Carlos Garcia-DeLeon v. Merrick Garland

RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 21a0127p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT ┐ CARLOS ALFONSO GARCIA-DELEON, │ Petitioner, │ > No. 20-3957 │ v. │ │ MERRICK B. GARLAND, Attorney General, │ Respondent. │ ┘ On Petition for Review from the Board of Immigration Appeals; No. A 200 191 952. Decided and Filed: June 4, 2021 Before: MOORE, CLAY, and STRANCH, Circuit Judges. _________________ COUNSEL ON BRIEF: David E. Funke, DAVID FUNKE IMMIGRATION LAW GROUP, Louisville, Kentucky, for Petitioner. Yanal H. Yousef, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. Cynthia M. Nunez, WALKER & ASSOCIATES OF MICHIGAN, P.C., Detroit, Michigan, for Amicus Curiae American Immigration Lawyers Association. _________________ OPINION _________________ Carlos Alfonso Garcia-DeLeon petitions this court for review of the decision of the Board of Immigration Appeals (“BIA”) denying his motion for administrative closure. For the following reasons, we GRANT the petition for review, VACATE the BIA’s order, and REMAND for further proceedings consistent with this opinion. No. 20-3957 Garcia-DeLeon v. Garland Page 2 I. BACKGROUND Carlos Alfonso Garcia-DeLeon (“Garcia”) is a native and citizen of Mexico who entered the United States without inspection in October 2000. Administrative Record (“A.R.”) at 285 (Appl. for Cancellation of Removal at 2). On July 7, 2011, the Department of Homeland Security (“DHS”) served Garcia with a Notice to Appear and placed him in removal proceedings. Id. at 338–39 (Notice to Appear). At a hearing on July 2, 2012, Garcia’s counsel admitted the factual allegations in the notice to appear and conceded that Garcia was removable. Id. at 95 (07/02/12 Hr’g Tr. at 2). At that hearing, Garcia also declared his intention to apply for Cancellation of Removal, a form of discretionary relief available to noncitizens who have been present in the United States for at least ten years, who have demonstrated good moral character, who have not been convicted of certain offenses, and whose departure would cause exceptional and extremely unusual hardship to their U.S. citizen relatives, 8 U.S.C. § 1229b(b)(1). Id. at 96 (07/02/12 Hr’g Tr. at 3). He requested voluntary departure in the alternative. Id. Garcia submitted his application for Cancellation of Removal in July 2013. Id. at 284–92 (Appl. for Cancellation of Removal). On August 8, 2018, while his removal proceedings were pending, Garcia married a U.S. citizen, id. at 235 (Certificate of Marriage), who filed an I-130 Petition for Alien Relative on Garcia’s behalf, id. at 216–33 (Pet. for Alien Relative). At the merits hearing before the immigration judge (“IJ”), Garcia requested a continuance pending adjudication of his I-130 petition. Id. at 117 (08/13/18 Hr’g Tr. at 20). The IJ denied the motion for a continuance because Garcia’s immigration case had been pending for seven years and should be resolved promptly. Id. at 117–18 (08/13/18 Hr’g Tr. at 20–21). Further, the IJ noted that even if U.S. Citizenship and Immigration Services (“USCIS”) approved his I-130 petition, Garcia would have to leave the United States and be processed at …

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