U.S. Department of ,T.. .

,tice
Executive Office for Immigration Review
Board of Immigration Appeals
Office of the Clerk
5107 Leesburg Pike, Suite 2000
Faffs Church. Virginia 22041

DHS/ICE Office of Chief Counsel - SNA

8940 Fourwinds Drive, 5th Floor
San Antonio, TX 78239

Name: GONZALEZ-SARAT, HIRAM ABE...

A 205-164-431
Date of this notice: 11/23/2015

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

Dc.nnJL Cw'V'LJ
Donna Can
Chief Clerk
Enclosure
Panel Members:

Miller, Neil P.

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/
Cite as: Hiram Abecardo Gonzalez-Sarat, A205 164 431 (BIA Nov. 23, 2015)

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Gonzalez, Raed Olivieri

Gonzalez Olivieri LLC
2200 Southwest Frwy Ste 550
Houston, TX 77098

U.S. Department of Justk....

Decision oftti" Board ofImmigration Appeals

Executive Office for Immigration Review

Falls Church, Virginia 22041

Date:

File: A205 164 431 - San Antonio, TX

NOV 2 3 2015

IN REMOVAL PROCEEDINGS
MOTION
ON BEHALF OF RESPONDENT: Raed Gonzalez, Esquire
APPLICATION: Reconsideration
This proceeding is currently before the Board on the respondent's timely motion to
reconsider our June 24, 2015, decision dismissing the respondent's appeal of the Immigration
Judge's denial of reopening. For the following reasons, the motion is granted, the proceedings
are reopened, and the record is remanded.
The respondent alleged that his former counsel provided ineffective assistance of counsel
because she only sought voluntary departure, whereas he was also eligible for cancellation of
removal. The respondent complied with the requirements of Matter ofAssaad, 23 I&N Dec. 553
(BIA 2003), and Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), ajf'd, 857 F.2d 10 (1st Cir.
1988). The respondent's former counsel did not submit a response to the respondent's complaint
and allegations. On this record, we find that former counsel provided ineffective assistance.
Further, the respondent demonstrated due diligence as his motion to reopen was filed
approximately four months after the grant of voluntary departure. As to prejudice, we find that
the respondent should have the opportunity to demonstrate that his removal would result in
exceptional and extremely unusual hardship to his qualifying relatives. Moreover, the
respondent alleges that he is eligible to adjust his status based on his marriage to a United States
citizen. Accordingly, the following orders shall be issued.
ORDER: The motion to reconsider is granted, the proceedings are reopened, and the
Immigration Judge's orders are vacated,
FURTHER ORDER: The record is remanded to the Immigration Judge for further
proceedings and entry of a new decision. 1

oc

Q ,1' -----
/'
FOR THE BOARD

t,. -

The parties should notify the United States Court of Appeals for the Fifth Circuit that this
proceeding has been remanded.
1

Cite as: Hiram Abecardo Gonzalez-Sarat, A205 164 431 (BIA Nov. 23, 2015)

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In re: HIRAM ABECARDO GONZALEZ-SARAT

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals
Qffice of the Clerk
5/07 Leesburg Pike, Suite 2000
Falls Church, Virginia 20530

DHS/ICE Office of Chief Counsel - SNA

8940 Fourwinds Drive, 5th Floor
San Antonio, TX 78239

Name: GONZALEZ-SARAT, HIRAM ABE ...

A 205-164-431
Date of this notice: 6/ 24/2015

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

DGnltL

a.JVu

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Grant, Edward R.

Userteam: Docket

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Gonzalez, Raed Olivieri

Gonzalez Olivieri LLC
2200 Southwest Frwy, Suite 550
Houston, TX 77098

U:S. Department of Justice

Decision of the Board of Immigration Appeals

Executive Office for Immigration Review

Falls Church, Virginia 20530

File: A205 164 431 - San Antonio, TX

Date:

JUN 14 2015

In re: HIRAM ABECARDO GONZALEZ-SARAT

APPEAL
ON BEHALF OF RESPONDENT: Raed Gonzalez, Esquire
APPLICATION: Reopening
The respondent, a native and citizen of Guatemala, appeals the decision of the Immigration
Judge, dated March 17, 2014, denying his motion to reopen. We will dismiss the appeal.
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. 1003.1(d)(3).
We affirm the Immigration Judge's decision to deny the respondent's motion to reopen.
These removal proceedings were completed when, on October 28, 2013, the respondent was
granted the privilege of voluntarily departure. As such, the respondent's motion to reopen, filed
on February 26, 2014, was untimely (I.J. at 1). See section 240(c)(7)(C)(i) of the Immigration
and Nationality Act, 8 U.S.C. 1229a(c)(7)(C)(i); 8 C.F.R. 1003.23(b)(l); Matter of
Goo/charan, 23 l&N Dec. 5 (BIA 2001).
Inasmuch as the respondent's request for equitable tolling was not presented to the
Immigration Judge, the request is not properly before this Board for the purposes of appellate
review. See, e.g., Matter of R-S-H-, 23 I&N Dec. 629, 638 (BIA 2003); Matter of Jimenez,
21 I&N Dec. 567, 570 n.2 (BIA 1996); Matter of Fedorenko, 19 I&N Dec. 57, 74 (BIA 1984).
Moreover, the respondent's generalized references to having pursued his rights diligently,
without identifying specific actions that he actually took, do not persuade this Board that
equitable tolling would be warranted, had it been properly presented to the Immigration Judge
for consideration (Respondent's Br. at 4-6). See Holland v. Florida, 560 U.S. 631, 649 (2010)
(holding that equitable tolling is warranted only if the movant shows that he has been pursuing
his rights diligently, and that some extraordinary circumstance stood in his way and prevented
timely filing); Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96 (1990).
Finally, we have considered the totality of the circumstances presented in this case, including
the respondent's claims to having been provided ineffective assistance of counsel and that he is
eligible for cancellation of removal under section 240A(b)(l) of the Act, 8 U.S.C. 1229b(b)(l).
Nonetheless, we are not persuaded that he has demonstrated that an exceptional situation exists
which would warrant the sua sponte reopening of these proceedings. See Matter of G-D-,
22 I&N Dec. 1132, 1133-34 (BIA 1999); Matter ofJ-J-, 21 l&N Dec. 976 (BIA 1997).

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IN REMOVAL PROCEEDINGS

A205 164 431

For the reasons set forth above, we will not disturb the Immigration Judge's decision to deny
the respondent's motion to reopen. Accordingly, the following order is entered.
ORDER: The respondent's appeal is dismissed.

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,I

1,

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
800 DOLOROSA STREET, SUITE 300
SAN ANTONIO, TX 78207

FILE A 205-164-431
IN THE MATTER OF
GONZALEZ-SARAT, HIRAM ABECARDO

DATE: Mar 17, 2014

UNABLE TO FORWARD - NO ADDRESS PROVIDED

ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE. THIS DECISION
IS FINAL UNLESS AN APPEAL IS FILED WITH THE BOARD OF IMMIGRATION APPEALS
WITHIN 30 CALENDAR DAYS OF THE DATE OF THE MAILING OF THIS WRITTEN DECISION.
SEE THE ENCLOSED FORMS AND INSTRUCTIONS FOR PROPERLY PREPARING YOUR APPEAL.
YOUR NOTICE OF APPEAL, ATTACHED DOCUMENTS, AND FEE OR FEE WAIVER REQUEST
MUST BE MAILED TO:
BOARD OF IMMIGRATION APPEALS
OFFICE OF THE CLERK
5107 Leesburg Pike, Suite 2000
FALLS CHURCH, VA 20530
ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE AS THE RESULT
OF YOUR FAILURE TO APPEAR AT YOUR SCHEDULED DEPORTATION OR REMOVAL HEARING.
THIS DECISION IS FINAL UNLESS A MOTION TO REOPEN IS FILED IN ACCORDANCE
WIT SECTION 242B(c) (3) OF THE IMMIGRATION AND NATIONALITY ACT, 8 U.S.C.
SECTION 1252B(c) (3) IN DEPORTATION PROCEEDINGS OR SECTION 240(c) (6),
8 U.S.C. SECTION 1229a(c) (6) IN REMOVAL PROCEEDINGS. IF YOU FILE A MOTION
TO REOPEN, YOUR MOTION MUST BE FILED WITH THIS COURT:
IMMIGRATION COURT
800 DOLOROSA STREET, SUITE 300
SAN ANTONIO, TX 78207
OTHER:

CC: DISTRICT COUNSEL

8940 FOURWINDS DR., 5TH FLOOR
SAN ANTONIO, TX, 782971939

IMMIGRATION COURT

FF

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Gonzalez Olivieri LLC

Gonzalez, Raed Olivieri
2200 Southwest Frwy Ste 550
Houston, TX 77098

UNITED STATES DEPARTMENT OF JUSTICE

Executive Office for Immigration Review
Immigration Court
File A205 164 431
)

In the Matter of
Hiram Abecardo Gonzalez-Sarat

)
)
)
)

In Removal Proceedings

Order of the
Immigration Judge

The respondent appeared personally with counsel for a removal proceeding on October 28, 2013, did
not contest the factual allegations or charge of removability, did not pursue any application for relief,
requested solely voluntary departure, which was granted, and waived appeal. The respondent, through
new counsel, filed a motion to reopen with the Court on February 26, 2014. The motion will be denied.
The respondent's motion was received by the Court on February 26, 2014. The Court's order became
administratively final on October 28, 2013 as appeal was waived. See Matter of Shih, 20 l&N Dec 697 (BIA
1993). This motion is clearly outside the time limit set in Title 8 CFR 1003.23(b)(1). I also note that the
respondent did not comply with the voluntary departure he was granted and the motion was received by
the court after the voluntary departure date had passed. The respondent is therefore ineligible for
Cancellation of Removal. Since it was not filed within 90 days of the administratively final order and does
not comply with the relevant regulations, it must be denied.
Since the motion is filed untimely and the respondent was fully aware of the order the day it was entered
there is no basis for disregarding the time limit set by regulation and statute. The Court declines to reopen
the case sua sponte at the request of the respondent. Any request based on humanitarian considerations
or the exercise of various forms of discretion by the Department of Homeland Security does not require
reopening or further hearing by the Court and would not create any relief under the jurisdiction of the Court.
The motion to reopen and accompanying request for a stay of removal shall be, and are hereby, DENIED.
SO ORDERED.

Date: March 17, 2014

Place: San Antonio, Texas

CERTIFICATE OF SERVICE
THIS DOCUMENT WAS SERVED BY; MAfL (M)
PERSONAL SERVICE (P)
TO ALIEN [ J ALIEN c/o Custodial Officer
/ i \I.ALIEN'S ATT/REP NS _.,,,.Jcv'

DATE:3-/?-) lf' BY: COIJRt STAFF

Attachments: [ J EOIR-33 [ J EOIR-28
[ ] l.P.?.3' SP.rviP.t:; ' ic:t [ J ()thr:r

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