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Darwin Leonardo Cabrera-Guartasaca, A205 134 459 (BIA Jul. 9, 2012)

Darwin Leonardo Cabrera-Guartasaca, A205 134 459 (BIA Jul. 9, 2012)

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In this unpublished decision, the Board of Immigration Appeals (BIA) granted the respondent an additional 45 days to depart the country upon finding he was never asked to waive his appeal rights after receiving a grant of voluntary departure prior to the conclusion of proceedings. The decision was written by Member Sharon Hoffman.
In this unpublished decision, the Board of Immigration Appeals (BIA) granted the respondent an additional 45 days to depart the country upon finding he was never asked to waive his appeal rights after receiving a grant of voluntary departure prior to the conclusion of proceedings. The decision was written by Member Sharon Hoffman.

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03/10/2014

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U.S.

Department of Justice Executive Office for Immigration Review

Board ofImmigration Appeals Office ofthe Clerk
5/07 l.eesb11rg Pike. S11ite 2000 I-ii/ls Cli11rch. Virginia 22041

Maggy Duteau

OHS LIT./York Co. Prison/YOR

12 East 33rd St., Ste. 1100
New York, NY 10016

3400 Concord Road York, PA 17402

Immigrant & Refugee Appellate Center | www.irac.net

Name: CABRERA-GUARTASACA, DARWIN LEONARDO

A205-134-459

Date of this notice: 7/9/2012

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

Donna Carr Chief Clerk

Enclosure

Panel Members: Hoffman, Sharon

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: Darwin Leonardo Cabrera-Guartasaca, A205 134 459 (BIA Jul. 9, 2012)

U.S: Department of Justice
Executi:ve Office for Immigration Review Falls Church, Virginia 22041

Decision of the Board of Immigration Appeals

File: In re:

A205 134 459 - York, PA

Date:

JUL 0 9

Z01Z

DARWIN LEONARDO CABRERA-GUARTASACA

IN REMOVAL PROCEEDINGS APPEAL ON BEHALF OF RESPONDENT: ON BEHALF OF DHS: Maggy Duteau, Esquire'

Immigrant & Refugee Appellate Center | www.irac.net

John P. Ellington Deputy Chief Counsel

APPLICATION:

Voluntary departure

The respondent, a native and citizen ofEcuador, appeals the decision ofthe Immigration Judge, dated March l , 2012, granting him 45 days to voluntarily depart the United States (with an alternate order of removal to Ecuador).2 8 U.S. C. § l 229c(a)(1). We will dismiss the respondent's appeal and provide him with an additional 45-day period to voluntarily depart the United States. We review Immigration Judges' findings offact for clear error, but questions oflaw, discretion, and judgment, and all other issues in appeals, de novo. 8 C.F.R. §§ 1003.1(d)(3)(i), (ii). As initial matter, we agree with the respondent that he did not effectively waive his appeal rights (Respondent's Br. at 3). Immigration Judge indicated in his summary order that the respondent waived his appeal rights, the transcript does not indicate that, at any time, the Immigration Judge asked the respondent if he wished to reserve or waive his appeal rights. Considering these circumstances, we conclude that the Immigration Judge's decision is properly before us for purposes of appellate review. While we do conclude that the respondent did not effectively waive his appeal rights, we agree with the Department ofHomeland Security that the Immigration Judge's decision should otherwise be affirmed. On appeal, the respondent does not raise any argument which establishes that the Immigration Judge's decision in this matter should be disturbed or that remanded proceedings are

See

section 240B(a)( l ) of the Immigration and Nationality Act,

See Matter of Patino,

23 I&N Dec. 74 (BIA 2001). Even though the

1

We advise attorney Duteau that 8 C.F.R. § 1003.102(t) requires attorneys to submit a "complete"

Notice of Entry of Appearance (Form EOIR-27), which includes stating the full name of the court in which he or she is a member in good standing of the bar and providing a state bar number.
2 As removal proceedings are separate and apart from bond proceedings, we lack jurisdiction to consider any claims regarding the conditions of the respondent's detention in the instant removal

proceedings.

See 8 C.F.R. § 1003.19(d).

Cite as: Darwin Leonardo Cabrera-Guartasaca, A205 134 459 (BIA Jul. 9, 2012)

A205 134 459

warranted.

the respondent, through counsel, has conceded that he is subject to removal from the United States as charged in the Notice to Appear (Tr. at 1; Exh. 1). Aside from voluntary departure, he has not requested any other form ofrelieffrom removal that can be granted by an Immigration Judge or this Board during the course of these removal proceedings. Accordingly, the following orders are entered. ORDER: The respondent's appeal is dismissed.

See Malter ofCoelho, 20 l&N Dec. 464, 471 (BIA 1992).

In particular, we observe that

Immigrant & Refugee Appellate Center | www.irac.net

FURTHER ORDER:

Pursuant to the Immigration Judge's order and conditioned upon

compliance with conditions set forth by the Immigration Judge and the statute, the respondent is permitted to voluntarily depart the United States, without expense to the Government, within 45 days from the date of this order or any extension beyond that time as may be granted by the Department of Homeland Security ("OHS"). 8 U.S.C. § 1229c(b); Judge's order. NOTICE: If the respondent fails to voluntarily depart the United States within the time period specified, or any extensions granted by the OHS, the respondent shall be subject to a civil penalty as provided by the regulations and the statute and shall be ineligible for a period of 10 years for any further relief under section 240B and sections 240A, 245, 248, and 249 of the Act. 240B(d) of the Act.

voluntarily depart the United States, the respondent shall be removed as provided in the Immigration

see also

8 C.F.R. §§ 1240.26(c), (t). In the event the respondent fails to

See

section 240B(b) of the Immigration and Nationality Act,

See

section

WARNING: If the respondent files a motion to reopen or reconsider prior to the expiration of the voluntary departure period set forth above, the grant of voluntary departure is automatically terminated; the period allowed for voluntary departure is not stayed, tolled, or extended. Ifthe grant of voluntary departure is automatically terminated upon the filing of a motion, the penalties for failure to depart under section 240B(d) of the Act shall not apply.

See

8 C.F.R. § 1240.26(e)(l ).

WARNING: If, prior to departing the United States, the respondent files any judicial challenge to this administratively final order, such as a petition for review pursuant to section 242 of the Act, 8 U.S.C. § 1252, the grant ofvoluntary departure is automatically terminated, and the alternate order ofremoval shall immediately take effect. However, ifthe respondent files a petition for review and then departs the United States within 30 days of such filing, the respondent will not be deemed to have departed under an order ofremoval ifthe alien provides to the OHS such evidence ofhis or her departure that the Immigration and Customs Enforcement Field Office Director of the OHS may require and provides evidence OHS deems sufficient that he or she has remained outside of the United States. The penalties for failure to depart under section 240B(d) of the Act shall not apply to an alien who files a petition for review, notwithstanding any period of time that he or she remains in the United States while the petition for review is pending. See 8 C.F.R. § 1240.26(i).

2

Cite as: Darwin Leonardo Cabrera-Guartasaca, A205 134 459 (BIA Jul. 9, 2012)

IMMIGRATION COURT 3400 CONCORD ROAD, YORK, In the Matter of CABRERA-GUARTASACA, DARWIN LEONARDO PA SUITE 2 17402 Case No.: A205-134-459 PROCEEDINGS

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Respondent
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Immigrant & Refugee Appellate Center | www.irac.net

proceedings should oe appea ed or reopened, the official opinion in the case.

the oral decision will become

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The respondent was ordered removed from the United States to or in the alternative to . or in the Respondent's application for voluntary departure was denied and ndent was ordered removed to alternative to .

Respondent's application for voluntary departure was granted unti upon posting a bond in the amount of $

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with an alternate order of removal to . Respondent's application for:

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Cancellation of removal under section 240A(a) was (

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it is ordered that the respondent be issued ( )granted ( )denied

all appropriate documents necessary to give effect to this order. Cancellation under section 240A(b) (2) was ( )withdrawn. If granted it is ordered that the respondent be issued was ( )granted ( )denied

all appropriated documents necessary to give effect to this order. Adjustment of Status under Section ( )withdrawn. If granted it is ordered that the respondent be issued ) withholding of removal ( ) deferral of

all appropriated documents necessary to give effect to this order. Respondent's application of ( ( removal under Article III of the Convention Against Torture was ) granted ( ) denied ( ) drawn. o/. Respondent's status was rescinded under section 246. respondent is to pos'f a $

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Respondent is admitted to the United States as As a condition of admission, notice.

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until bond.

Respondent knowingly filed a frivolous asylum application after proper Respondent was advised of the limitation on discretionary relief for\jl• failure to appear as ordered in the Immigration Judge's oral decision. Proceedings were terminated. Other: Date: Mar 1, 2012
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