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U.S.

Department of Justice
Executive Office for Immigration Review

Board ofImmigration Appeals


Office of the Clerk
5107 leesburg Pike, Suite 2000

Falls Church, Virginia 20530

OHS/ICE Office of Chief Counsel - CHI


525 West Van Buren Street
Chicago, IL 60607

Name: SALGADO GUTIERREZ, EBER

A 205-154-421

Date of this notice: 2/27/2015

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

Donna Carr
Chief Clerk

Enclosure
Panel Members:
Malphrus, Garry D.
Mullane, Hugh G.
Creppy, Michael J.

Userteam: Docket

For more unpublished BIA decisions, visit


www.irac.net/unpublished/index
Cite as: Eber Salgado-Gutierrez, A205 154 421 (BIA Feb. 27, 2015)

Immigrant & Refugee Appellate Center | www.irac.net

Baldini-Potermin, Maria Theresa


Maria Baldini-Potermin & Associates, P .C.
1 N. LaSalle, Suite 2150
Chicago, IL 60602

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 20530

OHS/ICE Office of Chief Counsel - CHI

A205-154-421
DODGE COUNTY JAIL
141 N. MAIN STREET
JUNEAU, WI 53039

525 West Van Buren Street


Chicago, IL 60607

Name: SALGADO GUTIERREZ, EBER

A 205-154-421

Date of this notice: 2/27/2015

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. 1292.5(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.
Sincerely,

Dcn.nL ct1AA)
Donna Carr
Chief Clerk

Enclosure
Panel Members:
Malphrus, Garry D.
Mullane, Hugh G.
Creppy, Michael J.

Userteam:

Cite as: Eber Salgado-Gutierrez, A205 154 421 (BIA Feb. 27, 2015)

Immigrant & Refugee Appellate Center | www.irac.net

SALGADO GUTIERREZ, EBER

.,

U.S. Department of Justice

Decision of the Board of Immigration Appeals

.Executive Office for Immigration Review


Falls Church, Virginia 20530

File:

FEB 2 7 2015

Date:

A205 154 421 - Chicago, IL

In re: EBER SALGADO-GUTIERREZ a.k.a. Rodolfo Gonzalez-Lopez


IN REMOVAL PROCEEDINGS

ON BEHALF OF RESPONDENT:
ON BEHALF OF DHS:

Maria Baldini-Potermin, Esquire

Patrick M. McKenna
Assistant Chief Counsel

CHARGE:
Notice:

Sec.

212(a)(2)(A)(i)(II), I&N Act [8 U.S.C. 1182(a)(2)(A)(i)(II)] Controlled substance violation

Sec.

212(a)(6)(A )(i), I&N Act [8 U.S.C. l182(a)(6)(A)(i)] Present without being admitted or paroled

APPLI CATION: Remand

The respondent, a native and citizen of Mexico, has appealed from the decision of the
1
Immigration Judge dated June 9, 2 014, ordering him removed from the United States to Mexico.
The Department of Homeland Security ("OHS") opposes the appeal. The respondent has also
filed a motion to remand the proceedings to the Immigration Court.
We review for clear error the findings of fact, including any determination of credibility,
made by the Immigration Judge. 8 C.F.R. 1003.l(d)(3)(i). We review de novo all other issues,
including whether the parties have met the relevant burden of proof and issues of discretion.
8 C.F.R. 1003.l{d)(3)(ii).
On appeal, the respondent alleges that his prior counsel provided him with ineffective
assistance by not seeking asylum, withholding of removal, protection under the Convention
Against Torture ("CAT"), or voluntary departure on his behalf. The respondent's motion is
accompanied by an affidavit setting forth his agreement with counsel and asserting that he had
asked his former attorney of the possibility of seeking asylum or voluntary departure; an affidavit
1

The issue regarding the hnmigration Judge's denial of the respondent's request for a

continuance has been waived on appeal.

See, e.g., Capric

v.

Ashcroft,

355 F.3d 1075, 1089

(7th Cir. 2004) (finding alien did not preserve for appeal due process challenge to admission of
evidence where notice of appeal stated hearing did not comport with requirements of due process
but appeal brief made no allegations regarding admission of such evidence).

Cite as: Eber Salgado-Gutierrez, A205 154 421 (BIA Feb. 27, 2015)

Immigrant & Refugee Appellate Center | www.irac.net

APPEAL AND MOTION

A205 154 421


.

from the respondent's girlfriend detailing her interactions with the respondent's former counsel;
copies of payment receipts from the respondent's former counsel;

a completed asylum

application; and a copy of a January 16, 2015, letter to the respondent's former counsel
informing him of the allegations of ineffective assistance. The respondent also indicated that he
will file a bar complaint no later than February 3, 2015, in order to first give former counsel an
opportunity to respond to the allegations of ineffective assistance, and he will supplement the
19 I&N Dec. 637, 639 (BIA),

affd,

857 F.2d 10 (1st Cir. 1988) (setting

forth the procedural requirements for an ineffective assistance of counsel claim).


The Board has limited ability to engage in fact-finding in the course of deciding appeals.
8 C.F.R. 1003.l(d)(3)(iv). The determination whether the respondent received ineffective
assistance of counsel, and, if so, whether he was prejudiced, involves findings of fact. Therefore,
we will remand the record to the Immigration Judge to address the respondent's ineffective
assistance of counsel claim and to decide whether further proceedings are warranted to allow the
respondent an opportunity to apply for asylum or other forms of relief from removal.

By

remanding the record, we are not suggesting a desired outcome.


ORDER:

The record is remanded to the Immigration Court for further proceedings

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

FOR THE BOARD

Cite as: Eber Salgado-Gutierrez, A205 154 421 (BIA Feb. 27, 2015)

Immigrant & Refugee Appellate Center | www.irac.net

record with a copy of the bar complaint and with his former counsel's response, if any.

See Matter of Lozada,

UNITED STATES DEPARTMENT OF JUSTICE


EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
CHICAGO, ILLINOIS

June 9, 2014

In the Matter of

)
)
)
)

EBER SALGADO GUTIERREZ


RESPONDENT

IN REMOVAL PROCEEDINGS

CHARGES:

Section 212(a)(2)(A)(i)(ll) and Section 212(a)(6)(A)(i) of the


Immigration and Nationality Act.

APPLICATIONS:

Motion for continuance.

ON BEHALF OF RESPONDENT: MATTHEW LEUNING, Esquire


128 West Mineral Street
Milwaukee, Wisconsin 53204
ON BEHALF OF OHS: PATRICK M. MCKENNA, Esquire

ORAL DECISION
The respondent is a 38-year-old male, native and citizen of Mexico who
was issued a Notice to Appear on March 13, 2014. The respondent appeared at a
master calendar setting and pleadings were taken on April 29, 2014. The respondent
admitted that he is not a citizen of the United States and that he is a citizen of Mexico.
He admitted that he entered the United States without inspection. The respondent
denied that on January 31 of 2005 he was convicted in Milwaukee County Court at

Immigrant & Refugee Appellate Center | www.irac.net

File: A205-154-421

Milwaukee, Wisconsin for the offense of possession of cocaine. In making this denial,
the respondent informed the Court that there was a motion to withdraw a plea of guilty
in that case. The Court reviewed the conviction documents. The Notice to Appear was

respondent was indeed convicted of possession of cocaine and that he did enter the
United States without being inspected and admitted and therefore the Court sustained
both of the charges. The Court continued the case to allow the respondent additional
time to pursue his post-conviction relief in the case in which he was convicted of
possession of cocaine because of the pivotal nature of that case in relation to the
respondent's Immigration proceedings. On June 9, 2014, the Court was informed that
the respondent's motion to withdraw his plea of guilty in that case had been denied.
The Court inquired of respondent's counsel as to whether there is presently any
Immigration relief that the respondent might qualify for. The Court was informed that
there is not. The respondent's counsel did indicate that he intends to continue to pursue
post-conviction relief through the prosecuting authority and that he intends to continue
ongoing conversations with them that he hopes would lead to some post-conviction
relief. The Court notes, however, that there is no motion pending any longer. The
motion to withdraw a plea of guilty was heard; it was denied. The Court, in the exercise
of its discretion, continued this case to allow that motion to be heard and ruled upon.
Ruling on a motion to continue is a matter that is within the Court's discretion. In
exercising this discretion, the Court must take into account all relevant circumstances.
am taking into account in this instance that the respondent has had a fair opportunity to
address that debilitating conviction that was entered more than nine years ago and that
his Immigration proceedings have been continued to allow him that opportunity and that
he obtained a negative ruling in that case. The Court is also taking into account that

A205-154-421

June 9, 2014

Immigrant & Refugee Appellate Center | www.irac.net

marked as Exhibit 1. The conviction documents as Exhibit 2. The Court found that the

any prospect of relief in the state court from that conviction is highly speculative at best
because the respondent has had his day in court on his motion to withdraw his plea of
guilty. And the fact that his attorney is having discussions with the prosecuting authority

inclined to side with the respondent's claim for relief, he would not have contested the
motion to withdraw the plea of guilty. That motion, as noted, was denied, so it appears
to the Court that there is no valid reason to continue the case. There is no Immigration
relief available to this respondent; it is highly speculative as to whether he could get any
kind of relief from his conviction having already lost his motion to withdraw that plea of
guilty. And therefore, in the exercise of my discretion, I deny the motion for a
continuance.
Removability having been established, there being no pending application,
and indeed there being no basis for any application, and the Court having in the
exercise of its discretion denied the motion to continue for purposes of pursuing
conversations with the prosecuting authority concerning the cocaine conviction, the
Court enters an order for the respondent's removal.
ORDERS
IT IS HEREBY ORDERED that the respondent's oral motion to continue is
denied.
IT IS FURTHER ORDERED that the respondent be removed from the
United States to Mexico on the charges contained in his Notice to Appear.

Please see the next page for electronic


signature

A205-154-421

June 9, 2014

Immigrant & Refugee Appellate Center | www.irac.net

does not sound promising in this context. Surely if the prosecuting authority was

PHILIP L. DIMARZIO
Immigration Judge

Immigrant & Refugee Appellate Center | www.irac.net

A205-154-421

June 9, 2014

,.

/Is//
Immigration

Judge PHILIP L.

dimarzip on

December 2,

2014

DIMARZIO
at

2:00 PM

GMT

Immigrant & Refugee Appellate Center | www.irac.net

A205-154-421

June 9, 2014

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