RAMOS, ENRIQUE

8915 MONTANA AVE

A022-833-741
EL PASO, T 79925
Name: RAMOS, ENRIQUE
U.S. Department of Justice
Executive Ofce fr Immigration Review
Board of Immigration Appeals
Ofce of the Clerk
5107 leesb11rg /like, Suite 2000
Fals Ch11rc/1, Vrgi11ia 22041
OHS/ICE Ofice of Chief Counsel - ELP
1545 Hawkins Blvd.
El Paso, TX 79925
A022-833-7 41
Date of this notice: 3/8/2012
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosure
Panel Members:
Cole, Patricia A.
Sincerely,
Donna Carr
Chief Clerk
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Cite as: Enrique Ramos, A022 833 741 (BIA March 8, 2012)
U.S. Department of Justice
Executive Ofce fr Imigration Review
Falls Church, Virginia 22041
File: A022 833 741 - El Pao, TX
I re: ENQUE RAMOS
I REMOVAL PROCEEDIGS
APEAL
ON BEHF OF RESPONDENT: Pro se
ON BEHALF OF DHS:
CHARGE:
William M. Hunt
Assistant Chief Counsel
Decision of the Board of Imigaton Appeals
Date:
MR -8 Z0\2
Notice: Sec. 212(a)(6)(A)(i), I&N Act [8U.S.C.l182(a)(6)(A)(
i
)] -
Present without being admitted or paroled (not sustained)
Sec. 212(a)(2)(A)(i
)(I)
, I&N Act [8 U.
S.C. l 182(
a
)(2)(A)(
i
)(I)] -
Controlled substance violation
(
not sustaned
)
Lodged: Sec. 237(a)(l ){B), l&N Act
[8 U.S.C. 1227(a
)( l)()] -
I the United States in violation of law
(
sustaned
)
Sec. 237(a)(2)(B)(i), I&N Act [8 U.S.C. 1227(a)(2)(B)(i)] -
Convicted of controlled substance violation (sustained
)
APPLICATION: Terination
The respondent appeals an Immigation Judge's October 19, 2011, decision denying his motion
to terinate his removal proceedings. The Department of Homeland Securty ("DHS") opposes te
appeal, which will be dismissed.
The respondent challenges the Immigation Judge's deterination that the DHS established his
Mexican aienage despite his claim to United States citizenship. He contends that he was denied due
process because the Immigration Judge issued a fnal decision while his request fr a delayed Texas
birth certifcate remained pending. The respondent also asserts that his due process rigts were
violated because he brought witnesses wit kowledge of his United States birt to several hearings
but they were not peritted to testif. He argues that his frer counsel provided inefective
assistance by not advising him that during a May 4, 2011, hearing which the respondent did not
attend, te Immigation Judge instcted counsel to have all witnesses present at the September 16,
2011, hearing, depriving the respondent of the opporunity to present his witess. Final
ly, te
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Cite as: Enrique Ramos, A022 833 741 (BIA March 8, 2012)
1;
1$
A022 833 741
respondent asserts that his eforts to prove his citizenship have been twarted by his moter's frer
emp
l
oyers ad their relative, an immigation ofcial.
The Board reviews an Imigation Judge's fndings of fct, icluding fndings as to the
credibility of testimony, under te "clealy eroneous" stadad. 8 C.F.R. 1003.l(d)(3)(i). We
review de novo questions of law, discretion, judgment, ad all other issues in appeals fom decisions
oflmmigation Judges. 8C.F.R.1003.l(d)(3)(ii);Mater of A-S-B-, 24 I&NDec. 493 (BIA2008).
The Imigation Judge fund tat the evidence of the respondent's Mexican birth included a
copy of a Mexican birt certifcate recorded by his moter several monts afer his birt (I.J. at 1;
Exh. 3 Tab A); records of encounters with immigation autorities where the respondent reported
that he was bor in Mexico including biogaphic inforation, a I-130 petition fled by the
respondent's wif on his behalf, and vaious Fors I-213 Record ofDeortable Alien (Exh. 3 Tabs,
B, C, F, G, H, I); ad a fr refecting the revocation of the respondent's border crossing cad (xh.
3 Tab G).
The Imigation Judge also considered a swor statement by te respondent's godfter attesting
to his presence at the respondent's birth in El Paso, Texas, and asserting that the godfter witessed
te birth papers presented by te midwife (I. J. at 2; Exh. 5). However, the hmigation Judge
attributed little weight to te swor statement because te godfther, an interested witness, was not
available fr cross-exaination (I.J. at 2).
The respondent contends tat his godfther previously appeaed at several hearings but te
respondent was unaware that the godfter should appea at the September 16, 2011, hearing where
the Imigation Judge evaluated the evidence ad determined that te DRS 's evidence of Mexica
alienage outweighed the evidence of United States citizenship. The respondent argues that the
inability to present his witess's testimony constitutes a due process violation. We ae unpersuaded
by this agument, as the tascript of the September 16, 2011, hearing refects that te respondent
did not object to te Immigation Judge's statement that te witness was unavailable to testif, and
did not request a continuance to present the witess. Moreover, despite te fact that the proceedings
were continued to allow the respondent time to respond to new chages lodged by the DHS, hs
witness did not appear at the subsequent hearing. Thus, the respondent waived his due process
claim. Zhang v. Gonzales, 432 F.3d 339, 346-47 (5th Cir. 2005) (failure to raise a due process
objection waives that objection on appeal).
The respondent attributes his godfther's absence fom the September 16, 2011, hearng to his
counsel's failure to advise h that te godfther should appear. To the extent that te respondent
asserts that counsel provided inefective assistace, he has not set frth a claim in compliace wit
the famework outlined in Matter of Lozada, 19 I&N Dec. 637, 639 (BIA 1988). The respondent
has not provided an afdavit attesting to the relevat fcts including the ters ofhis agreement with
cousel; has not infred cousel of the allegations or provided counsel with the opportunit to
respond; and has not fled or explained why a gevance has not been fled with the goverg
authorities. Id.; see also Mai v. Gonzales, 473 F.3d 162, 165 (5th Cir. 2006). Further, the
respondent has not shown that he was prejudiced by his frer counsel's representation. Matter
of Lozada, supra; Mai v. Gonzales, supra. Althoug the respondent aserts that his attorey did not
advise him that his godfther should be present at the September 16, 2011, hearing, as discussed
. P M
2
J W M \ W 4 MP
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Cite as: Enrique Ramos, A022 833 741 (BIA March 8, 2012)
A022 833 741
above he did not request a continuance or raise an objection with the Immigration Judge. In fct, the
hearirg was continued so the respondent could respond to new charges lodged by the DHS, yet the
respondent did not present his witness at the subsequent October 19, 2011, hearing or pro f er the
details of how the witness's testimony would bolster the previously submitted swor statement.
Therefre, the respondent has not stated a claim of inefective assistance by his frmer counsel.
We are unpersuaded by the respondent's remaining arguments. First, the decision to grant a
continuance in a removal proceeding is within the Immigation Judge's discretion, and te denial of
a continuance will not be overed unless the respondent establishes that the denial deprived him
of his due process rght to a fll ad fair heaing. Matter of Perez-Andade, 19 l&N Dec. 433, 434 (BIA
1987). The alien must show that actual prejudice materially affcting the outcome of the case
resulted fom the denial of the continuance. Matter ofSibrun, 18 l&N Dec. 354, 356-57 (BIA 1983 ).
The record refects that the Immigation Judge continued the proceedings fom May 4, 2011, until
September 16, 2011, while the respondent sought to obtain a delayed birth certifcate fom the State
of Texas (Tr. at 36-37). At the September 16, 2011, hearing, the respondent indicated that eforts
were still underway to get the certifcate (Tr. at 47). The September 16, 2011, hearing was continued
until October 19, 2011, albeit fr a diferent purose, but the respondent sti 11 had not obtained the
delayed birth certifcate (Tr. at 61 ). In light of the prior continuaces, the Immigration Judge acted
within his discretion by declining to continue the case fer and issuing a ruling as to the
respondent's Mexican alienage. Moreover, even if the respondent does receive a delayed birh
cerifcate, such a document is not conclusive evidence of his birth in the United States. See Matter
of Serna, 16 l&N Dec. 643, 644-45 (BIA 1978); Matter of Herrera, 13 l&N Dec. 755, 758 ( 1971 ).
Thus, we cannot say that the respondent has been deprived of his due process rights, and he has not
demonstrated actual prejudice. Matter of Perez-Andrade, supra; Matter ofSibrun, supra.
Second, to the extent that the respondent argues that imigration offcials conspired with his
mother's employer to interfere with his atempt to establish United States citizenship, it is unclear
fom the record how the actions of those ofcials thwared his eforts. The respondent contends that
his mother's United States employers took advantage of her lack of education to convince her to
obtain the respondent's border crossing card, despite his birth in the United States, so that he could
live with his mother at the employers' home and attend school locally. He frther asserts that the
border crossing card was revoked and other immigation processes were stmied by an immigation
ofcial who was rlated to the employers. We observe that the border crossing card revocation and
several Fors 1-213 Record of Deporable Alien appear to be signed by a "Tomas Silva," the
individual identifed by the respondent a the employers' relative. However, there is no indication
that the documents were signed other than in the regular couse of business, and the respondent has
not presented persuasive evidence that he was the victim of unscrupulous acts by immigration
authorities.
Following our de novo review, we concur that the DHS satisfed its burden of establishing the
respondent's Mexican alienage. We agree with the Immigration Judge that the respondent's motion
to terminate the removal proceedings was wthout merit. Consequently, we will dismiss the
respondent's appeal.
3
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Cite as: Enrique Ramos, A022 833 741 (BIA March 8, 2012)
f
A022 833 741
Accordigly, te fllowing order wll be entered.
ORER: The appeal is dismissed.
FOR T OA
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Cite as: Enrique Ramos, A022 833 741 (BIA March 8, 2012)
UITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
8915 MONTAA AVENUE
EL PASO, TX 79925
LAW OFFICES OF MUEL SOLIS
GUTIERREZ, LORENA N., ESQ.
1411 MONTAA AVENUE
EL PASO, TX 79902
IN THE MATTER OF
ROS, ENRIQUE
FILE A 022-833-741 DATE: Oct 20, 2011
UALE TO FORWARD - NO ADDRESS PROVIDED
ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRTION JUGE. THIS DEqISION
, IS FINAL ULESS A APPEAL IS FILED WITH THE BOAD OF IMMIGRTION APPEALS
WITHIN 30 CALENDAR DAYS OF THE DATE OF THE MILING OF THIS WRITTEN DECfSION.
SEE THE ENCLOSED FORMS AD INSTRUCTIONS FOR PROPERLY PREPARING YOU APPEA.
YOU NOTICE OF APPEAL, ATTACHED DOCUENTS, A FEE OR FEE WAIVR REQUEST
,
Wf P
MUST BE MILED TO: BOAD OF IMMIGRATION APPEALS
OFFICE OF THE CLERK
P.O. BOX 8530
FALLS CHURCH, VA 22041
ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUGE AS THE RESULT
OF YOUR FAILURE TO APPEAR AT YOUR SCHEDULED DEPORTATION OR REMOVA HEAING.
THIS DECISION IS FINA ULESS A MOTION TO REOPEN IS FILED IN ACCORDACE
WITH SECTION 242B(c) (3) OF THE IMMIGRATION A NATIONALITY ACT, 8 U.S.C.
SECTION 1252B(c) (3) IN DEPORTATION PROCEEDINGS OR SECTION 240(c) (6),
8 u.s.c. SECTION 1229a(c) (6) IN REMOVA PROCEEDINGS. IF YOU FILE A MOTION
TO REOPEN, YOUR MOTION MUST BE FILED WITH THIS COURT:
OTHER:
IMIGRTION COUT
8915 MONTAA AVEN
EL PASO, TX 79925
co::
IMIGRATION COURT
CC: HU, WILLIA TA-EPD
1545 HAWKINS, SUITE 275
EL PASO, TX, 79925
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A-022 833 741
UITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRTION REVIEW
Immigration Court
El Paso, Texas
In the Matter of In Removal Proceedings
Enrique Ramos,
CHARGE(S):
LODGED
CHAGE{S):
APPLICATION:
Respondent
212{a) (6) (A) {i) (illegal entry); and
212{a) {2) (A) (i) (II) {drug violation).
237(a) {1) (B) (overstay visa); and
237(a} (2) (B) (i) (drug violation)
Termination/Claim of United States Citizenship by
birth in the U.S.
ON BEHALF OF RESPONDENT: ON BEHLF OF HOMELAD SECURITY:
Lorena Gutierrez, Esq. William Hunt, Esq.
ORER OF THE IMIGRTION JGE:
1. Sum ary
The Dephrtment of Homeland Security {DHS) issued a Notice to
Appear charging respondent with being inadmissible as articulated
above. The DHS subsequently lodged the charges of deportability
articulated above. Respondent denies either inadmissibility or
deportability as charged. Instead, respondent asserts United
States citizenship by birth in the United States. This decision
follows.
2. U.S. Citizenship Claim
Respondent has asserted that he is a United States citizen
by birth in the United States. Because respondent is claiming
United States citizenship by birth in the United States, it is
the DHS who bears the burden of proving alienage.
On the government's side, the DHS submitted copious
documentation that shows respondent's birth was recorded by his
mother in Mexico; that respondent had claimed birth in Mexico
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several times in previous encounters with immigration

authorities; and also apparently claimed Mexican birth or
citizenship when applying for a visitor's visa at the American
consulate in Ciudad Juarez, Mexico. However, the only evidence
respondent has is a sworn statement made by respondent's
Godparent, asserting that he witnessed the respondent's birth in
the United States. Unfortunately, this witness was not available
to testify in court.1 Respondent's explanation for this
discrepancy is that he only just found out through his Godfather
that he was actually born in Mexico, and that all the times in
the past, respondent believed that he was actually born in
Mexico.
After reviewing the evidence submitted by the parties, the
court finds that the qantity and qality of the government's
evidence clearly outweighs the single sworn statement made by
respondent's Godfather. First, the affiant is not available to
be cross examined by the DHS or court, such that the court may be
able to ascertain the credibility of this pivotal witness. In
fact, this witness is the only witness of respondent's alleged
birth in the United States that is still alive. Respondent's
mother is deceased; no one knows the identity of the midwife or
physician who performed the birthing operation; and none of
respondent's other relatives were present at the time of
respondent's birth.
As respondent's birth is officially recorded in Mexico,
somewhat contemporaneously with his birth, the court finds that
evidence to be more persuasive than the affidavit given by a
witness who is not subject to cross examination. Therefore, the
court finds that the DHS has proven alienage by clear and
convincing evidence, and respondent's motion to terminate removal
proceedings will be denied.

The court does not find this af f iant to be a dis-

interested witness whose affidavit can be accepted without pause.
In the court's experience, family members and close family
friends will sometimes do unexplained and extraordinary things
for family members facing prison or deportation. Therefore, the
court is unwilling to give much weight to this affidavit in light
of the fact that the affiant has not been subject to cross
examination to determine whether there might be some bias or
ulterior motive.
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3. Removal Charges
The OHS originally charged respondent with being
inadissible. However, during the course of the hearing it
became apparent that the respondent was the recipient of a
Mexican Border Crossing ID card (Bl/B2 visa alternative), and
there was no evidence in the record to show any departures from
the United States. Thus, the court indicated to the OHS that it
did not find any clear and convincing evidence of
inadmissibility.
The court gave the DHS the opportunity to lodge charges of
deportability, which the DHS took advantage of, charging
respondent with being out of status/overstaying his visa, and for
being deportable due to some drug convictions.
The respondent has admitted to the drug violations
articulated in the charging document marked exhibit 2, but denies
being out of status (apparently for fear that admitting such a
fact might jeopardize their claim of citizenship on appeal) .
However, respondent did indicate that they had no evidence of the
time, place, or manner of respondent's admission or period of
authorized stay, and was unable to establish any permission by
DHS to remain in the United States.
Based upon the evidence of record, including respondent's
admissions, the court finds that respondent, although apparently
admitted to the United States, had not established that he was
currently in status on his visitor's visa,2 and deportable under
section 237(a) (1) (B). The court also finds that respondent's
three separate convictions in the State of Texas for illegal
possession of marijuana render him deportable under section
237 (a) (2) (B) (i).
4. Relief from Removal
Other than respondent's citizenship claim, respondent has
identified no relief from removal available to him. Due to his
drug convictions, respondent is not ineligible for adjustment of
status, cancellation of removal, and because this case is more
than 30 days from the initial master calendar, he is now
2
The court would note that the type of visa respondent
apparently used to possess was good for brief visits to the
United States of 30 days or less, and there was also a
geographical restriction upon where the alien could travel.
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0 :

ineligible for voluntary departure.3 The respondent does not
.fear persecution or torture in Mexico, so there are no refugee
issues to resolve.
5. Conclusion and Orders
The court has found that the evidence submitted by the DHS
establishes respondent's birth in Mexico by clear and convincing
evidence. The court further finds respondent deportable as
charged in the lodged charging document, and that there is no
apparent relief from removal available to the respqndent.
Therefore, the court will enter the following orders:
ORDER:
FURTHER
ORDER:
@.
v
respondent's motion to terminate removal proceedings is
denied.
respondent is hereby ordered removed from the United
tates to Mexico.
Date: October 19, 2011
3
The court noted during the hearing that even if
respondent were eligible for voluntary departure, the court would
deny such relief in the exercise of the court's discretion
because respondent's drug convictions will have the effect of
permanently barring respondent was being admitted to the United
States in the future. Thus, voluntary departure would not assist
respondent in normalizing his status, or legally returning to the
United States.
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