U.S.

Department of Justice
Executive Office for Immigration Review

Board of Immigration Appeals

Office of the Clerk
5107 Leesburg Pike, Suite 2000
Falls Church, Virginia 20530

OHS/ICE Office of Chief Counsel - LOS

Hanlon Law Group, P.C.

225 South Lake Ave., Suite 1100
Pasadena, CA 91101-0000

606 S. Olive Street, 8th Floor

Los Angeles, CA 90014

Name:ESTRELLADO,GRACE

A 089-056-676

Date of this notice: 11/19/2014

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

D CtVVU
Donna Carr
Chief Clerk

Enclosure

Panel Members:
Malphrus, Garry D.

Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished

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Hanlon, Daniel P., Esq.

U.S.-Department of Justice

Decision of the Board of Immigration Appeals

Executive Office for Immigration Review

Falls Church, Virgihia 20530

File: A089 056 676-Los Angeles, CA

Date:

NOV 19 2014

In re: GRACE ESTRELLADO

APPEAL
ON BEHALF OF RESPONDENT: Daniel P. Harilon, Esquire
APPLICATION:

Adjustment of status

The respondent appeals from the Immigration Judge's decision dated January 23, 2013,
finding her removable as charged, and denying her application for adjustment of status under
section 245(a) of the Immigration and Nationality Act, 8 U.S.C. 1255(a). The respondent's
appeal will be dismissed in part, and 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. 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. 1003.l(d)(3)(ii).
.

The Immigration Judge denied the respondent's request for a continuance and pretermitted
her application for adjustment of status because she did not have a visa currently available (I.J. at
4-6). The Immigration Judge found that the respondent could not utilize the January 10, 2006
priority date from her original I-140 visa petition, and that the priority date of her subsequent
I-140, which is January 3, 2011, was not current and was unlikely to become so for several years
(l.J. at 4-6). It is uncontested that the respondent's original I-140 visa petition wa5 withdrawn by
her employer on June 26, 2006 (I.J. at 5). The record also contains a notice of revocation from
the USCIC dated August 31, 2006 (Respondent's Brief, filed August 31, 2012, at Tab H).
We affirm the Immigration Judge's conclusion that the respondent may not utilize the
priority date from her original 1-140 visa petition because it was withdrawn and the USCIS
revoked it (I.J. at 5; Respondent' Brief at 5-7). Relying on 8 C.F.R. 204.5(e), the respondent
contends that she can retain the January 10, 2006, priority date from the previously approved
employment petition (Respondent's Brief at 6; Tr. at 21). Unfortunately for the respondent,
8 C.F.R. 204.5(e) provides that "[a] petition revoked under sections 204(e) or 205 of the Act
will not confer a priority date.'' As the USCIS revoked the original visa petition, 8 C.F.R.
204.S(e) does not permit the retention of that visa petition's January 10, 2006 priority date.
Section 205 of the Act, 8 U.S.C. 1155. Moreover, the Immigration Judge did not err in denying
a continuance given the DHS's opposition and the remoteness of the respondent's January 3,
2011 priority date at the time of the hearing. Matter ofHashmi, 24 I&N Dec. 785 (BIA 2009).
Nevertheless, during the pendency of the respondent's appeal, her January 3, 2011 priority
date has become current. We take administrative notice of the fact that the current State
Department Visa Bulletin provides June 1, 2012, as the cutoff date for 3rd preference

Immigrant & Refugee Appellate Center | www.irac.net

IN REMOVAL PROCEEDINGS

A089 056 676

eployment vias.1 See Matter of Rajah, 25 l&N Dec. 127, n. 6, 132 (BIA 2009). As the
Immigration Judge denied the respondent's adjustment of status application based on the absence
of an immediately available visa, and the respondent's priority date is now current, we will
remand the record to allow the respondent to pursue such relief from removal. 2 In doing so, we
express no opinion as to the ultimate resolution of the respondent's applications for relief.
Matter ofL-0-G-, 21 l&N Dec. 413, 422 (BIA 1996).

ORDER: The respondent's appeal is dismissed in part, and the record is remanded to the
Immigration Judge for further proceedings consistent with the foregoing opinion and for the
entry of a new decision.

FOR THE BOARD

1 Available at http://travel.state.gov/content/visas/english/law-and-policy/bulletin/2015/visa
bulletin-for-november-2014.html.
2

On appeal, the respondent argues that she remains eligible for adjustment of status under the
"no fault exception" at section 245(c) of the Act (Respondent's Brief at 8-11). The Immigration
Judge did not address the applicability of section 245(c), nor did she make any findings of fact
on such issue. As the Immigration Judge did not reach these issues, and we are remanding the
record, we decline to address the respondent's arguments.

Immigrant & Refugee Appellate Center | www.irac.net

Accordingly, the following order will be entered.

UN I TED STATE S DEPARTMEN T O F JU S T I CE

EXECUT IVE OFF I CE F O R IMM I G RA T I ON REV IEW
U N I TED S TA TE S IMM I G RA T ION C OU R T
L O S AN GELE S, CA L I F O RN IA

January 23,

A089-056-676

2013

In the Matter o f

GRACE E S T REL LADO

I N REM OVA L P R O CEED I N G S

RE SP ONDENT

CHARGE S:

Section 237(a) (1) (B) o f the Immigration and

Nationality Act as amended, in that a fter
admissio n as a non-immigrant under Section
lOl(a) (15) o f the A ct you have remained in the
United States for a time longer than permitted in
violation o f the laws o f the Un ited States.

APP L I CA T I ONS:

Adjustme nt o f status pursuant to Section 245(a)

and volu ntary departure pursuant to Section
240B(b) (1) .

ON BEHA L F OF RE SPONDEN T:
O N BEHALF OF O H S:

MARK C.

EVA L.

CARRA S C O

TOMINE S

ORAL DE C I S ION O F T HE IMM I G RA T I O N JUD GE

I N T R ODU CTION AND P R OCEDU RAL SUMMARY
Respondent is a female native o f the Philippines and a
citizen o f Canada.

United States Department o f Homeland

Immigrant & Refugee Appellate Center | www.irac.net

File:

Se curity (OH S)

has brought these removal pro ceedings against

respondent under the authority o f the

Pro ceedings were commen ced with

the filing o f the Noti ce to Appear ( N TA)

Court on August 18,

2009.

with the

See Exhibit 1.

Immigration

Respondent admits as

alleged in the NTA that she is not a citizen or national o f the

United States but is a native o f the Philippines and a citizen
o f Canada,

that she was admitted to the United States at

Van couver,

British Columbia on or about

July 25,

2007 as a non

immigrant TN NAF TA pro fessional with authorization to remain in

the United States for a temporary period not to ex ceed July 24,
2008,

but that she remained in the United States beyond that

date without authorization.

Respondent also con cedes that she

is removable pursuant to Se ction 237(a) (1) (B)

of the A ct, in

that a fter admission as a non-immigrant she has remained in the

United States for a time longer than permitted.

Based on

respondent's admissions and con cessions and other eviden ce of

re cord,

the Court finds respondent is removable as charged.

Respondent de clined to designate a country o f removal,

and

Canada was dire cted by the Court upon re commendation by the

Government.
Respondent has applied for relie f from removal in the
form of adjustment of status under Se ction 245(a)

o f the A ct.

In the alternative respondent has requested post-hearing

voluntary departure under Se ction 240B(b)

A089-056-676

o f the A ct.

January 23,

2013

Immigrant & Refugee Appellate Center | www.irac.net

Nationality A ct (A ct or INA) .

Immigration and

Respondent has requested no other relie f from removal.

At a

prior hearing the Court advised respo ndent that it did not

time be fore the Court,

for ad justment at this

but gave counsel an opportunity to br ie f

the issue regardi ng respondent's adjustment of status

eligibility.

Moreover, the Court advised both parties that it

would issue a written decisio n advising the parties o f its

i ntent in this regard.

By order d ated June 28,

201 2 the Court

advised both parties that the Court was i nclined to make a

finding that responde nt was not statutorily eligible for
adjustment of status and gave respondent up a nd to December 31,
201 2 to file a ny and all other relie f applicat io ns that she
w ished to pursue.
relie f,

The Court received no other applications for

and in court on today's date respondent through counsel

made it clear that she would be seeking no other ave nues o f

relie f.

The Court also advised respondent in the order dated

June 28th,

201 2 that i f she was going to seek prosecutorial

discretion from the Departme nt o f Homela nd Security,

so be done be fore the heari ng on today's date,
would not continue the case for this reason.
Ja nuary 4,

2013,

it should

as the Court
By motion dated

respo nde nt through counsel d id make a motion to

co ntinue for the sole purpose o f tryi ng to work out an agreement

for prosecutorial discretio n with Government Cou nsel.
dated January 7,

2013,

that request was denied,

was warned that no co nt inuances would be granted

A089-056-676

By order

as respondent
for that

January 23,

2013

Immigrant & Refugee Appellate Center | www.irac.net

believe that she was going to be eligible

reason.

On the hearing on January 23,

2013 the Court did

inquire of both parties regarding the request for prosecutorial

as it did advise the parties that if a joint

agreement had been made and was ready to be signed on today's

date that the Court would entertain such a motion.
Government Counsel and respondent's counsel,

no

joint agreement

According to Government Counsel,

had been reached.

According to

respondent's

request for prosecutorial discretion had been reviewed and had

been declined.
LAW,

ANALYSIS, AND FINDINGS OF THE COURT

The status of an alien who was inspected and admitted

or paroled into the United States may be ad justed to that of an
alien lawfully admitted for permanent residence if she applies
for adjustment,

is eligible to receive an immigrant visa, and is

admissible to the United States for permanent residence, and an

immigrant visa is immediately available to her at the time her
application is filed.

INA Section 245 (a) .

In the instant case

respondent is seeking ad justment of status based on an approved

I-140 labor visa.
into the record,

However,

based on the documents submitted

it appears that respondent's

a priority date of January 3,

2011.

I-140 approval has

This is approval as a

skilled worker or professional under Section 203 (b) (3) (A) (i) ( I I)
of the Act.

Reviewing the current visa bulletin for January,

it

appears that visa numbe rs are o nly current for individuals who
have a priority date before February 1,

A089-056-676

2007.

Looking forward

January 23,

2013

Immigrant & Refugee Appellate Center | www.irac.net

discretion,

by one month to the February 2013 visa bulletin,

the category jumps to March 15,

Given that respondent's

at least four years away,

it is

clear that respondent does not have a visa immediately

available,

and because respondent does not have a visa

immediately available,

she is currently ineligible to adjust her

status before the Court.

Respondent contends, however,

that she

should be allowed to capture a prior visa that was filed on her

behalf back in 2006.

Now it is clear from the documents of

record that respondent had an original I-140 filed on her behalf

with a priority date of January 10,

2006.

was withdrawn by her employer on June 26,

contested.

However, this I-140

2006,

and that is not

This prior I-140 is also through a different

petitioner, that being Quality Registry Inc.,

whereas

respondent's current approved I-140 is through Sherman Oaks

Hospital.

Respondent has provided no legal support that she is

entitled to capture the prior priority date of the I-140 which

has been withdrawn and is no longer valid.

Although respondent

makes arguments that the prior January 2006 priority date should
be captured as a matter of equity, the Court finds that it has
no authority to do so under the law.

The

Immigration Court is

not a Court of equity but is in fact a Court of law and

regulation, and because respondent is unable to point to any
specific regulation or provision of the Act or case law which
allows for the capturing of a prior priority date based on a

A089-056-676

January 23,

2013

Immigrant & Refugee Appellate Center | www.irac.net

priority date is not until 2011,

2007.

it appears that

separate labor cert if icat ion f iled by a separate employer wh ich

has been w ithdrawn to be attached to a new approved labor

have the author ity to do so.

And therefore,

the January 2006

pr ior ity date cannot be used to make respondent's imm igrant v isa
currently ava ilable to her.

As such,

the Court f inds that

respondent is not el ig ible to ad just her status under Sect ion

245 (a)

of the Act and must deny that requested rel ief.

Respondent has requested post-hear ing voluntary

departure in the alternat ive.

To establ ish el ig ib il ity for

voluntary departure, respondent must prove that she has been

phys ically present

in the n ited States for at least one year

immed iately preced ing serv ice of the N T A,

is and has been a

person of good moral character for at least f ive years

immed iately preced ing her appl icat ion for voluntary departure,
has not been conv icted of an aggravated felony or removal for a
secur ity-related ground,

and has establ ished by clear and

conv inc ing ev idence that she has the means to depart the Un ited
States and intends to do so.
Act.

See

INA Sect ion 240X (b) (1)

of the

Respondent has establ ished her el ig ib il ity for post

hear ing voluntary departure and the Court sees no reason as a

matter of discret ion to deny such request.

Therefore,

respondent's request for post-hearing voluntary departure w ill

be granted.

A089-056-676

January 23,

2013

Immigrant & Refugee Appellate Center | www.irac.net

cert if icat ion from a new employer, the Court f inds it does not

ORDERS

IT I S HEREBY O RDERED that respondent's request for

of the Act be

denied.
IT I S FUR THE R O RDERED that respondent's request for
voluntary departure in lieu of removal without expense to the
United States Government be granted.
IT I S FU R T HE R O RDERED that respondent shall post a
voluntary departure bond in the amount of $500 with the
Department of Homeland Security on or before January 30,

2013.

IT I S FURT HER O RDE RED that respondent shall depart

from the United States no later than March 25,

2013.

IT I S FU R T HE R O RDERED that if respondent fails to

comply with any of the above orders,

the voluntary departure

order shall without further notice or proceedings vacate the

next day and respondent shall be removed from the United States
to Canada on the charge contained in the Notice to Appear.

TARA NA SEL OW- N A HA S

Immigration Judge

A089-056-676

January 23,

2013

Immigrant & Refugee Appellate Center | www.irac.net

ad justment of status pursuant to Section 245 (a)