U.S.

Department of Justice
Executive Office for Immigration Review

Board of Immigration Appeals

Office of the Clerk
5107 leeshurg Pike. Suite 1000
F'alls Church. Virginia 20530

125 E. John Carpenter Fwy, Ste. 500

Irving, TX 75062-2324

Name: SARMIENTO ADAMAE, ISREAL

A 070-932-703

Date of this notice: 5/6/2015

Enclosed is a copy of the Board's decision and order in the above-referenced case.
Sincerely,

DcrutL ca.AA)
Donna Carr
Chief Clerk

Enclosure

Panel Members:
Neal, David L
Guendelsberger, John
Adkins-Blanch, Charles K.

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index
Cite as: Israel Sarmiento Adamae, A070 932 703 (BIA May 6, 2015)

Immigrant & Refugee Appellate Center, LLC | www.irac.net

OHS/ICE Office of Chief Counsel - DAL

U.S. Department of Justice

Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 20530

File:

A070 932 703 - Dallas, TX

Date:

IN REMOVAL PROCEEDINGS
APPEAL
1
ON BEHALF OF RESPONDENT: Pro se
APPLICATION: Adjustment of status

The respondent, a native and citizen of Mexico, appeals from the decision of the Immigration
Judge dated September 10, 2013, finding

him removable

as

charged and ordering

him removed

from the United States to Mexico. The record will be remanded.

The respondent claims on appeal that he was deprived of due process because his prior
counsel failed to act with due diligence in keeping him apprised of the filing deadline for his
adjustment of status application.

The Department of Homeland Security (DHS)

has not filed a

response on appeal to these contentions. Under the totality of the circumstances in this case, we
find that a remand is appropriate for further proceedings before the Immigration Judge regarding
relief from removal.
ORDER: The appeal is sustained.
FURTHER ORDER:

The record is remanded for further proceedings consistent with this

decision.

During the pendency of this appeal, attorney Patricia Conkright filed a motion to withdraw

as

the respondent's attorney. Her motion complies with the requirements under Matter of Rosales,
19 I&N Dec. 655 (BIA 1988).

See also 8 C.F.R. 1292.4.

Accordingly, Ms. Conkright's

motion is granted. A courtesy copy of this decision will be provided to her and a copy of this
decision will be sent to the respondent at his last known address.

Cite as: Israel Sarmiento Adamae, A070 932 703 (BIA May 6, 2015)

Immigrant & Refugee Appellate Center, LLC | www.irac.net

MAY -fZOI

In re: ISREAL SARMIENTO ADAMAE

......._

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
1100 COMMERCE ST., SUITE 1060
DALLAS, TX
75242

KATHRYN H.

3800 LINCOLN PLAZA- 500 N. AKARD ST.

DALLAS,

TX

75201

IN THE MATTER OF
SARMIENTO AD,

FILE A 070-932-703

DATE:

Sep 10,

2013

ISREAL

UNABLE TO FORWARD - NO ADDRESS PROVIDED

COPY OF THE DECISION OF THE IMMIGRATION JUDGE.

THIS DECISION
S AN APPEAL IS FILED WITH THE BOARD OF IMMIGRATION APPEALS
...._,__ENDAR DAYS OF THE DATE OF THE MAILING OF THIS WRITTEN DECISION.

!'-!F
ORMS AND INSTRUCTIONS FOR PROPERLY PREPARING YOUR APPEAL.
YOUR NOTICE OF APPEAL, ATTACHED DOCUMENTS, AND FEE OR FEE WAIVER REQUEST
MUST BE MAILED TO:

BOARD OF IMMIGRATION APPEALS

OFFICE OF THE CLERK
P. O. BOX 8530
FALLS CHURCH,

VA

22041

ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE AS THE RESULT

OF YOUR FAILURE TO APPEAR AT YOUR SCHEDULED DEPORTATION OR REMOVAL HEARING.
THIS .. DECISION IS FINAL UNLESS A MOTION TO REOPEN IS FILED IN ACCORDANCE

.t-iJ:T:k SECTION

242B(c) { 3) OF THE IMMIGRATION AND NATIONALITY ACT, 8 U. S. C.

SECTION 1252B(c)(3) IN DEPORTATION PROCEEDINGS OR SECTION 240(c)(6),
IF YOU FILE A MOTION
8. u.s.c. SECTION 1229a(c) (6) IN REMOVAL PROCEEDINGS.
TO REOPEN, YOUR MOTION MUST BE FILED WITH THIS COURT:
IMMIGRATION COURT
1100 COMMERCE ST.,
DALLAS,
OTHER:

TX

SUITE 1060

75242

co

IMMIGRATION COURT
CC:
I

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BRADY,

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DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

IMMIGRATION COURT
1100 COMMERCE ST., SUITE 1060
DALLAS, TX
75242

ISREAL

Case No.:

A0?0-932-703

RESPONDENT
IN REMOVAL PROCEEDINGS
ORDER OF THE IMMIGRATION JUDGE

as

sideration, it is HEREBY ORDERED that the Motion to Withdraw

filed by KATHRYN H. BRADY;
be granted.
be granted.

However, counsel will remain the Attorney of Record for

the limited purpose of service of any in absentia order an Immigration
Judge might issue.
be denied for the reason that counsel has failed to meet the standards
as set forth in Matter of Rosales, 19 I&N 655 {BIA 1988).
be denied for the reasons set forth in the attached decision.
be denied for the reasons orally stated in the record of the hearing.

Immigration Judge
Date:
Sep 11, 2013

CERTIFICATE OF SERVICE
(P)
PERSONAL SERVICE
MAIL
SERVED BY:
S ATT/REP
Officer
c\o Custod
ALIEN
COURT STAFF
BY:
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EOIR-33
[ ]
EOIR-28
[ ] Legal Service List
[ ]

((M}\
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DATE:

l\1

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OTHER
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Immigrant & Refugee Appellate Center, LLC | www.irac.net

In the Matter of:

SARMIENTO ADAMAE,

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE OF IMMIGRATION REVIEW
DALLAS IMMIGRATION COURT

File:

A# 070-932-703

Immigration Removal Proceedings in the Matter of: Isreal Sarmiento Adamae,

Respondent
Charges:

INA 212(a)(6)(A)(i)

On Behalf of the Respondent:

Kathryn H. Brady, 100 North Central Expressway,

Ste. 1310, Richardson, TX 75080

On Behalf of the Department of Homeland Security/Immigration and Customs
Enforcement: Dawnita Grimes, Esq., 125 E. John Carpenter Fwy., Ste. 500, Irving,
TX, 75062-2324
WRITTEN DECISION OF THE IMMIGRATION JUDGE

The Respondent is a native and citizen of Mexico. Exhibit 1. He entered the

United States on or around 1985 at or near southern California. Id. He was not admitted
or paroled after inspection by an Immigration Officer. Id. He was placed in removal
proceedings when the Department of Homeland Security (DHS or Government) served
him with a Notice to Appear (NTA) on April 13, 2012. Id.
The Respondent appeared at a Master Calendar Reset hearing on September 13,
2012. At the hearing, he admitted the allegations and conceded the charge contained in
the NTA. After receiving the pleas and reviewing the record, the Court found
removability established by clear and convincing evidence and sustained the charge. The
Court designated Mexico as his country of removal. At the hearing, the Respondent

indicated his intention to seek Adjustment of Status under Section 245(i) of the
Immigration and Nationality Act (INA or Act). The Court set the filing deadline for this
application as August 28, 2013, pursuant to 8 C.F.R. 1003.31 (c) . When providing that
date, the Court advised the Respondent that his application would be pretermitted if he
did not meet this deadline.
A review of the record reveals that neither the designated application nor any
other application for relief, were filed with the Court by August 28, 20 13. The
Respondent did not seek an extension of this filing deadline.
The Code of Federal Regulations provides that when an Immigration Judge has
set a deadline for filing an application for relief and that application is not filed within the

Page 1of3

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Date: September 10, 2013

time set by the Court, the opportunity shall be deemed waived. See 8 C.F.R.
1003.31(c). Further, the Board oflmmigration Appeals (Board) has long held that
applications for benefits under the Act are properly denied as abandoned when the alien
fails to timely file them. See Matter ofR-R-, 20 I. & N. Dec. 547, 549 (B.I.A. 1992);
Matter ofJean, 171. & N. Dec. 100, 102 (BJ.A. 1979) (asylum); Matter ofJaliawala, 14

152, 153 (BJ.A. 1969) (visa petition); Matter ofNaji, 19 I. & N. Dec. 430, 431 (BJ.A.
1987) (exclusion proceedings).
In 2007, the Fifth Circuit held in two separate decisions that "where an
application or document is not filed within the time set by the Immigration Judge, the
opportunity to file that application or document shall be deemed waived. See Lakhavani
v. Mukasey, 255 Fed. Appx. 819, 822-23 (5th Cir. 2007); see also Sanchez-Mendoza v.
Keisler, 242 Fed. Appx. 988, 989 (5th Cir. 2007) (holding that where the alien filed the

application timely but failed to file the required receipt for payment of the required fees
by the deadline imposed by the Immigration Judge, the Immigration judge properly
deemed the alien's application to be abandoned).
In the present case, the Court pursuant to its authority granted by the Regulations,
and enforced by the Board and Fifth Circuit, set a deadline for the Respondent to file
applications for relief. The Respondent failed to comply with the deadline imposed by
the Court. Therefore, the Court finds that the Respondent waived his right to apply for
Adjustment of Status under Section 245(i) of the Act. The Respondent's relief is deemed
abandoned.
Accordingly, the following orders are entered:

Page 2 of3

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I. & N. Dec. 664 (BJ.A. 1974) (adjustment of status); Matter ofPeason, 13 I. & N. Dec.

ORDERS
IT IS ORDERED that the Respondnt's Application for Adjustment of Status

under Section 245(i) of the Act is deemed ABANDONED for failure to file the
application within the time deadlines set by the Court.

of Status under Section 245(i) is deemed ABANDONED for failure to file the
application within the time deadlines set by the Court.
IT IS FINALLY ORDERED that the Respondent, having been found subject to

removal by clear and convincing evidence, and with no further applications for relief
pending before the Court, be and is removed to his country of citizenship, Mexico.

d1iou

Date: September 10, 2013

USDOJ/EOIR

Immigration Judge

Copy to:
Chief Counsel, DHS/ICE

Page 3 of3

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IT IS FURTHER OREDRED that the Respondent's Application for Adjustment