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Andre Philip Cole, A206 193 520 (BIA Mar. 7, 2014)

Andre Philip Cole, A206 193 520 (BIA Mar. 7, 2014)

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In this unpublished decision, the Board of Immigration Appeals (BIA) remanded the record for further proceedings because the respondent’s attorney was not mailed a hearing notice despite having submitted an entry of appearance (Form EOIR-28). The decision was written by Member Elise Manuel and joined by Member John Guendelsberger and Member Sharon Hoffman.

Looking for IRAC’s Index of Unpublished BIA Decisions? Visit www.irac.net/unpublished/index
In this unpublished decision, the Board of Immigration Appeals (BIA) remanded the record for further proceedings because the respondent’s attorney was not mailed a hearing notice despite having submitted an entry of appearance (Form EOIR-28). The decision was written by Member Elise Manuel and joined by Member John Guendelsberger and Member Sharon Hoffman.

Looking for IRAC’s Index of Unpublished BIA Decisions? Visit www.irac.net/unpublished/index

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Published by: Immigrant & Refugee Appellate Center, LLC on Mar 18, 2014
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05/06/2014

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U.S.

Department of Justice Executive Office for Immigration Review

Board ofImmigration Appeals Office ofthe Clerk
5107 leesburg Pike, Suite 2000 Fals l Church. Virginia 20530

jackson, frederick rj, Esq. frederick jackson & assoc 3011 Rainbow Dr., Ste105 Decatur, GA 30034

OHS/ICE Office of Chief Counsel - SOC 146 CCA Road Lumpkin, GA 31815

Immigrant & Refugee Appellate Center | www.irac.net

Name: COLE, ANDRE PHILIP

A 206-193-520

Date of this notice: 3/7/2014

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

DcnnL caAAJ
Donna Carr Chief Clerk

Enclosure Panel Members: Guendelsberger, John Hoffman, Sharon Manuel, Elise

Lulseges
Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: Andre Philip Cole, A206 193 520 (BIA Mar. 7, 2014)

U.S. Department of Justice Executive Office for Immigration Review

Board ofImmigration Appeals Office ofthe Clerk
5 I 07 Leesburg P;ke. Suite 2000 Falls Church. Virginia 20530

COLE, ANDRE PHILIP A206-193-520 OIC, William McMinn Stewart Detention Center 146 CCA Road Lumpkin, GA 31815

OHS/ICE Office of Chief Counsel - SOC 146 CCA Road Lumpkin, GA 31815

Immigrant & Refugee Appellate Center | www.irac.net

Name: COLE, ANDRE PHILIP

A 206-193-520

Date of this notice: 3/7/2014

Enclosed is a copy of the Board's decision in the above-referenced case. This copy is being provided to you as a courtesy. Your attorney or representative has been served with this If the attached decision orders that you be decision pursuant to 8 C.F.R. § 1292.S(a).

removed from the United States or affirms an Immigration Judge's decision ordering that you be removed, any petition for review of the attached decision must be filed with and received by the appropriate court of appeals within 30 days of the date of the decision. Sincerely,

DOWtL ca.NU
Donna Carr Chief Clerk

Enclosure Panel Members: Guendelsberger, John Hoffman, Sharon Manuel, Elise

Lulseges Userteam: Docket

Cite as: Andre Philip Cole, A206 193 520 (BIA Mar. 7, 2014)

·U.S. Department of Justice
Exectitive Office for Immigration Review Falls Church, Virginia 20530

Decision of the Board of Immigration Appeals

File:

A206 193 520 - Lwnpkin, GA

Date:

MAR
In re: ANDRE PHILIP COLE IN REMOVAL PROCEEDINGS APPEAL ON BEHALF OF RESPONDENT: Frederick R.J. Jackson, Esquire

7 2014

Immigrant & Refugee Appellate Center | www.irac.net

The respondent, a native and citizen of Jamaica, appeals the decision of the Immigration Judge, dated December 2, 2013, ordering his removal from the United States. The record will be remanded. We conclude that it is appropriate for the record of these removal proceedings to be remanded
as

the respondent's attorney of record was not provided with notice of the time, date, The administrative records of this agency

and place of the respondent's removal hearing. Appearance
as

confirm that, on October 30, 2013, attorney Frederick R.J. Jackson filed a Notice of Entry of Attorney or Representative before the hnmigration Court (Form EOIR-28) on As the Form EOIR-28 was only entered in the respondent's separate behalf of the respondent.

bond proceedings, a Notice of Hearing in Removal Proceedings ("NOH") was not served upon attorney Jackson. The filing of a Form EOIR-28 constitutes an entrance of appearance for all proceedings, including removal and bond. Accordingly,
as

Immigration Court Practice Manual, § 2.3(d) at 21

(June 10, 2013), http://www.justice.gov/eoir/vll/OCIJPracManual/Practice_Manual_l-27-14.pdf. the Immigration Court did not properly serve a NOH upon attorney Jackson, we will remand the record to the Immigration Court in order to provide the respondent with an additional opportunity to appear before an Immigration Judge with the assistance of his legal counsel. Upon remand, the Immigration Judge should, among other things, require the respondent's attorney of record to enter new pleadings to the Notice to Appear. The following order is entered. ORDER: The record is remanded to the Immigration Court for further proceedings

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

FOR THE BOARD

Cite as: Andre Philip Cole, A206 193 520 (BIA Mar. 7, 2014)

UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW UNITED STATES IMMIGRATION COURT LUMPKIN, GEORG IA

Immigrant & Refugee Appellate Center | www.irac.net

File: A206- 193-520 In the Matter of

December 2, 2013

ANDRE P HILIP COLE RESPONDENT

) ) )

IN REMOVAL PROCEEDINGS

)

C HARGES:

Section 212(a){6)(A){i) - present without being admitted or paroled; Section 2 12 (a)(2)(A)(i)(ll) - controlled substance violation.

APPLICAT IONS:

None.

ON BEHALF O F RESPONDENT: PRO SE ON BEHALF OF O HS: DIANE DODD, Esquire

ORAL DECISION O F T H E IMMIGRATION JUDGE EX HIBITS: 1, Notice to Appear. 2, record of respondent's August 26, 2009, conviction for possession of marijuana. 3, record of respondent's June 6, 2012, conviction for possession with intent to distribute of mar ijuana.

1

4, Form 1-2 13.

WITNESS: Respondent. In arriving at my findings of fact and conclusions of law, I considered all the documentary and testimonial evidence in this case. My failure to comment on a specific or particular testimony does not mean I failed to consider. CREDIBILITY Based upon the totality of the circumstances, I find respondent to be credible. FINDINGS OF FACT AND CONCLUSIONS OF LAW Exhibit 1 was served on respondent on November 19, 20 13. On December 2, 20 13, contrary to respondent's pleas, all allegations in Exhibit 1 were sustained and respondent was found by clear and convincing evidence to be removable as charged in both charges in Exhibit 1. Jamaica is designated as the country of removal. Respondent indicated that he believes he was a citizen of the United States, but that he was born in Jamaica. Exhibit 4 shows that respondent had admitted that he was a citizen and national of Jamaica, however, at his hearing, respondent stated he did not know whether he was a citizen of Jamaica or not. Based upon the statements in Exhibit
4, I concluded that respondent was born in Jamaica. Consequently, the burden to

Immigrant & Refugee Appellate Center | www.irac.net

establish whether respondent is a citizen of the United States is on respondent. During his hearing, respondent indicated that he did not want any additional time to present any information to the Court regarding whether he was a citizen of the United States. The Court, on several occasions, offered respondent an opportunity to continue his case so that respondent could contact an attorney by the name of Frederick Jackson who has been helping respondent and communicating with Department of Homeland

A206- 193-520

2

December 2, 20 13

Security attorneys. Respondent indicated that he not only wanted to waive his right to a lawyer and represent himself, but also that he did not want to take any additional time to communicate with and consult with Attorney Frederick Jackson. Because respondent presented no evidence concerning his c itizenship in the United States and because the Department of Homeland Security indicated that they were unable to uncover any evidence tending to show that respondent might be a citizen of the United States, I sustained allegation 1 in Exhibit 1. Based upon respondent's statements and as reflected on page 2 in Exhibit 4, I sustained allegation 2 in Exhibit 1. For the reasons stated above, that is that respondent did not want to submit any additional information or documentation to the Court, I further sustained allegation 4 in Exhib it 1. Respondent had previously admitted allegations 3, 5 and 6 in Exhibit 1. Exhibit 2 shows that on August 26, 2009, respondent was convicted of possessing marijuana in violation of OCGA Section 16- 13-2, the Controlled Substance Act in Georgia. Exhibit 2 shows that respondent was convicted in accordance with his pleas and sentenced to confinement for a period of 12 months, but that the sentence may be served on probation. On June 6, 20 12, respondent entered a plea of guilty to possessing with intent to distribute marijuana and to possessing marijuana in an amount of more than one ounce
,

Immigrant & Refugee Appellate Center | www.irac.net

as reflected in counts one and two in Exhibit 3. Respondent was sentenced to confinement for a period of five years for those two counts (count two having merged w ith count one for sentencing purposes), however, the Court allowed respondent to serve his period of confinement on probation. Because of respondent's convictions as reflected in Exhibits 2 and 3, I found by

A206- 193-520

3

December 2, 20 13

'r'·

clear and convincing evidence that respondent has been convicted of a law relating to a controlled substance in charge two in Exhib it 1. Respondent indicated that he had no reason to believe that either of his parents were United States citizens or are lawful permanent residents of the United States. Respondent indicated that he is not married, but that he has three children, all of whom were born in the United States, ages 6, 5 and 3. Because of respondent's conviction, he is not eligible for cancellation of removal. Respondent indicated that if he returned to Jamaica, he did not believe that anyone would harm him in Jamaica. Consequently, I conclude that respondent has not stated any potential grounds for relief under the provisions of asylum, withholding of removal or under the provisions of the Convention against Torture. Respondent indicated that his father had filed an 1-130 petition for him. Because respondent entered the United States illegally, the respondent would have to Consular process in order to adjust his status. Respondent would be ineligible to adjust his status in Immigration Court. Because of his convictions in Exhibits 2 and 3 and particularly because of his conviction as reflected in Exhibit 3, I indicated to respondent that I would not approve any request for voluntary departure for him. I conclude based upon respondent's plea of guilty to count one in Exhibit 3 that respondent is also an aggravated felon in accordance with the Immigration and Nationality Act. Because respondent is not eligible for any relief before the Immigration Court and because he has not requested any relief before the Immigration Court, I have entered the following order.

Immigrant & Refugee Appellate Center | www.irac.net

A206-193-520

4

December 2, 2013

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ORDER Respondent will be removed from the United States to Jamaica. A written order reflecting the above decision will be provided separately and made part of the record.

Immigrant & Refugee Appellate Center | www.irac.net

DAN TRIMBLE Immigration Judge

A206- 193-520

5

December 2, 20 13

CERTIFICATE PAGE

I hereby certify that the attached proceeding before JUDGE DAN TRIMBLE, in

the matter of:

Immigrant & Refugee Appellate Center | www.irac.net

ANDRE PHILIP COLE

A206-193-520

LUMPKIN, GEORGIA

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

FREE STATE REPORTING, lnc.-2 JANUARY 19, 201 4

(Completion Date)

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