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MORENO-DUARTE, AUGUSTIN A200-867-579 DAVID L. MOSS JUSTICE CTR 300 NORTH DENVER TULSA, OK 74103

OHS/ICE - Office of Chief Counsel - OKT 4400 SW 44th Street, Suite A Oklahoma City, OK 73119-2800

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Name: MORENO-DUARTE, AUGUSTIN

A 200-867-579

Date of th is notice: 10/21/2013

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

DOrutL e!t1/lA)
Donna Carr Chief Clerk

Enclosure Panel Members: Guendelsberger, John

schuckec Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: Augustin Moreno-Duarte, A200 867 579 (BIA Oct. 21, 2013)

'

U.S. Department of Justice

Eecutive Office for Immigration Review Falls Chll1'ch, Virginia 20530

Decision of the Board of Immigration Appeals

File:

A200 867 579 - Tulsa, OK

Date:

OCT Sl Z013

In re: AUGUSTIN MORENO-DUARTE a.k.a. Agustin Moreno Duarte

IN REMOVAL PROCEEDINGS

APPEAL ON BEHALF OF RESPONDENT: CHARGE: Notice: Sec. 237(a)(l)(C)(i), l&N Act [8 U.S.C. 1227(a)(l)(C)(i)] Nonimmigrant - violated conditions of status Pro se

Immigrant & Refugee Appellate Center | www.irac.net

erroneous standard, while all other issues are reviewed de novo. 8 C.F.R. The record will be remanded as set forth below.

June 19, 2013, decision ordering his removal. The Board reviews findings of fact under a clearly

The respondent, a native and citizen of Mexico, has appealed from the Immigration Judge's

1003.l(d)(3)(i)-(ii).

review of the record, it appears that the respondent was not properly advised of his right to 1229a(b)(4)(A); 8 C.F.R. 1240.IO(a)(l)-(3). We note that that the respondent first appeared before the Immigration Judge at a hearing on May 30, 2013 (Tr. at 5).1 Notwithstanding the counsel at no expense to the government.

We will remand the record for further proceedings and the entry of a new decision. Upon our

See

section 240(b)(4)(A) of the Act, 8 U.S.C.

was not accompanied by counsel or an accredited representative at the May 30, 2013, hearing, and indicated that he believed himself to be unrepresented (Tr. at 5-6). While the Immigration Judge offered the respondent a continuance to compel the attendance of the aforementioned accredited representative, the respondent was not advised of his right to counsel at no expense to the government. Rather, the respondent was advised of the option of proceeding pro se (Tr. at 7). We conclude that the respondent should have been properly advised of his right to counsel prior to the commencement of proceedings, and note that a continuance may appropriately be granted

prior filing of a Notice of Entry of Appearance by an accredited representative, the respondent

for this purpose at an alien's initial hearing.2 We will therefore remand the record for further Accordingly, the following order will be entered.
1

proceedings, including provision of the appropriate advisals, and the entry of a new decision.

The record reflects that an accredited representative made an appearance on the respondent's behalf at a hearing on October 16, 2012, at which the respondent was not present (Tr. at 1-5).
2

waive notice of his rights in these removal proceedings (Tr. at 8-9). Such an offer is inconsistent with the regulation set forth at 8 C.F.R. 1240.lO(a), and inconsistent with the protections afforded to pro se aliens. See generally Matter of Rodriguez-Diaz, 22 I&N Dec. 1320, 1322-23 (BIA 2000) (discussing the requirement that a waiver of appeal by a pro se alien be knowingly and intelligently made).

We note with concern that the respondent was asked by the Immigration Judge if he wished to

Cite as: Augustin Moreno-Duarte, A200 867 579 (BIA Oct. 21, 2013)

,,

..

..

A200 867 579

consistent with the foregoing opinion and for the entry of a new decision .

.. ORDER:

...

The record is remanded to the Immigration Judge for further proceedings

..,

Immigrant & Refugee Appellate Center | www.irac.net

Cite as: Augustin Moreno-Duarte, A200 867 579 (BIA Oct. 21, 2013)

. _........

UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW UNITED STATES IMMIGRATION COURT DALLAS, TEXAS

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File: A200-867-579 In the Matter of

June 19, 2013

) AUGUSTIN MORENO-DUARTE RESPONDENT

IN REMOVAL PROCEEDINGS

)
Violation of Section 237(a)(1){C)(i)

CHARGES:

APPLICATIONS:

None stated

ON BEHALF OF RESPONDENT: PRO SE ON BEHALF OF OHS: HEIDI GRAHAM

ORAL DECISION OF THE IMMIGRATION JUDGE The respondent is a male native and citizen of Mexico who was issued a Notice to Appear on September 1, 2010. The respondent is detained at the David L. Moss Correctional Facility and is appearing by video to the Court in Dallas. The respondent previously was represented by Ms. Elizabeth Coker, who was an accredited representative. However, the respondent indicated on May 30, 201 3, that he wanted to discharg e Ms. Coker and he did not want her services any longer and that he was g oing to proceed to represent himself. The record would reflect that we wereconducting proceedings by video

from Dallas to Oklahoma on May 30, 2013, and in attempting to resolve the respondent's case, and we had a total failure of our VTC equipment and we were no longer able to communicate with the respondent, so we had to abort that hearing and we came back to finish the case today. The NTA was previously marked and admitted

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as Exhibit 1 . The 1-213 was previously marked and admitted without objection as Exhibit 2. We also have received into evidence without objection the conviction document from the District Court of Oklahoma, Case Number CF2012-5269 as Exhibit 3. The record would also reflect that the case was previously administratively closed for a period of time while the respondent was in state custody on his possession with intent to distribute charges. On May 30, 2013, the respondent admitted allegations 1 through 5 and conceded his removability from the United States as charged. The respondent designated Mexico as the country of removal. The respondent indicated that he was going to proceed pro se, but he wanted to fight his case. In an effort, then, to ascertain what, if any, relief the respondent had available, the Court proceeded to engage the respondent in a series of questions to try to identify potential relief. As a result of those questions, we learned that the respondent had arrived in the United States at the age of 1 and had lived here until he was 9 years old. He then departed the United States and returned to Mexico and lived in Mexico for a period of about five or six years. The respondent then returned to the United States in 2005 and has not left the country since that time. We know that the respondent is a single person and that he is the father of a U.S. citizen-born minor child. We know that the respondent's mother and father are living in the United States and they are here illegally. The respondent told the Court

A200-867-579

June 19,

2013

that no one had filed any visa petitions on his behalf. The respondent indicated that there was no reason that he could not return to his home country of Mexico and, in fact, designated Mexico as the country of removal. We know that on August 30, 2012, the respondent appeared in the District Court of Oklahoma County with an attorney and

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pied guilty to possession of a controlled substance with intent to distribute, possession of drug paraphernalia, and possession of proceeds derived from a drug transaction. And the respondent was ordered into custody to complete the Oklahoma RID program, which is a custodial drug rehabilitation program in the state of Oklahoma. It appears to the Court that the respondent would be ineligible for cancellation of removal for a non-lawful permanent resident because he does not have the period of continuous physical presence. Even though the respondent arrived in the United States at a young age, he then departed the country and left and lived abroad for approximately five or six years. He returned to the United States in 2005. The NTA was issued in 201 0. So therefore, the respondent only has five years of continuous physical presence and he is statutorily ineligible for that form of relief. The respondent is not eligible for cancellation of removal for a lawful permanent resident because he is not a lawful permanent resident. The respondent is ineligible for adjustment of status because no one has ti.led any visa petitions on his behalf. The respondent is not eligible for asylum, withholding, or protection under the Convention Against Torture. He indicated that there was no reason that he could not return to his home country and, in fact, he designated Mexico as the country of removal. There are no fear issues. The Court also would not be willing to grant the respondent voluntary departure in light of the recentcy (phonetic sp.) and severity of his criminal history. The respondent was just convicted on August 21, 2012, with

A2 00-867-579

June 19,

2 013

possession with intent to distribute a controlled substance, possession of drug paraphernalia, and possession of proceeds from a drug transaction. We also know from Exhibit 2 that the respondent is an admitted member of the Southside Loco street gang. Based therefore on his recent and his very serious felony drug convictions, and

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his acknowledged involvement as an active gang member, the Court would not be inclined to grant the respondent voluntary departure. It therefore appearing to the Court that the respondent has no form of relief, it is hereby ordered that he be removed from the United States to the nation of Mexico. Respondent will be advised of his appeal rights separately on the record.

MICHAEL P. BAIRD Immigration Judge

A2 00-867-579

June 19,

2 01 3

CERTIFICATE PAGE

I hereby certify that the attached proceeding before JUDGE MICHAEL P. BAIRD, in the matter of:

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AUGUSTIN MORENO-DUARTE

A200-867-579

DALLAS, TEXAS

was held as herein appears, and that this is the original transcript thereof for the file of the Executive Office for Immigration Review.

VICKI LYNNE LYTTLE {Transcriber) DEPOSITION SERVICES, lnc.-2 JULY 30, 2013 (Completion Date)