U.S.

Department of Justice Executive Office for Immigration Review

Board ofImmigration Appeals Office of the Clerk

5107 leesb"rg Pike, S"ite 2000 Falls Church, Virginia 20530

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

Immigrant & Refugee Appellate Center | www.irac.net

Name: MONJAZAR-FERNANDEZ, JOSE ...

A 200-611-977

Date of this notice: 11/13/2013

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

DGnltL ctVvV
Donna Carr Chief Clerk

Enclosure Panel Members: Adkins-Blanch, Charles K. Hoffman, Sharon Manuel, Elise

yungc Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: Jose Antonio Monjazar-Fernandez, A200 611 977 (BIA Nov. 13, 2013)

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Executive Office for Immigration Review FaJls Church, Virginia 20530

U.S. Department of Justice

Decision of the Board of Immigration Appeals

File:

A200 611 977 - Memphis, TN

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

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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.

1003. l(d)(3)(i) and (ii).

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

1182(a)(6)(a)(i). At his hearing, however, he testified that he

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).

The government presented no

appeal are deemed waived on appeal).

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

Section 240(c)(2) of the Act, 8 U.S.C.

records and documents ... pertaining to the alien's admission or presence in the United States."

1229a(c)(2). Here, given the government's failure to

Immigrant & Refugee Appellate Center | www.irac.net

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.

under section 212(a)(6)(A)(i) of the Act.3

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

foregoing decision and for the entry of a new decision.

FURTHER ORDER: The record is remanded for further proceedings consistent with the

FOR THE BOARD

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.

of the proceedings on remand. See generally 8 C.F.R. 2

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

Immigrant & Refugee Appellate Center | www.irac.net

File:

A 200-611-977

September 13,

2011

In the Matter of

J O S E ANTONIO MON JAZAR-F ERNANDEZ R E SPOND ENT

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.

ON BEHALF OF R E SPOND ENT: ON B EHALF O F DR S:

PR O SE

JONATHAN LARC OMB

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

the Cour t heard

that respondent was ini tially admitted to the United States in Houston, 1999. Texas,
in 1998 ,

and then reen tered the United States in but there

Respondent has submitted a photocopy of a visa,

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

Immigrant & Refugee Appellate Center | www.irac.net

States for a period of 10 years, service of the Notice to Appear. qualifying relatives.

measured backward from the However, respondent has no but

He testified that he has a daughter,

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

In the absence of any applications,

A200-611-977

September 13, 2011

( t='

continue the case. Ilic-Lee v. Mukasey,

See generally 8 C. F. R. Section 1003.29, 507 F.3d 1044, 1047 (6th Cir. 2007), and

the later cases of Ukpabi v. 2008), and Kwak v. Holder,

Mukasey,

52 5 F.3.d 403

( 6th Cir.
The

607 F.3d 1140

( 6th Cir. 2010).

Immigrant & Refugee Appellate Center | www.irac.net

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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the Court did The

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explore voluntary departure with the respondent.

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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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Respondent is hereby ordered removed to Mexico.

A200-611-977

September 13, 2011

CERTIFICATE PAGE

I hereby certify that the attached proceeding before JUDGE CHARLES E. PAZAR, in the matter of:

Immigrant & Refugee Appellate Center | www.irac.net

JOSE ANTONIO MONJAZAR-FERNANDEZ

A200-611-977

MEMPHIS,

TENNESSEE

is an accurate,

verbatim

transcript of the recording as provided

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.

DEPOSITION SERVICES, NOVEMBER 7, 2011

(Completion Date)