P. 1
Fernando Barajas Acevedo, A087 906 037 (BIA Aug. 15, 2013)

Fernando Barajas Acevedo, A087 906 037 (BIA Aug. 15, 2013)

|Views: 246|Likes:
In this unpublished decision, the Board of Immigration Appeals (BIA) found the respondent knowingly and intelligently waived his right to counsel by stating "I'm ready" when asked if he was prepared to represent himself. The Board remanded the case, however, because the Immigration Judge denied the respondent's request for pre-conclusion voluntary departure but did not determine whether he was eligible for post-conclusion voluntary departure. The decision was written by Member Roger Pauley.
In this unpublished decision, the Board of Immigration Appeals (BIA) found the respondent knowingly and intelligently waived his right to counsel by stating "I'm ready" when asked if he was prepared to represent himself. The Board remanded the case, however, because the Immigration Judge denied the respondent's request for pre-conclusion voluntary departure but did not determine whether he was eligible for post-conclusion voluntary departure. The decision was written by Member Roger Pauley.

More info:

Published by: Immigrant & Refugee Appellate Center, LLC on Aug 26, 2013
Copyright:Attribution Non-commercial

Availability:

Read on Scribd mobile: iPhone, iPad and Android.
download as PDF, TXT or read online from Scribd
See more
See less

10/12/2013

pdf

text

original

Drew White, Esquire

5861 W. Clearater Ave., Ste 201
Pasco, WA 99301
U.S. Department of Justice
Executive Ofce fr Immigration Review
Board of Immigration Appeals
Ofce of the Clerk
5107 leeburg Pike, Suite 2000
Falls Cl1rcl, Vrgi1ia 22041
OHS/ICE Ofice of Chief Counsel· TAC
1623 East J Street, Ste. 2
Tacoma, WA 98421
Name: BARAJAS-ACEVEDO, FERNANDO A 087·906-037
Date of this notice:
8/15/2013
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosure
Panel Members:
Pauley, Roger
.,•."�*
Sincerely,
bo Ct
Donna Carr
Chief Clerk
lucasd
Userteam: Docket
fW � 7 . 7.
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
Cite as: Fernando Barajas Acevedo, A087 906 037 (BIA Aug. 15, 2013)
¡
.
.U.S. D�parent of Justice
Executive Ofce fr Immigation Review
Decision of the Board of Immigration Appeals
Falls Church, Virginia 22041
File: A087 906 037 - Tacoma, WA Date:
AUG 15 2013
In re: FERANDO BARJAS ACEVEDO a.k.a.Ferado Acevedo Baajas
IN REMOVAL PROCEEDIGS
APPEAL
ON BEHALF OF RESPONDENT: Drew Wite, Esquire
ON BEHALF OF DHS: Joseph Silvio
Assistant Chief Counsel
CHARGE:
Notice: Sec. 212(a)(6)(A)(i), I&N Act [8 U.S.C. § 1182(a)(6)(A)(i)] -
Present without being admitted or paroled
APPLICATION: Remand
Te respondent, a native and citizen of Mexico, appeals fom an Immigation Judge's
Febrar 1, 2012, decision fnding him removable as chaged and ordering his removal fom the
United States. The record will be remanded fr frther proceedings consistent with this order.
We review an Immigation Judge's fctual deterinations, including credibility
deterinations, fr clear eror. See 8 C.F.R. § 1003.l(d)(3)(i). The Board uses a de novo
stadard of review fr questions of law, discretion, judgment, and all other issues in appeals fom
decisions oflmmigration Judges. See 8 C.F.R. § 1003.1 (d)(3)(ii).
At issue is whether the respondent knowingly and intelligently waived his right to be
represented by counsel below. See Respondent's Brief at 4-7. At the time of his frst appearance
befre the Immigration Judge on January 11, 2012, the Immigration Judge advised the
respondent of his right "to representation but at no expense to the goverent," and provided the
respondent with a list.of fee and low-cost legal serices {Tr. at 2). The respondent indicated that
he would like more time to fnd an attorey to represent him, and was accordingly given a
continuance until February l, 2012, fr that purpose (Tr. at 1-3). On Febrary 1, 2012, the
Immigation Judge noted that the respondent was "appearing without counsel," and stated that
when the respondent was "previously befre the Cour [he was] advised of [his] rights and given
time to try and fnd an attorey" (Tr. at 4). He then asked the respondent "[a]re you ready to
represent yourself in these proceedings?" (Tr. at 4). The respondent replied "I'm ready" without
making any frther request fr time to fnd counsel (Tr. at 5). The Immigration Judge then stated
that "I fnd you've waived your right to a attorey." See Tr. at 5.
Thereafer, the Immigration Judge fund that the respondent was desering of a grat of
voluntary departure "under safeguards," i.e., prior to the completion of the proceedings pursuant
to section 240B(a)(l) of the Immigration and Nationality Act, 8 U.S.C. § 1229c(a)(l) (2006)
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
Cite as: Fernando Barajas Acevedo, A087 906 037 (BIA Aug. 15, 2013)
. .
A087 906 037
(Tr. at 10-12). However, due to the respondent's statement of his intention to appeal the
Immigation Judge's order, the Immigration Judge withdrew the gant of voluntary depaure and
entered a order of removal.
On appeal, the respondent argues that te Immigration Judge "filed to specif that by being
ready to represent hmself, [he] wa waiving his right to counsel." Respondent's Brief at 6. He
therefre agues tat the Immigation Judge failed to obtain a kowing ad intelligent waiver of
his right to counsel. Id at 4-5 (citing Biwot v. Gonzales, 403 F.3d 1094, 1100 (9th Cir. 2005)
and Tawadrus v. Ashcrof, 364 F.3d 1099, 1103 (9t Cir. 2004)).
We are not persuaded by the respondent's argument that the Immigration Judge filed to
explain the consequences of ageeing to represent himself without counsel. Te Immigration
Judge explained that the respondent had the right to counsel of his own choice and at his ow
expense, ad gated a shor but reasonable continuance fr this purpose. See Matter of C-B-,
25 l&N Dec. 888 (BIA 2012); Ra v. Gonzales, 439 F.3d 582, 586-87 (9 Cir. 2006). Te
respondent then indicated his readiness to proceed by representing himself, ad did not object or
even seek additional time when the Immigration Judge indicated that he had "waived" his right
to counsel.
Due process is satisfed if the alien, with or without representation, has a fll and fair hearing.
See Ramirez v. INS, 550 F.2d 560, 563 (9 Cir. 1977). Furthermore, the respondent must
demonstate that he was prejudiced by the Immigration Judge's actions in order fr us to sustain
his appeal. See Vdes-Vdes v. INS, 783 F.2d 1463, 1469-70 (9th Cir. 1986) (an alien must
demonstate prejudice such as would constitute a due process violation); Nicholas v. INS,
590 F .2d 802, 809-10 (9th Cir. 1979) ("The alien has been denied the fll and fair hearing which
due process provides only if the thing complained of causes the alien to sufer some prejudice");
Matter of Santos, 19 I&N Dec. 105, 109 (BIA 1984) (Board requires showing of prejudice fr
claims based on a deprivation of the right to counsel).
Here, the Immigration Judge met the respondent's due process right to counsel by
(1) providing a reaonable period fr obtaining counsel, ad (2) inquiring whether the
respondent was ready to proceed and to represent himself ad then (3) concluding that the
waiver of counsel was knowing and voluntary (l.J. at 2). Ram v. Muksey, 529 F.3d 1238, 1242
(9 Cir. 2008) (citing Biwot v. Gonales, supra, at 1100 ad Tawadrus v. Ashcrof, supra, at
1103).
Furherore, since the respondent had no fear of reting to Mexico, was the benefciay of
no pending visa petition, and had no qualifing relative fr purposes of an application fr
cacellation of removal, the Immigation Judge properly considered the fct that the respondent
did not appear eligible fr any relief fom removal (Tr. at 6-7; I.J. at 3). See Ponce-Leiva
v. Ashcrof, 331 F.3d 369, 377 (9th Cir. 2003) ("it is reasonable ad proper fr an immigration
judge to consider the apparent lack of merit in a claim when deciding to proceed without
counsel"). Te respondent does not indicate on appeal that any of the above facts ha chaged.
We therefre fnd that the respondent has failed to show prejudice.
2
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
Cite as: Fernando Barajas Acevedo, A087 906 037 (BIA Aug. 15, 2013)
. . .
A087 906 037
Nevertheless. we fnd that a remand of this matter is required fr application of our
interening precedent in Mater of C-B-, supra. Therein, we stated that because a Immigration
Judge must advise a respondent of the frms of relief fr which he or she is appaently eligible,
including voluntary departure under both sections 240B(a)(l) and 240B(b)(l) of the Act, a
remand may be applicable where a grant of voluntar depaure under the frmer section is
withdrawn due to an alien's intent to exercise his right to appeal. Specifcally, we stated that
"[ o ]nee the respondent indicated that he would not waive appeal and was therefre no longer
eligible fr voluntary departure under section 240B(a)(l) of the Act, his eligibility fr volunta
deparure under section 240B(b)(l ) should have been considered at the conclusion of the hearing."
Mater of C-B-, supra, 25 I&N Dec. at 892. Since the Immigration Judge did not have the
beneft of this interening decision and did not consider the respondent's eligibility fr voluntary
departure under section 240B(b )(1) of the Act or make required fctual fndings with regard to
that relief, we will remand this mater fr that limited purpose.
Accordingly, the fllowing order will be entered.
ORDER: The record will be remanded fr frther proceedings consistent with this order.
3
.l � 3 H ~-W $
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
Cite as: Fernando Barajas Acevedo, A087 906 037 (BIA Aug. 15, 2013)
U. S. DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
Tacoma, Washington
File A 87 906 037 Date: February 1, 2012
In the Matter of
FERNANDO BARAJAS-ACEVEDO
}
)
)
)
IN REMOVAL PROCEEDINGS
Respondent
CHARGE:
APPLICATION:
APPEARANCES:
INA Section 212(a) (6) (A) (i) as an alien
present in the United States without being
admitted or paroled
Voluntary departure
EEUIVE OFICE FOR IMMIGRTON REE
IMMIGRTON CUR
TACM WAHINGON
REB-1. O/ .< .
ON BEHALF OF RESPONDENT: ON BEHALF OF THE DEPARTMENT
OF HOMELAND SECURITY:
Pro se Joseph Silvio, Esquire
Assistant Chief Counsel
ORAL DECISION OF THE IMMIGRATION JUDGE
The Department of Homeland Security filed a Notice to
Appear with the Imigration Court on December 12, 2011. See
Exhibit 1. The government alleged that Respondent is a native and
citizen of Mexico who arrived in the United States without having
been admitted or paroled by an Imigration officer. The
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
Respondent was charged under Section 212(a) (6) (A) (i) .
The Respondent appeared before the Court originally on
January 11, 2012 before another Imigration Judge. The Respondent
was advised of his rights in these proceedings; he had a right to
be represented by an attorney of his own choosing and at no
expense to the government, he had the right to examine and object
to any evidence offered against him, he had a right to designate a
country of removal, and to appeal any decision to a higher court.
The Notice to Appear receipt was acknowledged and marked as
Exhibit 1. He acknowledged receipt of the legal aid list and his
appeal rights.
as Exhibit 2.
The government offered an evidence packet marked
It contains the Record of Deportable/Inadmissible
Alien, Form I-213, in support.
The Respondent advised the prior Imigration Judge that
he wanted time to get an attorney and the matter was reset to
today's date, February 1, 2012.
On today's date, the Respondent advised the Court he
wished to proceed in English and that he gave up his right to seek
further continuances to find an attorney or to prepare. The Court
found that he knowingly waived his right to have an attorney.
The Respondent was advised of the charge of removal and
the Court �sked him the allegations in the Notice to Appear. He
acknowledged that they were true. He did provide, however, that
he entered the United States on or about 1993 or 1994. Based upon
the Respondent's admissions, the Court found the Respondent
A 87 906 037 2 February 1, 2012
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
removable as charged.
The Respondent, when asked, indicated he was not afraid
to return to his country and he wished to return to Mexico. The
Court so directed Mexico as the country of removal and found that
he knowingly waived his right to apply for asylum and related
protection. The Court hereby directs Mexico as the country of
removal should that become necessary.
The Respondent advised the Court that was his first
entry into the United States in 1993 or 1994. He stated that he
does not have a spouse, parent or child who is a lawful permanent
resident or a United States citizen. He did tell the Court that
his fiance is a lawful resident. The Respondent does have a
criminal history in the United States. He was convicted for a hit
and run offense in 2007. He also has a recent arrest for
possession of a Social Security card which is pending and he is
fighting the case. The Court was willing to grant the
Respondent's request for voluntary departure; that he has met the
requirements, that he has the means to depart, it would be under
safeguards or in custody, that he's not been convicted of an
aggravated felony offense, and that he accept the decision as
final. However, the Respondent advised the Court he did not want
to accept the decision after the Court explained the requirement.
Therefore, the Court withdrew the prior grant of voluntary
departure under safeguards and does not find then that the
Respondent is eligible for any other forms of relief from removal.
A 87 906 037 3 February 1, 2012
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
Accordingly, the following order will issue:
IT IS HEREBY ORDERED that the Respondent's application
for voluntary departure is DENIED.
IT IS FURTHER ORDERED that the Respondent be removed to
Mexico on the charge contained in the Notice to Appear.
A 87 906 037 4 February 1, 2012
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
CERTIFICATE PAGE
I hereby certify that the attached proceeding before
TAM Y L. FITTING, in the matter of:
FERNADO BAJAS-ACEVEDO
A 87 906 037
Tacoma, Washington
was held as herein appears, and that this is the original
transcript thereof for the file of the Executive Office for
Immi�ration Review.
·�
/ »
I
í .+
J`
'° -
•<;,
çº r
._:' • . ··; f.,7 -�
--
ced/mab
.
·

!
Christy Davis, Transcriber
YORK STENOGRPHIC SERVICES, INC.
34 North George Street
York, Pennsylvania 17401-1266
(717) 854-0077
March 8, 2012
Completion Date
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t

You're Reading a Free Preview

Download
scribd
/*********** DO NOT ALTER ANYTHING BELOW THIS LINE ! ************/ var s_code=s.t();if(s_code)document.write(s_code)//-->