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In this unpublished decision, the Board of Immigration Appeals (BIA) remanded the record upon finding the immigration judge should have considered the respondent’s request for a continuance. The Board noted that the respondent advised the court that an attorney he had hired to represent him failed to appear, and that the immigration judge did not ask whether the respondent waived his right to counsel or wished to find another attorney or learn why his attorney failed to appear. The decision was written by Member John Guendelsberger and joined by Vice Chairman Charles Adkins-Blanch and Member Elise Manuel.
Looking for IRAC’s Index of Unpublished BIA Decisions? Visit www.irac.net/unpublished/index
In this unpublished decision, the Board of Immigration Appeals (BIA) remanded the record upon finding the immigration judge should have considered the respondent’s request for a continuance. The Board noted that the respondent advised the court that an attorney he had hired to represent him failed to appear, and that the immigration judge did not ask whether the respondent waived his right to counsel or wished to find another attorney or learn why his attorney failed to appear. The decision was written by Member John Guendelsberger and joined by Vice Chairman Charles Adkins-Blanch and Member Elise Manuel.
Looking for IRAC’s Index of Unpublished BIA Decisions? Visit www.irac.net/unpublished/index
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In this unpublished decision, the Board of Immigration Appeals (BIA) remanded the record upon finding the immigration judge should have considered the respondent’s request for a continuance. The Board noted that the respondent advised the court that an attorney he had hired to represent him failed to appear, and that the immigration judge did not ask whether the respondent waived his right to counsel or wished to find another attorney or learn why his attorney failed to appear. The decision was written by Member John Guendelsberger and joined by Vice Chairman Charles Adkins-Blanch and Member Elise Manuel.
Looking for IRAC’s Index of Unpublished BIA Decisions? Visit www.irac.net/unpublished/index
Drepturi de autor:
Attribution Non-Commercial (BY-NC)
Formate disponibile
Descărcați ca PDF, TXT sau citiți online pe Scribd
Executive Ofce fr Imigration Review 8oorof I|rot|oaajeolc uceoft/eclerk 5107 Leeburg Pike. Suite 2000 Fals Church, Vrginia 20530 760 WEST SAMPLE ROAD, SUITE 1 0 POMPANO BEACH, FL 33064 OHS/ICE Ofice of Chief Counsel - BTC 3900 Power Line Road Pompano Beach, FL 33072 Name: CHAVEZ-RUBIO, ROGELIO A 205-656-470 Date of this notice: 1/30/20 1 4 Enclosed is a copy of the Boad's decision and order in the above-refrenced case. Enclosure Panel Members: Adkins-Blanch, Charles K. Manuel, Elise Guendelsberger, John Sincerely, DC C w Donna Carr Chief Clerk williame Userteam: Docket For more unpublished BIA decisions, visit www.irac.net/unpublished I m m i g r a n t
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w w w . i r a c . n e t Cite as: Rogelio Chavez-Rubio, A205 656 470 (BIA Jan. 30, 2014) CHAVEZ-RUBIO, ROGELIO A205-656-70 B.T.C. 3900 N POWERLINE RD POMPANO BEACH, FL 33073 Name: CHAVEZ-RUBIO, ROGELIO U.S. Department of Justice Executive Ofce fr Immigation Review 8oorof Iirotioa4eolc uceoft/eclerk 5107 Leeburg Pike, Suite 2000 Falls Church, Vrginia 20530 OHS/ICE Ofice of Chief Counsel - BTC 3900 Power Line Road Pompano Beach, FL 33072 A 205-656-470 Date of this notice: 1/ 30/20 14 Enclosed is a copy of the Board's decision in the above-refrenced case. This copy is being provided to you as a courtesy. Your attorey or representative has been served with this decision pursuant to 8 C.F.R. 1292.S(a). If the attached decision orders that you be removed fom the United States or afrms an Immigration Judge's decision orderg that you be removed, any petition fr review of the attached decision must be fled with ad received by the appropriate court of appeals within 30 days of the date of the decision. Enc1osure Panel Members: Adkins-Blanch, Charles K. Manuel, Elise Guendelsberger, John Sincerely, DC ct Donna Carr Chief Clerk williame Useream: Docket I m m i g r a n t
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w w w . i r a c . n e t Cite as: Rogelio Chavez-Rubio, A205 656 470 (BIA Jan. 30, 2014) U.S. Deparment of Justice Excutive Ofce fr Immigation Review Decision of the Board of Immigration Appeals Falls Church, Virginia 20530 File: A205 656 470 - Pompao Beach, FL In re: ROGELIO CHAVEZ-RUBIO I REMOVAL PROCEEDIGS APPEAL Date: ON BEHALF OF RSPONDENT: Edward Cifentes, Esquire ON BEHALF OF DHS: Robert D'Adao Assistat Chief Cousel APPLICATION: Continuace; voluntary departre JAh J 0 2014 The respondent, a native and citizen of Mexico, has appealed fom the Immigration Judge's decision dated September 20, 2013. The Immigration Judge fund the respondent removable and ordered him removed. The record will be remanded. This Board reviews an Immigration Judge's fndings of fct, including fndings as to the credibility of testimony, under the ''clealy eroneous" standad. See 8 C.F.R. 1003. l (d)(3)(i); Matter o]R-S-H-, 23 l&N Dec. 629 (BIA 2003); Matter o]S-H-, 23 l&N Dec. 462 (BIA 2002). This Board reviews questions of law, discretion, and judgment, ad all other issues raised in an Immigration Judge's decision de novo. See 8 C.F.R. 1003.l(d)(3)(ii). The detained respondent was placed in removal proceedings on August 2, 2013 (Exh. 1). His frst hearing was on August 27, 2013 (Tr. at I). He was grated two short continuances to fnd an attorey (Tr. at 3, 8-9). He appeaed on September 20, 2013 (Tr. at 11). He told the Immigation Judge that he had hired an attorey and had told that attorey of the hearing date. However, te atorey did not appear at the hearing or fle a Notice of Appeaace (Tr. at 12-13). At that point, the Immigration Judge did not inquire of the respondent whether he wished to continue proceedings to fnd out why the attorey had not appeared or to fnd another attorey. Nor did te Immigration Judge ask the respondent whether he wished to waive his right to counsel. Instead, the Imigation Judge proceeded with the removal hearing (Tr. at 13). Pleadings were taken. The respondent admitted the fctual allegations in the Notice to Appear and conceded removability fr being present in the United States without authorization, and the Immigration Judge fund him removable as charged (Tr. at 14). The Immigration Judge then asked the respondent questions to determine whether he was statutorily eligible fr relief. Because the respondent is unmaried, has no children, and his parents remain in Mexico, the Immigration Judge concluded that the respondent was not statutorily eligible fr cacellation of removal (Tr. at 15-16). Because the respondent said he had no far of retu to Mexico, te Immigration Judge concluded that he was not statutorily eligible fr asylum, witholding of removal, or protection under the Convention Against Torture (Tr. at 16). Because the respondent had been convicted of a flony, the Immigration Judge concluded that the respondent was not eligible fr Defred Action fr Childhood Arrivals I m m i g r a n t
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w w w . i r a c . n e t Cite as: Rogelio Chavez-Rubio, A205 656 470 (BIA Jan. 30, 2014) A205 656 470 (DACA) (Tr. at 16). The Immigration Judge asked the respondent if he wished to apply fr voluntay depaure, and the respondent said "no" (Tr. at 16-17). On appeal, the respondent says he was confsed by the proceedings, wanted a continuance, and wanted to apply fr DACA ad voluntay deparure. Respondents in immigration proceedings have the statutory and regulatory "privilege of being represented," at no expense to the Goverent, by counsel of their choosing. See sections 240(b)(4)(A), 292 of the Act; 8 U.S.C. 1229a(b)(4)(A), 1362. See also 8 C.F.R. 1003.16(b), 1240.3, 1240.IO(a), 1240.1 l(c)(l)(iii); Matter ofC-B-, 25 I&N Dec. 888, 889-90 (BIA 2012). Where the statutory and regulatory privilege of legal representation is not expressly waived, 1 as is the case here, in order to meaningflly efectuate the privilege, te Immigration Judge must gant a reasonable and realistic amount of time and provide a fir opportunity fr a respondent to seek, speak wth, and retain counsel. The aount of time that is appropriate will depend on the specifcs of the individual case. See Matter of C-B-, supra. Cf Hernandez Gil v. Gonzales, 476 F.3d 803, 805-808 (9th Cir. 2007) (Immigration Judge denied alien's statutory right to counsel in denying continuance when alien's atorey filed to appea at removal heaing). In light of the fct that the respondent believed he had contracted with an attorey to represent him in removal proceedings, the Immigration Judge should have considered the respondent's request fr a additional continuace. See 8 C.F.R. 1003.298, 1240.6. Cf Matter of Rajah, 25 I&N Dec. 127 (BIA 2009); Matter of Hashmi, 24 l&N Dec. 785 (BIA 2009). Had he had the beneft of counsel, the respondent may have told the Immigration Judge that he wished to be granted voluntary deparure. Consequently, the appeal will be sustained, and the record will be remanded to the Immigration Judge fr a new hearing. On remand, the respondent should be allowed to apply fr voluntay depae and any other relief fr which he is statutorily eligible. Accordingly, the fllowing orders will be entered. ORDER: The appeal is sustained. FURTHER ORDER: The record is remanded to the Immigration Judge fr frther proceedings consistent with the fregoing opinion and entry of a new decision. 1 In order fr a waiver to be valid, an Immigration Judge must generally (1) inquire specifcally as to whether a respondent wishes to continue without a lawyer and (2) receive a knowing and voluntay afrative response. See Matter ofC-B-, supra, at 890 n. 1. 2 I m m i g r a n t
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w w w . i r a c . n e t Cite as: Rogelio Chavez-Rubio, A205 656 470 (BIA Jan. 30, 2014) In the Matter of: CHAVEZ-RUBIO, ROGELIO RESPONDENT .. , .
U.S. DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT 3900 POWERLINE ROAD POMPANO BEACH, FL 33073 Case No.: A205-656-470 IN REMOVAL PROCEEDINGS WRITTEN DECISION AND ORDER OF THE IMMIGRATION JUDGE Upon the basis of respondent's admissions, I have determined that the respondent is subject to removal on the charge{s) in the Notice to Appear. Respondent is ineligible for relief from removal. The respondent appeared today for his third hearing. The respondent was given to continuances to appear with counsel. The respondent contended that he had an attorney, however no appearance was entered and the Court waited 40 minutes beyond his scheduled hearing time and no one appeared on his behalf. The Court proceeded. See Section 239 (a) (1) (F) INA. The respondent then admitted the allegations on the NTA and designated Mexico as his country of removal. While the respondent has been in the United States for 14 years, he has no qualifying relative (s} for 42-B Cancellation of Removal. The respondent expressed no fear of harm or torture if returned to his Country. The respondent was offered Volutnary Departure, however did not wish to qualify for that form of relief. The respondent is ineligible for DACA based on his felony conviction (Ex. 3, 4 & 5}. Here, the respondent has no relief from removal available to him. Accordingly, It is HEREBY ORDERED that the respondent be removed from the United States to MEXICO on the charge(s) contained in the Notice to Appear. Any alien against whom a final order of removal is outstanding by reason of being a member of any of the classes described in INA section 237(a), who willfully fails or refuses to present himself or herself for removal at the time and place required by the Attorney General shall be fined and/or imprisoned for up to ten years. Further, any alien who willfully fails or refuses to depart from the United States pursuant to a final removal order or present for removal at the time and place required by the Attorney General shall pay a civil penalty of not more than $500 to the Comissioner for each day the alien is in violation of this section. Appeal: Appeal D 2013 REX J. FORD Immigration Judge Date: Sep 20, 2013 CERTIFICATE OF SERVICE THIS DOCjNT WAS SERVED BY: MAIL {M) PERSONAL SERVIC TO: [V AL )3ALIEN c/o Custodial Officer [Alien s ATT/REP [v OHS DATE: BY: COURT STAFF /