1 17-3967 Cortes-Gomez v. Barr



### UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROC EDURE 32.1 AND THIS COURT = S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPEND IX OR AN ELECTRONIC DATAB ASE (WITH THE NOTATION

A SUMMARY ORDER @ ). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Cour t of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courth ouse, 40 Foley Square, in the City of New York, on the 3 rd day of April, two thousand nineteen.

PRESENT: J OSÉ A. C ABRANES

, C HRISTOPHER F. D RONEY

, R ICHARD J. S ULLIVAN

, Circuit Judges

.

___________________ __________________

A NTONIO C ORTES -G OMEZ

,

Petitioner

,

v. 17-3967

W ILLIAM B ARR

, U NITED S TATES A TTORNEY G ENERAL

,

Respondent

. *

___________________ __________________

FOR PETITIONER: Jorge Guttlein , Jorge Guttlein & Associates, P.C., New York, NY.

* The Clerk of the Court is directed to amend the caption as shown above.2 FOR RESPONDENT: Leslie McKay, Senior Litigation Counsel, Office of Immigration Litigation (Terri J. Scadron, Assistant Director, on the brief) for Chad A. Readler, Acti ng Assistant Attorney General, Civil Division, Washington D.C.

UPON DUE CONSIDERATION of this petition for review, it is hereby ORDERED, ADJUDGED, AND DECREED that the petition is gr anted, and the BIA’s order denying the motion to remand is VACATED

.

Petitioner Antonio Cortes -Gomez seeks review of a N ovember 27, 2017 decision of the Board of Immigration Appeals (“BIA”) denying his motion for remand and dismissing his appeal of a June 21, 2017 deci sion of an Immigration Judge (“IJ”). In re Antonio CortesGomez, No. A 208 909 864 (B.I.A. Nov. 27, 2017), aff’g No. A 208 909 864 (Immig. Ct. N.Y. City June 21, 2017). For the reasons explained below, we vacate the BIA’s decision
as to Cortes-Gomez’s motion for remand and remand for further proceedings consistent
with this order.

Background

Petitioner Antonio Cortes-G omez is a Mexican native a nd citizen who entered the United States in 1995. Ten years later, Cortes -Gomez was the victim of a hate crime in Brooklyn, New York, which he helped solve by cooperating with the Ki ngs County District Attorney’s Office.

On February 3, 2017, Cortes-Gomez was arrested by Immigration and Customs Enforcement on suspicion that he was unlawfully present in the United States and was served with a Notice to Appear before an I mmigration Judge. Cortes-Gomez first appeared before an IJ on April 10, 20 17. Although he co nceded removability before the IJ, he requested a continuance to pursue a U nonimmigrant visa. 1 The IJ granted his request and continued proceedings for five weeks. At his second hearing, Cortes-Gomez again requested a continuance. He explained that obtaining records of his cooperation during the investigation of the 2005 cr ime proved difficult—the reco rds were sealed because the

1 A U visa is available to an alien who “has suffered s ubstantial physical or mental abuse as a result of having been a victim of criminal activity[,] . . . possess es information concerning criminal activity . . . [and] . . . has been helpful, is being helpful, or is likely to be helpful to a Federal, State, or local law enforcement official,” prosecutor, judge, or other authority prosecuting criminal activity. Victims of Trafficking and Violence Protection Act of 2000, Title V, Pub. L. No. 106-386, 114 Stat. 1464 (codified at 8 U.S.C. § 1101(a)(15)(U)(i)); see Matter of Sanchez Sosa, et al. , 25 I. & N. Dec. 807, 809 (BIA 2012). Congress created the program to “strengthen the ability of la w enforcement agencies to detect, investigate, and prosecute cases of domestic violence, sexual assault, trafficking of aliens, and other crimes . . . while offering protection to victims of such offenses in k eeping with the humanitarian interests of the United
States.” Victims of Trafficking and Violence Protection Act of 2000, § 1513.3 perpetrator was a minor at the time of the crim e and unsealing them required an order of a New York state court. The IJ again grante d Cortes-Gomez a 30-day continuance but warned that he had “to move awfully quickly” because although the IJ was “sympathetic
to him as a result of the hate crime . . . at some point, . . . [Cortes-Gomez] might be looking at a removal order.” App’x 43.

At his third hearing before the IJ, in Ju ne 2017, Cortes-Gomez explained that his
motion to unseal records relate d to the 2005 crime was still pe nding in state court, but the Kings County DA’s office was assisting in the process. He explained that he expected a
decision on his motion within th e next week or two and reque sted a third continuance. The IJ denied his request, finding that Cortes-G omez’s U visa application was “speculative” and there was “no quick end in sight” to the proceeding. App’x 48. Fr om the time CortesGomez received the Notice to App ear until the IJ denied his thir d request for a continuance, fewer than five months had passed.

Cortes-Gomez appealed the IJ’s decision to the BIA, challenging the IJ’s denial of his third request for a continuance and seeki ng remand “to allow [him] to apply for U nonimmigrant status as relief from removability.” App’x 24. In support of his motion for remand, Cortes-Gomez argued that he was now prima facie eligible for a U visa because he had provided new evidence show ing that he received U visa certification from the Kings County DA’s office on July 20, 2017, and submitted his comp leted U visa application to the United States Citizenship and Immigration Services (“USCIS”).

On November 27, 2017, the BIA deni ed Cortes-Gomez’s appeal. The Board determined that although “[a] n alien who has filed a prima facie approvable visa petition for a U nonimmigrant visa with the USCIS will ordinarily warra nt a favorable exercise of
discretion for a continuance for a reasonable period of time,” no continuance was warranted
because Cortes-Gomez had “not established th at any continua nce would be for a reasonable period of time or that he is likely to be granted a U visa based on his record.” App’x 2. The BIA also found that the twelve-year delay between the 2005 hate crime and CortesGomez’s filing of a U visa application su pported its decision. Cortes-Gomez timely appealed to this Court.

Discussion

Cortes-Gomez raises two issues on appea l: (1) whether the BIA erred by finding the
IJ did not abuse his discretion by denying Cortes-Gomez’s thir d request for a continuance; and (2) whether the BIA erre d by denying his motion for a remand in light of his new
evidence.

We review the denial of motions for c ontinuance and remand for consideration of
new evidence for abuse of discretion. See Sanusi v. Gonzales , 445 F.3d 193, 199 (2d Cir. 2006) (continuance); Cao v. U.S. Dep’t of Justice , 421 F.3d 149, 157 (2d Cir. 2005)4 (remand). An IJ and the BIA abuse their disc retion “in those circumstances where [their] decision provides no rational explanation, ine xplicably departs from established policies, is devoid of any reasoning, or contains only summary or conclu sory statements; that is to say, where [they] ha[ve] acted in an arbitrary or capricious manner.” Zhao v. U.S. Dep’t of
Justice , 265 F.3d 83, 93 (2d Cir. 2001) (internal c itations omitted). In addition, “[t]he BIA
abuses its discretion if its deci sion rests on an error of law.” Freire v. Holder , 647 F.3d 67, 69 (2d Cir. 2011) (internal quotation marks omitted).

I.

We first consider the BIA’s dismissal of Cortes-Gomez’s appeal of the IJ’s denial of his request for a third continuance. Unde r 8 C.F.R. § 1003.29 an “Immigration Judge may grant a motion for continuance for good cause shown.” In determining whether good cause exists to continue removal proceeding s pending a U visa a pplication, IJs should consider: “(1) the DHS’s response to the moti on; (2) whether the underlying visa petition is prima facie approvable; and (3) the reason for the continuance and other procedural
factors.” Matter of Sanchez Sosa , 25 I. & N. Dec. 807, 812-13 (BIA 2012). Regarding the second factor, the filing of a “a prima facie ap provable application w ith the USCIS,” which
includes law enforcement certification of eligibility(“LEC”) generally warrants “a
favorable exercise of discretion for a con tinuance for a reasonable period of time.” Id. at 815. A petitioner who has not received law en forcement certification “[o]rdinarily[] . . . would not be able to show good cause” for a c ontinuance in the absenc e of other compelling
circumstances. Id. at 814.

Applying this standard, we find that the BIA did not err in dete rmining that the IJ did not abuse his discretion in denying Cortes-G omez’s third request for a continuance. At the time of his third request, Cortes-Gom ez had not yet received law enforcement certification, and thus, the IJ properly foun d that he had not sh own good cause for a
continuance. Id.

II.

We reach a different conclusion with resp ect to the BIA’s denial of Cortes-Gomez’s motion for remand. “A motion to remand that relies on newly available evidence is held to the substantive requirements of a motion to reopen.” Cao , 421 F.3d at 156. 2 Thus, the BIA will not ordinarily grant a motion to remand ra ising new evidence “ unless the movant has met the heavy burden of demonstrating a likelih ood that the new evidence presented would
alter the result in the case.” Id. (internal quotation marks omitted). 3

2 The government acknowledges that this is the appropria te standard for reviewing Cortes-Gomez’s motion.

3 Other factors that counsel in favor of denying a motion to remand premised on new evidence are “(1) the movant’s failure to make a prima facie cause of elig ibility for asylum; (2) the movant’s failure to . . . articulate material, previously unavailable evidence that would be introduced at a new hearing; or (3) a5 Here, the specific form of relief that Co rtes-Gomez requested before the IJ was a
continuance in order to obta in a U visa. Therefore, when reviewing Cortes-Gomez’s request for a remand to the IJ, the BIA was required to determine whether Cortes-Gomez’s new evidence—i.e., his law enforcement certifi cation and the completed visa application
he submitted to the USCIS—dem onstrated a likelihood of alteri ng the result of the IJ’s decision not to grant a continuance. See id.

As we have explained, an IJ’s decisi on with respect to a continuance motion depends on several factors, including “(1) th e DHS’s response to th e motion; (2) whether the underlying visa petition is prima faci e approvable; and (3) the reason for the
continuance and other procedural factors.” Matter of Sanchez Sosa , 25 I. & N. Dec. at 812- 13. When, as here, the DHS opposes the conti nuance, “the focus of the inquiry is the
likelihood of success on the [U] visa petition.” Id. at 813 (internal quotation marks omitted). This inquiry, in turn , “relates to the [petitioner’s] prima facie elig ibility for the U
visa” since “there is a rebutta ble presumption that an alien who has filed a prima facie approvable applica tion with the USCIS will warrant a fa vorable exercise of discretion for a continuance for a reasonable period of time,” id. at 813, 815. Nevertheless, this presumption may be rebutted based on “procedural factors, such as “the length of time the [U visa] application has been pending [and] the number of pr ior continuances that the [IJ] has provided.” id. at 813, 814-15.

In this case, the BIA abused its discretion by (1) misapplying the legal principles set
forth in Sanchez Sosa and (2) providing conclusory an d unclear reasons for its decision.
See Freire , 647 F.3d at 69; Zhao , 265 F.3d at 93. Specifica lly, although the BIA properly recognized that “[a]n alien wh o has filed a prima facie appr ovable visa petition for a U nonimmigrant visa with the USCIS will ordi narily warrant a favorable exercise of
discretion for a continuance for a reasonable period of time,” the BIA concluded that Cortes-Gomez had “not established [1] that any continuance would be for a reasonable period of time or [2] that he is likely to be granted a U visa ba sed on his record.” App’x 2. The BIA further explained that it found remand “inappropriate” because of the twelve-year delay between the underlying hate crime and Cortes-Gomez’s filing of his U visa application. Id.

With respect to the BIA’s first reason, a liens are not required to demonstrate that the continuance they seek will be for a reasonable period of time. Rather, Sanchez Sosa (the BIA decision from which th is standard was pulled) sta nds for the modest proposition that where an alien has filed a “prima facie approvable application with the USCIS, . . . a
favorable exercise of discretion for a con tinuance” is generally warranted and the continuance the IJ grants should be “for a reasonable period of time.” Matter of Sanchez

determination that even if the appli cant were eligible, asylum would be denied in the exercise of discretion.”
Cao , 421 F.3d at 156. These factors are not relevant here.6 Sosa , 25 I. & N. Dec. at 815. Sanchez Sosa says nothing about requiring an alien to show
that the continuance will be “for a reasonable period of time.” Id. Indeed, that requirement would prove unworkable. A re spondent cannot possibly prove she will not need more than
a reasonable amount of time to receive a U vi sa, not least because she has no control over the administrative processes governing that question. See Malilia v. Holder , 632 F.3d 598, 606 (9th Cir. 2011) (“[D]elays in the USCI S approval process are no reason to deny an
otherwise reasonable continuanc e request. As we have stated before, basing a denial on such grounds is akin to blaming a petitioner fo r an administrative agency’s delay.” (internal quotation marks omitted)).

As for the BIA’s second conclusion—that Co rtes-Gomez did not establish that he was “likely to be granted a U visa based on hi s record,” App’x 2—we are left to guess as to the BIA’s reasoning. Indeed, the BIA di d not address whether Cortes-Gomez’s new evidence established his prima facie eligibility for a U visa, even t hough such eligibility directly relates to the questio n of whether an alien is lik ely to be granted a U visa. 4 The only specific reason that the BI A did offer for declining to remand was that Cortes-Gomez waited twelve years to pursue a U visa; howe ver, it is unclear whether the BIA relied on that fact to support its conc lusion that Cortes-Gomez would li kely not be granted a U visa, or whether the BIA relied on that fact as a pr ocedural factor warranting the denial of a continuance regardless of whether Cortes-G omez was likely to be granted a U visa. Regardless, on the record before us, the BIA’ s failure to even co nsider Cortes-Gomez’s prima facie eligibility for a U visa or any fact or other than Cortes-Gomez’s delay calls into question whether the BIA properly ap plied the standards set forth in Sanchez Sosa

. See Manzur v. U.S. Dep’ t of Homeland Sec. , 494 F.3d 281, 289 (2d Ci r. 2007) (“This Court . .
. will not hesitate to vacate and remand where the BIA or IJ analysis is insufficient to
determine whether the correct le gal standard was applied.”); Anderson v. McElroy , 953 F.2d 803, 806 (2d Cir. 1992) (“ [W]e cannot assume that the BI A considered factors that it
failed to mention in its decision.” (internal quotation marks omitted)).

Accordingly, we remand the case to the BIA to reassess whether Cortes-Gomez’s new evidence would likely change the result of the IJ’s decision to deny him a continuance. On remand, the BIA should consider (1) whet her Cortes-Gomez has established his prima facie eligibility for a U visa, or (2) state in clear terms whether, even if Cortes-Gomez has

4 The record reflects that Cortes-Gomez may in fact be eligible for a U visa. To establish prima facie eligibility for a U visa, the petitioner must first show that he suffered “substantial physical and mental abuse” as the result of a qualifying crime as defined by regulations. Matter of Sanchez Sosa , 25 I. & N. Dec. at 813. The petitioner must then show that he cooperated with authorities regarding the qualifying crime; he can satisfy this requirement by providing the law enforcement certification. Once the petitioner establishes that he satisfies the foregoing two factors and provides a receipt for the submission of his U visa application, he has established prima facie eligibility. In this case, Cortes-Gomez submitted to the BIA a receipt showing submission of his U visa application, the law enforcement certification, and an indictment describing the underlying crime as “caus[ing] . . in jury to Antonio Cortes by means of a dangerous instrument.” App’x 12-15 (Law Enforcement Certif ication), 17-19 (indictmen t), 21-22 (receipt). Thus, Cortes-Gomez may have established prima facie eligibilit y in accordance with the standard set forth above.7 established his prima facie eligib ility for a U visa, there exist procedural factors such that the new evidence would likely not change the outcome of the IJ’s decision.

Conclusion

We have considered the government’s re maining arguments and find them without merit. For the reasons stated above, we GRANT Cortes-Gomez’s petition for review,
VACATE the BIA’s determination as to his motion for remand, and REMAND for further proceedings consistent with this order.

FOR THE COURT: Catherine O’Hagan Wolfe,
Clerk of Court