U.S.

Department of Justice
Executive Office for Immigration Review

Board of Immigration Appeals

Office of the Clerk
5107 /,eesburg Pike. Suite 200()
Falls Church. Virginia 22041

OHS/ICE Office of Chief Counsel - SND

880 Front St., Room 2246
San Diego, CA 92101-8834

Name: BUCIO-AVALOS, BALTAZAR

A 088-721-069

Date of this notice: 9/2/2015

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

DuwtL

t1/V1.)

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Guendelsberger, John

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/

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Rudolph, James Bradley

Rudolph, Baker & Associates
419 19th Street
San Diego, CA 92102

U.S. Department of Justice

Executive Office for Immigration Review
Board of Immigration Appeals
Office of the Clerk
5107 Leesburg Pike, Suite 2000
Falls Church. Virginia 2204/

Name: BUCIO-AVALOS, BALTAZAR

A 088-721-069
Date of this notice: 9/2/2015

Enclosed is a copy of the Board's decision in the above-referenced case. This copy is being
provided to you as a courtesy. Your attorney or representative has been served with this
decision pursuant to 8 C.F.R. 1292.5(a). If the attached decision orders that you be
removed from the United States or affirms an Immigration Judge's decision ordering that you
be removed, any petition for review of the attached decision must be filed with and received
by the appropriate court of appeals within 30 days of the date of the decision.
Sincerely,

DOWU- c

(1/VL)

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Guendelsberger, John

Userteam:

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DHS/ICE Office of Chief Counsel - SND

BUCIO-AVALOS, BALTAZAR
880 Front St., Room 2246
A088-721-069
C/0 SAN DIEGO CORRECTIONAL FACILITY San Diego, CA 92101-8834
P .0. BOX 439049
SAN DIEGO, CA 92143-9049

U.S. Department of Justice

Decision ofthe Board of Immigration Appeals

Executive. Office for Immigration Review

Falls Church, Virginia 22041

File: A088 721 069 - San Diego, California

In re: BALTAZAR BUCIO AVALOS

Date:

SEP - 2 2015

APPEAL
ON BEHALF OF RESPONDENT: James Bradley Rudolph, Esquire
ON BEHALF OF DHS:

Rhana lshimoto
Assistant Chief Counsel

APPLICATION: Reopening
The respondent has filed an appeal of an Immigration Judge's June 17, 2015, decision, denying
his motion to reopen. The respondent's appeal will be dismissed.
The Board reviews an Immigration Judge's findings of fact, including findings as to the
credibility of testimony, and the likelihood of future events, under the "clearly erroneous"
standard. See 8 C.F.R. 1003.l(d)(3)(i); Matter of Z-Z-0-, 26 I&N Dec. 586 (BIA 2015);
Matter of R-S-H-, 23 I&N Dec. 629 (BIA 2003); Matter ofS-H-, 23 I&N Dec. 462 (BIA 2002).
The Board reviews questions of law, discretion, and judgment and all other issues in an appeal of
an Immigration Judge's decision de novo. See 8 C.F.R. 1003.l(d)(3)(ii).
The record reflects the respondent was ordered removed from the United States by an
Immigration Jude on December 11, 2008, pursuant to a written and jointly-signed stipulated
order of removal. The respondent admits to re-entering the United States one week later, and on
May 12, 2015, nearly 7 years later, filed an untimely motion requesting sua sponte reopening
arguing that 1) the Immigration Judge's 2008 order of removal violated his rights to due process,
and 2) as the beneficiary of an approved immediate relative immigrant visa petition filed on his
behalf by his United States citizen spouse, he qualifies for a provisional unlawful presence waiver
(Form I-601A), and can establish his eligibility for the waiver while awaiting consular visa
processing abroad only if his removal proceedings are terminated or administratively closed. See
8 C.F.R. 212.7(e). The Immigration Judge denied the respondent's motion noting that the
motion was not timely-filed. Moreover, the respondent presented no new evidence bearing on the
original 2008 removal order, and failed to show that he acted with due diligence so as to warrant
equitable tolling of the filing deadline. Finally, the Immigration Judge found the circumstances in
the respondent's case were not appropriate for sua sponte reopening.
I

Under 8 C.F.R. 1003.25(b), an Immigration Judge is allowed to enter an order of removal

without a hearing if it is stipulated to by the respondent and the DHS. The regulation further
requires that, where the respondent is unrepresented, the Immigration Judge "must determine that
the alien's waiver is voluntary, knowing, and intelligent." Id

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IN REMOVAL PROCEEDINGS

A088 721 069

We consider initially whether the respondent's waiver of rights, including his right to appeal,
found in the stipulated removal agreement which he signed, was "considered and intelligent" as
required by Ramos and the regulations. See United States v. Ramos, supra, at 680. It appears the
respondent in this case was unrepresented and did not appear before an Immigration Judge prior to
being removed from the United States. Relying solely on the written stipulated removal
agreement signed by the respondent, the Immigration Judge granted the DHS's motion for
stipulated removal and noted that the appeal was waived by both parties.
While the "stipulated removal" regulation states that no hearing is required, the regulation does
not preclude a hearing. Moreover, the regulation requires that the Immigration Judge determine
that waivers are "voluntary, knowing, and intelligent" in cases where the respondent is not
represented by counsel. 8 C.F.R. 1003.25(b). In Ramos, the court noted several factors that
led them to conclude that the respondent's waiver of his right to appeal was defective. Key
among these was the fact that the respondent was not represented by counsel and that the
respondent never had the benefit of appearing before the Immigration Judge when "navigating the
labyrinth of our immigration laws ... " United States v. Ramos, supra, 681-682 (citing
Castro-O'Ryan v. U.S. INS, 847 F.2d 1307, 1312 (9th Cir. 1988). Similarly, the respondent here
was not represented by counsel and did not have the benefit of appearing before an Immigration
Judge, who presumably would have "adequately conveyed both the [respondent's] appeal options
and the finality associated with waiving appeal." See id at 681 (citing Matter ofRodriguez-Diaz,
22 I&N Dec. 1320, 1323 (BIA 2000)). Further, there is no indication in the Immigration Judge's
December 11, 2008, order, reflecting that a determination that the respondent's waiver of his
rights, including his right to counsel and his right to appeal was knowing, considered, and
intelligent as required by United States v. Ramos, supra, and the regulation.
Had the unrepresented respondent appeared before an Immigration Judge in this case, the
Immigration Judge could have assessed whether the respondent's waiver of rights was considered
and intelligent. Similar to the alien in Ramos, the respondent here also never received the benefit
of a review by counsel or an Immigration Judge of his potential eligibility for relief, especially in
light of the mandatory requirement under the regulations that the Immigration Judge inform an
alien of his apparent eligibility for relief from removal. See id at 681-682; see also
U.S. v. Lopez-Velasquez, 629 F.3d 894, 896 (9th Cir. 2010) (citing 8 C.F.R. 1240.1 l(a)(2)).

Although the respondent contends that he mistakenly believed he was agreeing to an

administrative voluntary return to Mexico, in lieu of removal proceedings, the claim is
contradicted by his accepting the personal service of a Notice to Appear ("NTA") (Form I-862)
explaining that he was being placed in removal proceedings. Furthermore, the NTA reflects that
he signed the document acknowledging that he was provided oral notice of its contents in Spanish.
2

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On appeal, the respondent challenges the validity of the Immigration Judge's stipulated
removal order, entered on December 11, 2008, arguing that it does not meet the requirements
articulated by the United States Court of Appeals for the Ninth Circuit, the jurisdiction wherein
this case arises, in United States v. Ramos, 623 F.3d 672 (9th Cir. 2010). The respondent
contends that his due process rights were violated because he did not understand the contents of the
written stipulated removal agreement which he jointly-signed with an officer for the Department
of Homeland Security (''DHS"). 2

A088 721 069

Given these circumstances, we are unable to ascertain whether the respondent's signature on
the stipulated removal agreement establishes that his waiver of rights, including his right to appeal,
was considered and intelligent. As with the alien in Ramos, we conclude that the Immigration
Judge appears to have violated 8 C.F.R. 1003.25(b) by failing to determine whether the
respondent's waiver was "voluntary, knowing, and intelligent," as required by the regulation.

The court in U.S. v. Gonzalez-Flores refers us to a two-step process for determining whether an
alien claiming apparent eligibility for voluntary departure has made this showing. See id. at 1100
(citing United States v. Rojas-Pedroza, supra, at 1263). First, it is necessary to take into account
the positive and negative factors an Immigration Judge would consider relevant to an exercise of
discretion.3 See id At which point, it would then be appropriate to determine whether, in light
of these factors and the circumstances of the respondent's case, he carried the burden of proving "it
was plausible (not merely conceivable) that the Immigration Judge would have exercised his
discretion in the [respondent's] favor." See United States v. Rojas-Pedroza, supra, at 1263;
U.S. v. Cisneros-Resendiz, 656 F.3d 1015, 1018 (9th Cir. 2011) (same). Furthermore, the court
notes that "establishing 'plausibility' requires more than establishing a mere 'possibility."' See
United States v. Barajas-Alvarado, 655 F.3d 1077, 1089 (9th Cir. 2011).
Here, even assuming, arguendo, the respondent's "apparent" statutory eligibility for voluntary
departure at the time he was placed in removal proceedings in 2008, the respondent has not carried
his burden as to whether the favorable exercise of discretion was warranted in his case. In
weighing the positive and negative factors an Immigration Judge would consider relevant to an
exercise of discretion at the time he was placed in removal proceedings in 2008, the respondent's
general reference in a written statement accompanying the motion, to having to provide for his
3

The court noted that positive factors include "long residence, close family ties to the United
States, and humanitarian needs," whereas negative factors include ''the nature and underlying
circumstances of the deportation ground at issue; additional violations ofthe immigration laws; the
existence, seriousness, and recency of any criminal record; and any other evidence of bad
character or the undesirability of the applicant as a permanent resident."
See
United States v. Rojas-Pedroza, supra, at 1263-65 (quoting Matter of Arguelles-Campos,
22 I&N Dec. 811, 817 (BIA 1999)); see also Matter of Gamboa, 14 I&N Dec. 244, 248 (BIA
1972) (listing relevant factors for a determination of whether an alien merits voluntary departure in
the exercise of discretion).
3

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Nonetheless, even if the Immigration Judge's violated the regulation by failing to adhere to the
Ramos requirements, this is insufficient, standing alone, to invalidate the December 11, 2008,
stipulated removal order, unless the respondent can also establish that he suffered prejudice as a
result of that procedural violation. See US. v. Arrieta, 224 F.3d 1076, 1079 (9th Cir. 2000). In
this case, the respondent alleges prejudice claiming the Immigration Judge did not advise him as to
his apparent eligibility for voluntary departure at the time of his removal proceedings in 2008.
However, in order to meet his burden to establish "prejudice," the respondent must not only
demonstrate his statutory eligibility for voluntary departure, but also as an alien seeking a
discretionary form of relief from removal, he must make a "plausible showing" that the
Immigration Judge, presented with all of the facts, would exercise favorable discretion on his
behalf. See U.S. v. Gonzalez-Flores, 788 F.3d 1094, 1100 (9th Cir. 2015) (citing
United States v. Rojas-Pedroza, 716 F.3d 1253, 1263-64 (9th Cir.2013)).

'

A088 721 069

On de novo review, we conclude that even if we were to find the respondent's removal
proceedings in 2008 did not fully comport with due process (i.e., the Immigration Judge's
stipulated removal order did not meet the Ramos requirements), the respondent has not shown that
he was prejudiced by those defects, so as to render the Immigration Judge's underlying
2008 stipulated order of removal fundamentally unfair, and undermine its validity. See id. at 9 13
(citing United States v. Ubaldo--Figueroa, 364 F.3d 1042, 1048 (9th Cir. 2004) (an underlying
removal order is fundamentally unfair if: (1) the alien's due process rights were violated by defects
in his underlying deportation proceeding, and (2) he suffered prejudice as a result of the defects.).
As we are not persuaded by the respondent's challenge to the validity of the Immigration
Judge's 2008 stipulated removal order, we agree with his conclusion that the respondent's motion
was filed out of time and did not fit within any exceptions. See 8 C.F.R. 1003.23(b)(l). The
Act and its implementing regulations provide that any motion to reopen removal proceedings must
be filed within 90 days after the date when the final administrative order of removal was entered.
See section 240(c)(7)(C)(i) of the Act, 8 U.S.C. 1229a(c)(7)(C)(i); 8 C.F.R. 1003.23(b)( l).
The respondent's motion was filed nearly 7 years after the Immigration Judge's final
administrative order of December 11, 2008; and nearly 7 years after the respondent's claimed last
illegal entry into the United States. The respondent's arguments in support of the motion, that is
the subject of this appeal, based on equities he acquired during the additional 7-years of unlawful
presence in the United States following his removal in 2008, and his subsequent illegal re-entry
one week later, fail to show that he exercised the necessary due diligence for equitable tolling of
the motion filing deadline. See Singh v. Gonzales, 491 F.3d 1090 (9th Cir. 2007).
Given the record before the Immigration Judge, we do not find that the Immigration Judge
erred in declining to reopen proceedings sua sponte, and we likewise find that the circumstances
presented by the respondent do not warrant the exercise of our limited discretion to reopen
sua sponte. See Matter ofJ-J-, 21 I&N Dec. 976 (BIA 1997).
4

The respondent's family now includes his spouse, who filed a marital visa petition on his behalf
on January 29, 2013, and his three children, all United States citizens. However, these equities
appear to only have come into existence in the 7-year period after the respondent's removal in
2008, and subsequent illegal re-entry, and would have played no part in the consideration of the
positive and negative factors in the Immigration Judge's discretionary analysis. The respondent,
in a statement accompanying the motion, indicated that in 2008 he was then engaged to his USC
spouse-to-be, and that they had one child together. However, the respondent's claimed "fiancee"
relationship need not have received much weight in the Immigration Judge's discretionary
analysis as a significant family tie in 2008 as they were not yet married, notwithstanding the
respondent's unsupported claim that they already had a child together at the time.
4

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family,4 would not necessarily overcome the significant negative factor of his unlawful residence
in the United States after having entered this country illegally. See Matter ofRojas, 15 I&N Dec.
492, 493 (BIA 1975) (finding that the manner in which an alien gains entry is relevant to the
exercise of discretion in adjudicating an application for voluntary departure). As the respondent
has not shown that it is plausible (not merely conceivable) that he would have received a
discretionary grant of voluntary departure, the respondent was not prejudiced by the Immigration
Judge's failure to notify him of any apparent eligibility for such relief. See United States v.
Valdez-Novoa, 780 F.3d 906, 917 (9th Cir. 2015).

' .

A088 721 0,69

. Accordingly, the appeal will be dismissed.
ORDER: The appeal is dismissed.

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--.

..,,

. . . ' .

. : ..

,:;

'.(!.,1
.J

UN1'E:D STArfES. DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION ,REVIEW
IMMIGRATION COURT
401 WEST A STREET, SUITE #800
SAN DIEGO, CA 92101

Cf#.t'' ..

Date: Jun 17, 2015

File AOSB-721-069
In the Matter of:
BUCIO-AVALOS, BALTAZAR
Attached is a copy of the written decision of the Immigration Judge.
This decision is final unless an appeal is taken to the Board of
Immigration Appeals. The enclosed copies of FORM EOIR 26,
Notice of Appeal, and FORM EOIR 27, Notice of Entry as Attorney or
Representative, properly executed, must be filed with the Board of
Iigration Appeals on or before
The appeal must be accompanied by proof of paid fee ($110.00).
Enclosed is a copy of the oral decision.
Enclosed is a transcript of the testimony_of record.

.. to s brief
rou are granted until
-a.ti this office in support of yo,ur appeal.
./

'--........ .

posing counsel is granted until

to sy.pmit a
brief in apposition to the appeal.

Enclosed is a copy of the order/decision of the Immigration Judge.

All papers filed with the Court shall be accompanied by proof
of service upon opposing counsel.

cc: DISTRICT COUNSEL

880 FRONT STREET1 ROOM #2246
.SAN DIEGO, CA 921010000

. .... ."'*
.

UL

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Rudolph, Baker & Associates

Rudolph, James Bradley
419 19th Street
San Diego, CA 92102

United States Department of .Justice

Executive Office for Immigration Review
Office of the Immigration Judge
San Diego, California

2
3

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A Number: 088-721-069

In the Matter of Baltazar Bucio Avalos

ORDER OF THE IMMIGRATION JUDGE

Upon consideration of Respondent' s Motion to Reopen, it is HEREBY ORDERED
That the motion be -GRANTED NIED because:
_DHS does not oppose the motion.
_The respondent does not oppose the motion.
_A response to the motion has not been filed with the court.
Good cause has been established for the motion.
court agrees with the reasons stated in the opposition to the motiont"
fr C-r,t.... S '-

_
Vfhe motion is w1timely per /O tJ .2.. .l ( '9){, )

v6ther: mtw(..J- d J .r J..;.v ,J.., ..t. i, ,.. l,f;.. ,;. .f,,.-.,f /,{,.,
'ef
Deadlines : ./,r "'' I- ..fr II. 7' . V W'- JL,... r.,., r ,r 1w H;_ dl..p-.,," -fi,...etN.,-...R

WfL1, 'l'UV-J

+ i"-tc.

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_The application(s) for relief must be filed by ______________

_The respondent must comply with DHS biometrics instructions by __,,,,.----

20

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Date

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

Certificate of Service
This document was served by:fkr'1an Personal Service
To: [ ] Alien [ ] Alien c/o Custodial Officer(,t}lien's Atty/Rep lfHs
.,

-17
By: Court Staff_,.Date:
k-'=
------

-/

8
MOTION TO REOPEN AND REQUES'I' FOR STAY OF' REMOVAL

United States Department o f Justice

Executive Office for Immigration Review
Office of the Immigration Judge
San Diego, California

2
3

A Number: 088-721-069

In the Matter of: Baltazar Bucio Avalos

ORDER OF THE IMMIGRATION JUDGE

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Upon consideration of Respondent's Stay of Removal, it is HEREBY ORDERED

,L'.b
That the motion be _GRANTED
ENIED because:
_DHS does not oppose the motion.
_The respondent does not oppose the motion.
_A response to the motion has not been filed with the court.
_Good cause has been established for the motion.
_The court agrees with the reasons stated in the opposition to the motion.
_The motion is untimely per __________
v6ther:

flu-. rl-e,.,-

Deadlines:
_The application(s) for relief must be filed by ______________
_The respondent must comply with DHS biometrics instructions by _....,....:::::;;._____

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Date

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Certificate of Service
This document was served by Mai Personal Service
To: [ ] Alien [ ) Alien c/o Custodial ordcer f'nA1ien's Atty/Rep /DHS
Date:

b ,.-- (1 -,

By: Court Staff

MOTION TO REOPEN AND REQUEST FOR STAY OF REMOVAL

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