U.S.

Department of Justice Executive Office for Immigration Review

Board ofImmigration Appeals Office ofthe Clerk

5107 Leesburg Pike. S11ile 2000 Falls Cl111rch. Virginia 220./ I

Sandra Echevarria, Esq. LAW OFFICES OF SANDRA ECHEVARRIA, P.A. 14221 SW. 120TH ST. STE.221 Miami, FL 33186

OHS/ICE Office of Chief Counsel - KRO 18201 SW 12th St. Miami, FL 33194

Immigrant & Refugee Appellate Center | www.irac.net

Name: JUAREZ-SAC, RAUL EDUARDO

A 201-215-858

Date of this notice: 8/30/2013

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

DorutL c11/VL)
Donna Carr Chief Clerk

Enclosure Panel Members: Adkins-Blanch, Charles K.

schuckec Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: Raul Eduardo Juarez, A201 215 858 (BIA Aug. 30, 2013)

U.. Department of Justice

Executive 2ffice for Immigration Review Falls Church, Virginia 2204 l

Decision of the Board oflmmigration Appeals

File:

A201 215 858 - Miami, FL

Date:

AUG 3 0 2013

In re: RAUL EDUARDO JUAREZ-SAC a.k.a. Raul Suarez IN REMOVAL PROCEEDINGS

Immigrant & Refugee Appellate Center | www.irac.net

APPEAL ON BEHALF OF RESPONDENT: Sandra Echevarria, Esquire ON BEHALF OF OHS: Georgina.M. Picos Assistant Chief Counsel APPLICATION: None

The respondent, a native and citizen of Guatemala, appeals from the Immigration Judge's decision of April 1, 2013, which found him removable, as charged, and ordered him removed from the United States to Guatemala. 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 of R-S-H-, 23 I&N Dec. 629 (BIA 2003); Matter of S-H-, 23 I&N Dec. 462 (BIA 2002). This Board reviews questions of law, discretion, and judgment, and all other issues in an Immigration Judge's decision de novo. See 8 C.F.R. 1003.l(d)(3)(ii). The issue presented is whether or not these proceedings were fair to the respondent or he was deprived of an opportunity to apply for the privilege of pre-conclusion or post-conclusion voluntary departure before the Immigration Judge. See General Affidavit. Upon review, we determine that further proceedings in this case are appropriate. While we find no clear error in the Immigration Judge's finding that the respondent is removable for having arrived in the United States without being admitted or paroled, with regard to his eligibility for pre-conclusion or post-conclusion voluntary departure, we find that these proceedings were inadequate in determining his eligibility for either form of relief. The respondent proceeded pro se in these proceedings. According to the hearing transcript, he was questioned by the Immigration Judge, as was his fiance who was, evidently, observing in the courtroom (Tr. at 8-9). The Immigration Judge did not clearly determine on the record, however, if the respondent wanted to pursue pre-conclusion or post-conclusion voluntary departure (Tr. at 7-12). 1 Additionally, the Immigration Judge told the respondent that he would have to waive
1 Pursuant to section 240B(a) of the Act, a respondent may be granted voluntary departure at his own expense before the conclusion of proceedings if he has not been convicted of an aggravated

felony or is deportable for security-related reasons under section 237(a)(4)(B). The request must be made prior to or at the master calendar hearing at which the case is initially calendared for a

Cite as: Raul Eduardo Juarez, A201 215 858 (BIA Aug. 30, 2013)

A201 215 858 ap eal tich is required before granting pre-conclusion voluntary departure but factored in the . respondent's unwillingness to leave the United States (because he wanted to marry his pregnant fiance) in his final decision which is a consideration in weighing whether to grant post conclusion voluntary departure

(l.J. at 2; Tr. at 9-10).

Since we have concerns about the manner in which these proceedings were conducted and forms of voluntary departure, we find that a remand is warranted. The respondent, moreover, the decision below lacks clear factual findings with regard to the respondent's eligibility for both appears prima facie eligible for the minimal relief of post-conclusion voluntary departure. Accordingly, the record will be remanded so he can establish his statutory eligibility for post conclusion voluntary departure which is appropriate at this stage in the proceedings. ORDER: The record is remanded for further proceedings consistent with this order.

Immigrant & Refugee Appellate Center | www.irac.net

( ...continued) merits hearing. The respondent must concede removability, must make no additional requests for relief or if such requests have been made, such requests are withdrawn prior to any grant of voluntary departure. In addition, the respondent must waive appeal of all issues. See 8 U.S.C.

1229c(a)(3); 8 C.F.R. 1240.26.

By contrast, under section 240B(b) of the Act, where the respondent requests voluntary departure at the conclusion of proceedings, he must show: he has been physically present in the United States for a period of at least 1 year immediately preceding the date the notice to appear was served; he is, and has been, a person of good moral character for at least 5 years immediately preceding his application for voluntary departure; he is not deportable under section 237(a)(2)(A)(iii) or section 237(a)(4); and he has shown by clear and convincing evidence that he has the means to depart the United States and intends to do so. See 8 U.S.C. 1229c(b)(l). An alien permitted to depart voluntarily at the conclusion of proceedings must post a voluntary departure bond, in the amount necessary to ensure that the alien will depart, to be surrendered on proof that the alien has departed the United States within the time specified. See 8 U.S.C.

1229c(b)(3).

Cite as: Raul Eduardo Juarez, A201 215 858 (BIA Aug. 30, 2013)

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UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW UNITED STATES IMMIGRATION COURT MIAMI, FLORIDA

Immigrant & Refugee Appellate Center | www.irac.net

File: A201-215-858 In the Matter of

April 1, 2013

RAUL EDUARDO JUAREZ-SAC RESPONDENT

) ) ) )

IN REMOVAL PROCEEDINGS

CHARGES:

Section 212(a)(6)(A)(i) of the Immigration & Nationality Act (the Act) - present in the United States without being admitted or paroled.

APPLICATIONS:

None

ON BEHALF OF RESPONDENT: PRO SE ON BEHALF OF DHS: GEORGINA PICOS

ORAL DECISION OF THE IMMIGRATION JUDGE The respondent is a native and citizen of Guatemala who arrived in the United States at or near McAllen, Texas on or about January 13, 2009 without being admitted or paroled after inspection by an Immigration Officer. On or about March 5, 2013, the Department of Homeland Security (the Department) issued a Notice to Appear which was filed with the Immigration Court on or about March 11, 2013 charging the respondent as being removable pursuant to aforementioned section of law. The respondent appeared before the Court on 14th

of March and the matter was adjourned for him to seek legal representation and for . custody hearing. On today's date, the respondent appeared pro se, admitted the truth of the allegations. So based upon those admissions and concessions, the Court found the respondent removable as charged. As to relief of removal, the Court unfortunately does not see any relief available to him. The Court inquired whether or not there would be any reason why he could not return and he indicated that he has a girlfriend who is eight months pregnant, soon to have a child and wishes to stay for her and for the upcoming child. Unfortunately, that is not a basis for asylum, withholding, or Convention Against Torture. He came in 2009 so he does not have enough time for cancellation of removal pursuant to Section 240A(d) of the Act. The Court did offer him voluntary departure under safeguards. Unfortunately, he does not wish to leave the United States voluntarily. The Court sees no other relief available to him. He cannot apply for adjustment even if he were to marry at this point in time, so the Court issues the following orders: ORDERS IT IS HEREBY ORDERED that the respondent be removed from the United States to Guatemala on the charge contained in the Notice to Appear.

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Please see the next page for electronic signature

ADAM OPACIUCH Immigration Judge

A201-215-858

April 1,

2013

Immigrant & Refugee Appellate Center | www.irac.net

., ,,

A201-215-858

April 1,

2013

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Immigration Judge ADAM OPACIUCH opaciuca on May 22, 2013 at 1:21 PM GMT

Immigrant & Refugee Appellate Center | www.irac.net

A201-215-858

April 1,

2013