Professional Documents
Culture Documents
Department of Justice
Executive Office for Immigration Review
A 205-154-421
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
A205-154-421
DODGE COUNTY JAIL
141 N. MAIN STREET
JUNEAU, WI 53039
A 205-154-421
Enclosed is a copy of the Board's decision in the above-referenced case. This copy is being
provided to you as a courtesy.
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)
.,
File:
FEB 2 7 2015
Date:
ON BEHALF OF RESPONDENT:
ON BEHALF OF DHS:
Patrick M. McKenna
Assistant Chief Counsel
CHARGE:
Notice:
Sec.
Sec.
212(a)(6)(A )(i), I&N Act [8 U.S.C. l182(a)(6)(A)(i)] Present without being admitted or paroled
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
v.
Ashcroft,
(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)
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,
By
consistent with the foregoing opinion and the entry of a new decision.
Cite as: Eber Salgado-Gutierrez, A205 154 421 (BIA Feb. 27, 2015)
record with a copy of the bar complaint and with his former counsel's response, if any.
June 9, 2014
In the Matter of
)
)
)
)
IN REMOVAL PROCEEDINGS
CHARGES:
APPLICATIONS:
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
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
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.
A205-154-421
June 9, 2014
does not sound promising in this context. Surely if the prosecuting authority was
PHILIP L. DIMARZIO
Immigration Judge
A205-154-421
June 9, 2014
,.
/Is//
Immigration
Judge PHILIP L.
dimarzip on
December 2,
2014
DIMARZIO
at
2:00 PM
GMT
A205-154-421
June 9, 2014