U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals Office ofthe Clerk

51071.eesburg Pike, Suile 1000 Falls Church, Virginia 21041

Lee, George E. Lee Immigration Law Group 11625 Rainwater Drive, Suite 355 Alpharetta, GA 30009-0000

OHS/ICE Office of Chief Counsel - ATL 180 Spring Street, Suite 332 Atlanta, GA 30303

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Name: HERNANDEZ-ALANIS, MARIA DALILA

A087-709-313

Date of this notice: 9/21/2011

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

Donna Carr Chief Clerk

Enclosure

Panel Members: Adkins-Blanch, Charis K. Guendelsbergcr, John Miller, Neil P.

u.s. Department of Justice Executive Office for Jmmigration Review

Falls Church, V irginia 22041

Decision of the Board of Immigration Appeals

File: A087 709 313 - Atlanta, GA In re: MARIA DALILA HERNANDEZ-ALANIS IN REMOVAL PROCEEDINGS APPEAL ON BEHALF OF RESPONDENT: ON BEHALF OF DHS:

Date:

SEP .21 2011

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George E. Lee, Esquire

Jill K. Jensen Assistant Chief Counsel

CHARGE: Notice: Sec. 212(a)(6)(A)(i), I&N Act [8 U.S.C. 1182(a)(6)(A)(i)] Present without being admitted or paroled

APPLICATION: Continuance; voluntary departure

The respondent, a native and citizen of Mexico, appeals the Immigration Judge's February 2, 2010, decision denying her request for a continuance of the proceedings and her application for voluntary departure under section 240B of the Immigration and Nationality Act, 8 U.S.C. I 229c. The appeal will be sustained and the record will be remanded. We review an Immigration Judge's findings offact for clear error, and review questions oflaw, discretion, and judgment, and all other issues on appeal, de novo. 8 C.F.R. l003.l(d)(3)(i), (ii). On appeal, the respondent argues the Immigration Judge conducted an unfair hearing when he denied her continuance request to seek legal counsel at her initial master calendar hearing, thereby violating her due process. We agree. To establish due process violations in removal proceedings, the alien must show that she was deprived ofliberty without due process of law and that the asserted errors caused her substantial prejudice. See Avila v. United States Atty Gen., 560 F.3d 1281 (11th Cir. 2009); Matter ofSantos, 19 l&N Dec. 105 (BIA 1984); Matter ofExilus, 18 l&N Dec. 276 (BIA 1982). To show substantial prejudice, the alien must show the alleged due process violation would have affected the outcome of the case. See Avila v. United States Atty Gen., supra, at 1285. Contrary to the Immigration Judge's order, the record shows the respondent was never given the opportunity to explain the efforts she made to find an attorney prior to her initial hearing on February 2, 2010. The Immigration Judge's decision to proceed with the respondent's case pro se was made at the group hearing stage ofthe master calendar hearing at which time no one in the group was asked to give such an explanation (Tr. at 1-4). Moreover, the record does not indicate that

.)

A08'7 709 313 anyone in the group understood the Immigration Judge's advisals regarding the right to representation and the availability of free legal services (Tr. at 1-4). See 8 C.F.R. 1240.10. The record also does not show that anyone in the group was offered an opportunity to seek counsel (Tr. at 1-4). Later in the hearing, when the respondent appeared individually before the Immigration Judge and sought a continuance to consult an attorney, the Immigration Judge interrupted her and told her that the issue had already been addressed earlier in the hearing (Tr. at 7-8). Thus, the Immigration Judge failed to meet the intent of the regulations designed to ensure a fair hearing consistent with due process. See generally 8 C.F.R. 1240.10.

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Consequently, the respondent has shown substantial prejudice from the due process violation because without an attorney to explain to her the two types of voluntary departure for which the respondent may have been eligible, she was unable to present her case to the court for one or both types of voluntary departure. Thus, the record is unclear as to whether the Immigration Judge would have denied the respondent this minimal form of relief, particularly in light of the respondent's 9-year presence in the United States and her two United States citizen children (Tr. at 9). We also note that the Immigration Judge did not explain to the respondent the two types of voluntary departure (Tr. at 9). See 8 C.F.R. 1240.1 l(b). Lastly, we observe other due process concerns present in this case. The Immigration Judge proceeded to read the respondent the factual allegations and the charge of removability lodged against her in the Notice to Appear ("NTA") without explaining to her that he was doing so (Tr. at 5-6). See 8 C.F.R. 1240.10(a)(6). The Immigration Judge merely asked the respondent questions and did not make it clear to her that he was proceeding with the formal allegations and sustaining the charge of removability contained in the NTA. See 8 C.F.R. 1240.lO(c). Furthermore, the Immigration Judge failed to inquire whether the respondent had any fear of return to her home country. Thus, he could not have known whether the respondent may be eligible to apply for a form of international protection such as asylum, withholding of removal, or protection under the Convention Against Torture. See 8 C.F.R. 1240.1 l(c). The Immigration Judge also failed to inquire as to the immigration status of the respondent's parents and thus could not have known whether she had a potential claim to derivative citizenship or other forms of legal status in the United States. See 8 C.F.R. 1240.1l(a). The federal regulations require an Immigration Judge to inform the respondent of any relief from removal for which she may be eligible. See generally 8 C.F.R. 1240.11; see also Matter a/Cordova, 22 I&N Dec. 966, 970-71 (BIA 1999) (discussing the Immigration Judge's duty to inform aliens as to forms of relief they may be "apparently eligible"). Therefore, the respondent may also have been prejudiced by the above-referenced omissions by the Immigration Judge when he indicated to the respondent that she appeared to be only eligible to apply for voluntary departure. For the foregoing reasons, we will sustain the respondent's appeal, vacate the Immigration Judge's decision, and remand the record to the Immigration Court for further proceedings. ORDER: The respondent's appeal is sustained. FURTHER ORDER: The Immigration Judge's decision, dated February 2, 2010, is vacated.

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A08'7 709 313

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

FOR THE BOARD

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U. S. DEPARTMENT OF JUSTICE EXECUTIVE OF FICE FOR IMMIGRATION REVIEW UNITED STATES IMMIGRATION COURT Atlanta, Georgia

File A 087 709 313

February 2,

2010

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In the Matter of

MARIA DALILA HERNANDEZ-ALANIS Respondent

IN REMOVAL PROCEEDINGS

CHARGE:

212 (a) ( 6} {A) (i).

A P PLICATION:

Continuance.

ON BEHALF OF THE RES PONDENT: Pro se

ON BEHAL F O F THE DEPARTMENT OF HOMELAND SECURITY: James R. McHenry, III, Esquire

ORAL DECISION OF THE IMMIGRATION JUDGE The respondent is an adult female, native and citizen

of Mexico who was placed in removal proceedings with the issuance of a Notice to Appear on October 22, 2009 charging removability of the INA.

pursuant to the provisions of Section 212 (a) ( 6) (A) (i)

The record reveals that Notice to Appear was personally served on the respondent on that date as evidenced both by a completed certificate of service by an Immigration official as well the respondent's signature on that document. The Court notes that

that document advises the respondent of her rights in these proceedings including her right to be represented by an attorney.

The document also indicates respondent was furnished a list of free legal services at that time and notified that no hearing would be set for at least 10 days. The respondent appears in

Court three and a half months later and requests a continuance to f ind an attorney. She did not indicate she made any efforts to

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find an attorney and in the meanwhile the Court finds that she had adequate time to find an attorney if she diligently sought o n e. Her failure to seek an attorney af ter being notified of

those rights does not mandate that this Court continue the case. Under oath the respondent admitted the factual allegations and conceded removability. The Court questioned her She was somewhat

as to her eligibility for voluntary departure. equivocal in her answers,

however the Government did provide that

she has at least twice previously attempted to enter the United States, was caught by the border patrol and returned to Mexico.

Given her answers to the Court that she only entered one time and that was in 2001, Exhibit 2 and Exhibit 3, the I-213, and the the

border patrol record,

Exhibit 3 showing the prior returns,

Court would note that the respondent has previously been given the privilege of voluntarily returning to Mexico after illegally entering the United States, clearly, although she was apprehended
2001,

and voluntarily returned June 18,

2001 and again July 11,

she does not merit the favorable exercise of this Court's d iscretion. The Court has taken into consideration the date, the f act that her spouse

manner, and method of her last entry,

has no status in this country, balanced her prior return against

A 087 709 313 2

February 2, 2010

the fact that she does have two United States citizen children. In a balancing test the Court finds that given her prior voluntary returns, respondent has not demonstrated she should The

receive a favorable exercise of the Court's discretion.

Court will order removal from the United States to Mexico on the

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charge contained in the Notice to Appear.

PELL nited States Immigration Judge

A 087 709 313

February 2,

2010

CERTIFICATE PAGE

I hereby certify that the attached proceeding

before J. DAN PELLETIER in the matter of:

MARIA DALILA HERNANDEZ-ALANIS

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A 087 709 313

Atlanta, Georgia

was held as herein appears,

and that this is the original

transcript thereof for the file of the Executive Office for

Inunigration Review.

Tabatha K. Cuadra

(Transcriber}

Deposition Services, Inc. 6245 Executive Boulevard Rockville, Maryland 20852 (301} 881-3344

March 22, 2010 (Completion Date)