten years, to receive any

relief under Section 245 of the Act. Accordingly, the Court will not reopen the

Respondent's case to allow her to apply for adjustment of status, as she is ineligible to

adjust her status for the next ten years.

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CONCLUSION

Accordingly, the follo�ng Order shall be entered:

ORDER

It is hereby ORDERED that the Respondent's Motion to Reopen BE and IS

DENIED.

Date: (\,<;L, ';).. J 1 2 O I f

Dallas, Texas

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Deitrich H. Sims Immigration Judge

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