francisco ramirez ramos, a208 414 180 (bia may 12, 2016)

Rawcliffe, Fred (Rocky)

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals Q[tice of the Clerk

5107 Leesburg Pike, Suite 2000 Falls Church, Virginia 22041

Rojas and Rawcliffe Immigration, LLC 1755 The Exchange SE

DHS/ICE Office of Chief Counsel - SDC 146 CCA Road, P.O.Box 248 Lumpkin, GA 31815

Suite 140 Atlanta, GA 30339

Name: RAMIREZ RAMOS, FRANCISCO A 208-414-180

Date of this notice: 5/12/2016

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

Enclosure

Panel Members: O'Leary, Brian M.

Sincerely,

Don,u., C tVv\.)

Donna Carr Chief Clerk

Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished/index/

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Cite as: Francisco Ramirez Ramos, A208 414 180 (BIA May 12, 2016)

RAMIREZ RAMOS, FRANCISCO A208-414-180 STEWART DETENTION CENTER 146 CCA ROAD P.O. BOX 248 LUMPKIN, GA 31815

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals Office of the Clerk

5107 leesburg Pike, Suite 2000 Falls Church, Virginia 2204/

DHS/ICE Office of Chief Counsel - SDC 146 CCA Road, P.O.Box 248 Lumpkin, GA 31815

Name: RAMIREZ RAMOS, FRANCISCO A 208-414-180

Date of this notice: 5/12/2016

Enclosed is a copy of the Board's decision in the above-referenced case. This copy is being provided to you as a courtesy. Your attorney or representative has been served with this decision pursuant to 8 C.F.R. § 1292.S(a). If the attached decision orders that you be removed from the United States or affirms an Immigration Judge's decision ordering that you be removed, any petition for review of the attached decision must be filed with and received by the appropriate court of appeals within 30 days of the date of the decision.

Enclosure

Panel Members: O'Leary, Brian M.

Sincerely,

DoYUtL C t1/Vl.)

Donna Carr Chief Clerk

Userteam:

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4

·u.s. Department of Justice Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 22041

File: A208 414 180 - Lumpkin, Georgia

In re: FRANCISCO RAMIREZ RAMOS

IN REMOVAL PROCEEDINGS

APPEAL

Date:

ON BEHALF OF RESPONDENT: Fred (Rocky) Rawcliffe, Esquire

ON BEHALF OF DHS: Blake Doughty Assistant Chief Counsel

CHARGE:

MAY 1 2 2016

Notice: Sec. 212(a)(6)(A)(i), l&N Act [8 U.S.C. § l 182(a)(6)(A)(i)] -Present without being admitted or paroled

APPLICATION: Continuance

The respondent filed a timely appeal of the Immigration Judge's December 2, 2015, decision. The record will be remanded to the Immigration Court for further proceedings in accordance with this opinion, and the entry of a new decision.

The Board reviews an Immigration Judge's findings of fact, including findings as to the credibility of testimony, and the likelihood of future events, under the "clearly erroneous" standard. See 8 C.F.R. § 1003.l(d)(3)(i); Matter ofZ-Z-0-, 26 I&N Dec. 586 (BIA 2015; Matter of R-S-H-, 23 I&N Dec. 629 (BIA 2003); Matter ofS-H-, 23 I&N Dec. 462 (BIA 2002). The Board reviews questions of law, discretion, judgment, and all other issues in an appeal from an Immigration Judge's decision de novo. See 8 C.F.R. § 1003.l(d)(3)(ii).

The sole issue presented on appeal is a due process challenge to the Immigration Judge's conduct of the proceedings by failing to continue the proceedings to allow the respondent to appear with the counsel of his choice.

The record reflects that when the respondent first appeared before the Immigration Judge at a master calendar hearing on November 12, 2015, the Immigration Judge continued the proceedings for 6 days, until November 18, 2015, to allow the respondent to appear with counsel. On that date, the respondent appeared with counsel, at which time the pleadings were taken (Tr. at 31). Respondent's counsel indicated that respondent would likely seek cancellation of removal under section 240A(b) of the Immigration and Nationality Act, 8 U.S.C. § 1229b(b). The Immigration Judge (Tr. at 31) continued the proceedings for one week, until November 25, 2015, for the filing of all applications for relief from removal, admonishing the respondent and his attorney that if not filed by that time they would be deemed abandoned. At the reconvened proceedings, no applications were submitted. The respondent's counsel claimed {Tr. at 33) that he had not prepared any applications for relief because respondent's wife had told him his "services would no

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longer be required." This was contrary to the respondent's explanation to the Immigration Judge (Tr. at 33) that his wife had told him that his attorney no longer wanted to represent him. Respondent's counsel (Tr. at 34) sought clarify the communication he had with respondent's wife claiming he had advised them that "there was very little likelihood that [the respondent] can prevail on any kind of application," notwithstanding the substantial equities supporting the respondent's request, because "a cancellation of removal is very difficult to win." The Immigration Judge continued the case until December 2, 2015, for the filing of all applications for relief, noting that as respondent's counsel had yet to submit a motion to withdraw, he continued to represent the respondent ( and not his wife) in these proceedings. A week later at the reconvened proceedings, when no applications were filed, respondent's counsel told the Immigration Judge (Tr. at 40) that he thought respondent's newly-retained counsel would appear and file the application for cancellation of removal. The Immigration Judge (Tr. at 40) rejected that explanation, noting that as no new Notice of Appearance (Form EOIR-28) had been filed with the Immigration Court by any other attorney on behalf of the respondent, he still continued to represent him as the attorney of record. The Immigration Judge proceeded to find all applications for relief abandoned for failure to timely file and ordered the respondent's removal from the United States.

We note that all applications and related documents that are to be considered in a proceeding before an Immigration Judge must be filed with the Immigration Court having administrative control over the record of proceedings. See 8 C.F.R. § 1003.3 l(a). The regulations provide that if an application or supportive documentation is not filed within the time set by the Immigration Judge, the opportunity to file that application shall be deemed waived. See 8 CF.R. § 1003.3 l(c); Matter ofR-R-, 20 I&N Dec. 547,549 (BIA 1992) ("The Board has long held that applications for benefits under the Act are properly denied as abandoned when the alien fails to timely file them."); Matter of Jean, 17 I&N Dec. 100 (BIA 1979). Failure to file necessary documentation or to meet security and biometric requirements also "constitutes abandonment of the application" unless the applicant demonstrates "good cause" for such failure. See 8 C.F.R. § 1003.47(c).

We acknowledge the regulations allow an Immigration Judge to fmd the respondent's failure to submit his application for relief from removal within the time set to constitute an abandonment of the application. However, that decision must be balanced against the due process concerns of ensuring the respondent has a full and fair hearing. The respondent's entire immigration proceedings before the Immigration Judge commenced and were concluded in less than 3 weeks. The record clearly reflects that the continued representation of the respondent by said attorney was not viewed favorably by either party, and the record indicates the respondent was in the process of obtaining new legal representation. The outcome of the respondent's case was clearly prejudiced by said attorney's actions, i.e., his failure to timely submit the respondent's application for cancellation of removal. 1

Consequently, we find that under the particular circumstances of this case, in order to ensure the respondent's right to a full and fair hearing, a remand is appropriate to allow the respondent to

1 Although the respondent was clearly prejudiced by the failure to timely file the application for relief from removal, we do not find it necessary at this juncture to determine whether the actions ( or inaction) of said attorney constituted ineffective assistance of counsel.

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1 ,A208 414 180

appear represented by his newly-retained counsel, who could then properly file the necessary application for relief from removal.

Accordingly, the record will be remanded to the Immigration Judge for further proceedings consistent with this opinion, and the entry of a new decision.

ORDER: The record is remanded to the Immigration Judge for further proceedings consistent with this opinion, and the entry of a new decision.

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UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

UNITED STATES IMMIGRATION COURT LUMPKIN, GEORGIA

File: A208-414-180

In the Matter of

December 2, 2015

FRANCISCO RAMIREZ RAMOS

RESPONDENT

) ) ) )

IN REMOVAL PROCEEDINGS

CHARGE: Section 212(a)(6)(A)(i) - present without being admitted or paroled.

APPLICATIONS: None.

ON BEHALF OF RESPONDENT: JOSEPH ANTHONY AZAR, Esquire

ON BEHALF OF OHS: BLAKE DOWDY, Esquire

ORAL DECISION OF THE IMMIGRATION JUDGE

Exhibit:

1 Notice to Appear.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Exhibit 1 was served on the respondent on 21 October 2015.

On 18 November 2015, in accordance with the respondent's pleas, the

allegations in Exhibit 1 were sustained, and the respondent was found by clear and

convincing evidence to be removable as charged in Exhibit 1. Mexico is designated as

the country of removal.

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I first saw the respondent in this case on 12 November 2015. After advising the

respondent of his rights, the respondent asked for time to get a lawyer. I granted the

respondent's request and continued the case until 8:30 on the 18th of November 2015.

On 18 November 2015, after accepting the respondent's pleas and entering the

findings described above, I directed that all applications for relief be filed on or before

10:00 on the 25th of November 2015. Counsel for the respondent indicated that the

respondent was going to file an application for cancellation of removal.

On 25 November 2015, the respondent had not submitted any applications for

relief. I granted the respondent additional time to submit all applications for relief until

10:00 on the 2nd of December 2015. I once again directed that all applications for relief

should be filed on or before 10:00 on the 2nd of December 2015 or I would deem that

they had been abandoned.

On 2 December 2015, counsel for the respondent indicated that he had no

applications for relief to submit but that it was possible that the respondent may obtain a

different lawyer and that a different lawyer might end up submitting an application for

relief. Counsel for the respondent submitted no motion to withdraw, nor had the Court

received any motion to substitute counsel. Because I had twice directed that the

respondent submit all applications for relief on or before a date certain or I would deem

that they had been abandoned, I deem that the respondent's applications for relief have

been abandoned as of 2 December 2015.

The respondent stated that he did not want to ask for voluntary departure, but

instead wanted to reserve appeal in his case.

Since the respondent has asked for no relief, I enter the following order:

ORDER

The respondent will be removed from the United States to Mexico.

A208-414-180 2 December 2, 2015

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A written order reflecting the above decision will be provided separately and

made part of the record.

signature

A208-414-180

Please see the next page for electronic

DAN TRIMBLE Immigration Judge

3 December 2, 2015

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/Isl/

Immigration Judge DAN TRIMBLE

trimbled on April 18, 2016 at 11:46 AM GMT

A208-414-180 4 December 2, 2015

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francisco ramirez ramos, a208 414 180 (bia may 12, 2016)

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