/ r

U.S. Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office ofthe Clerk

5107 Leesburg Pike, Suite 2000

Falls Church, Virginia 22041

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

Gonzalez, Raed, Esq. DHS/ICE Office of Chief Counsel - SNA
Gonzalez Olivieri LLC 8940 Fourwinds Drive, 5th Floor
2200 Southwest Frwy Ste 550 San Antonio, TX 78239
Houston, TX 77098

Name: GONZALEZ-SARAT, HIRAM ABE... A 205-164-431

Date of this notice: 1/30/2017

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

Sincerely,

Don.rtL C t1.AA)

Donna Carr
Chief Clerk

Enclosure

Panel Members:
Adkins-Blanch, Charles K.
Mann, Ana
O'Connor, Blair

:...ulseges
Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/

Cite as: Hiram Abecardo Gonzalez Sarat, A205 164 431 (BIA Jan. 30, 2017)
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{ U.S. Department of Justice Decision of the Board of Immigration Appeals

Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A205 164 431 - San Antonio, TX Date:

JAN 3 0 2017
In re: HIRAM ABECARDO GONZALEZ-SARAT

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

IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Raed Gonzalez, Esquire

APPLICATION: Cancellation ofremoval under section 240A(b)(l)

The responden, a native and citizen of Guatemala, has appealed from the decision of the
Immigration Judge dated December 9, 2015, denying his application for cancellation ofremoval
under section 240A(b)(l) of the Immigration and Nationality Act, 8 U.S.C. 1229b(b)(l). The
record will be remanded.

We review an Immigration Judge's 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.l(d)(3).

At a hearing held on October 28, 2013, the respondent was granted pre-conclusion voluntary
departure under section 240B(a)(l) of the Act. The respondent subsequently hired new counsel
and filed a motion to reopen on February 26, 2014, based on _ineffective assistance of counsel.
The respondent contended that he hired his former attorney to file an application for cancellation
of removal, but his attorney instead requested voluntary departure and waived appeal without his
consent. The respondent's motion to reopen was denied, and his appeal from that decision was
dismissed.

Subsequently, the respondent filed a timely motion to reconsider, which this Board granted
on November 23, 2015, specifically finding that the respondent's former counsel provided
ineffective assistance of counsel. We reopened the respondent's proceedings, vacated the
Immigration Judge's prior orders, and remanded the record for further proceedings, including
consideration of whether the respondent established the requisite exceptional and extremely
unusual hardship for purposes of cancellation of removal.

Upon remand, the Immigration Judge determined that the respondent is statutorily ineligible
for cancellation of removal under section 240A(b)(1) ofthe Act on the basis that he is subject to
the penalties in section 240B(d) of the Act due to his failure to voluntarily depart in compliance
with the order. However, we vacated the Immigration Judge's previous orders and reopened
proceedings upon explicitly finding that the respondent's former attorney committed ineffective
assistance of counsel in seeking voluntary departure without the respondent's consent. Because
the Immigration Judge's October 28, 2013, grant of voluntary departure was vacated, the
penalties for failing to comply with this order were necessarily nullified as well. In light of the
foregoing, we will remand the record for the Immigration Judge to address the respondent's
application for cancellation of removal on the merits. Upon remand, the respondent should be
Cite as: Hiram Abecardo Gonzalez Sarat, A205 164 431 (BIA Jan. 30, 2017)
,, . l

A205 164 431

provided an opportunity to present evidence pertaining to his eligibility for such relief. Thus, we
will remand for further fact-finding and a new decision regarding the respondent's eligibility for
cancellation of removal and any other relief he may seek. See 8 C.F.R. 1003.l(d)(3)(iv)
(limiting the Board's fact-finding ability on appeal).

Accordingly, the following order will be entered.

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

ORDER: The record is remanded to the Immigration Court for further proceedings
consistent with the foregoing opinion and the entry of a new decision.

Cite as: Hiram Abecardo Gonzalez Sarat, A205 164 431 (BIA Jan. 30, 2017)