P. 1
Rogelio Chavez-Rubio, A205 656 470 (BIA Jan. 30, 2014)

Rogelio Chavez-Rubio, A205 656 470 (BIA Jan. 30, 2014)

|Views: 310|Likes:
In this unpublished decision, the Board of Immigration Appeals (BIA) remanded the record upon finding the immigration judge should have considered the respondent’s request for a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Looking for IRAC’s Index of Unpublished BIA Decisions? Visit www.irac.net/unpublished/index
In this unpublished decision, the Board of Immigration Appeals (BIA) remanded the record upon finding the immigration judge should have considered the respondent’s request for a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Looking for IRAC’s Index of Unpublished BIA Decisions? Visit www.irac.net/unpublished/index

More info:

Published by: Immigrant & Refugee Appellate Center, LLC on Feb 09, 2014
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

03/21/2014

pdf

text

original

EDWARD CIFUENTES, ESQ.

U.S. Department of Justice
Executive Ofce fr Imigration Review
8ooráof I¬¬|çrot|oaa¡jeolc
u¡ceoft/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For more unpublished BIA decisions, visit www.irac.net/unpublished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

&

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: 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
8ooráof I¬»içrotioa4¡¡eolc
u¡ceoft/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

&

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: Rogelio Chavez-Rubio, A205 656 470 (BIA Jan. 30, 2014)
U.S. Deparment of Justice
Ex�cutive 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

&

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: 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

&

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: 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 / 
 
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)//-->