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U.S.

Department of Justice
Executive Office for Immigration Review
Board ofImmigration Appeals
Office of the Clerk
5/07 Leesburg Pike, Suite 2000
Falls Church. Virginia 2204/

OHS/ICE Office of Chief Counsel - MEM


80 Monroe Ave., Ste 502
Memphis, TN 38102

Name: SOTO-MARTINEZ, CARLOS

A 205-450-529
Date of this notice: 8/19/2015

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

DOWtL ca.AA)
Sincerely,

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Grant, Edward R.

Userteam: Docket

For more unpublished BIA decisions, visit


www.irac.net/unpublished/index/
Cite as: Carlos Soto-Martinez, A205 450 529 (BIA Aug. 19, 2015)

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Dawson, Wendell
P.O. Box 111163
Nashville, TN 37211

U.S. Department of Justice

Decision of the Board of Immigration Appeals

Executive Office for Immigration Review


Falls Church, Virginia 20530

File: A205 450 529 - Memphis, TN

Date:

AUG 19 2015

In re: CARLOS SOTO-MARTINEZ a.k.a. Carlos Soto Soto a.k.a. Carlos Soto-Martin

APPEAL
ON BEHALF OF RESPONDENT: Wendell Dawson, Esquire
APPLICATION: Voluntary departure

The respondent, a native and citizen of Mexico, appeals from the Immigration Judge's
decision dated April 24, 2014, denying his application for voluntary departure pursuant to
section 240B(b)(l) of the Immigration and Nationality Act, 8 U.S.C. 1229c(b)(l). The record
will be remanded.
The Board defers to the factual findings of an Immigration Judge, unless they are clearly
erroneous, but it retains independent judgment and discretion, subject to applicable governing
standards, regarding questions of law and the application of a particular standard of law to those
facts. 8 C.F.R. 1003.l(d)(3)(i), (ii).
The Immigration Judge denied the respondent's voluntary departure application because the
respondent did not submit documentation establishing his ability to lawfully enter Mexico (1.J. at
3-4). See 8 C.F.R. 1240.26(c)(2) (requiring that an alien present either a passport or other
travel documentation sufficient to assure lawful entry into the country to which the alien is
departing). The proceedings had been continued from May 23, 2013, and the respondent was
unable to establish his eligibility for voluntary departure at the April 24, 2014, hearing because
he forgot to bring his birth certificate (I.J. at 3-4; Tr. at 16). However, on appeal, the respondent
has submitted his birth certificate which he alleges will permit him to lawfully enter Mexico.
We will remand these proceedings, inasmuch as the respondent appears to be eligible for
voluntary departure.
Accordingly, the following order will be entered.
ORDER: The record is remanded for further proceedings consistent with the foregoing
opinion.

Cite as: Carlos Soto-Martinez, A205 450 529 (BIA Aug. 19, 2015)

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IN REMOVAL PROCEEDINGS

April 24, 2014

File: A205-450-529
In the Matter of

IN R EMOVAL PROCEEDINGS

CARLOS SOTO-MARTINEZ
RESPONDENT
CHARGE:

INA Section 212(a)(6)(A)(i) -Alien present in the United States


without being admitted, paroled or inspected.

APPLICATION: Post-completion voluntary departure.


ON BEHALF OF RESPONDENT: WENDELL C. DAWSON, Attorney-at-Law
ON BEHALF OF OHS: WILLIAM LUND, Assistant Chief Counsel

ORAL DECISION AND ORDER OF THE IMMIGRATION JUDGE


Respondent is a male, native and citizen of Mexico. On or about December 3,
2012, the Department of Homeland Security filed a Notice to Appear against respondent
with the Court. The filing of this charging document commenced proceedings and
vested jurisdiction with the Court. 8 C.F.R. Section 1003.14(a). The Notice to Appear
has been marked and admitted into evidence as Exhibit 1.
In removal proceedings, the Notice to Appear shall be served in person on the
alien or, if personal service is not practicable, through service by mail to the alien or the

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UNITED STATES DEPARTMENT OF JUSTICE


EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
MEMPHIS 1 TENNESSEE

alien's counsel of record. INA Section 239; 8 C.F.R. Section 1003.13. Respondent
appeared before the Court through written pleadings filed in a motion for telephonic

before the Court on May 23, 2013, and acknowledged proper service. Based upon
respondent's acknowledgement and the certificate of service that is attached to the
Notice to Appear, the Court will find that the Notice to Appear has been properly served.
Respondent was also afforded ten days following service of the Notice to Appear prior
to appearing before an Immigration Judge as is required by regulation.
In his written pleadings, the respondent has admitted that he is not a citizen or a
national of the United States, is a native and citizen of Mexico, and that he arrived in the
United States at or near an unknown place on or about an unknown date. Respondent
further admitted that he was not admitted or paroled after inspection by an Immigration
Officer and concede the charge of removability. In his appearance before the Court on
May 23, 2013, he alleged that he entered the United States in 2001 through Arizona.
For aliens who are present in the United States without admission or parole, the
Department of Homeland Security must prove by clear and convincing evidence that
respondent is an alien. Once alienage has been established, respondent must prove by
clear and convincing evidence that he is lawfully present pursuant to a prior admission
or is entitled to be admitted. INA Section 240(c)(2)(B); 8 C.F.R. Section 1240.S(c).
Based upon the admissions, oftA.e..respondent and his concessions as to removability,
the Court will find that the Department of Homeland Security has established
respondent's alienage by clear and convincing evidence and respondent has failed to
establish that he is present in the United States lawfully or is entitled to be admitted to
the United States. Accordingly, the charge of removability is sustained by the Court
pursuant to the charge.
A205-450-529

April 24, 2014

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hearing marked and admitted into evidence as Exhibit 2. Respondent also appeared

Respondent seeks no relief before this Court. Respondent appeared with his
attorney on May 23, 2013 and requested time to prepare and to determine what relief

date which was set for today's date l April 24, 2014. At his hearing of today's date, the
respondent appeared with his attorney and indicated that he had no form of relief but
did not wish to leave the United States and wanted to fight his case. After some lengthy
discussion, the respondent agreed to voluntary departure, pre-completion, and then
during the advisals indicated that he wished to reserve appeal rather than waive appeal.
And after several hours of consulting with his attorney, when he was called back, then
indicated that he wished post-completion voluntary departure.
The respondent testified that he is seeking voluntary departure, that he
understands that he will and must leave by the date set, and that he has the travel
documents and money to leave the United States. However 1 on cross-examination, the
respondent testified that he does not have a current travel document with him, indicating
that he has a birth certificate but left it at home. He said that he does not have any
identification or passport because, although he had it in the United States, it was stolen
because his wallet was robbed.
For post-completion voluntary departure, the alien must establish that he has
been physically present in the United States for a period of at least one year preceding
the date of the Notice to Appear, that he is and has been a person of good moral
character for at least five years immediately preceding the application, and has not been
convicted of any crime under I NA Section 101 (a)(43), or deportable under Section
237(a)(4). Respondent must also establish by clear and convincing evidence that he
has the means to depart the United States and the intention to do so. 8 C.F.R. Section
1240.26. That section also provides that, except as otherwise provided in paragraph
A205-450-529

April 24, 2014

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was available. He was instructed to file any and all applications for relief by the hearing

(d)(3) of this section, clear and convincing evidence of the means to depart the United
States shall and include in all cases presentation by the alien of a passport or other

is departing. The Service shall have a full opportunity to inspect and photocopy the
documentation and to challenge its authenticity or sufficiency before the voluntary
departure is granted.
As noted, the respondent does not qualify because he has not presented any
documentation to the Department, and the Department opposes voluntary departure in
this case because they have not had an opportunity to inspect any documentation.
While the respondent's counsel argues that the Court should and can take judicial
notice of the fact that a birth certificate allows entry into Mexico from the United States,
the respondent has failed to provide the original or even any copy of his birth certificate
to the Department. The respondent has further admitted that he does not have any
other travel document. The respondent therefore does not qualify for voluntary
departure pursuant to 8 C.F.R. Section 1240.26, and the Court will deny the
respondent's request for voluntary departure.
ORDERS
For the foregoing reasons, the following orders will enter:
IT I S HEREBY ORDERED that respondent's request for post-completion
voluntary departure be, and hereby is, denied.
IT IS HEREBY FURTHER ORDERED that respondent be removed to Mexico on

A205-450-529

April 24, 2014

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travel documentation sufficient to assure lawful entry into the country to which the alien

the charges contained in the Notice to Appear.


Dated April 24, 2014.

signature

A205-450-529

REBECCA L. HOLT
Immigration Judge

April 24 1 2014

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Please see the next page for electronic

'

/Isl/
Immigration Judge REBECCA L. HOLT

A205-450-529

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holtr on July 22, 2014 at 1:15 PM GMT

April 24, 2014