Vargas

Dissenting.

I respectfully dissent. Although the majority’s disposition acknowledges that this case is governed by the BIA’s decision in Matter of Gutierrez, 19 I & N Dec. 562 , 1988 WL 235445 (1988), the majority’s rationale strays far from that ruling. In Gutierrez, the BIA expressly cautioned that determination of whether to allow an alien in exclusion proceedings to withdraw her application for admission, should not be made by weighing the equities involved. Id. at 564; See also Sharma v. Reno, 902 F.Supp. 1130, 1139 (N.D.Cal.1995). However, the majority disposition does exactly that by articulating “factors of admissibility which weigh heavily in Rojas-Castro’s favor.”

The proper focus on appeal is whether Rojas-Castro established that she possessed the intent and means to depart immediately and that her exclusion would not serve the interests of justice. See Gutierrez, 19 I. & N. Dec. at 564-65 ; see also Sharma, 902 F.Supp. at 1139 . Rojas-Castro made no such showing.

The majority accuses the IJ of declining to take testimony from Rojas-Castro as to her means and intent to depart. In fact, the record reflects that Rojas-Castro never intended to depart the United States.…

MEMORANDUM

Roxana Rojas-Castro de Vargas (“Ro *813 jas-Castro”) seeks review of a final order of the Board of Immigration Appeals (“BIA”) affirming an order of exclusion entered by the immigration judge (“IJ”). 3 Rojas-Castro argues the IJ and BIA abused their discretion in denying her motion to withdraw her application for admission and denying her motion to continue the proceedings. She also argues she was denied a fundamentally fair hearing because the IJ denied her the opportunity to testify. We grant the petition for review and remand.

At the time of the proceedings before the IJ, neither statute not regulation directly provided for the withdrawal of an application for admission. Matter of Gutierrez, 19 I. & N. Dec. 562, 564 , 1988 WL 235445 . 4 However, an immigration judge was permitted to allow the withdrawal if the alien showed that ‘justice may best be served’ by permitting withdrawal. Id. As held by the BIA, “[a]n immigration judge should not allow withdrawal unless an alien, in addition to demonstrating that he possesses both the intent and the means to depart immediately from the United States, establishes that factors directly relating to the issue of his…