U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals
Office ofthe Clerk
5/07 leesburg Pike, Suite 2000
Falls Church, Virginia 22041

Name: PABLO MENDOZA, ELADIA

A 208-307-494
Date of this notice: 9/14/2016

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

DonttL Ct11Vu
Donna Carr
Chief Clerk
Enclosure
Panel Members:
Kendall-Clark, Molly

Userteam: Docket

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Cite as: Eladia Pablo Mendoza, A208 307 494 (BIA Sept. 14, 2016)

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5701 Executive Ctr Dr., Ste 300
Charlotte, NC 28212

U.S. Department of Justice

Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 22041

Files: A208 307 494 - Charlotte, NC

Date:

SEP

1 It 2016

IN REMOVAL PROCEEDINGS
APPEAL
ON BEHALF OF RESPONDENTS: Pro se
CHARGE:
Notice: Sec.

212(a)(7)(A)(i)(I), l&N Act [8 U.S.C. 1182(a)(7)(A)(i)(I)] Immigrant - no valid immigrant visa or entry document

APPLICATION: None
The respondents are a mother and her two minor children, who are natives and citizens of
Guatemala. They have appealed an Immigration Judge's April 5, 2016, swnmary order. Neither
party filed a brief concerning the decision of the Immigration Judge. We will consider
arguments made by the respondents on the Notice of Appeal. The case will be remanded to the
Immigration Court.
We review Immigration Judges' findings of fact for clear error, but questions of law,
discretion, and judgment, and all other issues in appeals, de novo. 8 C.F.R. I003.l(d)(3).
The respondents' first removal hearing took place on January 12, 2016 (Tr. at 5). The
respondents were given until April 5, 2016, to seek counsel (Tr. at 6). At the April 5, 2016,
hearing, the lead respondent appeared without counsel. The Immigration Judge informed the
lead respondent that she would be representing herself (Tr. at 10). After sustaining the removal
charge, the Immigration Judge questioned the lead respondent about family in this country, then
asked why she had come to the United States in 2015 (Tr. at 11-13). The lead respondent
explained that she came here "because of so much violence," then related that she had been
threatened in Guatemala, and "delinquents" came to her house asking for money (Tr. at 14). The
Immigration Judge said that he was unable to help the lead respondent, and stated that she was
ineligible for voluntary departure (Tr. at 14-15).
In Matter ofC-B-, 25 l&N Dec. 888, 890-91 (BIA 2012), we held that if an alien expresses a
fear of persecution or harm in a country to which she might be removed, the regulations require
the Immigration Judge to advise the alien of her ability to apply for asylum or withholding of
removal (including protection under the Convention Against Torture) and make the appropriate
Cite as: Eladia Pablo Mendoza, A208 307 494 (BIA Sept. 14, 2016)

Immigrant & Refugee Appellate Center, LLC | www.irac.net

In re: ELADIA PABLO MENDOZA

;\208 307 494 et al.

In consideration of the circumstances, therefore, the case will be remanded to the

Im.migration Court.
ORDER: The case is remanded to the Im.migration Court for further proceedings consistent
with this opinion, and for the entry of a new decision which provides the reasons for the
Immigration Judge's order. Matter ofA-P-, 22 l&N Dec. 468 (BIA 1999).

\\i..\6
FOR THE BOARD

On the Notice of Appeal, the respondents assert that their case should have been again
continued so that they could seek counsel. While the lead respondent did not specifically request
a continuance at the April 5, 2016, removal hearing, the Immigration Judge did not inquire as to
why she had appeared without counsel at that second removal hearing (Tr. at 10).
1

2
Cite as: Eladia Pablo Mendoza, A208 307 494 (BIA Sept. 14, 2016)

Immigrant & Refugee Appellate Center, LLC | www.irac.net

application forms available. See sections 208 and 241( b)(3) of the Immigration and Nationality
Act, 8 U.S.C. 1158, 123l(b)(3); 8 C.F.R. 1208.16(c). The Immigration Judge should have
given the respondents the opportunity to apply for relief from removal, given the statements
made by the lead respondent. See also Matter of E-F-H-L-, 26 l&N Dec. 319 (BIA 2014)
(asylum applicant is entitled to a hearing on the merits of the application, including an
opportunity to provide oral testimony and other evidence, without first having to establish prima
facie eligibility for the requested relief). On remand, the Immigration Judge should provide this
opportunity, and should also give the respondents a reasonable opportunity to seek, speak with,
and retain counsel. Matter ofC-B-, supra, at 889-890. 1

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In the Matter of
PABLO MENDOZA, ELADIA
Respondent

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IMMIGRATION COURT
570i EXECUTIVE CENTER DR. #400
CHARLOTTE, NC 28212
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Case No.: A208-307-494

IN REMOVAL PROCEEDINGS

{{':/(,

This is a sununar y of the oral decision entered on

This memorandum is solely for the convenience f the parties. If the
proceedin
should be appealed or reopened, the oral decision will become
t
n in the case.
t was ordered removed from the United States to
[
r in the alternative to .
Respon
t's application for voluntary departure was denied and
ndent was ordered removed to GUATEMALA or in the

..

Respondent's application for voluntary departure was granted until

upon posJ:ing a bond in the amount of$
with an alternate order of removal to GUATEMALA.
Respondent's application for:
)denied( )withdrawn.
[ ] Asylum was ( )granted
[ ] Withholding of removal was
)granted ( )denied
)withdrawn.
[ ] A Waiver under Section ___ was ( )granted { )denied
)withdrawn.
[ ] Cancellation of removal under section 240A(a) was ( )granted
)denied
( )withdrawn.
Respondent's application for:
) denied
Cancellation under section 240A{b)(1) was ( ) granted
( ) withdrawn. If granted, it is ordered that the respondent be issued
all appropriate documents necessary to give effect to this order.
Cancellation under section 240A(b) (2) was ( )granted ( )denied
{ )withdrawn. If granted it is ordered that the respondent be issued
all appropriated documents necessary to give effect to this order.
was { )granted { )denied
Adjustment of Status under Section
{ )withdrawn. If granted it is ordered that the respondent be issued
all appropriated documents necessary to give effect to this order.
Respondent's application of ( ) withholding of removal ( ) deferral of
removal under Article III of th.... onvention Against Torture was
( } granted ( ) denied r- ):: :1 :withdrawn.
Respondent's status was rescinded under section 246.
Respondent is admitted to the United States as a ___ until
As a condition of admission, respondent is to post a$ ____ bond.
Respondent knowingly filed a frivolous asylum application after proper
notice.
Respondent was advised of the limitation on discretionary relief for
failure to appear as ordered in the Immigration Judge's oral dee ig.,. P..
Proceedings were terminated.
Other:
Date: Apr 5, 2016
BARRY J.
f

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ORDER OF THE IMMIGRATION JUDGE