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

Law Offices of Andres Bustamante

634 S. Spring St., Suite 910
Los Angeles, CA 90014

606 S. Olive Street, 8th Floor

Los Angeles, CA 90014

Name: CHODAKOWSKY, GREGORIO

A 072-228-232

Date of this notice: 11/20/2014

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

DC11.lt4- caAA.J
Donna Carr
Chief Clerk

Enclosure

Panel Members:
Miller, Neil P.

Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: Gregorio Chodakowsky, A072 228 232 (BIA Nov. 20, 2014)

Immigrant & Refugee Appellate Center | www.irac.net

Bustamante, Andres

 ..

..

U.S. Department of Justice

Decision of the Board of Immigration Appeals

Executive Office for Immigration Review

Falls Church, Virginia 20530

File:

Date:

A072 228 232 - Los Angeles, CA

HOV .20 2014

In re: GREGORJO CHODAKOWSKY

MOTION
ON BEHALF OF RESPONDENT:

This case was last before

Andres Z. Bustamante, Esquire

us

on June 2, 2014, at which time we dismissed the

respondent's appeal from the Immigration Judge's March 1, 2013, decision finding him
removable as charged and ordering him removed from the United States to Argentina.

The

respondent has filed a timely motion to reopen proceedings on September 2, 2014.

The

Department of Homeland Security has not responded to the motion, which will be granted. The
respondent's request for a stay of removal is, likewise, granted.
A motion to reopen shall not be granted unless it appears that the evidence sought to be
offered "was not available and
hearing."

See 8 C.F.R.

could not

1003.2(c)(l).

have been

discovered or presented at the former

Further, this Board has held that a party who seeks to

reopen proceedings to pursue a discretionary grant of relief from removal bears a "heavy burden"
of demonstrating that if his motion to reopen were granted, the new evidence presented would
likely change the result in the case.

Matter of Coelho,

20 l&N Dec. 464 (BIA

1992).

In support of his motion, the respondent has submitted, inter alia, evidence that his

United States citizen wife has obtained an approved Form 1-130 petition on his behalf.
respondent has also submitted a Form 1-485, a Form 1-601, a declaration, and
support.

an

The

affidavit of

The respondent argues that, based on the United States Court of Appeals recent

decision in

Negrete-Ramirez v. Holder,

741 F.3d 1047

(9th Cir. 2014), a remand is warranted to

allow him to apply for adjustment of status in conjunction with an application for a waiver of
inadmissibility pursuant to section 212(h) of the Act.
Given the lack of DHS opposition, along with the respondent's showing of prima facie
eligibility for adjustment of status in conjunction with a waiver of inadmissibility, we will grant
1
the respondent's motion for further proceedings.
Upon remand, both parties may present
further evidence regarding the respondent's eligibility and discretionary worthiness for relief
under sections 245(a) and 212(h) of the Act.

We find the respondent's challenge to the applicability of

Matter of Jean,

23 I&N Dec. 373

(A.G. 2002), premature. However, we do note that ifthe Immigration Judge determines that the
severity of the respondent's conviction warrants a showing of hardship, he has produced prima
facie evidence of hardship with his motion to reopen proceedings.

Cite as: Gregorio Chodakowsky, A072 228 232 (BIA Nov. 20, 2014)

Immigrant & Refugee Appellate Center | www.irac.net

IN REMOVAL PROCEEDINGS

A072 228 232

ORDER: The motion is granted, and the record is remanded to the Immigration Court for

further proceedings consistent with the foregoing decision.

... (){) )..._-__

FOBOARD

Cite as: Gregorio Chodakowsky, A072 228 232 (BIA Nov. 20, 2014)

Immigrant & Refugee Appellate Center | www.irac.net

:a.