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U.S.

Department of Justice

Executive Office for Immigration Review


Board of Immigration Appeals
Office ofthe Clerk
5 /07 Leesburg Pike, Suite 2000
Falls Church. Virginia 20530

DHS/ICE Office of Chief Counsel - HAR


P. 0. Box 230217
Hartford, CT 06123-0217

Name: ELIZONDO ZAVALETA, EDULIO

A 206-222-496

Date of this notice: 7/2/2015

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

DOrutL ca.AA)
Sincerely,

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Grant, Edward R.
Guendelsberger, John
Holiona, Hope Malia

Userteam: Docket

For more unpublished BIA decisions, visit


www.irac.net/unpublished/index/
Cite as: Edulio Elizondo Zavaleta, A206 222 496 (BIA July 2, 2015)

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

ELIZONDO ZAVALETA, EDULIO


A206-222-496
FRANKLIN HOUSE OF CORRECTIONS
160 ELM STREET
GREEN FIELD, MA 01301

U.S. Department of Justice


!' ) Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 20530

File: A206 22 496 - Greenfield, MA 1


In re: EDULIO ELIZONDO ZAVALETA

Date:

JUL - J 2DJ5

APPEAL
ON BEHALF OF RESPONDENT: Pro se
APPLICATION:

Continuance

The respondent, a native and citizen of Mexico, appeals the decision of the Immigration
Judge, dated April 8, 2015, denying his request for a continuance in order to obtain
nonimmigrant status under the provisions of section 101(a)(15)(U) of the Immigration and
Nationality Act, 8 U.S.C. 110l(a)(l5)(U), and ordering his removal from the United States.2
The Deparbnent of Homeland Security did not express an opposition to the respondent's request
for a continuance and has not replied to the respondent's appeal.
We review hnmigration 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. 1003.1(d)(3).
Considering the totality of the circumstances, we disagree with the Immigration Judge's
decision, which did not meaningfully consider the factors set forth in Matter of Sanchez Sosa,
25 I&N Dec. 807 (BIA 2012), to deny the respondent's request for a continuance (Tr. 21). The
Immigration Judge ordered the respondent removed from the United States 30 days after he was
served with the Notice to Appear ("NTA") (Exh. 1). See generally Matter of C-B-, 25 I&N
Dec. 888 (BIA 2012) (holding that an alien did not have sufficient time to obtain counsel where
the NTA was issued on January 17, 2012, and the Immigration Judge entered a removal order on
January 25, 2012). Admittedly, during the 30-day time period, the detained pro se respondent
did not obtain an U Nonimmigrant Status Certification (Form 1-918, Supplement B). However,
he did obtain a written statement from an out-of-state police detective which confirms that the
respondent was the victim of a brutal assault which left him with permanent loss of sight in his
left eye and that he assisted the police in its investigation of the assailant who was found guilty
1

Removal proceedings before the Immigration Judge in this matter were completed at the
Franklin House of Corrections in Greenfield, Massachusetts (see OPPM No. 04-06). The
Immigration Judge conducted the hearings there remotely from the hnmigration Court in Boston,
Massachusetts, via video teleconference pursuant to section 240(b )(2)(A)(iii) of the Act.
2

We conclude that the respondent's statement ''No, sir, with all respect, I will do whatever Your
Honors orders, besides I'm illegal and there is nothing [indiscernible]" did not amount to an
effective waiver of his appeal rights (Tr. at 22). Matter of Rodriguez-Diaz, 22 I&N Dec. 1320
(BIA 2000) (holding that an unrepresented alien who accepts an Immigration Judge's decision as
,,
"final does not effectively waive the right to appeal where the Immigration Judge did not make
clear that such acceptance
constitutes an irrevocable waiver of appeal rights).
Cite as: Edulio Elizondo Zavaleta, A206 222 496 (BIA July 2, 2015)

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

IN REMOVAL PROCEEDINGS

,.

A206 222 496


of assault in the second degree and sentenced to a 30-month term of imprisonment. The
respondent has also presented numerous other documents which confirm that he is potentially
eligible for U nonimmigrant status. Among other documents, he has presented evidence that the
Office of Victim Services has provided him with more than $6,000 to pay his medical bills.

At the present time, we express no opinion regarding the ultimate outcome of this case.
Moreover, as the respondent had presented sufficient evidence to warrant a continuance based
upon his potential eligibility for U nonimmigrant status, we decline to address the issue of
whether he was provided with sufficient time to secure counsel. Accordingly, the following
order is entered.
ORDER: The respondent's appeal is sustained, e Immigration Judge's decision is vacated,
and the record is remanded to the Immigration Court or further proceedings consistent with the
foregoing opinion and the entry of a new decision.

FOR THEBO

2
Cite as: Edulio Elizondo Zavaleta, A206 222 496 (BIA July 2, 2015)

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

The aforementioned evidence shows that the respondent is not seeking U nonimmigrant
status merely as a dilatory tactic to forestall the conclusion of removal proceedings. See Matter
of Sanchez Sosa, supra, at 815. Instead, during the course of his I-month removal proceedings,
the respondent exercised sufficient diligence to warrant an additional continuance in order to
gather additional evidence and documentation concerning his claim to U nonimmigrant status.
Considering that the respondent was pro se, detained, seeking evidence from out-of-state, had
already obtained persuasive documentary evidence to corroborate his claimed potential eligibility
for U nonimmigrant status, and that these removal proceedings had been pending for 30 days, the
Immigration Judge should have granted his request for a continuance. Accordingly, we will
remand the record to the Immigration Judge in order to provide the respondent with a renewed
opportunity to present evidence which shows good cause for a continuance.

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U.S. DEPARTMENT OF JUSTICE


EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
450 MAIN ST., ROOM 628
HARTFORD, CT 06103

RESPONDENT

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

Case No.: A206-222-496

In the Matter of:


ZAVALETA-ELIZONDO, EDULIO

IN REMOVAL PROCEEDINGS

ORDER OF THE IMMIGRATION JUDGE

Upon the basis of respondent's admissions, I have determined that the


respondent is subject to removal on the charge(s) in the Notice to Appear.

Respondent has made no application for relief from removal.

It is HEREBY ORDERED that the respondent be removed from the United Stats

to MEXICO on the cfiarge(s) contained in the Notice to
Appear.

Any alien against whom a final order of removal is outstanding by reason of


being,a member of any of the classes described in INA section 237(a), who
willfully fails or refuses to present himself or herself for removal at the
time and place required by the Attorney General shall be fined and/or
imprisoned for up to ten years. Further, any alien who willfully fails or
refuses to depart from the United States pursuant to
inal removal order
or present for removal at the time and plac
by the
y General
shall pay a civil penalty of not more than
e C
or each
day the alien is in violation of this

gration Judge
Date: Apr 8, 2015

Appeal:
Appeal Du-.a..-.-

CERTIFICATE OF SERVICE
THIS D,JMENT w s S RVED BY: MAIL (M) PERSONAL SERVICE (P)
Aw:,EN c/o Custodial Officer [ ] Alievtt
TO: ,-, ALI
' TT/REP [ ] OHS
'/
.
BY: COURT STAFF
DATE: -+--+--+---Attachments: [ J EOIR-33 [ J EOIR-28 [] Legal Services List [] Other
Form EOIR 7 - 4T (REMOVAL Order)

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