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Department of Justice
Name: CARRALERO,ANTONIO
A 088-015-223
Enclosed is a copy of the Board's decision and order in the above-referenced case.
Sincerely,
D Ca.AAJ
Donna Carr
Chief Clerk
Enclosure
Panel Members:
Grant, Edward R.
Guendelsberger, John
Hoffman, Sharon
Userteam: Docket
Cite as: Antonio Carralero, A088 015 223 (BIA Dec. 23, 2014)
File:
Date:
DEC 2 3 2014
APPEAL
ON BEHALF OF RESPONDENT:
ON BEHALF OF DHS:
Michele Drucker
Assistant Chief Counsel
APPLICATION: Reopening
ordered his removal from the United States after determining that the respondent had abandoned
his application for asylum, withholding of removal, and protection under the Convention Against
Torture (Form I-589) because he did not file it by the June 15, 2012, deadline.
On
September 13, 2012, the respondent filed a motion to reopen which the Immigration Judge
denied on October 3, 2012. The respondent's appeal from that decision will be sustained.
The Board defers to the factual findings of an Immigration Judge, unless they are clearly
erroneous, but it retains independent judgment and discretion, subject to applicable governing
standards, regarding pure questions of law and the application of a particular standard of law to
those facts. 8 C.F.R. 1003.l (d)(3)(i), (ii).
In his appellate brief, the respondent states that he appeared before the Immigration Court on
March 22, 2012, represented by former counsel, and was told that he had until June 15, 2012, to
submit his Form I-589. He further states that his former counsel filed a motion to withdraw on
May 31, 2012, which the Immigration Judge granted on June 5, 2012.
that he did not receive the Immigration Judge's June 5, 2012, decision granting the motion, and
even if did, he was given an insufficient opportunity to obtain a new attorney or submit his Form
1-589 without the assistance of an attorney.
We disagree with the Immigration Judge's decision to deny the respondent's motion to
reopen. The regulations authorize an Immigration Judge to set and to extend deadlines for the
filing of applications. See 8 C.F.R. 1003.3 l(c). The Immigration Judge, on March 22, 2012,
set a June 15; 2012, deadline for submitting the Form I-589.
former counsel informed the respondent of his intention to withdraw as his attorney, provided
him with a blank Form I-589, and instructed the respondent to file the Form I-589 by
June 15, 2012 (Motion to Withdraw).
counsel's motion to withdraw was granted which is presumptively prejudicial to the respondent.
In light of the foregoing, the respondent was not given an adequate opportunity to file his Form
Cite as: Antonio Carralero, A088 015 223 (BIA Dec. 23, 2014)
IN REMOVAL PROCEEDINGS
The appeal is sustained, and these proceedings are reopened and remanded for
Cite as: Antonio Carralero, A088 015 223 (BIA Dec. 23, 2014)
$%
INRE:
IN REMOVAL PROCEEDINGS
Respondent
A# 088-015-223
ORDER
On September 13, 2012, the Respondent, through counsel, filed a motion to reopen his
case. ICE has not responded to the motion. Respondent incorrectly argues that he was ordered
removed in absentia. Instead, he was ordered removed from the US on June 18, 2012 because he
failed to timely file any applications for relief which had a filing deadline of June 15, 2012. This
is not an in absentia order (which is an order of removal when an individual fails to appear in
court for a hearing).
Respondent argues that he did not file any application for relief because he was not aware
of the filing deadline. Respondent appeared in person in court on March 22, 2012 and was given
an oral deadline by the court to file his application for relief. This was explained to him in
English and his native language of Spanish. When asked by the court if he understood the
deadline, he responded "yes."
His former counsel filed a Motion to Withdraw with the court on May 31, 2012 and
mailed a copy to Respondent advising him of the filing deadline and included a blank Form I589, Application for Withholding of Removal. On June 6, 2012, the Court then entered an Order
allowing counsel to withdraw and reminding Respondent that the call-up date was June 15, 2012
for his applications for relief. Respondent claims that he was not aware of the filing deadline
because his counsel did not advise him of that deadline. The court had advised him verbally on
March 22, 2012 of the deadline, his former counsel reminded him of the deadline in the motion
to withdraw and mailed him a copy of the application and again the Court reminded him of the
deadline in the Order of June 6, 2012 (order was mailed to his former attorney and to the
Respondent directly).
An Immigration Judge has the authority to set deadlines for filing of documents.
8 C.F. R.
1003.31 ( c); Immigration Court Practice Manual 3.1 (b)(i)(B), (b)(ii)(B). An application or
document that is not timely filed within the time established by the Immigration Judge may be
deemed waived.
8 C.F. R. 1003.31 ( c); See also Matter of Villarreal-Zuniga, 23 l&N Dec. 886,
892 (BIA 2006); Matter ofShanu, 23 l&N Dec. 754, 765 (BIA 2005); Matter ofRR-, 20 l&N
Dec. 547, 549 (BIA 1992). Respondent's argument that his attorney did not give him a copy of
the Immigration Judge's June 6, 2012 order is without merit, since the order was mailed to
Respondent directly to his last known address as he had indicated to the court during his earlier
Antonio Carralero
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Antonio Carralero
A# 088-015-223
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Lourdes Martinez-Esquivel
U.S. Immigration Judge
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