U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office ofthe Clerk
5107 Leesburg Pike, Suite 2000
Falls Church. Virginia 22041

OHS/ICE Office of Chief Counsel BTV

130 Delaware Avenue, Room 203
Buffalo, NY 14202

Name:GRANT,DUANE

A 099-743-627

Date of this notice: 9/9/2016

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

Oonru.,

Cf1./VL)

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Pauley, Roger

Userteam: Docket

Rf-""l'."fVt=:O visit
SEP 12 2016
For more unpublished BIA decisions,
www.irac.net/unpublished/index/

Cite as: Duane Grant, A099 743 627 (BIA Sept. 9, 2016)

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McLean, Siana Jody

Tully Rinckey, PLLC
5488 Sheridan Drive
Suite 500
Buffalo, NY 14221

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U.S. Department of Justice

Executive Office for Immigration Review

Decision of the Board oflmmigration Appeals

Falls Church, Virginia 22041

File: A099 743 627 - Batavia, NY

Date:

SEP - 9 2016

In re: DUANE GRANT a.k.a. Duane J. Grant a.k.a. Duane Jacque Reynaldo Grant

APPEAL AND MOTION

ON BEHALF OF RESPONDENT: Siana J. McLean, Esquire
APPLICATION: Reconsideration; continuance

The respondent timely moves the Board pursuant to 8 C.F.R. 1003.2(b) to reconsider its
July 8, 2016, decision dismissing his appeal of the Inunigration Judge's decision and denying his
request for a remand. The Department of Homeland Security ("DHS") has not responded to the
motion. The motion will be granted and the record will be remanded.
Upon review of the entirety of the record and arguments presented in the respondent's
motion, we deem it appropriate to reconsider and vacate our July 8, 2016, decision pursuant to
our sua sponte authority under 8 C.F.R. 1003.2(a). We will again consider the respondent's
appeal as follows.
On appeal, the respondent argues that a remand is warranted for further consideration of his
request for a continuance and administrative closure to await the adjudication of his U-visa
petition and corresponding waiver application. Specifically, he argues that the Immigration
Judge did not consider the factors laid out by the Board in Matter of Sanchez Sosa,
25 I&N Dec. 807 (BIA 2012). Upon review of the respondent's brief and the administrative
record, we find it appropriate to reconsider our prior order and remand this matter to the
Immigration Judge. In his decision, the Inunigration Judge considered the fact that the DHS
opposed a continuance based on the "imposition on the government to keep the respondent
detained until the U visa application could be adjudicated sometime after October of this year"
and also relied on the fact that the respondent was convicted of a drug offense that would
constitute an aggravated felony (I.J. at 2-3). However, the Immigration Judge did not consider
whether the underlying visa petition is likely to be approved.
Accordingly, we conclude that remand of the record is necessary to allow the Immigration
Judge an opportunity to further evaluate the respondent's continuance request and to specifically
apply all relevant Matter ofSanchez Sosa, supra, factors. In addition, upon remand, the
Immigration Judge should also reevaluate the propriety of administrative closure. See
Matter ofAvetisyan, 25 I&N Dec. 688 (BIA 2012). In assisting the Immigration Judge in

Cite as: Duane Grant, A099 743 627 (BIA Sept. 9, 2016)

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IN REMOVAL PROCEEDINGS

A099 743 627

addressing these issues and issuing a new decision, the parties should be afforded an opportunity
to supplement the record. 1
Accordingly, the following orders will be entered.

FURTIIER ORDER: The Board's decision dated July 7, 2013, is vacated, and the appeal is
reinstated.
FURTHER ORDER: The record is remanded to the Immigration Court for further
proceedings consistent with the foregoing opinion and the entry of a new decision.

The respondent submitted the receipt notices from USCIS for his U visa application and
corresponding waiver of his inadmissibility (Respondent's Br. at Attachments).

2
Cite as: Duane Grant, A099 743 627 (BIA Sept. 9, 2016)

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ORDER: The motion to reconsider is granted.

U.S. Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals
Office ofthe Clerk
5107 Leesburg Pike, Suite 2000
Falls Church, Virginia 22041

DHS/ICE Office of Chief Counsel - BTV

130 Delaware Avenue, Room 203
Buffalo, NY 14202

Name: GRANT, DUANE

A 099-743-627
Date of this notice: 7/8 /2016

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

DOYlftL C

t1AA)

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Pauley, Roger

Userteam: Docket

Immigrant & Refugee Appellate Center, LLC | www.irac.net

Mclean, Siana J., Esq.

Tully Rinckey, PLLC
5488 Sheridan Drive
Suite 500
Buffalo, NY 14221

U.S. Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals
Office of the Clerk
5/07 Leesburg P;ke, Suite 2000
Falls Church, Virginia 22041

DHS/ICE Office of Chief Counsel - BTV

130 Delaware Avenue, Room 203
Buffalo, NY 14202

Name: GRANT, DUANE

A 099-743-627
Date of this notice: 7/8/ 2016

Enclosed is a copy of the Board's decision in the above-referenced case. This copy is being
provided to you as a courtesy. Your attorney or representative has been served with this
decision pursuant to 8 C.F.R. 1292.S(a). If the attached decision orders that you be
removed from the United States or affirms an Immigration Judge's decision ordering that you
be removed, any petition for review of the attached decision must be filed with and received
by the appropriate court of appeals within 30 days of the date of the decision.
Sincerely,

DorutL cl1IVu
Donna Carr
Chief Clerk
Enclosure
Panel Members:

Pauley, Roger

Userteam:

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GRANT, DUANE
A099-743-627
C/0 DHS-BFDF
4250 FEDERAL DRIVE
BATAVIA, NY 14020

U.S. Department of Justice

Decision of the Board of Immigration Appeals

Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A099 743 627 - Batavia, NY

Date:

JUL - 8 2016

In re: DUANE GRANT a.k.a. Duane J. Grant a.k.a. Duane Jacque Reynaldo Grant

APPEAL
ON BEHALF OF RESPONDENT: Siana J. McLean, Esquire
In an oral decision dated March 24, 2016, an Immigration Judge denied the respondent's
request for a continuance; denied his request for administrative closure; found him removable;
and ordered him removed from the United States to Jamaica. The respondent appealed from that
decision. The appeal will be dismissed.
The respondent was found removable on both charged grounds, as convicted of a controlled
substance violation under section 212(a)(2)(A)(i)(II) of the Immigration and Nationality Act,
8 U.S.C. 1182(a)(2)(A)(i)(II), and as present without being admitted or paroled under section
2I2(a)(6)(A)(i) of the Act. 1 He did not apply for any removal relief before the Immigration
Judge. As substantiated by conviction documents, he has a March 14, 2007, New York
conviction upon a guilty plea for criminal sale of a controlled substance in the fifth
degree/cocaine. For that crime, he was sentenced to imprisonment of 6 months and probation of
5 years. (Ex. 2).
On appeal, the respondent maintains that the Immigration Judge should have granted him an
additional continuance of his removal proceedings because he wished to pursue an application
for a nonimmigrant visa application in the U category, pursuant to section 101(a)(l S)(U) of the
Act, 8 U.S.C. I l 01(a)(15)(U). He also contends that, alternatively, the Immigration Judge
should have granted his request to administratively close his proceedings, for the same reason.
The U visa classification is available from the Department of Homeland Security ("DHS") to
qualified alien victims of designated criminal activities who assist with the investigation or
prosecution of the qualifying criminal activities. To establish prima facie eligibility for a U visa,
the respondent must supply, among other documents, a law enforcement certification ("LEC")
from the appropriate law enforcement authorities. See Matter ofSanchez Sosa, 25 I&N Dec. 807
(BIA 2012); see also 8 C.F.R. 214.14(c)(2). The record includes a LEC obtained by the
respondent from the Nassau County Police Department in New York on January 30, 2016.
The decision to grant or deny a continuance is within the discretion of the Immigration
Judge, and good cause must be shown for a continuance. See Matter ofPerez-Andrade, 19 I&N
Dec. 433 (BIA 1987); Matter of Sibrun, 18 I&N Dec. 354 (BIA 1983); 8 C.F.R. 1003.29.
1

The section 212(a)(6)(A)(i) charge is set forth in the Notice to Appear served upon the
respondent on October 19, 2015, and the section 212(a)(2)(A)(i)(II) charge is contained in
the Form I-261 charging document issued on November 20, 2015.

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IN REMOVAL PROCEEDINGS

. A099 743 627

With respect to administrative closure, that procedure is used to temporarily remove

a case from an Immigration Judge's active calendar or from the Board's docket. See Matter
ofGutierrez, 21 I&N Dec. 479,480 (BIA 1996); see also Matter ofAvetisyan, 25 I&N Dec. 688,
692 (BIA 2012). The administrative closure of a case does not result in a final order. It is merely
an administrative convenience that allows cases to be removed from the calendar in appropriate
situations, subject to being recalendared at a later date. See Matter ofAmico, 19 I&N Dec. 652,
654 n. 1 (BIA 1988).
In Matter of Avetisyan, supra, the Board held that, in determining whether administrative
closure of proceedings is appropriate, an Immigration Judge or the Board should weigh all the
relevant factors presented in the case. These factors include, but are not limited to: (1) the reason
administr.ative closure is sought; (2) the basis for any opposition to administrative closure; (3) the
likelihood the respondent will succeed on any petition, application, or other action he or she is
pursuing outside of removal proceedings; (4) the anticipated duration of the closure; (5) the
responsibility of either party, if any, in contributing to any current or anticipated delay; and
(6) the ultimate outcome of removal proceedings (for example, termination of the proceedings or
entry of a removal order) when the case is recalendared before the Immigration Judge or the
appeal is reinstated before the Board. See id. at 695. In the present case, we agree with
the Immigration Judge's decision to deny the respondent's request for administrative closure.
Notably, the time frame within which a U visa application by the respondent would be
adjudicated by the DHS was uncertain, and the DHS opposed administrative closure. (1.J. at 2;
Tr. at 34). Moreover, the respondent did not establish that he was prima facie eligible for
adjustment of status or any relief from removal, even if he were to obtain a U visa. Cf. Matter of
Montiel, 26 l&N Dec. 555 (BIA 2015) (holding that removal proceedings may be delayed, where
warranted, pending the adjudication of a direct appeal of a criminal conviction).
The record does not reflect that any waiver application has been approved or even filed for
the respondent. With respect to section 212(h) of the Act, that provision is available to waive
section 212(a)(2)(A)(i)(II) inadmissibility only insofar as it relates to a single offense of simple
possession of 30 grams or less of marijuana. The respondent is ineligible for section 212(h)
relief because his 2007 conviction is for a cocaine trafficking offense. With respect to a waiver
under former section 212(c) of the Act, he is ineligible for that relief because he is not a lawful
permanent resident. Even if he were a lawful permanent resident, his 2007 conviction is too
recent to qualify for section 212(c) relief, pursuant to the circumstances delineated in Matter
ofAbdelghany, 26 l&N Dec. 254 (BIA 2014). In the absence of a waiver grant, the respondent
2

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In this case, the respondent was afforded five prior continuances in his removal proceedings,
from November 5, 2015, until December 3, 2015; from December 3, 2015, until December 22,
2015; from December 22, 2015, until January 7, 2016; from January 7, 2016, until January 28,
2016; and from January 28,2016,until March 24,2016. The first two continuances were granted
so that the respondent could locate an immigration attorney to represent him, and the latter three
continuances were given for the purpose of attorney case preparation. At the sixth and final
hearing on March 24, 2016, the attorney informed the Immigration Judge that the respondent
wanted to pursue the U visa application. On appeal, the respondent states that his U visa
application is still pending with the DHS. Under these circumstances, we find that the
Immigration Judge acted appropriately in not allowing a sixth continuance.

 A099 743 627

remains inadmissible under section 212(a)(2)(A)(i)(II) of the Act and ineligible for adjustment
of status, even if a visa petition were approved for him. See section 245 of the Act, 8 U.S.C.
1255; INS v. Abudu, 485 U.S. 94 (1988). 2

The respondent has a wife and two children who are United States citizens. To the extent
that the respondent seeks humanitarian relief to enable him to remain in the United States with
his family members, this Board and the Immigration Judges have limited jurisdiction and
can grant only those forms of relief from removal that are expressly authorized by Congress. See
Matter ofMedina, 19 l&N Dec. 734 (BIA 1988). We have no power to grant equitable remedies
or to confer general humanitarian relief on aliens. If the respondent wishes to obtain relief on
humanitarian grounds, he must pursue such relief with the DHS.
Finally, the respondent has asked for a remand. (Br. at 7). We do not find that a remand is
necessary in this case, and we deny the remand request.
Accordingly, we will dismiss the appeal.

ORDER: The appeal is dismissed.

<=-At

FORTHEBOARD

The respondent, who is now married to a United States citizen, was the beneficiary of an
approved visa petition as the unmarried son of a lawful permanent resident, which was approved
on April 19, 2005, with a priority date of April 27, 2001. See United States Department of State
Visa Bulletin, Vol. IX, No. 94 (July 2016) (reflecting relevant current priority dates for family
second preference petitions of November 15, 2014, and earlier). (Ex. 3).

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Next, the respondent contends that his removal proceedings were unfair. We find that he has
not demonstrated any error by the Immigration Judge in handling his hearings, under the
circumstances of this case. We also find that he has not demonstrated any resultant prejudice
such as would affect the outcome of his case and would amount to a due process violation. See
Waldron v. INS, 17 F.3d 511 (2d Cir. 1994), cert. denied, 513 U.S. 1014 (1994).

. ...

March 24, 2016

File: A099-743-627
In the Matter of
)
)
)
)

DUANE GRANT
RESPONDENT

IN REMOVAL PROCEEDINGS

CHARGES:

Section 212(a)(6)(A)(i) of the Immigration and Nationality Act (the

Act) - an alien present in the United States without having been
inspected and then either admitted or paroled; Section
212(a)(2)(A)(i)(II) of the Act - an alien who has been convicted of a
controlled substance violation.

APPLICATIONS:

Continuance of proceedings or administrative closure of

proceedings to allow an adjudication of a U-visa.

ON BEHALF OF RESPONDENT: Shauna J. McClain, Esquire

ON BEHALF OF DHS: Michael Drayer, Esquire

ORAL DECISION OF THE IMMIGRATION JUDGE

The respondent is a male native and citizen of Jamaica. He is charged
with being removable from the United States, as set forth above, pursuant to a Notice to
Appear dated October 19th, 2015 (Exhibit Number 1) as supplemented by a form 1-261,
additional charges of inadmissibility dated November 20th, 2015.

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Immigrant & Refugee Appellate Center, LLC | www.irac.net

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
BATAVIA, NEW YORK

Although the attorney for the respondent had previously denied that the

and cannot establish an entry, so she now concedes removability under that charge of
removal. The attorney for the respondent had conceded the respondent's removability
for a controlled substance conviction, and that conviction is supported by the
government's evidence submission 1 Exhibit Number 2, which was received into
evidence without objection .
Based upon the pleadings of the respondent through counsel, along with
my review of Exhibit Number 2 in these proceedings, I find that the respondent is
removable from the U nited States on both charged grounds of removability by evidence
which is clear and convincing.
The only form of relief that the respondent is seeking in these proceedings
is to be allowed to have his prima facie approve! able U-visa adjudicated, which would
if approved provide relief to the respondent. The government's [sic] respondent's
counsel has correctly pointed out that there is a precedent Board decision which allows
an immigration judge to grant an administrative closure of these proceedings even over
government objection to allow this. That is not required, however.
In this case the attorney for the government argues that it will be a
substantial period of time before the U-visa can be adjudicated, because the quotas on
the U-visas have been reached and there will not be additional visas available at least
until the beginning of the next fiscal year in October. The government's counsel also
argues that the respondent is subject to mandatory custody based upon his drug
conviction, and that either a continuance or an administrative closure would result in a
substantial expense to the government in housing the respondent until the U -visa is
adjudicated.
A0 9 9 - 7 4 3 - 6 2 7

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,ams.&Gh

March 2 4 , 2 0 1 6

Immigrant & Refugee Appellate Center, LLC | www.irac.net

respondent had not made a lawful entry into the United States she had investigated it

'

The court would also note that although the respondent has been
convicted of a drug offense in an exclusionary context, that offense, since it involves

drug trafficking crime under Section 101(a}(43}(8) of the Act. As the attorney general
has held, the drug trafficking convictions tend to be particularly serious unless there are
circumstances shown to alleviate that.
Given the foregoing, the court feels that it would be an imposition on the
government to keep the respondent detained until the U-visa could be adjudicated
sometime after October of this year. Given that.:_ and the respondent's conviction for an
aggravated felony, the court will deny the motion for a continuance or a motion for
administrative closure.
Based upon the foregoing, the following orders of the court shall enter:
ORDERED The respondent's request for a continuance or administrative
closure is hereby denied;
FURTHER ORDERED The respondent is ordered removed from the
United States to Jamaica on both charged grounds of removability.

Please see the next page for electronic

signature

A0 9 9 - 7 4 3- 6 2 7

JOHN 8. REID
Immigration Judge

March 2 4 , 2 0 1 6

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sale of cocaine in the fifth degree would be, for relief purposes, an aggravated felony

/Isl/
Immigration Judge JOHN B . RE I D

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A0 9 9 - 7 4 3 - 6 2 7

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