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Juan Aguilar-Perez, A027 190 905 (BIA Sept. 13, 2013)

Juan Aguilar-Perez, A027 190 905 (BIA Sept. 13, 2013)

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In this unpublished decision, the Board of Immigration Appeals (BIA) upheld the grant of a DHS motion to terminate proceedings to reinstate a prior removal order against the respondent. The Board rejected the respondent’s argument that the underlying order should be set aside on grounds that he was mentally incompetent at his prior removal hearing and that the Immigration Judge who presided over the hearing previously prosecuted the respondent’s case while employed as a DHS trial attorney. The decision was written by Member Garry Malphrus and joined by Member Michael Creppy and Member Hugh Mullane.
In this unpublished decision, the Board of Immigration Appeals (BIA) upheld the grant of a DHS motion to terminate proceedings to reinstate a prior removal order against the respondent. The Board rejected the respondent’s argument that the underlying order should be set aside on grounds that he was mentally incompetent at his prior removal hearing and that the Immigration Judge who presided over the hearing previously prosecuted the respondent’s case while employed as a DHS trial attorney. The decision was written by Member Garry Malphrus and joined by Member Michael Creppy and Member Hugh Mullane.

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Published by: Immigrant & Refugee Appellate Center, LLC on Sep 18, 2013
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10/15/2013

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AGUILAR-PEREZ, JUAN

A027·190·905
C/O FEDERAL CORRECTIONS
P .0. BOX 6000
FLORENCE, CO 81226
Name: AGUILAR-PEREZ, JUAN
U.S. Department of Justice
Executive Ofce fr Immigration Review
Board of Immigration Appeals
Ofce of the Clerk
5107 Leeb11rg Pike. S11i1e 2000
Fals C111rc1. Vrginia 22041
OHS/ICE Ofice of Chief Counsel· TAC
1623 East J Street, Ste. 2
Tacoma, WA 98421
A 027 ·190-905
Date of this notice:
9/13/2013
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosure
Panel Members:
Creppy, Michael J.
Malphrus, Garr D.
Mullane, Hugh G.
Sincerely,
[ou c t
Donna Carr
Chief Clerk
Trane
Userteam: Docket
For more unpublished BIA decisions, visit www.irac.net/unpublished
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Cite as: Juan Aguilar-Perez, A027 190 905 (BIA Sept. 13, 2013)
U.S. Department of Justice
Executive Ofce fr Immigation Review
Falls Church, Virginia 22041
File: A027 190 905 - Tacoma, WA
Decision of the Board of Immigation Appeals
Date:
SEP 1 8 2013
In re: JA AGUILAR-PEREZ a.k.a. Arturo Sauceda-Tera
I REMOVAL PROCEEDINGS
APPEAL
ON BEHALF OF RESPONDENT: Pro se
CHARGE:
Notice: Sec. 212(a)(6)(A)(i), l&N Act [8 U.S.C. § 1182(a)(6)(A)(i)] -
Present without being admited or paoled
Sec. 212(a)(9)(A)(ii), l&N Act [8 U.S.C. § l 182(a)(9)(A)(ii)] -
Aliens previously removed
APPLICATION: Terination of proceedings
The respondent appeals fom the Immigation Judge's March 21, 2013, decision ganting the
Depaent of Homeland Security's ("DHS") motion to dismiss the removal proceedings
without prejudice. 8 C.F.R. § 1239.2(c). We will dismiss the appeal.
We review fr clear eror the fndings of fct, including deterinations of credibility, made
by the Immigration Judge. 8 C.F.R. § 1003.l(d)(3)(i). We review de nova all other issues,
including whether the parties have met the relevat burden of proof and issues of discretion.
8 C.F.R. § 1003.l (d)(3)(ii).
The Immigation Judge correctly grated the DHS's motion to dismiss without prejudice
because the respondent is subject to a reinstated removal order, issued on June 3, 2008, and he is
therefre not entitled to reopening his removal proceedings (Exh. A to DHS's Opposition to
Motion to Reopen). Section 241(a)(5) of the Immigation and Nationality Act, 8 U.S.C.
§ 1231 (a)(S) (reinstated removal order is not subject to being reopened or reviewed); 8 C.F.R.
§ 1241.8(a); Mater of W-C-B-, 24 l&N Dec. 118, 120-23 (BIA 2007); Morales-Izquierdo
v. Gonzales, 486 F.3d 484, 497-98 (9th Cir. 2007) (en bane) ("Reinstatement of a prior removal
order - regardless of the process afrded in the underlying order - does not ofend due process
because reinstatement of a prior order does not change the alien's rights or remedies.").
The respondent's appellate argents are not persuasive. The respondent contends that, fr
two reaons, he sufered a "goss miscarriage of justice" in his earlier removal proceeding that
would perit a collateral attack on the reinstated removal order. Garcia De Rincon v. DHS,
539 F.3d 1133, 1139 (9th Cir. 2008) (permitting collateral attack of reinstatement order in
federal circuit court if respondent ca show he sufered a "gross miscarriage of justice" in the
initial deportation proceeding). First, the respondent contends that he was mentally incompetent
during the June 3, 2008, removal proceeding, and that pursuant to the Fifh and Sixth
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Cite as: Juan Aguilar-Perez, A027 190 905 (BIA Sept. 13, 2013)
A027 I90 905
Amendments to the United States Constitution, he should have been appointed legal cousel
(Respondent's Brief at 3-5). 1 The respondent's argument is without merit as he has no
constitutional right to appointed counsel i immigation proceedings. Section 292 of the Act,
8 U.S.C. § 1362; Morales-Izquierdo v. Gonales, supra, at 497 (respondents in immigation
proceedings have no Sixth Aendment right to counsel).
Moreover, the record does not support the respondent's claim of mental incompetency.
At no point befre this appeal did the respondent contend that he was mentally incompetent at
the June 3, 2008, removal heaing, including when he moved to reopen. Moreover, the hearing
tanscript refects that the respondent flly understood the nature of the June 3, 2008,
proceedings. The respondent admitted the factual allegations of the Notice to Appear and
responded directly and succinctly to the Immigration Judge's questions regarding his eligibility
fr relief fom removal (Tr. at 45-50). The respondent accepted the Immigation Judge's
decision, noted that he had been detained fr 68 days, ad asked how quickly the DHS would
remove him (Tr. at 50-51). There is no record evidence supporting the respondent's statement in
his appeal brief that he was administered narcotics at his hearing (Respondent's Brief at 4).
There is no record evidence refecting ay indicia of mental incompetency on the respondent's
part at the June 3, 2008, hearing (Tr. at 45-5I).
The second reason fr the respondent's claim that he sufered a gross miscarage of justice is
because subsequent to the June 3, 2008, heang and issuance of the removal order, the presiding
Immigation Judge realized that she had been previously involved in the respondent's cae a a
Assistant Chief Counsel with the DHS (Respondent's Brief at 4; Mach I I, 2013 IJ Order).
The record does not provide ay additional information as to the Immigtion Judge's prior role
in the respondent's case, but there is no evidence that she was biased or predisposed against the
respondent at the June 3, 2008, removal hearing. The record refects that the Immigation Judge
properly advised the respondent regarding his rights, ensured that he understood the proceedings,
and flly explored with him his eligibility fr relief fom removal (Tr. at 2-4, 45-51 ). The
respondent has not explained how the Immigation Judge's prior involvement in his proceedings
as an Assistant Chief Counsel prejudiced him during his removal proceeings.
In sum, the respondent has not demonstrated that "a goss miscarriage of justice" occured
during his June 3, 2008, rmoval hearing, ad he is therefre not entitled to a collateral review of
the reinstated removal order.
The respondent's appeal brief also raises various arguments in support of relief fom removal,
including that he has a well-funded fear of persecution in Mexico, and that he deseres relief
due to his long-standing ties to the United States and the hardship that would endure to him and
his faily if he is removed (Respondent's Brief at 5-7). As discussed above, the respondent is
not entitled to review or reopening of the June 3, 2008, removal order which has been reinstated
(Exh. A to DHS's Opposition to Motion to Reopen). Section 24I(a)(5) of the Act; 8 C.F.R.
§ I241.8(a); Matter of W-C-B-, supra, at I20-23. By regulation, however, the respondent is
1 The respondent did not paginate his appeal brief. In order to accurately refect the portions of
the brief that we ae citing in this order, we count as page 1 the frst page of the respondent's
memorandum, which contains the cae caption ad the title "Memorandum of Law in Suppor of
Appeal fom a Decision of a Immigration Judge."
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Cite as: Juan Aguilar-Perez, A027 190 905 (BIA Sept. 13, 2013)
¯ Ê
A027 190 905
§ 1241.S(a); Matter of W-C-B-, supra, at 120-23. By regulation, however, the respondent is
entitled to review by a OHS aylum ofcer of his claimed fea of persecution in Mexico, ad the
respondent may pursue that claim in reinstatement proceedings befre the OHS
(Respondent's Brief at 7). 8 C.F.R. §§ 1208.31; 1241.S(e); Matter ofW-C-B-, supra, at 123.
For these reasons, we will dismiss the respondent's appeal.
ORER: Te respondent's appeal is dismissed.
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Cite as: Juan Aguilar-Perez, A027 190 905 (BIA Sept. 13, 2013)
, .. ,. \

United States Department of Justice
Executive Ofce fr Immigration Review
Immigration Court
Tacoma, WA
In the Matter of: AGUILAR-PEREZ, Juan, a.k.a. Arturo Sauceda-Teran
A Number: A027 190 905
ORDER OF THE IMMIGRATION JUDGE
Upon consideration of the DHS MOTION TO DISMISS REOPENED REMOVAL
PROCEEDINGS WITHOUT PREJUDICE, it is HEREBY ORDERED that the motion be
[�R� DENIED BECAUSE:
[ ] DHS does not oppose the motion.
[ ] The respondent does not oppose the motion.
[ ] A response to the motion has not been fled with the court.
[ { Good cause has been established fr the motion.
[]The court agrees with the reasons stated in the opposition to the motion.
[]The motion is untimely per
[]Other:
Deadlines:
[]The application(s) fr relief must be fled by
[ ] The respondent must comply with DHS biometrics instructions by
Date'
ü³
Immigration Judge
�ertifcate of Service
This document was

ed by : [!Mail []Personal Service
_ /
To: []Alien [�Alien c/o Custodial Ofcer []Alien's Atty/Rep [�
Date: 6-,/-1 By: Court Staf �
3 A027190 905
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