U.S.

Department of Justice
Executive Office for Immigration Review

Board of Immigration Appeals

Office of the Clerk
5107 Leesburg Pike. Suile 2000
Falls Church, Virginia 20530

OHS/ICE Office of Chief Counsel - ATL

Ozment Law
1214 Murfreesboro Pike
Nashville, TN 37217

180 Spring Street, Suite 332

Atlanta, GA 30303

Name: PIMENTEL-ARAGON, ALFREDO

A 201-142-906

Date of this notice: 3/17/2015

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

DCinrtL ct1AA)
Donna Carr
Chief Clerk

Enclosure

Panel Members:
Adkins-Blanch, Charles K.
Guendelsberger, John
Grant, Edward R.

Userteam: Docket

For more unpublished BIA decisions, visit

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Cite as: Alfredo Pimentel-Aragon, A201 142 906 (BIA March 17, 2015)

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Ozment, Elliott

U.S. Department of Justice

Decision of the Board of Immigration Appeals

Executive Office for Immigration Review

Falls

Church, Virginia 20530

File:

Date:

A201 142 906-Atlanta, GA

MAR 172015

In re: ALFREDO PIMENTEL-ARAGON

APPEAL
ON BEHALF OF RESPONDENT:
ON BEHALF OF DHS:

Elliott Ozment, Esquire

Wylly Jordan
Assistant Chief Counsel

CHARGE:
Notice:

Sec.

APPLICATION:

212(a)(6)(A)(i), I&N Act [8 U.S.C. l 182(a)(6)(A)(i)] Present without being admitted or paroled

Remand; voluntary departure

The respondent, a native and citizen of Mexico, appeals from the Immigration Judge's
decision dated September 6, 2013, finding him removable from the United States, and granting
his application for voluntary departure pursuant to section 240B(b)(1) of the Immigration and
Nationality Act, 8 U.S.C.

1229c(b)( l ). The appeal will be dismissed in part and sustained in

part.
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 argues that the Immigration Judge incorrectly denied his
motion to withdraw his concession of removability. In addition, the respondent argues that the
Immigration Judge set an unreasonably high voluntary departure bond.
We agree with the Immigration Judge's determination that the respondent has not established
egregious circumstances to withdraw his former attorney's concession of removability. See

Matter of Velasquez, 19 I&N Dec. 377 (BIA 1986) (holding that absent egregious circumstances,
a party is bound by his/her attorney's conduct, including admissions). The respondent argues
that his current attorney has discovered that the government has engaged in egregious conduct by
requiring his detention in Alabama for an unreasonable period, and thus evidence could be
suppressed impacting his removability (Resp. Brief at 9, 15; Motion to Withdraw Plea).
However, the respondent's allegation is insufficient to withdraw his concession of removability.

Cite as: Alfredo Pimentel-Aragon, A201 142 906 (BIA March 17, 2015)

Immigrant & Refugee Appellate Center | www.irac.net

IN REMOVAL PROCEEDINGS

A20 1142 906

However, we agree with the respondent's appellate argument that the Immigration Judge
required that he post an unduly high voluntary departure bond (1.J. at 2-3). Section 240B(b)(3)
of the Act, 8 U.S.C. 1229c{b)(3), states that an alien permitted to depart voluntarily under that
subsection shall be required to post a voluntary departure bond " in an amount necessary to
ensure that the alien will depart." The Immigration Judge determined that a $20,000 bond was
necessary to ensure compliance with the voluntary departure grant (1.J. at 2-3). Based on the
totality of the evidence, we find that a bond of $1,000 is sufficient to ensure the respondent's
departure within the time period specified. Accordingly, we will vacate the Immigration Judge's
grant of voluntary departure and alternatively grant the respondent a 60-day period of voluntary
departure pursuant to section 240B(b) of the Act upon the payment of a bond in the amount of
$1,000.
Accordingly, the following orders will be entered.
ORDER: The appeal is dismissed and sustained in part.
FURTHER ORDER: The Immigration Judge's grant of voluntary departure is vacated.
FURTHER ORDER: Conditioned upon compliance with the provisions of the statute, the
respondent is permitted to voluntarily depart the United States, without expense to the
Government, within 60 days from the date of this order or any extension beyond that time as may
be granted by the Department of Homeland Security ("OHS"). See section 240B(b) of the
Immigration and Nationality Act, 8 U.S.C. 1229c(b); see also 8 C.F.R. 1240.26(c), (f). In
the event the respondent fails to voluntarily depart the United States, the respondent shall be
removed as provided in the Immigration Judge's order.
FURTHER ORDER: The respondent must post a voluntary departure bond in the amount of
$1,000 with the DHS within 5 business days of the date of this order. If the bond is not posted
within 5 business days, the order of voluntary departure is automatically vacated on the
following business day, and the respondent is ordered removed as provided by the Immigration
Judge's order.

2
Cite as: Alfredo Pimentel-Aragon, A201 142 906 (BIA March 17, 2015)

Immigrant & Refugee Appellate Center | www.irac.net

In addition, the respondent argues that his former counsel's written concession of
removability, filed on March 8, 2012, in connection with a motion to change venue, constituted
ineffective assistance of counsel (Resp. Brief at 1 1- 18). See Matter ofLozada, 19 l&N Dec. 637
(BIA 1988) (setting forth the requirements for establishing ineffective assistance of counsel).
See also Ali v. U.S. Atty. Gen, 643 F.3d 1324 (1 1th Cir. 201 1) (requiring that an alien establish
prejudice from an attorney's concession of removability). The respondent has not satisfied any
of the procedural requirements for ineffective assistance of counsel. Moreover, the respondent
has not submitted any evidence establishing that he may not be removable from the United
States, and thus has not shown that he was prejudiced by his former counsel's concession. In
fact, on May 4, 201 1 the respondent admitted in court the factual bases for the finding of
inadmissibility (Tr. at 8). In light of the foregoing, the respondent has not established an
egregious circumstance to withdraw his concession of removability.

'

'

A201 142 906

NOTICE: If the respondent fails to voluntarily depart the United States within the time
period specified, or any extensions granted by the DHS, the respondent shall be subject to a civil
penalty as provided by the regulations and the statute and shall be ineligible for a period of 10
years for any further relief under section 240B and sections 240A, 245, 248, and 249 of the Act.
See section 240B(d) of the Act.

WARNING: If, prior to departing the United States, the respondent files any judicial
challenge to this administratively final order, such as a petition for review pursuant to section
242 of the Act, 8 U.S.C. 1252, the grant of voluntary departure is automatically terminated, and
the alternate order of removal shall immediately take effect. However, if the respondent files a
petition for review and then departs the United States within 30 days of such filing, the
respondent will not be deemed to have departed under an order of removal if the alien provides
to the DHS such evidence of his or her departure that the Immigration and Customs Enforcement
Field Office Director of the DHS may require and provides evidence DHS deems sufficient that
he or she has remained outside of the United States. The penalties for failure to depart under
section 240B(d) of the Act shall not apply to an alien who files a petition for review,
notwithstanding any period of time that he or she remains in the United States while the petition
for review is pending. See 8 C.F.R. 1240.26(i).

FOR THE BO

3
Cite as: Alfredo Pimentel-Aragon, A201 142 906 (BIA March 17, 2015)

Immigrant & Refugee Appellate Center | www.irac.net

WARNING: If the respondent files a motion to reopen or reconsider prior to the expiration of
the voluntary departure period set forth above, the grant of voluntary departure is automatically
terminated; the period allowed for voluntary departure is not stayed, tolled, or extended. If the
grant of voluntary departure is automatically terminated upon the filing of a motion, the penalties
for failure to depart under section 240B(d) of the Act shall not apply. See 8 C.F.R.
1240.26(e)(l).

UNITED STATES DEPARTMENT OF J USTICE

EXEC UTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
ATLANTA, GEORGIA]

September 6, 2013

In the Matter of

)
)
)
)

ALFREDO PIMENTEL-ARAGON
RESPONDENT

IN REMOVAL PROCEEDINGS

CHARGES:

APPLICATIONS:

ON BEHALF OF RESPONDENT: WYLLY JORDAN

ON BEHALF OF OHS: BETHANY EICKLER

ORAL DECISION OF THE IMMIGRATION J UDGE

On the basis of the respondent's admissions, through counsel and in person, the
Court finds removability has been established by clear, convincing and unequivocal
evidence. The respondent is not a native or citizen of the United States, but a native
and citizen of Mexico who entered illegally.
The respondent has requested post-hearing voluntary departure. The
Government has no objection to post-hearing voluntary departure. The Court will not
interfere with that privilege given the lack of objection from the Government.

\..

Immigrant & Refugee Appellate Center | www.irac.net

File: A201-142-906

The Court will, however, point out that in the assessment of the voluntary
departure bond necessary, that the respondent does not have any means of availability
of any relief that would allow him to remain here with the exception of the privilege of

States commencing with his entry and his lack of availability of relief, not only now, but
in the future, requires that a substantial voluntary departure bond be presented to
ensure his departure. While counsel rightly states that there is no negative information
against the respondent to doubt his word that he will depart voluntarily at his own
expense, as he states he will, however, that is complicated by the fact that historically
individuals, despite giving their word, have not left voluntarily. And the Board has found
on numerous cases that this Court has held for a bond inconsistent with the Attorney's
General's decision in In re D-J- that individuals who lack the availability to remain or the
availability to return in the future in less than ten years, and this respondent has nothing
available for him in the foreseeable future to either remain or to return, that a substantial
bond is necessary or no bond should be given because the individual has a disincentive
to leave because there is no benefit for him to depart voluntarily because he has no
future to return to.
So, therefore, the Court finds that because of this total lack of availability of relief,
even under Pula, which would justify denial of voluntary departure, will, nevertheless,
grant this minimum form of relief, however, require the respondent post a voluntary
departure bond of $20,000 within five business days from the date of this decision,
September 6, 2013.
If the respondent fails to post that bond, this will automatically revert to an order
of removal.
Moreover, a request for an appeal on the only form of relief of voluntary

A201-142-906

September 6, 2013

Immigrant & Refugee Appellate Center | www.irac.net

voluntarily departing to avoid an order of removal. The respondent's years in the United

departure may also result in a denial of the voluntary departure even if the bond may be
posted.
And since this is the only relief that counsel has indicated that the respondent

would remove jurisdiction from this Court, any appeal from this decision may be
subjected to a summary dismissal.
All of this has been explained to both counsel and the respondent and the Court
understands that there may be some strategic method, means or opportunities that they
wish to preserve and wish to present before the Board and will certainly not interfere
with that right.
ORDER
Accordingly, the respondent is hereby ordered removed from the United States to
Mexico, but granted the alternative of voluntary departure until 30 days from today's
date of October 7, 2013

Please see the next page for electronic

signature
WILLIAM A. CASSIDY
Immigration Judge

A201-142-906

September 6, 2013

Immigrant & Refugee Appellate Center | www.irac.net

qualifies for and does not make any, or present any, claim of U.S. citizenship which

//s//
Immigration

Judge WILLIAM A.

cassidyw on

December 17,

CASSIDY

2013 at 12:56 PM GMT

Immigrant & Refugee Appellate Center | www.irac.net

A201-142-906

September 6, 2013