U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals Office ofthe Clerk

5107 leesb11rg Pike, Suite 2000 Falls Clmrc/1, Virginia 22041

Shin, John D., Esq. Shin Law Group, LLC 7702 Leesburg Pike, Ste T400 Falls Chruch, VA 22043

OHS/ICE Office of Chief Counsel -ATL 180 Spring Street, Suite 332 Atlanta, GA 30303

Immigrant & Refugee Appellate Center | www.irac.net

Name: CHUNG, JI YOON

A089-125-468

Date of this notice: 10/17/2011

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

Donna Carr Chief Clerk

Enclosure

Panel Members: Grant, Edward R. Malphrus, Garry D. Mullane, Hugh G.

Cite as: Ji Yoon Chung, A089 125 468 (BIA Oct. 17, 2011)

' I

.u.s. Dpartment of Justice

Executive Office for Immiation Review Falls Church, Virginia 2204 l

Decision of the Board of Immigration Appeals

File: A089 125 468 Atlanta, GA

-

Date:

OCT 1 7 2011

In re: JI YOON CHUNG IN REMOVAL PROCEEDINGS APPEAL ON BEHALF OF RESPONDENT: ON BEHALF OF OHS: John D. Shin, Esquire

Immigrant & Refugee Appellate Center | www.irac.net

Morris I. Onyewuchi Assistant Chief Counsel

APPLICATION: Remand

The respondent, a native and citizen of Korea, appeals from the Immigration Judge's November 24, 2009, decision finding him removable and denying voluntary departure. On appeal, the respondent argues that he did not receive a full and fair hearing, because he was denied a continuance to obtain counsel. We agree. The appeal will be sustained and the record will be remanded for further proceedings. We review the findings of fact, including the determination of credibility, made by the Immigration Judge under a "clearly erroneous" standard. 8 C.F.R. I 003. l (d)(3)(i). We review all other issues, including whether the parties have met the relevant burden of proof, and issues of fA-S-B-, 24 I&N Dec. 493 discretion, under a de novo standard. 8 C.F . R . I 003. I (d)(3)(ii); Matter o (BIA 2008). The Notice of Hearing was mailed to the respondent on Septemoer 24, 2009, for a hearing to be held on November 24, 2009. The respondent appeared at the hearing. The Notice to Appear (Exh. 1) was served on the respondent at the master calendar hearing on November 24, 2009 (Tr. at 2)1 The respondent requested more time to seek counsel (Tr. at 6). The respondent never waived his right to representation and the Immigration Judge proceeded to take pleadings (Tr. at 9). The respondent tried to explain his status, but was cut off by the Immigration Judge (Tr. at I 0). The Immigration Judge sustained the charge (Tr. at I 0). The respondent seemed greatly confused about the nature of the proceedings (Tr. at 15-26). The Immigration Judge recognized this confusion in his decision, stating: "He continually asked for additional time, bringing up various factors such as to find an attorney, to finish his schooling, et cetera" (l.J. at 2). The Immigration Judge denied voluntary departure and ordered the respondent removed on November 24, 2009 (Tr. at 26). An alien is entitled to a full and fair removal hearing. In order to establish a violation of due process rights, an alien must prove that there was an error and that he was prejudiced by the error.
1

The rspondent's mother stated she had received the NTA two months earlier (Tr. at 5).
Cite as: Ji Yoon Chung, A089 125 468 (BIA Oct. 17, 2011)

A089 l25 468

Matter ofSantos, 19 I&N Dec. 105, 107-110 (BIA 1984 ).

In Matter ofSantos we held that the alien

was not denied the privilege of counsel because the Immigration Judge granted one of the alien's requests for a continuance; the alien did not request more time to seek counsel; the alien's waiver of counsel appears voluntary, knowing, and intelligent; the alien waived counsel without undue influence; and the alien's statements did not reveal any confusion. Id. at

107.

In the respondent's case, none of the factors described in Matter ofSantos are present. Here, the respondent requested more time to seek counsel, was never granted a continuance, never waived the presence of counsel, and displayed confusion. Therefore, we find that the Immigration Judge erred in denying a continuance. Moreover, we find the respondent was prejudiced by that error, because he was unable to present his claim that his lawful presence was extended, unable to qualify himself for voluntary departure, and generally unable to represent himself. A remand is warranted to ensure that the respondent receives a fair and fair hearing.

Immigrant & Refugee Appellate Center | www.irac.net

Matter ofSantos, supra.

We will remand the record to the Immigration Court to provide the rights advisals to the respondent, a reasonable opportunity to obtain counsel, an opportunity for the presentation of additional relevant evidence, consideration of any relief available to the respondent, and the entry of a new decision. Accordingly, the following order will be entered.

ORDER: The record is remanded to t

Immigration Court for assignment to a new Immigration ith this decision.

Judge and for further proceedings consisten

2
Cite as: Ji Yoon Chung, A089 125 468 (BIA Oct. 17, 2011)

U.S.

DEPARTMENT OF JUSTICE IMMIGRATION COURT Atlanta, Georgia

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

File A

89 125 468

Date:

November

24, 2009

Immigrant & Refugee Appellate Center | www.irac.net

In the Matter of

JI YOON CHUNG Respondent

IN REMOVAL PROCEEDINGS

CHARGE:

237 (a} (1)

(B}

APPLICATION:

None

APPEARANCES: ON BEHALF OF RESPONDENT: ON BEHALF OF THE DEPARTMENT OF HOMELAND SECURITY: Pro se Morris I. Onyewuchi, Esquire

ORAL DECISION OF THE IMMIGRATION JUDGE Respondent is an adult male, Korea, native and citizen of South

who was placed in removal proceedings with the filing of a

Notice to Appear with the court on July Master calendar on November There were admissions, received. Further,

6, 2009 .

He appeared at a

24, 2009 ,

requesting a continuance.

however,

that the Notice to Appear had been first to in the

Respondent requested a continuance,

get an attorney,

then to finish his education.

The Court,

exercise of discretion,

denied both applications.

Respondent

admitted the factual allegations. of removability.

The Court sustained the charge

The Court attempted to qualify the Respondent However, he never made an affirmative When the Court asked him if he he equivocated and could not He continually asked for

for voluntary departure.

request for voluntary departure. would in fact depart as required, give the court a definite answer. additional time, attorney,

Immigrant & Refugee Appellate Center | www.irac.net

bringing up various factors such as to find an et cetera. Given the fact that

to finish his schooling,

rernovability has been established by clear and convincing evidence and no application for relief has been received, the Court will

order removal from the United States to South Korea on the charge contained in the Notice to Appear.

89 125 468

November

24, 2009

CERTIFICATE PAGE I hereby certify that the attached proceeding before J. DAN PELLETIER, in the matter of: JI YOON CHUNG A

Immigrant & Refugee Appellate Center | www.irac.net

89 125 468
Georgia

Atlanta, was held as herein appears,

and that this is the original

transcript thereof for the file of the Executive Office for Immigration Review.

Rebecca A.

Myers,

Transcriber

YORK STENOGRAPHIC SERVICES,

INC.

34

North George Street Pennsylvania

York,

17401-1266

{717} 854-0077

January ram / seh

26, 2010

Completion Date