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BIA Remands of Immigration Judge William Cassidy 01/01/2014-05/26/2016

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EOIR FOIA ID # 2016-23184. Also, see acknowledgment letter at following link: http://www.slideshare.net/abogadobryan/eoir-acknowledgment-letter-for-201623284

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BIA Remands of Immigration Judge William Cassidy 01/01/2014-05/26/2016

  1. 1. -- - - - - - - - - - U.S. Department of Justice Executive Office for Immigration Review Decision of the Board of Immigration Appeals Falls Church, Virginia 20530 File: Atlanta, GA Date: In re: IN REMOVAL PROCEEDINGS CERTIFICATION ON BEHALF OF RESPONDENT: Linda French, Esquire ON BEHALF OF DHS: Morris I. Onyewuchi Assistant Chief Counsel JAN - 82015 APPLICATION: Asylum; withholding of removal; protection under the Convention Against Torture The respondent, a native and c1t1zen of Guatemala, filed a timely appeal from the Immigration Judge's May 3, 2006, decision denying her application for asylum and withholding of removal, and for protection under the Convention Against Torture. Following a remand to ensure a complete transcript, the Immigration Judge entered a new decision on June 26, 2007, and certified the case to us for review. The record will be remanded. The Immigration Judge found the respondent not credible primarily due to a discrepancy regarding the date she allegedly filed a police complaint regarding her uncle. Although the Immigration Judge acknowledged that two of the respondent's daughters filed statements that corroborate her claims of abuse by various men, he concluded that the evidence was not sufficient to sustain her burden of proof. Considering the respondent's overall testimony and the corroborating statements provided, we conclude that the respondent credibly testified that she suffered abuse at the hands of her husband (who is now deceased). and was also abused. starting as a young child. by other family members in Guatemala. The Immigration Judge also found that the respondent had not shown that she was persecuted on account of her membership in a particular social group or other protected ground. He further found that she had not established that the Guatemalan government was unable or unwilling to protect her, and stated that she could safely relocate to another area of Guatemala. Since the time of the respondent's hearing, the Board has issued several decisions addressing the issue of particular social group. See Marter ofM-E-V-G-, 26 l&N Dec. 227 (BIA 2014), and Maller of W-G-R-. 26 l&N Dec. 208 (BIA 2014) (clarifying what is required to establish a particular social group); Maller ofA-R-C-G-. 26 I&N Dec. 388 (BIA 2014) (discussing particular social group in the context of cases involving domestic violence). These decisions may have an impact on the respondent's case, and warrant a remand. On remand, the Immigration Judge should also further consider the question whether the government is able and willing to protect the respondent, in light of the respondent's testimony that when she reported the abuse to the police, "they would never listen to me." Tr. at 21. The respondent also testified that she was raped by a policeman and became pregnant from that rape. Tr. at 21. (b) (6) (b) (6)
  2. 2. We note that if the respondent is fotind to have suffered past persecution on account of a protected ground, and shows that the government is unable or unwilling to protect her, her claims regarding future persecution should be considered consistent with 8 C.F.R. § 1208. l3(b)(I ); see Matter ofA-R-C-G-,supra, at 395; see also Matter ofL-S-, 25 l&N Dec. 705 (BIA 2012); A-fatter of Chen, 20 l&N Dec. 16 (BIA I989). On remand, the parties will have the opportunity to present further evidence and arguments regarding the issues of particular social group and nexus, as well as other relevant issues, as they may apply to this case. Accordingly, the following order will be entered. ORDER: The record is remanded to the Immigration Judge for further proceedings consistent with this opinion, and for the entry of a new decision. 2 (b) (6)
  3. 3. U.S. Department of Justice Executive Office for Immigration Review Decision ofthe Board of Immigration Appeals Falls Church, Virginia 20530 File: - Atlanta, GA Date: In re: IN REMOVAL PROCEEDINGS APPEAL ON BEHALF OF RESPONDENT: Ellis D. Bingham III, Esquire ON BEHALF OF DHS: Marye. Lee Assistant ChiefCounsel CHARGE: Notice: Sec. 237(a)(2)(A)(i), I&N Act [8 U.S.C. § 1227(a)(2)(A)(i)] - Convicted ofcrime involving moral turpitude Sec. 237(a)(2)(A)(iii), I&N Act [8 U.S.C. § 1227(a)(2)(A)(iii)] - Convicted of aggravated felony Sec. 237(a)(2)(B)(i), I&N Act [8 U.S.C. § 1227(a)(2)(B)(i)] - Convicted of controlled substance violation APPLICATION: Termination; cancellation of removal; voluntary departure JUN -5 2014 The respondent appeals from an Immigration Judge's January 4, 2012, decision ordering her removed from the United States. The Department of Homeland Security ("DHS") opposes the appeal. The appeal will be sustained in part and dismissed in part and the record will be remanded for further proceedings. The respondent is a native and citizen of Mexico and has been a lawful permanent resident of the United States since 1992. In August 1996, the respondent was convicted pursuant to a guilty plea in Alabama of "trafficking in cannabis," a felony violation of Ala. Code § 13A-12-231 for which she was sentenced to a 10-year term of imprisonment.1 At the time of the respondent's offense and conviction, Ala. Code§ 13A-12-231 provided as follows, in pertinent part: Any person who knowingly sells, manufactures, delivers, or brings into this state, or who is knowingly in actual or constructive possession of, in excess of one kilo or 2.2 pounds of any part of the plant of the genus Cannabis, whether growing or not, the seeds thereof, the resin extracted from any part of the plant, and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds, or resin including the completely defoliated mature stalks of the plant, fiber 1 The respondent's I0-year prison sentence was suspended by the sentencing court in favor of supervised probation. (b) (6) (b) (6)
  4. 4. produced from the stalks, oil, or cake, or the completely sterilized samples of seeds of the plant which are incapable of germination is guilty of a felony, which felony shall be known as 'trafficking in cannabis.' Based on the foregoing conviction, the DHS has charged the respondent with removability as an alien convicted ofa crime involving moral turpitude ("CIMT'') committed within 5 years after the date of admission, see section 237(a)(2)(A)(i) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(i); a drug trafficking aggravated felony, see sections 10J(a)(43)(B) and 237(a)(2)(A)(iii) of the Act, 8 U.S.C. § J101(a)(43)(B), 1227(a)(2)(A)(iii); and a controlled substance violation, see section 237(a)(2)(B)(i) of the Act, 8 U.S.C. § 1227(a)(2)(B)(i). The Immigration Judge sustained all three charges, found the respondent ineligible for cancellation of removal and voluntary departure by virtue of her aggravated felony conviction, and ordered her removed. This timely appeal followed. Upon de novo review, see 8 C.F.R. § 1003.l(d)(3)(ii), we conclude that the respondent's conviction does not support the removal charges under sections 237(a)(2)(A)(i) and 237(a)(2)(A)(iii) of the Act, but that it does support the section 237(a)(2)(B)(i) charge. Accordingly, we will sustain the appeal in part, dismiss it in part, and remand the record to the Immigration Judge so the respondent may apply for any available relieffrom removal. I. TIIE AGGRAVATED FELONY CHARGE A state drug offense qualifies as an aggravated felony if it is "illicit trafficking in a controlled substance (as defined in section 102 of the Controlled Substances Act), including a drug trafficking crime (as defined in section 924(c) of title 18, United States Code)." Section 101(a)(43)(B) ofthe Act. Although the offense defined at Ala. Code§ 13A-12-231 is called "trafficking" by the State of Alabama, a conviction under that statute does not require proof beyond a reasonable doubt that the accused engaged in conduct which qualifies as "illicit trafficking in a controlled substance" within the meaning ofsection 101(a)(43)(B). Under this Board's precedents, the phrase "illicit trafficking" means conduct of a "business or merchant nature" involving "unlawful trading or dealing" in a controlled substance. See Matter ofFlores, 26 I&N Dec. 155, 157 (BIA 2013); Matter ofDavis, 20 I&N Dec. 536, 541 (BIA 1992). Ala. Code§ 13A-12-231 does not require "illicit trafficking" in this sense because it proscribes the "actual or constructive possession" of more than 2.2 pounds of cannabis, regardless of whether the accused intended to sell or deliver the cannabis to another for a price. E.g., Insley v. State, 591 So.2d 589, 590-91 (Ala. Crim. App. 1991); Fowler v. State, 440 So.2d 1195, 1198 (Ala. Crim. App. 1983). The offense defmed by Ala. Code§ 13A-12-231 is also not a "drug trafficking crime" under 18 U.S.C. § 924(c) because its elements do not correspond categorically to those of any offense which is punished as a felony under the Federal Controlled Substances Act ("CSA"). Accord Lopez v. Gonzales, 549 U.S. 47 (2006). Specifically, the Alabama statute prohibits the "actual or constructive possession" of more than 2.2 pounds of cannabis, as well as the act ofbringing cannabis into the State. Simple possession of cannabis is a Federal misdemeanor, see 2 (b) (6)
  5. 5. 21 U.S.C. § 844, while importation of cannabis into one state from another is not punishable under the CSA at all. Finally, even if Ala. Code § 13A-12-231 is "divisible" vis-a-vis the aggravated felony definition,2 the respondent's conviction record does not contain a copy ofthe charging document, plea agreement, or any other material which would serve to meaningfully narrow her offense. Accordingly, the DHS has not established by clear and convincing evidence that the respondent was convicted ofan aggravated felony. II. THE CRIME INVOLVING MORAL TURPITUDE CHARGE The United States Court of Appeals for the Eleventh Circuit, in whose jurisdiction this case arises, has held that an offense involves moral turpitude if it "involves '[a]n act of baseness, vileness, or depravity in the private and social duties which a man owes to his fellow men, or to society in general, contrary to the accepted and customary rule of right and duty between man and man."' Cano v. U.S. Att'y Gen., 709 F.3d 1052, 1053 (11th Cir. 2013) (quoting United States v. Gloria, 494 F.2d 477, 481 (5th Cir. 1974)). To determine whether a crime qualifies as a CIMT in cases arising within the Eleventh Circuit, we apply the traditional "categorical approach," which focuses on the statutory definition of the crime rather than the facts underlying any particular offense. Fajardo v. U.S. Att'y Gen., 659 F.3d 1303, 1305 (11th Cir. 2011). The categorical approach requires that "we analyze whether the least culpable conduct necessary to sustain a conviction under the statute meets the standard of a crime involving moral turpitude." Cano v. U.S. Att'y Gen., supra, at 1053 n. 3 (quoting Keungne v. U.S. Att'y Gen., 561 F.3d 1281, 1284 n. 3 (11th Cir. 2009)). As the Immigration Judge noted, drug trafficking offenses are ordinarily considered CIMTs under the immigration laws. E.g., Matter ofKhourn, 21 I&N Dec. I041 (BIA 1997). As we have already observed in the aggravated felony portion of this decision, however, the offense defined by Ala. Code § 13A-12-231 is not a "trafficking" crime because the statute encompasses "actual or constructive possession" of more than 2.2 pounds of cannabis, regardless of whether the accused intended to sell or distribute it. Under Alabama law, moreover, a witness' prior conviction on a charge of possession of cannabis is not a CIMT that can be admitted into evidence for impeachment purposes. Ex parte Mcintosh, 443 So.2d 1283, 1286 (Ala. 1983). Given the increasing leniency with which American society treats simple marijuana possession offenses, we are likewise unable to conclude that such conduct is so inherently base, vile, and depraved under contemporary moral standards that it may reasonably be considered a CIMT for immigration purposes. See Matter ofLopez-Meza, 22 I&N Dec. 1188, 1192 (BIA 1999) (observing that the turpitudinous "nature of a crime is measured against contemporary moral standards and may be susceptible to change based on the prevailing views in society"); Matter ofG-, I I&N Dec. 59, 60 (BIA 1941) (stating that the standard by which an offense is to be judged in CIMT cases is "that prevailing in the United States as a whole, regarding the common view of our people concerning its moral 2 Although we will assume divisibility for purposes of this decision, we have serious doubts as to whether Ala. Code § 13A-12-231 is a divisible statute within the meaning of Descamps v. United States, 133 S. Ct. 2276 (2013). 3 (b) (6)
  6. 6. character"). Taking Ala. Code§ 13A-12-231 at its minimum, as we must, we conclude that it does not define a CIMT. Finally, even if we assume that Ala. Code§ 13A-12-231 is a "divisible" statute vis-a-vis the CIMT concept, there is nothing in the respondent's conviction record to indicate that her particular offense involved true "trafficking" activity rather than simple possession. Accordingly, the DHS has not established by clear and convincing evidence that the respondent was convicted ofaCIMT. III. THE CONTROLLED SUBSTANCE VIOLATION CHARGE A charge under section 237(a)(2)(B)(i) of the Act depends upon proof that the respondent was convicted of violating a State law "relating to a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802))...." Thus, the DHS must prove that Ala. Code § 13A-12-231 is a law "relating to" a Federally-controlled substance. See Matter ofPaulus, 11 I&N Dec. 274 (BIA 1965). The Federal controlled substance schedules include "marihuana." See 21 U.S.C. § 812(c), Sched. l(c)(lO). As the Immigration Judge acknowledged below, however, "cannabis" under Alabama law is defined to include "the completely defoliated mature stalks of the [cannabis] plant, fiber produced from the stalks, oil, or cake, or the completely sterilized samples of seeds of the plant which are incapable ofgermination," see Ala. Code§ 13A-12-231, whereas those same portions of the cannabis plant are specifically excluded from the Federal definition of "marihuana." See 21 U.S.C. § 802(16) (1994 & 1996 Supp.). Thus, in theory a person can be convicted of trafficking in cannabis under Alabama law even ifhe possessed, imported, or sold a substance that is not Federally controlled (i.e., the defoliated mature stalks or sterilized seeds of the cannabis plant). Despite his recognition that the definition of cannabis set forth in Ala. Code § 13A-12-231 is broader than the Federal definition of "marihuana," the Immigration Judge found that the Alabama statute actually incorporated the definition of "marihuana" set forth in Ala. Code § 20-2-2(14), which is practically identical to the definition appearing in 21 U.S.C. § 802(16) (l.J. at 5). That determination was clearly erroneous. 8 C.F.R. § 1003.J(d)(3)(i). Although the version of Ala. Code § 13A-12-231 in effect prior to 1995 incorporated the definition of marihuana set forth at Ala. Code § 20-2-2, the Alabama Legislature amended § 13A-12-23 l in 1995 to adopt the broader definition of "cannabis" which now appears in the statute. See 1995 Ala. Acts 95-543, § 1 (S.B. No. 5); see Washington v. State, 818 So.2d 411, 420 (Ala. Crim. App. 1998) (discussing the 1995 amendment). The broader definition arising from the 1995 amendment was in effect when the respondent committed her offense and sustained her conviction, and thus it controls here. The fact that Alabama defines cannabis slightly more broadly than the United States defines marihuana is not dispositive, however. As the Supreme Court has explained, [t]o find that a state statute creates a crime outside the generic definition of a listed crime in a federal statute requires more than the application of legal imagination to a state statute's language. It requires a realistic probability, not a 4 (b) (6)
  7. 7. .·,'I theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime. To show that realistic possibility, an offender, of course, may show that the statute was so applied in his own case. But he must at least point to his o""n case or other cases in which the state courts in fact did apply the statute in the special (nongeneric) manner for which he argues. Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007); see also Moncrieffe v. Holder, 133 S. Ct. 1678, 1684-85, 1693 (2013). The respondent has not demonstrated that he was convicted under Ala. Code § BA-12-231 for trafficking exclusively in the defoliated mature stalks and sterilized seeds of the cannabis plant, nor has our research disclosed any Alabama court decision reflecting that anyone else has ever been prosecuted under that statute for trafficking solely in those portions of the cannabis plant that are excluded from the Federal definition of marihuana. Under the circumstances, we discern no "realistic probability" that Ala. Code§ 13A-12-231 would be used to prosecute conduct that does not "relate to" marihuana, as Federally defined. 3 Accordingly, the respondent is removable under section 237(a)(2)(B)(i) ofthe Act. IV. CONCLUSION In conclusion, the DHS has not established by clear and convincing evidence that the respondent's 1996 conviction under Ala. Code § 13A-12-231 was for a drug trafficking aggravated felony or a CIMT, but it has demonstrated that the conviction was for an offense relating to a controlled substance. Accordingly, we will dismiss the removal charges under sections 237(a)(2)(A)(i) and 237(a)(2)(A)(iii) ofthe Act, sustain the charge under 237(a)(2)(B)(i) ofthe Act, and remand the record for further proceedings to afford the respondent an opportunity to apply for reliefor protection from removal. ORDER: The appeal is sustained in part and dismissed in part and the record is remanded for further proceedings consistent with the foregoing decision. FOR THE BOARD c::. 3 As the respondent's offense involved more than 2.2 pounds of cannabis, the statutory exception to deportability for individuals convicted of a "single offense involving possession for one's own use ofthirty grams or less ofmarijuana" does not apply. 5 (b) (6)
  8. 8. ( U.S. Department of Justice Executive Office for Immigration Review Falls Church, Virginia 20530 File: - Atlanta, GA Decision ofthe Board of Immigration Appeals Date: JUN - 3ZD14 In re: IN REMOVAL PROCEEDINGS APPEAL ON BEHALF OF RESPONDENT: Luis Alemany, Esquire ON BEHALF OF DHS: CHARGE: Sirce E. Owen Assistant Chief Counsel Notice: Sec. 212(a)(6)(A)(i), l&N Act [8U.S.C.§1182(a)(6)(A)(i)] - Present without being admitted or paroled APPLICATION: Cancellation of removal under section 240A(b) ofthe Act The respondent, a native and citizen of Mexico, appeals from the Immigration Judge's decision denying his application for cancellation of removal under section 240A(b)(I) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b){l). The Department of Homeland Security argues the Immigration Judge's decision should be summarily affinned. The appeal will be dismissed in part, though we will sustain the appeal with respect to the amount of bond for voluntary departure and remand for additional factual findings. We review Immigration Judges' findings of fact for clear error, and we review questions of law, discretion, and judgment, and all issues in appeals de novo. 8 C.F.R. § 1003. l(d)(3)(i). 1.:.1,;. . ! Upon our de novo review, we affinn the Immigration Judge's detennination that the respondent did not establish his United States citizen child would suffer exceptional and extremely unusual hardship upon the respondent's removal. See section 240A(b)(l)(D) of the Act. The respondent's child, who was four years old at the time of the final hearing, has no unusual medical needs or sensitivities (l.J. at I, 3-4). The cumulative hardships in this case, including reduced financial security and adjustment to a new culture, are sadly common to the children of removed aliens and do not constitute exceptional and extremely unusual hardship. See Jv/attef of Monreal, 23 l&N Dec. 56 (BIA 2001). Therefore, we affinn the denial of the respondent's application for cancellation of removal. As we conclude the respondent did not meet his burden under section 240A(b)(I )(D) of the Act, we do not further address whether the respondent met his burden with respect to the other requirements for cancellation ofremoval. We agree with the respondent that a voluntary departure bond of $20,000 is excessive based on the findings of the Immigration Judge. Section 240B(b)(3) ofthe Act, 8 U.S.C. § 1229c(b)(3) states that an alien pemiitted to depart voluntarily under that subsection shall be required to post a voluntary departure bond "in an amount necessary to ensure that the alien will depart." The (b) (6) (b) (6)
  9. 9. : ·1J purpose of the bond is to assure the appearance for departure, and the bond must be set at an amount that ensures that the alien departs within the time specified, with the minimum bond to be set at $500. As the Immigration Judge did not clearly explain why a $20,000 bond was necessary to ensure the respondent's departure, we will remand this matter for additional consideration with respect to the necessary bond amount. Accordingly, we enter the following orders. ORDER: The respondent's appeal is dismissed with respect to cancellation ofremoval. FURTHER ORDER: The record is remanded for further proceedings consistent with the foregoing opinion and for the entry ofa new decision. R THE BOARD 2 (b) (6)
  10. 10. U.S. Department of Justice Executive Office for Immigration Review Decision of the Board ofImmigration Appeals Falls Church, Virginia 20530 File: - Atlanta, GA Date: JAN -1 2014 In re: IN REMOVAL PROCEEDINGS APPEAL ON BEHALF OF RESPONDENT: Peter R. Hill, Esquire ON BEHALF OF DHS: Joy Lampley Assistant ChiefCounsel APPLICATION: Cancellation of removal for certain non-permanent residents; voluntary departure The respondent, a native and citizen of Mexico, has appealed from the Immigration Judge's November 26, 2012, decision denying his request for cancellation of removal under section 240A(b) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b) and granting him voluntary departure under section 240B of the Act, 8 U.S.C. § 1229c. The appeal, which is opposed by the Department of Homeland Security ("DHS"), will be sustained in part and dismissed in part. We review findings of fact, including credibility determinations, under a clearly erroneous standard. 8 C.F.R. § 1003.l(d)(3)(i). We review questions of law, including whether the parties have met the relevant burden of proof, and issues of discretion under a de novo standard. 8 C.F.R. § 1003.l(d)(3)(ii). As an initial matter, we agree with the Immigration Judge's determination that the respondent has not demonstrated his removal would result in exceptional and extremely unusual hardship to his qualifying relatives, his United States citizen children. Although the respondent's removal would certainly have financial and emotional impact on the children, he has not demonstrated it would be substantially beyond that which any child would face upon a parent's removal from the United States. See Matter ofAndazola- Rivas, 23 I&N Dec. 319, 324 (BIA 2002). We disagree with the respondent's contention on appeal that the Immigration Judge did not sufficiently consider current conditions in Mexico when analyzing the hardship to his children. See Matter ofSanchez-Lopez, 76 I&N Dec. 21 (BIA 2012) (holding it is not necessary for an Immigration Judge to discuss every piece of evidence submitted). The (b) (6) (b) (6)
  11. 11. Immigration Judge noted the evidence regarding dangerous conditions in Mexico; however, he also noted that the respondent purchased property and began building a home in Mexico in order to be closer to his parents (I.J. at 4; Tr. at 18-19). The respondent additionally appeals the Immigration Judge's grant of voluntary departure. On appeal, the respondent argues that the voluntary departure bond set by the Immigration Judge was unconscionably high and, therefore, the respondent was unable to post it within 5 days as required under the regulations. 8 C.F.R. § 1240.28(c)(3)(i). Upon de novo review, we agree that the Immigration Judge did not follow the regulations as required in granting voluntary departure. Under the regulations, the bond amount must be "necessary to ensure that the alien departs within the time specified." 8 C.F.R. § 1240.28(c)(3). Furthermore, "[b]efore granting voluntary departure, the immigration judge shall advise the alien of the specific amount of the bond to be set ..." 8 C.F.R. § 1240.28(c)(3)(i). Finally, upon the conditions of voluntary departure being set forth, "the alien shall be provided the opportunity to accept or decline voluntary departure ifhe or she is unwilling to accept the amount of the bond or other conditions." 8 C.F.R. § 1240.28(c)(3). In the case at hand, the Immigration Judge set a bond to counter the respondent's "lack of incentive to obey this order." (I.J. at 5). Furthermore, the Immigration Judge did not set forth the amount of bond to be paid prior to granting the order or give the respondent the opportunity to decline voluntary departure after learning ofthe amount ofthe bond. Therefore, we find a remand is necessary for the Immigration Judge to set a voluntary departure bond that ensures the respondent will depart in the time specified and give the respondent the opportunity to decline the grant of voluntary departure if he deems the bond too high. Accordingly, the following order will be entered. ORDER: The respondent's appeal is sustained in part, the Immigration Judge's grant of voluntary departure is vacated, and the record is remanded for further proceedings. 2 (b) (6)
  12. 12. ll.S. Department of Justice Executive Office for Immigration Review Falls Church, Virginia 20530 File: - Atlanta, GA In re: IN REMOVAL PROCEEDINGS APPEAL ON BEHALF OF RESPONDENT: Yong Men, Esquire ON BEHALF OF OHS: CHARGE: Morris I. Onyewuchi Assistant ChiefCounsel Decision ofthe Board of Immigration Appeals Date: JAN 2 82014 Notice: Sec. 2I2(a)(6)(A)(i), l&N Act (8U.S.C.§l182(a)(6)(A)(i)] - Present without being admitted or paroled APPLICATION: Asylum, withholding of removal, Convention Against Torture The respondent has appealed from the Immigration Judge's decision dated December 11, 2012. The respondent challenges the Immigration Judge's determination that he did not meet his burden of proving eligibility for asylum, withholding of removal, and relief under the Convention Against Torture (Resp't Br. at 2-3; l.J. at 2-5). A review of the transcript of the record of proceeding reflects that multiple segments of the respondent's testimony at the December 11, 2012, hearing are indiscernible. As we consider the transcript necessary for our review of this matter, we will return the record to the Immigration Court for further action. Upon receipt of the record, the Immigration Court shall take such steps as are necessary and appropriate to enable preparation of a complete transcript of the proceedings including a new hearing, if necessary. Matter ofA-P-, 22 l&N Dec. 468 (BIA 1999). Accordingly, the following order will be entered. ORDER: The record is remanded to the Immigration Court for further proceedings consistent with the foregoing decision. (b) (6) (b) (6)
  13. 13. • U.S. Department of Justice Executive Office for Immigration Review Falls Church, Virginia 20530 File: -Atlanta, GA In re: Decision ofthe Board of Immigration Appeals Date: NOV -5 20t4 IN ASYLUM AND/OR WITHHOLDING PROCEEDINGS APPEAL ON BEHALF OF APPLICANT: Prose ON BEHALF OF DHS: Greg Radics Assistant ChiefCounsel APPLICATION: Asylum; withholding of removal; Convention Against Torture The applicant, a native and citizen of Germany, appeals from the Immigration Judge's December 19, 2012, decision denying her applications for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT"). The record will be remanded. The applicant does not challenge the Immigration Judge's determination that she is ineligible for asylum because she did not file a timely application or establish that an exception applies (I.J. at 5; Tr. at 10). Therefore, the only applications at issue are withholding of removal and protection under the CAT. The applicant argues that she suffered past persecution, and has a clear probability of future persecution, in Germany on account of her membership in a particular social group comprised of "battered spouses" and "members of the anti-Nazi and anti-Fascism movement in Germany." She detailed significant harm that she suffered at the hands of her ex-husband, She also expressed her fear of future persecution based on her participation in an anti-Nazi/anti-Fascist group. The Immigration Judge held that a particular social group relating to women who are victims of domestic abuse in Germany was not cognizable because it did not possess the requisite social visibility or particularity. Therefore, the testimony and factual findings regarding what had happened to the respondent in Germany were not developed (I.J. at 8-9). Subsequent to the Immigration Judge's decision, we held that depending on the facts and evidence in an individual case, victims of domestic violence can establish membership in a cognizable particular social group that forms the basis of a claim for asylum or withholding of removal. Matter ofA-R-C-G-, 26 I&N Dec. 388 (BIA 2014) (holding that under the facts and evidence in the case, "married women in Guatemala who are unable to leave their relationship" was a cognizable particular social group). Also subsequent to the Immigration Judge's decision, we clarified our particular social group jurisprudence. In doing so, we stated that an applicant seeking asylum or withholding of removal based on his or her membership in a particular social group must (b) (6) (b) (6) (b) (6)
  14. 14. establish that the group is (1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question (renaming the former concept of "social visibility"). Matter ofM-E-V-G-, 26 l&N Dec. 227 (BIA 2014); Matter ofW-G-R-, 26 l&N Dec. 208 (BIA 2014). We find that remand is appropriate in this case given the evolving law on the issue of particular social groups. On remand, the parties should have the opportunity to update the record and make any additional legal and factual arguments regarding her applications for withholding of removal and protection under the CAT (both with regard to her domestic abuse claim and her anti-Nazi/Fascism claim). We note that in order to establish eligibility for withholding of removal, the applicant must establish that she is unable to avail herself of the protection of the German government. See Lopez v. U.S. Atty. Gen., 504 F.3d 1341 (11th Cir. 2007). In this regard, the Immigration Judge made factual findings relating to Germany's ability to protect the applicant in the context of her fear of future persecution (l.J. at 10). However, the Immigration Judge should also address the applicant's assertions that the German government did not adequately respond to her complaints against her ex-husband and his family (I.J. at 3). The Immigration Judge should also further address the issue of internal relocation upon further development ofthe record. The Board expresses no opinion regarding the ultimate disposition of these proceedings. Accordingly, the following order will be entered. ORDER: The record is remanded for further proceedings consistent with the foregoing opinion and for the entry ofa new decision by the Immigration Judge. 2 (b) (6)
  15. 15. U.S. Department of Justice for Immigration Review Decision ofthe Board of Immigration Appeals ' Falls Church. Virginia 20530 File: - Atlanta, GA Date: In re: IN REMOVAL PROCEEDINGS APPEAL ON BEHALF OF RESPONDENT: Edivette Lopez-Benn, Esquire ON BEHALF OF OHS: Sirce E. Owen Assistant ChiefCounsel AUG 2! 2014 APPLICATION: Adjustment of status under section 245(i) of the Act; cancellation of removal; continuance; remand The respondent, a native and citizen of Mexico, has appealed from the Immigration Judge's January 9, 2013, decision ordering his removal. During the pendency of the appeal, the respondent has also filed a motion to remand. The Board reviews findings of fact under a clearly erroneous standard, while all other issues are reviewed de novo. 8 C.F.R. §§ !003.!(d)(3)(i)-(ii). The respondent's motion to remand will be granted. The respondent requests that the record be remanded to the Immigration Court so that he may apply for adjustment of status under section 245(i) ofthe Act, 8 U.S.C. § 1255(i). On appeal, the respondent has submitted evidence that an immediate relative visa petition filed on his behalf has been approved. The respondent has also submitted evidence in support of his assertion that a prior visa petition was filed on his behalf on or before April 30, 2001, such that he may be eligible to seek adjustment of status under section 245(i) ofthe Act. We note that the respondent previously filed an application for a waiver of inadmissibility under section 2l2(h) of the Act, 8 U.S.C. § l 182(h). We will remand the record so that the respondent may apply for the proposed form of relief. See generally Matter ofL-0-G-, 21 I&N Dec. 413 (BIA 1996) (noting that the Board may remand the record so that an Immigration Judge may conduct fact-finding in the first instance). Accordingly, the following orders will be entered. ORDER: The motion to remand is granted. FURTHER ORDER: The record is remanded to the Immigration Court . for further proceedings consistent with the foregoing opinion and for the entry of a new decision. (b) (6) (b) (6)
  16. 16. .. U.S. Department ofJustice Executive Offiee for hmnigration Review Falls Church, Virginia 20530 File: -Atlanta, GA Decision ofthe Board ofImmigration Appeals Date: AUG 182014 In re: IN REMOVAL PROCEEDINGS APPEAL ON BEHALF OF RESPONDENT: Peter R. Hill, Esquire ON BEHALF OF OHS: Kelley N. Sydnor Assistant Chief Counsel APPLICATION: Temporary Protected Status; cancellation ofremoval; voluntary departure The respondent, a native and citizen of Honduras, appeals the decision of the hnmigration Judge, dated January 9, 2013, granting him the privilege ofvoluntary departure upon the posting of a $15,000 bond. On January 11, 2008, the Immigration Judge issued an interim decision holding that the respondent was not eligible for Temporary Protected Status (''TPS"). The Department of Homeland Security is opposed to the appeal. The respondent's appeal will be dismissed in part and the record will be remanded. We affinn the Immigration Judge's holding that the respondent is not eligible for TPS. The hnmigration Judge properly held that, as the respondent has been convicted of two misdemeanors, he is not eligible for TPS. Section 244(c)(2)(B)(i) of the hnmigration and Nationality Act, 8 U.S.C. § 1254(c)(2)(B)(i). Even though the convictions were subsequently pardoned by Georgia's State Board of Pardons upon finding that the respondent is a law-abiding citizen and is fully rehabilitated, the Act does not provide for a waiver of the statutory eligibility requirements for TPS upon a showing that an alien has been granted a pardon. See Matter of Suh, 23 l&N Dec. 626 (BIA 2003); see also Balogun v. U.S. Att'y. Gen. 425 F.3d 1356, 1362 (11th Cir. 2005) ("[W]e believe that if Congress had intended to extend the pardon waiver to inadmissible aliens, it would have done so."); Matter ofPickering, 23 l&N Dec. 621 (BIA 2003). Even though the respondent did file an Application for Cancellation of Removal and Adjustment of Status for Certain Nonpermanent Residents (Form EOIR-42B), when he appeared at his ultimate removal hearing, through counsel, he solely requested voluntary departure (Tr. at 24-25). As the decision to solely pursue voluntary departure is binding upon the respondent and he has not properly raised a claim to ineffective assistance of counsel, we conclude that the respondent's claim to cancellation ofremoval is not properly before this Board for purposes of appellate review. See Matter ofJimenez, 21 I&N Dec. 567, 570 n.2 (BIA 1996) (noting that an issue which was neither raised before, nor ruled upon by the hnmigration Judge, is not properly before this Board for purposes ofappellate review); Matter ofFedorenko, 19 I&N Dec. 57, 74 (BIA 1984) (''The Board is an appellate body whose function is to review, not to create, a record."); see also Matter of Lozada, 19 I&N Dec. 637 (BIA 1988); Matter of Velasquez, 19 I&N Dec. 377, 382 (BIA 1986). (b) (6) (b) (6)
  17. 17. As stated above, the Immigration Judge set the respondent's vohmtary departure bond at $15,000. Section 240B(b)(3) of the Act, 8 U.S.C. § 1229c(b)(3). However, the Immigration Judge did not conduct a meaningful hearing regarding the issue of the respondent's voluntary departure bond, nor prepare a separate oral or written decision in this matter setting out the reasons for his decision. See Matter ofA-P-, 22 I&N Dec. 468 (BIA 1999). Moreover, the Immigration Judge did not provide the respondent with an explicit opportunity to accept the grant of voluntary departure or decline voluntary departure if he is unwilling to accept the amount of the bond or other conditions. See 8 C.F.R. § 1240.26(c)(3); Matter of Gamero, 25 I&N Dec. 164, 166 n.6 (BIA 2010). We observe that the purpose of a voluntary departure bond, which may be no less than $500, should be set at an amount necessary to ensure that the · alien departs within the time specified. 8 C.F.R. § 1240.26(c)(3)(i). For the reasons set forth above, the following orders are entered. ORDER: The respondent's appeal is dismissed in part. FURTHER ORDER: The record is remanded to the Immigration Court for the limited purpose offurther consideration of the respondent's request for voluntary departure and the entry ofa new decision. ..____ cFORTH 2 (b) (6)
  18. 18. U.S. Department of Justice Office for Immigration Review Falls Church, Virginia 20530 File: Atlanta, GA In re: IN REMOVAL PROCEEDINGS APPEAL Decision ofthe Board oflmmigration Appeals Date: MAR 212014 ON BEHALF OF RESPONDENT: Zulma Lopez, Esquire1 ON BEHALF OF DHS: Gene HarniIton Assistant Chief Counsel APPLICATION: Cancellation of removal The respondent has filed an appeal from the Immigration Judge's decision preterrnitting the respondent's application for cancellation of removal. The Department of Homeland Security (DHS) has moved for a summary affirmance. The appeal will be sustained and the record will be remanded. We review the Immigration Judge's findings of fact for clear error. Questions of law, discretion, and judgment, and all other issues are reviewed de novo. See 8 C.F.R. § 1003.l(d)(3)(i), (ii). Because the respondent's application was filed subsequent to May 11, 2005, it is governed by the REAL ID Act. See Matter ofS-B-, 24 I&N Dec. 42 (BIA 2006). It is undisputed that the respondent must establish continuous physical presence in the United States for a IO-year period to be eligible for cancellation ofremoval under section 240A(b) ofthe Immigration and Nationality Act, and it is also undisputed that the service of the respondent's Notice to Appear on April 13, 2012, terminated the continuous physical presence (Exh. I). See sections 240A(b)(l)(A), (d)(I) ofthe Act, 8 U.S.C. §§ 1229b(b)(l)(A), (d)(I). The Immigration Judge determined that the respondent was voluntarily returned to Mexico on two occasions in 2006 and that these voluntary returns stopped the accrual of continuous physical presence.2 The Immigration Judge relied on the respondent's own affidavit and two documents submitted into evidence by the DHS. The OHS produced a Form I-213 (Record of Deportable/lnadmissible Alien) that was prepared in 2012 when the respondent was detained at 1 We note that H. Glenn Fogle, Jr., Esquire filed a Form EOIR-28 with the Board. To enter an appearance before the Board, an attorney must file a Form EOIR-27. The most recent Form EOIR-27 filed with the Board in this matter was filed by Zulma Lopez, Esquire. A courtesy copy ofthis decision will be mailed to H. Glenn Fogle, Jr., Esquire. 2 In an affidavit the respondent asserted that he first came to the United States on , 1996, and that he departed on several occasions for brief periods. He asserted tl1at his last return to the United States, prior to 2006, was in 2000. (b) (6) (b) (6) (b) (6)
  19. 19. the border. The Form 1-213 contains a notation that the respondent "was voluntarily returned to Mexico on 2-5-2006 and on 2-8-2006" (OHS Mot. to Pretermit, Exh. A). No additional information or explanation concerning the 2006 incidents is provided. The OHS also submitted a US-Visit Secondary Processing printout, which listed encounters with the respondent (Id. at Exh. B). The printout shows that the respondent was stopped and that the respondent's photograph was taken on February 5, 2006, and again on February 8, 2006. The printout does not show that the respondent was fingerprinted on those dates. There is no information on the printout about whether the respondent was questioned, provided with any information, threatened with removal proceedings, or turned away at the border. The respondent produced an affidavit with his cancellation of removal application, which states that he left the United States on February 3, 2006, to see his ill grandmother in Mexico and returned on February 5, 2006. The respondent reports that he was fingerprinted and signed the fingerprint form but nothing else. He states that he was taken to the border, and that he went back to Mexico. The respondent's affidavit also describes his return to the United States on February 8, 2006. The respondent reports that he was caught after trying to board a tractor trailer near the border. He states that he was fingerprinted and signed the fingerprint card but nothing else. He states that after he was released, he did not return to Mexico but instead proceeded to Georgia. The Immigration Judge concluded that the evidence was sufficient to establish that the respondent "voluntarily departed the United States under the threat of the commencement of removal or deportation proceedings" because the respondent was "subjected to a formal, documented process pursuant to which he was determined to be inadmissible to the United States" (l.J. at 4). The Immigration Judge indicated that the acts of apprehending the respondent, gathering information about him, photographing him, and fingerprinting him were enough to establish the formal process pursuant to which the respondent was determined to be inadmissible (I.J. at 4). In Matter ofRomalez, 23 I&N Dec. 423 (BIA 2002), this Board held that continuous physical presence is deemed to end at the time an alien is compelled to depart the United States under threat of the institution of deportation or removal proceedings. In Matter ofAvilez, 23 l&N Dec. 799 (BIA 2005), this Board determined that continuous physical presence is not broken when an alien is turned away at the border without any threat of the institution of proceedings and later reenters without inspection. In Matter ofAvilez, supra, we stated that our decision was guided in part by decisions issued by the Seventh and Eighth Circuits, each of which determined that an alien's continuous physical presence had not been broken by a return at the border. We noted the Eighth Circuit decision of Reyes-Vasquez v. Ashcroft, 395 F.3d 903 (8th Cir. 2005), which addressed an alien who returned to the United States after a 2-week absence, was arrested by the Border Patrol, locked in a cell for several hours, fingerprinted, and taken back to the border on a bus without being told that he would otherwise have to go before an Immigration Judge. The Eighth Circuit found that before a presence breaking voluntary departure occurs, the record must contain some evidence that the alien was informed of and accepted its terms. Jn Matter ofAvilez, supra, we also considered the Seventh Circuit decision of Morales-Morales v. Ashcroft, 384 F.3d 418 (7th Cir. 2004), which addressed the cancellation of removal application of an alien who returned to the United States 2 (b) (6)
  20. 20. after 2 weeks in Mexico and who was repeatedly turned away at the border. She was detained each time but not placed in proceedings or taken to an Immigration Judge. The Seventh Circuit concluded that being turned away at the border would not be equated with a formal voluntary departure or a departure under an order of removal or deportation. The court of appeals, citing Matter ofRomalez, supra, observed that the alien did not enter into any functional "plea bargain" or "agreement" that would have signified her knowledge that she departed in lieu ofbeing placed in proceedings or alerted her to the consequences of her illegal return to the United States after her departure to Mexico. Morales-Morales v. Ashcroft, supra, at 427-28. In Matter ofAvilez, supra, we held that "an immigration official's refusal to admit an alien at a land border port of entry will not constitute a break in the alien's continuous physical presence, unless there is evidence that the alien was formally excluded or made subject to an order of expedited removal, was offered and accepted the opportunity to withdraw his or her application for admission, or was subjected to any other formal, documented process pursuant to which the alien was determined to be inadmissible to the United States." Matter ofAvilez, supra, at 805-06. In contrast, if the evidence indicates that the alien's encounter with immigration authorities involves nothing more than being returned to the border following refusal of admission for failure to have proper documents, the encounter does not break continuous physical presence. Id. at 806. The evidence in the record before us does not show that the respondent was formally excluded or made subject to an order of expedited removal, was offered and accepted the opportunity to withdraw an application for admission, or was subjected to any other formal, documented process pursuant to which he was determined to be inadmissible to the United States. The OHS records show only that the respondent was detained and photographed. The respondent himself provided the evidence that fingerprinting occurred. Without more, however, we cannot say that the respondent left the United States under a threat of being placed in proceedings. In this regard, we note that the respondent's case appears very similar to that ofthe alien in Reyes-Vasquez v. Ashcroft, supra. There, the alien was arrested by the Border Patrol, locked in a cell for several hours, fingerprinted, and taken back to the border on a bus without being told that he would otherwise have to go before an Immigration Judge. This Board has relied on the reasoning in Reyes-Vasquez v. Ashcroft, and the respondent's case does not appear meaningfully different from that case. Accordingly, we conclude that the record that is currently before us does not establish the respondent's continuous physical presence was broken when he was turned away in 2006.3 We will sustain the respondent's appeal and remand the record to allow the respondent a hearing on his application for cancellation ofremoval. ORDER: The appeal is sustained. 3 We note that the Immigration Judge did not comment on the respondent's claim that he did not leave the United States when he was released on February 8, 2006, but instead went to Georgia. 3 (b) (6)
  21. 21. FURTHER ORDER: The record is remanded to the Immigration Judge for further proceedings consistent with the foregoing opinion and for the entry ofa new decision. FOR THE BOARD 4 (b) (6)
  22. 22. U.S. Department of Justice Executive Office for Immigration Review Falls Church, Virginia 20530 File: Atlanta, GA Decision of the Board oflmmigration Appeals Date: JUN 10 Z014 In re: IN REMOVAL PROCEEDINGS APPEAL ON BEHALF OF RESPONDENT: Thad Servi, Esquire ON BEHALF OF DHS: Abby L. Meyer Assistant Chief Counsel APPLICATION: Cancellation ofremoval The respondent, a native and citizen of Mexico, appeals the March 19, 2013, decision of the Immigration Judge denying his application for cancellation of removal under section 240A(b) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b). The Department of Homeland Security (OHS) urges affirmance. The Immigration Judge's findings of fact, including on credibility, are reviewed to determine whether the findings are "clearly erroneous." 8 C.F.R. § 1003.1 (d)(3)(i). The Board reviews all questions of law, discretion, judgment, and all other issues in appeals from decisions of the Immigration Judge on a de novo basis. 8 C.F.R. § 1003.l(d)(3)(ii). We affirm the Immigration Judge's denial of cancellation of removal based upon the determination that the respondent did not establish that he was physically present in the United States for a continuous period of not less than I0 years prior to service of the Notice to Appear. See sections 240A(b)(I )(A), (d)(I) of the Act, 8 U.S.C. §§ 1229b(b)(l)(A), (d)(I). The Notice to Appear in these proceedings was served on April 7, 2009. The respondent's burden, therefore, is to establish continuous presence in the United States from or before April 8, 1999. His evidence of physical presence before that date consists a few sporadic documents that evidence entry or presence in the United States, but do not establish continuous presence. The respondent's employment and income tax records begin in 2000. Although the application for cancellation of removal claims employment in the United States between 1997 and 2001 by , there are no employment, payroll or tax records issued by this entity, and no affidavits or statements from or any other person having knowledge of the respondent's employment or work. There is a school record from the 1996-97 school year, but the record indicates that the respondent withdrew before the end of the school year. The affidavits of family members do not assert or provide facts to show the respondent's continuous presence in the United States from or before April 8, 1999. The Board will dismiss the respondent's appeal insofar as it concerns his application for cancellation ofremoval. 1 1 The Board notes that the respondent's application for cancellation of removal states that he departed the United States in July 2001 and returned in October 2001 without indicating specific dates, leaving unresolved whether the absence was for more than 90 days. The application does (b) (6) (b) (6) (b) (6) (b) (6)
  23. 23. The Immigration Judge granted the respondent's application for voluntary departure, but required a bond of $15,000. The respondent on appeal challenges that amount as arbitrary and an abuse of discretion. The Board agrees that the Immigration Judge did not adequately explain his reasoning in requiring a bond in that amount, and we will sustain the appeal insofar as it seeks reconsideration of the amount of the voluntary departure bond. Further, effective January 20, 2009, an Immigration Judge who grants an alien voluntary departure must advise the alien that proof of posting of a bond with the Department of Homeland Security must be submitted to the Board of Immigration Appeals within 30 days of filing an appeal, and that the Board will not reinstate a period of voluntary departure in its final order unless the alien has timely submitted sufficient proof that the required bond has been posted. 8 C.F.R. § 1240.26(c)(3). See Matter ofGamero, 25 I&N Dec. 164 (BIA 2010). Although the respondent failed to submit timely proof of having paid the bond, the record reflects that the Immigration Judge did not provide the respondent with the required advisals. Therefore, the record will be remanded for the Immigration Judge to grant a new period of voluntary departure, to reconsider the amount ofthe bond, and to provide the required advisals. The following orders will be entered. ORDER: The respondent's appeal is dismissed in part and sustained in part. FURTHER ORDER: The record is remanded for further proceedings consistent with the foregoing opinion and for the entry of a new decision. FOR THE BOARD not disclose that the respondent voluntarily returned to Mexico on July 26, 1999, and July 29, 1999. Both returns occurred after the respondent was apprehended by the DHS. The DHS presented official records to the Immigration Judge indicating that the respondent's returns were part of a formal, documented process. The respondent, having the burden of proof to establish his eligibility for cancellation of removal, did not offer evidence or make an offer of proof in support of his argument on appeal that the process was informal, so as not to break continuous presence (which is not otherwise established). 2 (b) (6)
  24. 24. • U.S. Department of Justice Executive Office for Immigration Review Decision of the Board ofImmigration Appeals Falls Church, Virginia 20530 File: - Atlanta, GA Date: In re: IN REMOVAL PROCEEDINGS APPEAL ON BEHALF OF RESPONDENT: Luis Alemany, Esquire ON BEHALF OF DHS: Gene Hamilton Assistant ChiefCounsel APPLICATION: Cancellation ofremoval; voluntary departure 'JUN - 22014 The respondent appeals from the March 26, 2013, decision ofthe Immigration Judge, denying the respondent's application for cancellation ofremoval under section 240A(a) ofthe Immigration and Nationality Act, 8 U.S.C. § 1229b(a). The record will be remanded to the Immigration Judge for further proceedings. Under 8 C.F.R. § 1003.l(d)(3), the Board defers to the facnial findings of an Immigration Judge, unless they are clearly erroneous, but it retains independent judgment and discretion, subject to applicable governing standards, regarding pure questions oflaw and the application ofa particular standard oflaw to those facts. The Immigration Judge found the respondent subject to removal as charged and pretermitted his application for cancellation of removal pursuant to section 240A(b) of the Immigration and Nationality Act, as a result ofthe respondent's inability to establish that he had been present in the United States for a continuous period ofnot less than l 0 years immediately preceding the date of his application for cancellation for removal. The Immigration Judge observed that the respondent claimed he first entered the United States without inspection in July 1997. The Immigration Judge determined that the respondent was refused admission from Mexico by Border Patrol agents on June 20, 2003. In support of the respondent's denial of admission the Department of Homeland Security submitted a Record of Deportable/Inadmissible Alien (Form 1-213) dated November 30, 2008, US-v1SIT printouts showing when the respondent was apprehended by Border Patrol agents, and an !DENT printout dated June 30, 2003. The record indicates that the respondent was apprehended, detained, photographed, and fingerprinted. However, the record does not show that the respondent was subjected to any kind of formal procedure, such as an advisal of rights or the threat of removal proceedings before an Immigration Judge sufficient to cut offhis accrual of continuous physical presence. This Board held in Matter of Avilez, 23 I&N Dec. 799 (BIA 2005), that an alien's continuous physical presence continues to accrue for purposes ofcancellation ofremoval eligibility following his or her departure of a duration less than that specified in section 240A(d)(2) unless, upon return to a land border port ofentry, the alien was formally excluded or made subject to an order ofexpedited (b) (6) (b) (6)
  25. 25. removal, was offered and accepted the opportunity to withdraw an application for admission, or was subjected to some other formal, documented process pursuant to which the alien was determined to be inadmissible to the United States. The respondent's apprehension by Border Patrol agents, and his subsequent return to Mexico based on his inadmissibility is not, by itself, sufficient under this Board's precedent to interrupt his accrual of continuous physical presence. See Matter ofRomalez, 23 l&N Dec. 423 (BIA 2002) (for purposes ofdetermining eligibility for cancellation ofremoval pursuant to section 240A(b) of the Immigration and Nationality Act continuous physical presence is deemed to end at the time an alien is compelled to depart the United States under threat of the institution of deportation or removal proceedings). We have held that there must be sufficient evidence in the record to determine whether the respondent was actually compelled to depart the United States under the threat of the institution ofremoval proceedings. Matter ofAvilez, 23 l&N Dec. 799 (BIA 2005) (considering whether there is a break in continuous physical presence for purposes of section 240A(b)(I)(A) ofthe Act when an alien is turned away at a land border port ofentry). Since we find the record does not adequately establish that the respondent was subjected to a formal procedure, we find it appropriate to remand the record to the Immigration Judge for further proceedings in which to determine whether there is adequate evidence that the respondent's return to Mexico in 2003 constituted a voluntary return that would be a break in his continuous physical presence under lhe principles set out i.n Matte:· of Avilez, supra. If it is determined that lhe respondent's presence was not broken, the Immigration Judge shall conduct further proceedings on the respondent's application for cancellation ofremoval. ORDER: The record is remanded to the Immigration Judge for further proceedings consistent with this decision. ··,. 2 (b) (6)
  26. 26. U.S. Department of Justice E>ecutive Office for Immigration Review Falls Church, Virginia 20530 File: - Atlanta, GA Decision ofthe Board of Immigration Appeals Date: APR 11 2.04 In re: IN REMOVAL PROCEEDINGS APPEAL ON BEHALF OF RESPONDENT: G. Josh Arcila, Esquire ON BEHALF OF OHS: Randall W. Duncan Assistant ChiefCounsel The respondent, a native and citizen of Mexico, has appealed from the Immigration Judge's decision dated August 15, 2013. The Department of Homeland Security (OHS) has filed a brief in response to the respondent's appeal. We review questions of law, discretion, and judgment arising in appeals from decisions of Immigration Judges de novo, whereas we review findings of fact in such appeals under a clearly erroneous standard. See 8 C.F.R. § I003. J(d)(3). In his decision, the Immigration Judge considered the evidence filed by OHS in its motion to pretermit the respondent's application for cancellation of removal pursuant to section 240A(b) of the Act, and pretermitted the respondent's application because he could not demonstrate continuous physical presence for the requisite period (l.J. at 2-4). The Immigration Judge found that, based on the evidence of various border apprehensions, the respondent could not demonstrate 10 years of physical presence froin November 8, 200I until the Notice to Appear was served on him on November 8, 2011 (Exh. J). On appeal, the respondent argues that notwithstanding the fact that the respondent was photographed, fingerprinted, and returned to Mexico twice in 2004, the DHS' evidence does not show that the respondent was subject to a "formal, documented process" which would break his continuous physical presence for purposes of cancellation eligibility. We disagree. The respondent relies on Tapia v. Gonzalez, 430 F.3d 997 (9th Cir. 2005), but as the Immigration Judge observed, the respondent's proceedings arise in the United States Court of Appeals for the Eleventh Circuit. We agree with the Immigration Judge that the respondent's 2004 encounters broke his continuous physical presence under precedential case law. See Matter of Avilez-Nava, 23 I&N Dec. 799 (BIA 2005). As such, we find no reason to disturb the Immigration Judge's dec.ision regarding the respondent's eligibility for cancellation of removal pursuant to section 240A(b) of the Act. However, we find a remand warranted to allow the parties to present further evidence and testimony regarding the respondent's eligibility for voluntary departure. The Immigration Judge denied such relief as a matter of discretion, but the respondent was not given the opportunity to present equities on his behalf prior to this determination (l.J. at 5; Tr. at 1-9). As such, the record (b) (6) (b) (6)
  27. 27. will be remanded for further proceedings to allow the parties to present evidence regarding the respondent's eligibility for voluntary departure. Accordingly, the following order will be entered. ORDER: The record is remanded to the Immigration Court for further proceedings consistent with the foregoing decision. 2 (b) (6)
  28. 28. r • . U.S. Department of Justice Executive Office for Review Falls Church, Virginia 20530 File: Atlanta, GA In re: JN REMOVAL PROCEEDINGS APPEAL Decision ofthe Board oflmmigration Appeals Date: ON BEHALF OF RESPONDENT: H. Glenn Fogle, Jr., Esquire ON BEHALF OF OHS: Morris I. Onyewuchi Assistant Chief Counsel CHARGE: Notice: Sec. 212(a)(6)(A)(i), I&N Act [8 U.S.C. § l 182(a)(6)(A)(i)] - Present without being admitted or paroled APPLICATION: Termination of proceedings; adjustment of status; voluntary departure This case was last before the Board on May I0, 2013, when we remanded the record for further consideration of the respondent's removability. Specifically, we noted in our remand order that the record contains documentary evidence which suggests that the respondent did not depart and unlawfully reenter the United States during the time period at issue, and we therefore directed the Immigration Judge to make clear findings of fact concerning the time and manner ofthe respondent's most recent entry into the United States.1 In a written decision dated September 16, 2013, the Immigration Judge held that the respondent is removable based on the sole charge listed in the Notice to Appear. The respondent, a native and citizen of Ghana, has appealed from that determination, and further contests the Immigration Judge's earlier denial of her application for adjustment of status and alternative request for voluntary departure. The Department of Homeland Security ("OHS") has submitted a brief in opposition to the appeal. The record will be remanded for further proceedings. In his September 16, 2013, decision, the Immigration Judge correctly stated that the respondent, whose alienage has been established, bears the burden of showing by clear and convincing evidence tliat she is present in the United States pursuant to a lawful admission, or that she is clearly and beyond doubt entitled to be admitted to the United States and is not inadmissible as charged. See section 240(c)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1229a(c)(2); 8 C.F.R. § 1240.S(c). The Immigration Judge then stated that the respondent did not satisfy this burden in light of the Immigration Judge's undisturbed prior adverse credibility finding. 1 The respondent's admission into the United States as a nonimmigrant visitor in 2001 is not in dispute (l.J. (9/16113) at I). At issue is whether the respondent subsequently departed and unlawfully reentered the United States, which would render her inadmissible as charged in the Notice to Appear (Exh. I). (b) (6) (b) (6)
  29. 29. However, contrary to the directive in our prior remand order, the Immigration Judge did not make clear findings of fact concerning the respondent's most recent entry into the United States. In particular, the Immigration Judge made no findings of fact concerning the independent documentary evidence suggesting that the respondent was indeed present in the United States in early 2005, where such evidence conflicted with the respondent's earlier (pre-removal proceedings) statement that she was in Ghana at that time (I.J. (9/16/13) at 2). The Immigration Judge's appropriate determination that the respondent was not a credible witness does not relieve the Immigration Judge ofhis duty to assess independent documentary evidence of record which could feasibly satisfy the respondent's burden of proof notwithstanding her lack of credibility. See generally Ruiz v. U.S. Att'y Gen., 440 F.3d 1247, 1255 (11th Cir. 2006) (reiterating, in asylum context, that Immigration Judge is required to evaluate corroborating evidence to detennine whether it independently satisfies alien's burden of proof notwithstanding alien's Jack of credibility); see also Matter of C-C-1-, 26 I&N Dec. 375, 383-84 (BIA 2014) (same). Notably, the only evidence reflecting that the respondent departed the United States subsequent to her lawful admission in 2001 was her own prior statements concerning a return trip to Ghana (as reflected in an immigration officer's notes and testimony), and a declaration ostensibly issued in Ghana in 2005 (I.J. (2/9/11) at 2-5; Exhs. 5, 8; Tr. at 61-85). Yet the Immigration Judge held that the respondent was not credible, and he did not address the weight that should be assigned the aforementioned declaration (I.J. (2/9/11) at 2-6). 2 In contrast with the foregoing questionable evidence of the respondent's departure from the United States after her 200I admission, the record of proceedings also contains medical records allegedly issued by a health care system in Atlanta, Georgia, and a birth certificate purportedly issued by the Georgia State Office of Vital Records, indicating that the respondent was present in the United States during the contested time period (Exhs. 6-7). Depending on the weight to be attributed to the latter countervailing evidence, the independent documentary evidence ofrecord could potentially satisfy the respondent's burden ofestablishing by clear and convincing evidence that she is present in the United States pursuant to her undisputed 2001 admission. See generally Murphy v. INS, 54 F.3d 605, 610-12 (9th Cir. 1995) (discussing weight to be attributed to evidence at issue in immigration proceedings) (persuasive authority). In view of the foregoing, and considering our inability to conduct factfinding on appeal, we find it necessary to again remand the record to the Immigration Judge so that he may evaluate all relevant documentary evidence in the first instance. See Matter of S-H-, 23 I&N Dec. 462 (BIA 2002) (emphasizing the need for Immigration Judges to include in their decisions clear and complete findings and analysis that are in compliance with controlling law, in view ofthis Board's inability to conduct factfinding on appeal); see also Matter ofA-P-, 22 I&N Dec. 468 (BIA I999). The Immigration should then issue a new decision addressing whether the respondent is removable as charged. We reiterate that such decision must contain clear and complete findings 2 The Immigration Judge did not address below whether this declaration actually bears the respondent's signature (Exh. 8). 3 We note that the DHS retains the authority to lodge additional or substituted allegations and charges at any point during the respondent's removal proceedings. See 8 C.F.R. §§ 1003.30, 1240.lO(e). 2 (b) (6)
  30. 30. of fact regarding the time and manner ofthe respondent's most recent entry into the United States, considering all pertinent evidence of record. As the record will be remanded for further consideration ofthe respondent's removability, we viii not presently address the respondent's appellate arguments concerning her eligibility for relief from removal. Accordingly, the following order shall be entered. ORDER: The record is remanded to the Immigration Judge for further proceedings consistent with the foregoing opinion and for the entry o ew decision. 3 (b) (6)
  31. 31. U.S. Department ofJustice Executive Office for Immigration Review Decision ofthe Board ofImmigration Appeals Falls Church, Virginia 20530 File: - Atlanta, GA Date: FEB 18 2014 In re: IN REMOVAL PROCEEDINGS APPEAL ON BEHALF OF RESPONDENT: Eli A. Echols, Esquire By Direction ofthe Board, This is a pending appeal for which the record of proceedings has not been received at the Board from the Innnigration Court. Multiple attempts to have the record located and forwarded to the Board have been unsuccessful. The Board cannot proceed without the record of proceedings. Accordingly, the matter is remanded to the Innnigration Court for recovery of the record. FOR THE BOARD (b) (6) (b) (6)
  32. 32. U.S. Department of Justice Executive Office for Immigration Review Decision ofthe Board of Immigration Appeals Falls Church, Virginia 20530 File: -Atlanta, GA In re: IN REMOVAL PROCEEDINGS APPEAL ON BEHALF OF RESPONDENT: Pro se ON BEHALF OF DHS: APPLICATION: Tennination Sirce E. Owen Assistant Chief Counsel Date: MAY 2 2014 The respondent has appealed from the Immigration Judge's decision dated January 2, 2014. The Immigration Judge issued a fonn order finding the respondent removable as charged. However, an Immigration Judge may issue a summary decision in removal proceedings in lieu of an oral or written decision only when the respondent has expressly admitted to the factual allegations and conceded the charge of removability, and is either detennined to be ineligible for relief or the respondent makes no application for relief or applies only for voluntary departure. See Matter ofA-P-, 22 l&N Dec. 468 (BIA 1999); 8 C.F.R. § 1240.12(b). A summary order was not appropriate in this case because the respondent did not concede that she was removable as charged. Therefore, the record will be remanded to the Immigration Judge for the preparation of a full decision. Upon preparation of the full decision, the Immigration Judge shall issue an order administratively returning the record to the Board. The Immigration Judge shall serve the administrative return order on the respondent and the Department of Homeland Security. The Board will thereafter give the parties an opportunity to submit briefs in accordance with the regulations. Accordingly, the following order will be entered. ORDER: The record is remanded to the Immigration Court for further proceedings consistent with the foregoing decision. RTHEBOARD p (b) (6) (b) (6)
  33. 33. I U.S. Department ofJustice Executive Office for Immigration Review Decision ofthe Board oflmmigration Appeals Falls Church, Virginia 20530 File: - Atlanta, GA In re: IN REMOVAL PROCEEDINGS APPEAL ON BEHALF OF RESPONDENT: Victor Manibo, Esquire ON BEHALF OF OHS: CHARGE: Abby L. Meyer Assistant ChiefCounsel Date: Notice: Sec. 212(a)(7)(A)(i)(I), I&N Act [8U.S.C.§l182(a)(7)(A)(i)(I)] - Immigrant - no valid immigrant visa or entry document APPLICATION: Asylum; withholding ofremoval; Convention Against Torture JUL 252014 The respondent is a native and citizen of China. She appeals from a February 6, 2014, Immigration Judge decision finding her removable as charged and not credible in her testimony. The Immigration Judge denied her application for asylum under section 208 of the Immigration and Nationality Act, 8 U.S.C. § 1158, after finding her not credible based on inconsistencies and a failure to sufficiently corroborate her claim. He also denied her application as a matter of discretion. The Immigration Judge denied the respondent's application for withholding of removal under section 24l(b)(3) ofthe Act, 8 U.S.C. § 123l(b)(3), and her request for protection under the Convention Against Torture ("CAT"), due to her lack of credibility. We will remand the record for further proceedings. The respondent entered the United States in 2012, and had a credible fear interview with an asylum officer about a month later. She filed an asylum application before the Immigration Judge in January 2014, alleging past persecution and a well-founded fear of future persecution on account of her involvement with a Christian house church in China. Because of the filing date, her claims are governed by the amendments to the Act brought about by the passage of the REAL ID Act of2005. Matter ofS-B-, 24 l&N Dec. 42 (BIA 2006). On appeal, the respondent contends that the Immigration Judge clearly erred in his adverse credibility determination and erred in determining that she did not adequately corroborate her claim.1 She asserts that she is eligible for the relief she seeks. 1 The respondent does not appeal the denial of her asylum application as a matter of discretion and we could dismiss the appeal of her asylum claim on that basis, as she has abandoned the issue. Matter ofCervantes, 22 I&N Dec. 560, 561 n.l (BIA 1999). However, in this instance we conclude upon de novo review that a discretionary denial is not warranted based on the respondent's alleged lack ofcredibility, alleged failure to sufficiently corroborate her claims, and destroyed passport. (b) (6) (b) (6) (b) (6)
  34. 34. Contrary to the respondent's assertion, under the REAL ID Act an Immigration Judge may base his credibility determination on the demeanor, candor, or responsiveness of the respondent; the inherent plausibility of the respondent's account; and the consistency between the respondent's written and oral statements, without regard to whether an inconsistency goes to the heart of a respondent's claim. Section 208(b)(l)(B)(iii) of the Act; Matter ofJ-Y-C-, 24 I&N Dec. 260 (BIA 2007). The "clearly erroneous" standard does not entitle the reviewing body to reverse the finding of a trier of fact merely because the reviewing body is convinced it would have decided the case differently. Anderson v. City ofBessemer City, North Carolina, 470 U.S. 564, 574 (1985). When there are two permissible views ofthe evidence, the fact-finder's choice between the two cannot be deemed clearly erroneous. Id. Ve conclude that the Immigration Judge's adverse credibility determination does not comport with the REAL ID Act's requirements to consider the totality of the circumstances and all relevant factors. Section 208(b)(I )(B)(iii) of the Act. In particular, the respondent indicated in her amended asylum statement that she was sexually abused at the hands of the Chinese police while detained, but the transcript does not reveal that the Immigration Judge gave the respondent an opportunity to explain this significant omission from her testimony before the asylum officer and Immigration Judge and her initial asylum application (J.J. at 8-9, Group Exh. 4 at Tabs C, H; Exh. 8; see generally Tr. at 10-47). Thus, this basis of the adverse credibility determination is insufficient. The Immigration Judge also based his credibility determination on the respondent's alleged lack of corroboration, which usually is a separate analysis. The Immigration Judge concluded . that the respondent should have submitted a letter from her cousin in New York to support her claim. It is not clear how that letter would have aided the respondent as the cousin had no first-hand knowledge of the alleged incidents in China (J.J. at 9; Tr. at 44-45). The Immigration Judge also determined that the respondent should have provided .medical documentation regarding her father's stroke (his illness was the main impetus for her joining a church), but the transcript does not reveal that the Immigration Judge gave the respondent an opportunity to explain why she did not provide such documents (l.J. at 9; Tr. at 36 (the respondent's answer about the medical records is unclear and there are no follow-up questions). Thus, these bases of the adverse credibility determination are also flawed. In addition, the Immigration Judge found the respondent not credible because she allegedly had destroyed her passport at a smuggler's instruction and thus could not prove her travel dates, stops, and possible visas (l.J. at 9). We discern clear error in this finding because the Immigration Judge does not specify why he does not believe the respondent's testimony regarding her travel, and it is not unusual for an alien not to have all of her travel documents (the respondent did submit some proof of her identity- Group Exh. 4 at Tab D). Section 208(b)(I)(B)(iii) of the Act. Thus, this basis of the adverse credibility determination too cannot stand. The respondent submitted several documents in support of her claim, including two notices that she was suspected of being involved in illegal Christian activity and a receipt for a fine that was paid for this activity (Group Exh. 4 at Tabs E, F, G). The documents are translated but not properly authenticated. 8 C.F.R. § 1287.6. Because the Immigration Judge based his adverse credibility determination in part on this lack of authentication, we conclude that he should have 2 (b) (6)
  35. 35. provided the respondent an opportunity to explain why they were not properly authenticated. However, the transcript does not indicate that the Immigration Judge gave the respondent such a chance and thus this basis cannot stand (l.J. at 10; see generally, Tr. at 10-47). The respondent also submits a letter from her mother, to which the Immigration Judge gave little weight because the respondent's mother is an interested witness (l.J. at l0). The Court of Appeals for the Eleventh Circuit bas noted that it rejects such reasoning. Hui Zhen Jiang v. U.S. Att 'y. Gen., 433 Fed.Appx. 769, 772 n.4 (11th Cir. 2011). We point out that while the respondent's mother may be an interested witness, she also was a partial eyewitness and her statement should have been afforded more weight. See Matter of H-L-H- & Z-Y-Z-, 25 I&N Dec. 209, 212 (BIA 2010) (concluding in relevant part that the Board has authority to give different weight to the evidence from that given by the Immigration Judge), rev 'd in part by Hui Lin Huang v. Holder, 677 F.3d 130 (2d Cir. 2012). Thus, this basis is not supported. There remains one basis for the credibility determination- the respondent's failure to mention her second arrest during her interview with the asylwn officer (l.J. at 8; Exh. 8). Contrary to the respondent's assertion, we conclude that her credible fear interview can be relied upon to support an adverse credibility determination. The Eleventh Circuit has held that inconsistencies between airport/border or credible fear interviews and a respondent's asylwn application and/or testimony can be used to support an adverse credibility determination. Chen v. U.S. Att 'y Gen., 378 Fed.Appx. 878, 881-82 (11th Cir. Apr. 30, 2010); Shkambi v. U.S. Atf'.y Gen., 584 F.3d 1041, 1049-52 (11th Cir. 2009). Both the Second and Third Circuits have provided guidance on this matter in published cases and we will look to those circuits for guidance in resolving the matter. In Ramsameachire v. Ashcroft, 357 F.3d 169, 179 (2d Cir. 2004), the Second Circuit noted that Balasubramanrim v. INS, 143 F.3d 157, 162 (3d Cir. 1998), and Senathirajah v. INS, 157 F.3d 210, 217-18 (3d Cir. 1998), hold the BIA may not rely on an alien's airport interview where an examination of the record reveals that the airport interview may not represent an accurate account ofthe persecution suffered by the alien in his home country. The Second Circuit then adopted the following factors to consider in evaluating the reliability of an airport interview as a source of a respondent's statements: (I) a record of the interview that merely summarizes or paraphrases the respondent's statements is inherently less reliable than a verbatim account or transcript; (2) similarly less reliable are interviews in which the questions asked are not designed to elicit the details of an asylum claim, or where the official fails to ask follow-up questions that would aid a respondent in developing his account; (3) an interview may be deemed less reliable if the alien appears to have been reluctant to reveal information to officials because of prior interrogation sessions or other coercive experiences in his or her home country; and (4) if the respondent's answers to tl1e questions posed suggest that he did not understand English or the translations provided by the interpreter, the statements should be considered less reliable. Ramsameachire v. Ashcroft, supra, at 180-81 (internal citations and quotations omitted). In the case at bar, the credible fear interview was conducted I month after the respondent entered the country, and chronicles the questions asked of the respondent and the answers she provided (Exh. 8). We conclude that it provides sufficient and reliable information on which we can base a credibility determination. Specifically, the credible fear worksheet indicates that the respondent was interviewed by an asylum officer with an interpreter providing telephonic 3 (b) (6)
  36. 36. interpretation in the respondent's best language of Mandarin Chinese (Exh. 8). The respondent testified below that she understood the interpreter (Tr. at 45). We find this border interview sufficiently reliable to base a credibility determination on, given that all the relevant information was translated into a language the respondent could readily understand, and there is no indication that the respondent appeared to be reluctant in revealing information to the official. Ramsameachire v. Aschcroft, supra, at 180-81. Although the respondent contends on appeal, as she did below, that she did not discuss her second arrest and detention because she was not asked about it (Tr. at 46-47), we discern no clear error in the Immigration Judge's determination that this is a significant omission affecting the respondent's credibility. Specifically, the respondent was asked whether and when she was harmed in the past (Exh. 8, Interview at 1). The respondent was also asked ifthere was anything else she wanted to add that had not been discussed and the respondent stated that there was not (Exh. 8, Interview at 2). Thus, this prong of the credibility determination is upheld. However, we conclude that it is insufficient by itself to support an adverse credibility determination, and we will reve!'Se the Immigration Judge's credibility determination and will remand the record for a new credibility finding. Section 208(b)(l)(B)(iii) ofthe Act. On remand, we ask that the Immigration Judge make additional findings of fact as needed to fully develop the record, as we cannot do so on appeal. 8 C.F.R. § 1003.l(d)(3)(iv). In addition, the Immigration Judge should render another credibility determination, after making sure the respondent has had an opportunity to explain perceived inconsistencies/omissions. As relevant, the Immigration Judge also should issue a ruling on whether the respondent met her burden of proof, starting first with whether the respondent demonstrated past persecution. We also ask that the Immigration Judge provide complete analysis for the respondent's request for protection under CAT. The Immigration Judge denied the respondent's CAT claim for lack of credibility, but it is not apparent that all ofthe facts relating to the CAT claim were considered. We offer no opinion as to the merits of any ofthe respondent's requests for relief. Because we are remanding the record, we need not and decline to address the respondent's other arguments on appeal. Accordingly, the following order is issued. ORDER: The record is remanded for additional fact finding as relevant, the entry of a new credibility determination, and as relevant, a determination as to whether the respondent has met the burden ofproof for her requested forms of relief. FOR THE BOARD .........._ 4 (b) (6)
  37. 37. U.S. Department of Justice Executive Office (or Immigration Review Decision ofthe Board ofImmigration Appeals Falls Church, Virginia 20530 File: Atlanta, GA Date: AUG 222014 In re: IN ASYLUM AND/OR WITIIlIODLING PROCEEDINGS APPEAL ON BEHALF OF APPLICANT: Michael Urbina, Esquire APPLICATION: Continuance; asylum; withholding ofremoval; Convention Against Torture The applicant, a native and citizen of Greece, has appealed from the Immigration Judge's decision dated March 11, 2014. The Immigration Judge found the applicant removable and found her ineligible for relief from removal. On appeal, the applicant argues that she should be permitted to apply for asylum, withholding of removal, and protection under the Convention Against Torture. The record will be remanded. This Board reviews an Immigration Judge's findings of fact, including findings as to the credibility of testimony, under the "clearly erroneous" standard. See 8 C.F.R. § 1003.l(d)(3)(i); Matter ofR-S-H-, 23 I&N Dec. 629 (BIA 2003); Matter ofS-H-, 23 I&N Dec. 462 (BIA 2002). This Board reviews questions of law, discretion, and judgment, and all other issues raised in an Immigration Judge's decision de novo. See 8 C.F.R. § 1003.l(d)(3)(ii). The applicant's first hearing was on December 18, 2013. The Immigration Judge gave her an application for asylum, withholding of removal, and protection under the Convention Against Torture (Form I-589). The detained applicant was unrepresented by counsel until January 9, 2014, when she appeared with attorney GD. A continuance was granted for attorney preparation (Tr. at 6). The applicant appeared with attorney AI at the next hearing on January 16, 2014. A Form 1-589 was submitted (Exh. 2). A merits hearing was scheduled for January 29, 2014, but was not held. The next hearing was held on March 11, 2014. At that time, attorney AI arrived late and indicated that she was not prepared for a merits hearing on the applicant's applications and desired to withdraw (Tr. at 15-18). The Immigration Judge did not ask the applicant if she wished to have a continuance to find another attorney or proceed with the hearing. The applicant was questioned by the lnunigration Judge and counsel for the Department of Homeland Security. She was denied relief in part for not submitting corroborating evidence of her claim and ordered removed (Tr. at 19-27; I.J. at 3). This appeal followed. Applicants in immigration proceedings have the statutory and regulatory "privilege of being represented," at no expense to the Government, by counsel of their choosing. See sections 240(b)(4)(A), 292 of the Act; 8 U.S.C. §§ 1229a(b)(4)(A), 1362. See also 8 C.F.R. §§ 1003.16(b), 1240.3, 1240.lO(a), 1240.ll(c)(J)(iii); Matter ofC-B-, 25 I&N Dec. 888, 889- (b) (6) (b) (6)
  38. 38. ( . 890 (BIA 2012). Where the statutory and regulatory privilege of legal representation is not expressly waived,1 as is the case here, in order to meaningfully effectuate the privilege, when counsel for an alien withdraws, the Immigration Judge must grant a reasonable and realistic amount of time and provide a fair opportunity for an applicant to seek, speak with, and retain new counsel. See Matter ofC-B-, supra. See also sections 239(a)(l)(E) and 239(b)(l) ofthe Act, 8 U.S.C. §§ 1229(a)(l)(E); (b)(l). The withdrawal of an alien's attorney constitutes good cause for a continuance. See 8 C.F.R. §§ 1003.298, 1240.6. See also Matter of C-B-, supra. Cf Tawadrus v. Ashcroft, 364 F.3d 1099, 1103-1105 (9th Cir. 2004) (Immigration Judge denied alien's statutory right to counsel in denying continuance when alien's attorney withdrew). On that basis, the appeal will be sustained, and the record will be remanded to the Immigration Judge for a new hearing. On remand, the applicant should be allowed to apply for any relief for which she is statutorily eligible. Accordingly, the following orders will be entered. ORDER: The appeal is sustained. FURTHER ORDER: The record is remanded to the Immigration Judge for further proceedings consistent with the foregoing opinion and entry of a new decision. 1 In order for a waiver to be valid, an Immigration Judge must generally: (I) inquire specifically as to whether the applicant wishes to continue without a lawyer; and (2) receive a knowing and voluntary affirmative response. See Matter ofC-B-, supra. 2 (b) (6)
  39. 39. U.S. Department of Justice Executive Office for Immigration Review Falls Church, Virginia 2204 I File: -Atlanta, GA In re: IN REMOVAL PROCEEDINGS APPEAL Decision of the Board of Immigration Appeals Date: DEC 16 2015 ON BEHALF OF RESPONDENT: Andrew John Hewitt, Esquire CHARGE: Notice: Sec. 212(a)(6)(A)(i), I&N Act (8 U.S.C. § 1182(a)(6)(A)(i)] - Present without being admitted or paroled APPLICATION: Cancellation ofremoval The respondent, a native and citizen of Mexico, appeals from the Immigration Judge's oral decision dated April 23, 2014, denying his application for cancellation of removal under section 240A(b) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b). The respondent also moves to remand for further proceedings. The Department of Homeland Security has not filed an appeal brief or responded to the motion to remand. The record will be remanded for further proceedings. We review the findings of fact, including determinations of credibility, made by the Immigration Judge under the "clearly erroneous" standard. 8 C.F.R. § 1003.l(d)(3)(i). We review all other issues, including whether or not the parties have met the relevant burden of proof, and issues of discretion, under a de novo standard. 8 C.F.R. § 1003.l(d)(3)(k). As the cancellation application was filed after May 11, 2005, our assessment ofthis case is governed by the REAL ID Act. See Matter ofS-B-, 24 I&N Dec. 42 (BIA 2006). The Immigration Judge concluded that the respondent did not meet his burden of establishing I0 years ofcontinuous physical presence in this country for purposes ofcancellation of removal. The Immigration Judge determined that pursuant to Matter ofAvilez, 23 l&N Dec. 799 (BIA 2005), and Matter of Romalez, 23 I&N Dec. 423 (BIA 2002), the respondent's voluntary departure in 2004 constituted a break in his continuous physical presence in this country. The respondent asserts on appeal that the Immigration Judge erred in concluding that he was subject to a formal, documented process resulting in a voluntary return on March 25, 2004. He also moves to remand based on several recent precedent decisions. We find that a remand is appropriate. This Board recently issued two precedent decisions, Matter of Garcia, 26 I&N Dec. 423 (BIA 2015), and Matter ofCastrejon, 26 I&N Dec. 667 (BIA 2015), on the issue of whether a voluntary departure or return breaks an alien's continuous physical presence for purposes of cancellation of removal. Because our recent decisions were issued after the Immigration Judge's April 23, 2014, decision and are relevant to the issues in this case, we find that a remand for further consideration of the respondent's eligibility for cancellation of removal is warranted. We made no determination as to the merits of this case. (b) (6) (b) (6)
  40. 40. Accordingly, the record will be remanded for further proceedings. ORDER: The record is remanded for further proceedings consistent with the foregoing decision. 2 (b) (6)
  41. 41. U.S. Department of Justice Executive Office for Immigration Review Decision oflhe Board of Immigration Appeals Falls Church, Virginia 22041 File: Atlanta, GA In re: IN REMOVAL PROCEEDINGS APPEAL ON BEHALF OF RESPONDENT: Pro se ON BEHALF OF OHS: Gene P. Hamilton Assistant ChiefCounsel Date: DEC I 7 2015 APPLICATION: Cancellation ofremoval under section 240A(b) ofthe Act The respondent has appealed from the Immigration Judge's June 19, 2014, decision denying his application for cancellation of removal under section 240A(b) of the Immigration and Nationality Act (the Act), 8 U.S.C. § 1229b(b). The Board reviews findings of fact under a clearly erroneous standard, while all other issues are reviewed de novo. 8 C.F.R. §§ 1003.l(dX3)(i)-(ii). In light of intervening precedent, the record will be remanded for further proceedings. We will remand the record for further proceedings given this Board's intervening decisions in Malter ofCastrejon-CollilW, 26 I&N Dec. 667 (BIA 2015), and Maner ofGarcia-Ramirez, 26 I&N Dec. 674 (BIA 2015). The Immigration Judge preterrnitted the respondent's application for cancellation of removal based on a finding that a 2008 voluntary return served to break the respondent's continuous physical presence such that he could not demonstrate I0 years of continuous physical presence as required to establish eligibility for the proposed form of relief (l.J. at 2-4). The Immigration Judge noted that some ambiguity existed as to whether the evidence of record was sufficient to document a break in physical presence under the Board's prior precedent in Matter ofAvilez-Nava, 23 l&N Dec. 799 (BIA 2005) (l.J at 4). We conclude that remand of the record for further consideration of this issue is appropriate given that Matter of Castrejon-Co/lino, supra, and Mauer of Garcia-Ramirez, supra, provide further clarification of this issue. Accordingly, we will remand the record to the Immigration Judge for further fact-finding as to the respondent's statutory eligibility for cancellation of removal under section 240A(b) of the Act. We express no opinion as to the outcome ofproceedings on remand. See generally Matter ofL-0-G-, 2I l&N Dec. 413 (BIA 1996). ORDER: The record is remanded for further proceedings consistent with the foregoing opinion and for the entry ofa new decision. QJ (b) (6) (b) (6)
  42. 42. 1 - U.S. Department of Justice Executive Office for Immigration Review Falls Church, Virginia 20530 File: - Atlanta, GA Decision of the Board of Immigration Appeals Date: DEC 18 2014 In re: IN REMOVAL PROCEEDINGS APPEAL ON BEHALF OF RESPONDENT: Eli A. Echols, Esquire ON BEHALF OF DHS: Sirce E. Owen Assistant Chief Counsel CHARGE: Notice: Sec. 237(a)(2)(A)(iii), I&N Act [8 U.S.C. § 1227(a)(2)(A)(iii)] - Convicted of aggravated felony under section !Ol(a)(43)(A) of the Act (not sustained) Lodged: Sec. 237(a)(2)(A)(iii), I&N Act [8 U.S.C. § !227(a)(2)(A)(iii)] - Convicted ofaggravated felony under section 101(a)(43)(F) ofthe Act APPLICATION: Remand The respondent, a native and citizen of Panama, has appealed an Immigration Judge's July I, 2014, decision which held the respondent removable for having been convicted of an aggravated felony crime of violence for which the term of imprisonment imposed was greater than 1 year. See section 10l(a)(43)(F) of the Immigration and Nationality Act, 8 U.S.C. § l 10l(a)(43)(F). Specifically, the respondent was convicted by a Georgia state court in 2005 of aggravated sexual battery in violation ofO.C.G.A. § 16-6-22.2(c). On appeal, the respondent has submitted new evidence that his sentence of 10 years imprisonment was recently modified by the Georgia trial court, nunc pro tune from the date of conviction, to I0 years' probation in lieu of imprisonment. We have previously held that a trial court's decision to modify or reduce an alien's criminal sentence nunc pro tune is entitled to full faith and credit by the Immigration Judges and the Board of Immigration Appeals, and such a modified or reduced sentence is recognized as valid for purposes ofthe immigration law without regard to the trial court's reasons for effecting the modification or reduction. Matter of Cota- Vargas, 23 I&N Dec. 849 (BIA 2005). As our appellate fact-finding authority is limited, 8 C.F.R. § 1003.l(d)(3)(iv), we will remand the record so that the Immigration Judge can make further findings concerning the modified sentence and the status of the state court proceedings. In light of this new evidence, we do not address at this stage the respondent's arguments whether his conviction is categorically a crime ofviolence. (b) (6) (b) (6)
  43. 43. '•. Accordingly, the following order will be entered. ORDER: The record is remanded for further proceedings consistent with the foregoing, and for the entry ofa new decision. . 2 (b) (6)
  44. 44. U.S•.Qepartment ofJustice Decision ofthe Board of Immigration Appeals Executive Office for Immigration Review Falls Church, Virginia 20530 File: - Atlanta, GA Date: NOV - 4Z014 In re: IN REMOVAL PROCEEDINGS APPEAL ON BEHALF OF RESPONDENT: Daniel Joseph Ortiz, II, Esquire The Immigration Judge did not prepare a separate oral or written decision in this case. Accordingly, the record must be returned to the Inunigration Judge for preparation of a separate decision. See Matter ofA-P-, 22 I&N Dec. 468 (BIA 1999). It addition, as the transcriber indicates that there are "issues" with the May 14, 2014, hearing, the Immigration Judge is requested to verify that the transcript pertaining to this respondent's proceedings is complete. Upon preparation of the decision, the Inunigration Judge shall issue an order administratively returning the record to the Board. The Inunigration Judge shall serve the administrative return order on the respondent and the Department of Homeland Security (DHS). The Board will thereafter give the parties an opportunity to submit briefs in accordance with the regulations. ORDER: The record is returned to the Inunigration Court for further action as required above. FOR THE BOARD (b) (6) (b) (6)
  45. 45. U.S. Department ofJustice Executive Offi,ce for Immigration Review Falls Church, Virginia 22041 File: Atlanta, GA In re: IN REMOVAL PROCEEDINGS APPEAL ON BEHALF OF RESPONDENT: Charly Paz, Esquire ON BEHALF OF DHS: Ginger Vaudrey Assistant ChiefCounsel CHARGE: Decision ofthe Board oflmmigration Appeals Date: DEC 3 0 2015 Notice: Sec. 237(a)(l)(C)(i), I&N Act [8 U.S.C. § !227(a)(l)(C)(i)] - Nonimmigrant - violated conditions ofstatus237 (a)(!)(B), I&N Act [8 APPLICATION: Remand The respondent is a native and citizen of Cameroon who appeals from an August 5, 2014, Immigration Judge decision denying his requests for relief. A review of the record of proceedings reveals that the recording ofthe August 5, 2014, hearing is defective. The transcript contains numerous "indiscernibles" during the respondent's testimony. The defective transcript affects our ability to fairly adjudicate the respondent's appeal. Accordingly, we vl'ill return the record to the Immigration Court for further action. Upon receipt of the record, the Immigration Court shall take such steps as are necessary and appropriate to enable preparation of a complete transcript of the proceedings, including a new hearing, if necessary. Because we are remanding the record, we will not address the respondent's arguments on appeal at this time. Accordingly, the following order will be issued. ORDER: The record is returned to the Immigration Court for further action as appropriate and for certification to the Board by the Immigration Judge thereafter. (b) (6) (b) (6)

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