Smar Jr., Terry, Esq.

35 Union Ave #102
Memphis, TN 38103
U.S. Department of Justice
Executive Offce fr Imigration Review
Board of Immigration Appeals
Ofce of the Clerk
5107 leesburg Pike, Suite 2000
Fals Church, Vrginia 20530
OHS/ICE Ofice of Chief Counsel - MEM
167 N. Main St., Suite 737A
Memphis, TN 38103
Name: BANOS-PELAEZ, SERVANDO A 200-146-812
Date of this notice:
7/28/2014
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosure
Panel Members:
Grant, Edward R.
Sincerely,
DO c 1
Donna Carr
Chief Clerk
Userteam: Docket
For more unpublished BIA decisions, visit www.irac.net/unpublished
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Cite as: Servando Banos-Pelaez, A200 146 812 (BIA July 28, 2014)
..
\
u.s. Department of Justice
Executive Offce fr Immigation Review
Decision of the Board oflmmigation Appeals
· Falls Church, Virginia 20530
File: A200 146 812 - Memphis, 1
In re: SERV ANDO BANOS-PELAEZ
IN REMOVAL PROCEEDINGS
APPEAL
Date:
ON BEHALF OF RESPONDENT: Terry Sma, Jr., Esquire
ON BEHALF OF DHS: William A. Lund
Assistant Chief Counsel
APPLICATION: Voluntary deparure
[JUL
2 8
im4
The respondent, a native and citizen of Mexico, appeals te decision dated April 24, 2013, in
which the Immigration Judge fund that the respondent was not eligible fr pre-completion
voluntary depaure and ordered him removed to Mexico. The respondent argues on appeal that
the Immigration Judge ered i denying his request fr pre-completion voluntay departure, and
requests tat the proceedings be remanded fr re-adjudication of his request fr pre-completion
voluntay departe (Resp. Brief at 2, 4). We fnd that a remand is necessary in this case.
There are two types of relief in the fr of voluntary deparure: (1) pre-completion (also
refred to as pre-conclusion) of removal proceedings; ad (2) post-conclusion of removal
proceedings. The criteria to qualif fr pre-completion voluntay depaure under section
240B(a) of the Act, implemented at 8 C.F.R. § 1240.26(b), are diferent fom the criteria to
qualif fr post-conclusion voluntary depaure under section 240B(b) of te Act, implemented
at 8 C.F.R. § 1240.26(c). See 8 U.S.C. § 1229c. Pursuant to section 240B(a) of the Act,
voluntay deparure befre te completion of removal proceedings can be granted fr a
maimum of 120 days. To be eligible fr pre-completion voluntary deparure, the alien must (I)
make the request befre or at the master calendar hearing at which the case is initially calendaed
fr a merits hearng; (2) mae no additional requests fr relief; (3) concede removability; (4)
waive appeal of all issues; ad (5) not have been convicted of an aggravated flony and not be
deporable under section 237(a)(4) of the Act.
At the conclusion of proceedings, pursuant to section 240B(b) of the Act, te Imigration
Judge may grant the alien a maximum of 60 days to voluntaily depa. To be eligible fr post­
conclusion voluntar deparue, the alien must (1) have been physically present in the United
States fr at least one year when he or she was served wit te Notice to Appea; (2) have fve
years of good moral character; (3) not have been convicted of an aggravated flony and not be
deporable uder the security grounds of section 237(a) of the Act; ad (4) establish by clea ad
convincing evidence that he or she has the means and intent to depa fom the United States.
The Board fnds that the Immigration Judge legally ered in not considering the respondent
fr post-conclusion volunt deparure. Although the respondent has indicated he only applied
fr pre-completion voluntary depaure, he should have been advised of the opporunity to apply
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Cite as: Servando Banos-Pelaez, A200 146 812 (BIA July 28, 2014)
A00 146 812
fr post-conclusion volutay depaure ad infred of tose requirements, icludg te
presentation of a tavel document ad posting of a bond in not less tha the aount of $500.
Additionally, te alien should have been infred of te tie limitations, a well a te good
moral chaacter requirement. See Matter of Ocampo, 22 I&N Dec. 1301, 1303 (IA 2000). We
note that discreton is a requred element of volutay depare ude bot sections 240B(a) ad
240B() of te Act.
Thus, we will remad the record to the I  igaton Cou to consider te respondent's
eligibility fr post-conclusion volutay depare pusuat to section 240B() of te Act.
ORER: Te record is remaded to the Imigation Cou fr fer proceedings
consistent wit tis decision.
2
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Cite as: Servando Banos-Pelaez, A200 146 812 (BIA July 28, 2014)
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
MEMPHIS, TENNESSEE
File: A200-146-812
In the Matter of
April 24, 2013
SERVANDO BANOS-PELAEZ
)
)
)
)
IN REMOVAL PROCEEDINGS
RESPONDENT
CHARGES: Section 212(a)(6)(A)(i), alien present without being admitted or
paroled.
APPLICATIONS: Pre-completion voluntary departure.
ON BEHALF OF RESPONDENT: WENDY VILLAFANA
ON BEHALF OF OHS: WILLIAM A. LUND
ORAL DECISION OF THE IMMIGRATION JUDGE
The respondent is a native and citizen of Mexico. He appeared before this Cour
almost exactly a year ago, on May 1, 2012, and at that time his lawyer requested an
opportunity to file applications for relief. The Immigration Judge continued the case until
April 24, 2013.
The respondent appeared with his attorney in Cour today. She informed the
Cour that the respondent has no form of relief available, except voluntary departure,
and in this case it would be pre-completion voluntary departure. She informed the Cour
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that she had consulted with her client and that he has no other form of relief available.
However, the respondent wished to make some statement to the Immigration Judge.
Ms. Villafana made clear on the record that this was against the advice of counsel. The
;
Immigration Judge told the respondent that he could address the Court if he wanted to,
but it was against the advice of counsel and he bore the risk of whatever he may say in
that recitation. The respondent then decided not to speak to the Judge.
The respondent was asked the requisite questions concerning pre-completion
voluntary departure and repeatedly said that he was not seeking voluntary departure
and that finally, when questioned by his attorney, he said that he would not waive his
right to appeal. The respondent indicated variously that he would depart the United
States by the date set by the Court, that he did not want voluntary departure, and that
he wanted to file an appeal.
In light of the respondent's repeated assertion that he was not seeking voluntary
departure, athe Immigration Judge is not satisfied that any order of voluntary
deparure, pre-completion or post-completion, would be obeyed by this respondent.
There is no other form of relief available and the respondent has indicated that he wants
to file an appeal from a decision of this Court. The Immigration Judge explained that he
would be able to appeal from an order of removal and that is what the Court is doing at
this time, dictating an order of removal.
So the record is clear, the respondent has been represented by counsel for at
least a year; that counsel has spoken to the respondent about his Immigration status r
and, without breaching any attorney/client privilege, has informed the Court that there is
no relief available for the respondent except for voluntary departure. The respondent
wants to appeal and he also has given contradictory answers as to whether or not he
will obey an order of voluntary departure. The Immigration Judge concludes that the
A200-146-812 2 April 24, 2013
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respondent cannot be relied upon to depart the United States by the date set by the
Court and so enters an order of removal. This efectuates the respondent's wish to
appeal the decision to the Board of Immigration Appeals.
Accordingly, the Court enters this order:
ORDER
IT IS HEREBY ORDERED that the respondent's request for voluntary departure
is denied;
IT IS FURTHER ORDERED that the respondent is ordered removed to Mexico.
signature
A200-146-812
Please see the next page for electronic
CHARLES E. PAZAR
Immigration Judge
3 April 24, 2013
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//s//
Imigration Judge CHARLES E. PAZAR
pazarc on July 8, 2013 at 7:31 PM GMT
A200-146-812 4 April 24, 2013
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