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Hervens Timothe, A023 590 819 (BIA Aug. 9, 2013)

Hervens Timothe, A023 590 819 (BIA Aug. 9, 2013)

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In this unpublished decision, the Board of Immigration Appeals (BIA) remanded the case to provide the respondent a reasonable opportunity to obtain counsel after the immigration judge ordered him removed at his second master calendar hearing despite his assertion that an organization was attempting to find an attorney to represent him. The decision was written by Member Anne Greer and joined by Chairman David Neal and Member Molly Kendall-Clark.
In this unpublished decision, the Board of Immigration Appeals (BIA) remanded the case to provide the respondent a reasonable opportunity to obtain counsel after the immigration judge ordered him removed at his second master calendar hearing despite his assertion that an organization was attempting to find an attorney to represent him. The decision was written by Member Anne Greer and joined by Chairman David Neal and Member Molly Kendall-Clark.

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Published by: Immigrant & Refugee Appellate Center, LLC on Aug 14, 2013
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01/27/2014

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U.S.

Department of Justice Executive Office for Immigration Review

Board ofImmigration Appeals Office of the Clerk
5107 leesb11rg Pike. Suite 2000 Falls Church. Virginia 22041

TIMOTHE, HERVENS A023-590-819 FARMVILLE DETENTION CENTER P.O.BOXN FARMVILLE, VA 23901

OHS/ICE Office of Chief Counsel - WAS 500 12th St., SW, Mail Stop 5902 Washington, DC 20536

Immigrant & Refugee Appellate Center | www.irac.net

Name: TIMOTHE, HERVENS

A 023-590-819

Date of this notice: 8/9/2013

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

DonnL ct1tVL)
Donna Carr Chief Clerk

Enclosure Panel Members: Neal, David L Greer, Anne J. Kendall-Clark, Molly

yungc Userteam: Docket

Cite as: Hervens Timothe, A023 590 819 (BIA Aug. 9, 2013)

-

..

U.S. Department of Justice
Executive Office for Immigration Review Falls Church, Virginia 22041

Decision of the Board oflmmigration Appeals

File:

A023 590 819 - Arlington, VA

Date:

. AUG

9ZQ13

In re: HERVENS TIMOTHE a.k.a. Ervainse Thimote a.k.a. Elvis Timothee

IN REMOVAL PROCEEDINGS APPEAL

Immigrant & Refugee Appellate Center | www.irac.net

ON BEHALF OF RESPONDENT: ON BEHALF OF DHS:

Pro se

Adam L. Berg Assistant Chief Counsel

CHARGE: Notice: Sec. 237(a)(2)(A)(iii), I&N Act (8 U.S.C. § 1227(a )(2)( A)(iii)] Convicted of aggravated felony

APPLICATION:

Remand

The respondent has appealed the Immigration Judge's March 13, 2013, decision which ordered him removed from the United States to the Bahamas, and in the alternative, to Haiti. The Department of Homeland Security ("OHS") has requested that the Immigration Judge's decision be affirmed. The record will be remanded to the Immigration Court for further proceedings. At his second master hearing, the respondent indicated that an organization was working to find a lawyer to represent him in his removal proceedings (Tr. at 4 ). The Immigration Judge, however, proceeded with the respondent's case, but did not include in his decision the reason or reasons why the proceedings were not continued.

See Matter of C-B-,

25 I&N Dec. 888, 890

(BIA 2012) (an Immigration Judge should expressly rule on an alien's request for a continuance and explain the reasons for not continuing the proceeding); 8 C.F.R. §§ 1003.29, 1240.6. When asked if he had any reason why he cannot return to Haiti or the Bahamas, the respondent, unprepared, indicated that he does not know anything about what was going on in Haiti or the Bahamas, and that he left these countries when he was an infant (Tr. at 8-9, 11). Under these circumstances, we will remand the record so that the respondent may be given another reasonable opportunity to retain counsel and to further explore and, if appropriate, apply for relief from removal that may be available to him. See Matter of C-B-, supra, at 890-91. Both parties may submit additional relevant arguments and evidence in remanded proceedings. The following order will be entered. ORDER: The record will be remanded to the Immigration Court for further proceedings

consistent with the foregoing opinion, and for entry of a new decision.

Cite as: Hervens Timothe, A023 590 819 (BIA Aug. 9, 2013)

�J;o�


UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW UNITED STATES IMMIGRATION COURT ARLINGTON, VIRGINIA

File: A023-590-819 In the Matter of

March 13, 2013

Immigrant & Refugee Appellate Center | www.irac.net

HERVENS TIMOTHE RESPONDENT

) ) ) )

IN REMOVAL PROCEEDINGS

CHARGES:

Section 237(a)(2)(A) (iii), l&N Act as amended - convicted of aggravated felony as defined in Section 101 (a)(43)(R) of the Act, a law relating to an offense relating to commercial bribery, counterfeiting, forgery, or trafficking in vehicles for which the term of imprisonment is at least one year.

APPLICATIONS:

None.

ON BEHALF OF RESPONDENT: PRO SE ON BEHALF OF OHS: ADAM L. BERG

ORAL DECISION OF THE IMMIGRATION JUDGE The respondent is a 36-year-old divorced male who is a native of the Bahamas and a citizen of Haiti. He concedes allegations 1, 3, and 4 contained in the Notice to Appear dated December 21, 2012. With respect to allegation 2, the respondent admits being born in the Bahamas but denies that he is a citizen of Haiti. The OHS furnished Form 1-213 and records of conviction relating to the respondent. According to Form 1-213, a document issued by the Haitian Consulate

indicates that the respondent is a Haitian national by virtue of the Haitian nationality of his mother and his father. On the basis of this Form 1-213, I find that allegation 2 is established by clear and convincing evidence. I further find based on the respondent's admissions and the documentation submitted by the OHS that the respondent's

Immigrant & Refugee Appellate Center | www.irac.net

removability as charged has been established by clear and convincing evidence. I questioned both the respondent and Government Counsel about any possible claim to U.S. citizenship by the respondent. The respondent has no such claim although according to the 1-213, he apparently did at one point falsely claim to be a U.S. citizen. The respondent informs me that he is divorced. He has a 14-year-old U.S. citizen daughter. However, because of the nature and timing of the respondent's aggravated felony conviction he is not eligible for any relief other than possibly withholding of removal or relief under the Convention Against Torture.
I further question the respondent about any reasons why he could not

return to the Bahamas or Haiti. The respondent states that he has never been to Haiti and therefore would not be in a position to live there. He also states that he has not been to the Bahamas since he was 2 years old and therefore would have nobody to live with or to help in the Bahamas. While I appreciate the difficulty of the respondent's situation, the information he furnished even if true would not place him within either the withholding of removal provisions of the Immigration laws or the Convention Against Torture. Consequently, there is no relief from removal available to the respondent. For the foregoing reasons, I find the respondent removable as charged and not eligible for any relief from removal. Consequently, I must enter the following order. ORDER

A023-590-819

2

March 13, 2013

The respondent shall be removed to Bahamas or in the alternative to Haiti on the charge contained in the Notice to Appear.

Immigrant & Refugee Appellate Center | www.irac.net

PAUL W. SCHMIDT Immigration Judge

A023-590-819

3

March 13, 2013


CERTIFICATE PAGE

I hereby certify that the attached proceeding before JUDGE PAUL W. SCHMIDT, in the matter of:

Immigrant & Refugee Appellate Center | www.irac.net

HERVENS TIMOTHE

A023-590-819

ARLINGTON, VIRGINIA

was held as herein appears, and that this is the original transcript thereof for the file of the Executive Office for Immigration Review.

EVALENA E. CLARK (Transcriber) DEPOSITION SERVICES, lnc.-2 APRIL 2, 2013 (Completion Date)

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