Bustamante, Andres Law Offices of Andres Bustamante 634 S. Spring St., Suite 910 Los Angeles, CA 90014

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 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.

Enclosure

Panel Members: Miller, Neil P.

Sincerely,

DC11.lt4- c aAA.J

Donna Carr Chief Clerk

Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished

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

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U.S. Department of Justice Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 20530

File: A072 228 232 - Los Angeles, CA

In re: GREGORJO CHODAKOWSKY

IN REMOVAL PROCEEDINGS

MOTION

Date:

ON BEHALF OF RESPONDENT: Andres Z. Bustamante, Esquire

HOV .20 2014

This case was last before 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 could not have been discovered or presented at the former hearing." See 8 C.F.R. § 1003.2(c)(l). 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. The respondent has also submitted a Form 1-485, a Form 1-601, a declaration, and an affidavit of support. 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 the respondent's motion for further proceedings.1 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.

1 We find the respondent's challenge to the applicability of Matter of Jean, 23 I&N Dec. 3 73 (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.

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

· · 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.

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