Case: 19-60787 Document: 00515992660 Page: 1 Date Filed: 08/24/2021 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED August 24, 2021 No. 19-60787 Lyle W. Cayce Clerk Kevelin Danery Espinal-Lagos; Danny Yanina Bethanco-Espinal; Marvin Jared Bethanco-Espinal, Petitioners, versus Merrick Garland, U.S. Attorney General, Respondent. Petition for Review of an Order of the Board of Immigration Appeals BIA No. A205 082 197 BIA No. A206 731 467 BIA No. A206 731 468 Before Wiener, Elrod, and Higginson, Circuit Judges. Stephen A. Higginson, Circuit Judge:* Kevelin Danery Espinal-Lagos and her two minor sons were ordered removed to Honduras by an Immigration Judge. While their appeal was * Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4. Case: 19-60787 Document: 00515992660 Page: 2 Date Filed: 08/24/2021 No. 19-60787 pending before the Board of Immigration Appeals, the petitioners filed derivative U visa applications with United States Citizenship and Immigration Services that, if granted, would allow them to move to reopen their removal proceedings. Accordingly, the petitioners filed a motion requesting that the Board remand their case so that they could seek a continuance from the Immigration Judge pending the resolution of their derivative U visa applications. The Board dismissed their appeal and denied their motion to remand, reasoning that their “U-visa eligibility and the steps being taken in pursuit of a U-visa could have been discussed at the hearing before the Immigration Judge entered a decision.” For the narrow ground articulated herein, we hold that the Board abused its discretion in its reason for denying the petitioners’ motion to remand. I. A. Kevelin Danery Espinal-Lagos is the lead petitioner, and her two minor sons are derivatives of her applications for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). They are natives and citizens of Honduras and entered the United States in 2011 and 2014. In 2014, the Department of Homeland Security (“DHS”) served each petitioner with a notice to appear (“NTA”), charging Espinal-Lagos with removability as an immigrant not in possession of a valid travel document at the time of admission and charging her sons as removable for being present in the United States without being admitted or paroled. At a hearing held before an Immigration Judge (“IJ”) on May 13, 2015, petitioners admitted the factual allegations and removal charges in their respective NTAs, but Espinal-Lagos filed an application for asylum, withholding of removal, and CAT protection that included her sons as derivative beneficiaries. 2 Case: 19-60787 Document: 00515992660 Page: 3 Date Filed: 08/24/2021 No. 19-60787 On February 7, 2018, Espinal-Lagos testified before an IJ in support of her and her sons’ applications. One week after the hearing, the IJ denied their applications for asylum, withholding of removal, and CAT protection and ordered them removed to Honduras. The next month, March 2018, the petitioners appealed to the Board …
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