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Bermel, Willem H. The Law Offices of Jamie B. Naini 6075 Stage Road Memphis, TN 38134
OHS/ICE Office of Chief Counsel - MEM 167 N. Main St., Suite 737A Memphis, TN 38103
A 200-611-977
Enclosed is a copy of the Board's decision and order in the above-referenced case. Sincerely,
DGnltL ctVvV
Donna Carr Chief Clerk
Cite as: Jose Antonio Monjazar-Fernandez, A200 611 977 (BIA Nov. 13, 2013)
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File:
Date:
NOV 1 s zon1
In re: JOSE ANTONIO MONJAZAR-FERNANDEZ a.k.a. Jose Antonio Monjaraz IN REMOVAL PROCEEDINGS APPEAL ON BEHALF OF RESPONDENT: Willem H. Bermel, Esquire ON BEHALF OF DHS: Jonathan M. Larcomb Assistant Chief Counsel APPLICATION: Continuance
In a decision dated September 13, 2011, an Immigration Judge found the respondent removable, as charged and ineligible for any form of relief from removal. The record will be remanded. 8 C.F.R.
1003.l(d)(l)(ii).
This Board reviews findings of fact by the Immigration Judge to determine whether such findings are clearly erroneous. This Board reviews de novo all questions of law, discretion, and judgment, and all other issues in appeals from decisions of Immigration Judges. 8 C.F.R.
Based upon our review, the record before us presents due process concerns that warrant a 1 remand for further proceedings before the Immigration Judge as to the respondent's removabity. The respondent was charged in these removal proceedings as an alien present in the United States who has not been admitted or paroled after inspection by an immigration officer. section 212(a)(6)(A)(i), 8 U.S.C. entered on a visa and he presented a copy of that visa (Tr. at See
evidence to contest his assertion, including a copy of the 1-213 (Record of Deportable/ 1 The respondent has not challenged the Immigration Judge's removability finding. See Matter 20 l&N Dec. 191, 196-197 n.4 (BIA 1990) (noting that issues not addressed on We nonetheless have the authority under 8 C.F.R.
8).
of Edwards,
case. Remedying due process defects in a proceedings falls under that authority.
1003 .1(d)( I )(ii) to take any action as is appropriate and necessary for the disposition of the
Cite as: Jose Antonio Monjazar-Fernandez, A200 611 977 (BIA Nov. 13, 2013)
A200 611 977 Inadmissible Alien) to support its charge that he entered without inspection. The Immigration Judge, moreover, failed to ask the government, if it had any record of the respondent's visa being used or evidence that might establish the mer of his entry.
convincing evidence, that the alien is lawfully present in the United States pursuant to a prior (B), the alien shall have access to the alien's visa or other entry document, if any, and any other admission," the statute further provides that, in "meeting the burden of proof under subparagraph
While the burden is on the alien in removal proceedings to establish "by clear and
provide a copy of the I-213 to meet its initial burden of proof and the fact that the alien, proceedings were not fundamentally fair. Additionally, the Immigration Judge's further lack of
records and documents ... pertaining to the alien's admission or presence in the United States."
proceeding pro se, was contesting the charge of removability against him, we find that these inquiry into the government's efforts to meet its burden of proof with the submission of records
address the Immigration Judge's denial of the respondent's request for a continuance. ORDER: The appeal is sustained.
240(c)(2) of the Act. The court shall enter a new decision as to the respondent's removability Given our disposition of this appeal, we decline to
and documents supports a remand of the record.2 Upon remand, the respondent shall have a renewed opportunity to obtain full access to his immigration records, in conformity with section
FURTHER ORDER: The record is remanded for further proceedings consistent with the
The record reflects that, overall, the Immigration Judge proceeded with this hearing without clearly indicating to the respondent what was transpiring or, specifically, what voluntary departure entailed before the respondent declined it.
The Immigration Judge may certify the record to the Board, if appropriate, upon the conclusion
1003.l(c), 1003.7.
Cite as: Jose Antonio Monjazar-Fernandez, A200 611 977 (BIA Nov. 13, 2013)
UNITED STATES DEPARTMENT OF JUSTI CE EXE CUTIVE O F FI CE FOR IMMIGRATION R EVIEW UNITED S TATES IMMIGRATI ON C OURT M EMPHI S, TENNESSE E
File:
A 200-611-977
September 13,
2011
In the Matter of
IN R EM OVAL PROCEEDING S
CHARGES:
Section 21 2(a} (6) ( A ) (i), alien present without being admitted or paroled.
APPLI CATIONS:
Implicit continuance.
PR O SE
ORAL D ECI SION OF THE IMMIGRATION JUDGE Respondent is a native and citizen of Mexico, of age. On testimony taken at today's hearing, 54 years
that respondent was ini tially admitted to the United States in Houston, 1999. Texas,
in 1998 ,
is no I-94 or visa s tamp that the respondent has submitted. Accordingly, the Court finds that respondent has not met his
burden and the Court sustains the charge. The Court questioned respondent concerning various forms of relief. Respondent is physically present in the United
States for a period of 10 years, service of the Notice to Appear. qualifying relatives.
the daughter is not a citizen of the United States or a lawful permanent resident of the United States, ineligible for cancellation of removal. and so respondent is Respondent further
testified that he has not been the beneficiary of any pending petitions and he testified that his father was a United States citizen, behalf. but that gentleman never filed an I-130 on respondent's The respondent has no fear of returning to Mexico
except for the fear of a 54 -year-old man starting a new career in that country, but that is not cognizable under the
Immigration laws as a basis for asylum. Respondent has submitted documents which the Court has marked as Exhibit 2 which show that respondent has an established business in the United States. However, again, the
Court notes that the respondent does not have a qualifying relative an nobody has filed a petition on respondent's behalf. Respondent has declined voluntary departure, instead to appeal a decision and so this order ensues. Accordingly, the Court enters this order. the Court will not seeking
A200-611-977
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See generally 8 C. F. R. Section 1003.29, 507 F.3d 1044, 1047 (6th Cir. 2007), and
Mukasey,
52 5 F.3.d 403
( 6th Cir.
The
Board of Immigration Appeals in Matter of Interiano-Rosa, 2 5 I&N Dec. 264 (BIA 2010), recognizes the broad authority of
Immigration Judges to set dates for filing of applications and for continuances. In the instant case, respondent is not eligible for
any form of relief that the Immigration Court can giv 9xcep voluntary departure and the respondent has expressed to depart voluntarily, and accordingly,
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explore w ith respondent in some detail his Immigratio and the Court finds that respondent is not eligible fo of relief. Taken together, the Court enters this order: ORD ER Respondent's re quest to continue is denied;
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A200-611-977
CERTIFICATE PAGE
I hereby certify that the attached proceeding before JUDGE CHARLES E. PAZAR, in the matter of:
A200-611-977
MEMPHIS,
TENNESSEE
is an accurate,
verbatim
by the Executive Office for Immigration Review and that this is the original transcript thereof for the file of the Executive Office for Immigration Review.
MARIA KIMBALL
(Transcriber) Inc.
(Completion Date)