U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office ofthe Clerk

5/07 leesburg Pike, Suite 2000

Falls Church, Virginia 2204/

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

Carrico, John Lee OHS/ICE Office of Chief Counsel - REN
Family Visa and Immigration Services, LLC 3373 Pepper Lane
547 South Arlington Las Vegas, NV 89120
Reno, NV 89509

Name: FIGUEROA MENDOZA, ROSA E... A 208-598-824

Riders: 208-598-825

Date of this notice: 3/2/2017

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

Sincerely,

DOn,tL Ct1AAJ
Donna Carr
Chief Clerk

Enclosure
Panel Members:
Guendelsberger, John

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/

Cite as: Rosa Elva Figueroa Mendoza, A208 598 824 (BIA March 2, 2017)
' U.S. Department of Justice Decision of the Board of Immigration Appeals
Executive Office for Immigration Review

Falls Church, Virginia 22041

Files: A208 598 824 - Reno, NV Date:

A208 598 825
MAR - 2 2017
In re: ROSA ELVA FIGUEROA MENDOZA

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

AMAILESI CASTREJON FIGUEROA

IN REMOVAL PROCEEDINGS

APPEAL AND MOTION

ON BEHALF OF RESPONDENTS: John L. Carrico, Esquire

CHARGE:

Notice: Sec. 212(a)(7)(A)(i)(I), I&N Act [8 U.S.C. 1182(a)(7)(A)(i)(I)] -

Immigrant - no valid immigrant visa or entry document

APPLICATION: Remand

On August 23, 2016, the Immigration Judge issued decisions finding the pro se respondents 1
removable as charged and granting them pre-conclusion voluntary departure. The respondent,
now represented, has filed an appeal and contends, inter alia, that she did not knowingly and
voluntarily waive her right to counsel and that she is eligible for a U-visa based on domestic
abuse. The record before us does not contain a response from the Department of Homeland
Security. The record will be remanded to the Immigration Judge for further proceedings and for
the entry of a new decision.

We review an Immigration Judge's findings of fact, including credibility determinations,

under a "clearly erroneous" standard. 8 C.F.R. I003.l(d)(3)(i). We review questions of law,
discretion, and judgment and all other issues in appeals from decisions of Immigration Judges
de novo. 8 C.F.R. 1003.l(d)(3)(ii).

Due process rights under the Fifth Amendment apply in immigration proceedings.
Ram v. Mukasey, 529 F.3d 1238, 1241 (9th Cir. 2008). In Immigration proceedings the right to
counsel stems from the Fifth Amendment guarantee of due process. Tawadrus v. Ashcroft,
364 F.3d 1099, 1103 (9th Cir. 2004); see also section 240(b)(4)(A) of the Immigration and
Nationality Act, 8 U.S.C. 1229a(b)(4)(A). In order to afford the right to counsel, an
Immigration Judge must (1) ask if the respondent wishes counsel, (2) determine a reasonable
period for obtaining counsel, and (3) evaluate whether any waiver of counsel is knowing and
voluntary. Tawadrus, supra, at 1103. Finally, in the jurisdiction of the United States Court of
1
The respondents consist of a mother (A208 598 824) and her minor daughter (A208 598 825).
For purposes of this decision, use of the singular "respondent" shall refer to the mother
respondent.

Cite as: Rosa Elva Figueroa Mendoza, A208 598 824 (BIA March 2, 2017)
A208 598 824 et al.

Appeals for the Ninth Circuit,no showing of prejudice is required to obtain relief for a violation
of a respondent's right to counsel in immigration proceedings. Montes-Lopez v. Holder,
694 F.3d 1085 (9th Cir. 2012).

We conclude that a remand is warranted in this case because the respondent did not
knowingly and voluntarily waive her right to counsel. 2 Although the Immigration Judge

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

provided the respondent with an opportunity to obtain counsel and a brief rights advisement
(Tr. at 4-5), he did not specifically question the respondent regarding the implications
(consequences) of appearing without counsel, which is a requirement in the Ninth Circuit
(Respondent's Brief at 4-5; Tr. at 8). See Ram, supra, at 1242. Nor were further inquiries made
as to whether the respondent might be able to show reasonable cause for a continuance to seek
counsel.

On remand, the Immigration Judge should ensure that the respondent's due process right to
counsel is protected, consistent with this decision and the Ninth Circuit precedent cited above.
The respondent is now represented by counsel. The respondent shall be permitted to contest
removability and apply for relief for removal. Finally,the Immigration Judge should determine
the proper disposition of this case in light of the respondent's statement and evidence indicating
that she has filed a U-visa petition with the United States Citizenship and Immigration Services.
Accordingly,the following order is entered.

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

2
We construe the evidence submitted in support of the respondent's appeal as a motion to
remand. See Matter of L-A-C-, 26 I&N Dec. 516, 526 (BIA 2015); Matter of Coelho, 20 l&N
Dec. 464,472 (BIA 1992

2
Cite as: Rosa Elva Figueroa Mendoza, A208 598 824 (BIA March 2, 2017)
 :,- . -
\r' .: (
-

.J. S. DEPARTMENT OF JUSTICE

EXECU'".C l".' OFFICE, F9R IMMIGRATION REVIEW
IMMIGRATION COURT
3365 PEPPER LANE, SUITE 200
LAS VEGAS, NV 89120

In the Matter of: Cas No.: 208-598-824

FIGUEROA MENDOZA, .ROSA ELVA.

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

RESPONDENT IN REMOVAL PROCEEDINGS

ORDER OF THE IMMIGRATION JUDGE.

Upon the basis of :respondent's admissions, X have.determined that the

_Repodent is subject t9 removal on the charge ( s) in the Notice to Appear. The .
respondent has made application solely for voluntary Qeparture in lieu f
removal.

It is HEREBY ORDERED that the r_espondent be GRANTED volntary depart,ure in

lieu of ;removal,. without expense to the Government on or before
12/21/2016 or any extensions as may be granted by the .
Distric Director, Department of Homeland Security, and under whatever
conditions the District Direbtor may direct ...

It is FURTHER ORDERED:

[ J that the. respondent po$t a voluntary departure bond :in the amou.nt of
with the Department of Homeland Security on or
before

that the respondent shall povide the Department of Hbmeland

Security travel documentation sufficient to assure. lawful entry into the
country to which the alien is departing witbin 60 days of this order,
or within any time extension,s that may be granted by the Department of
,- _
Horne land Security.-Z..., _ Il "2,1:, I,
l,J?
1/w <f- J-ra--t be..+:'er-r-e..-
/t:,

[
Other f2../"2,\}7..al{p,
It is FURTHER ORDERED that if any of the above ordered conditions are not met
as required, the above order shall be withdrawn without further .notice or
proceedings and the following shall thereupon become immediately effective:
respondent shall be removed to MEXICO
on the charge(s) in the Notice to Appear.

It is FURTHER ORDERED that if respondent fails to depart as required, the above

order shall be withdrawn without further notice or proceedings and the
following order shall become immediately effective: respondent shall be
removed to-MEXICO on the charge{s) in the Notice to Appear.

Pursuant to section 240B(d) of the INA, 8 U.S.C. section 1229c(d), if .the.

respondent fails to voluntarily depart the United States within t.he time
spe6ified, or any extnsions granted by the Depatment of Homeland Security; the ....
respondent sha.11 be subject to a civil penalty of not less than $1,000.00 and not'
more than $5,000.00, and shall be ineligible for a period of ten (10} years for
any further relief under section 240B and sectioris 240A, 245, 248, and 249 of the
INA.

, .;,.,,..# f'

... - . H,.

Appj:!_a_l; NO APPEAL (A/I/B)

Appeal Due By: Sep 22, 2016

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

CERTIFICATE OF
SERVED BY: MAIL(M)
LIEN c/o Custodial
BY: COURT ST
] EOIR-33 [ J EOI [ J Other
!
.

.:

Form EOIR 6 - 3T (Vol. Depart. - REMOVAL)