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U.S.

Department of Justice

Executive Office for Immigration Review


Board ofImmigration Appeals
Q[tice ofthe Clerk
5107 Leesburg Pike, Suite 2000
Falls Church, Virginia 22041

DHS/ICE Office of Chief Counsel - SDC


146 CCA Road, P.O.Box 248
Lumpkin, GA 31815

Name: RAMIREZ RAMOS, FRANCISCO

A 208-414-180

Date of this notice: 5/12/2016

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

Don,u., C

tVv\.)

Donna Carr
Chief Clerk
Enclosure
Panel Members:
O'Leary, Brian M.

Userteam: Docket

For more unpublished BIA decisions, visit


www.irac.net/unpublished/index/
Cite as: Francisco Ramirez Ramos, A208 414 180 (BIA May 12, 2016)

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

Rawcliffe, Fred (Rocky)


Rojas and Rawcliffe Immigration, LLC
1755 The Exchange SE
Suite 140
Atlanta, GA 30339

U.S. Department of Justice


Executive Office for Immigration Review
Board ofImmigration Appeals
Office ofthe Clerk
5107 leesburg Pike, Suite 2000
Falls Church, Virginia 2204/

DHS/ICE Office of Chief Counsel - SDC


146 CCA Road, P.O.Box 248
Lumpkin, GA 31815

Name: RAMIREZ RAMOS, FRANCISCO

A 208-414-180
Date of this notice: 5/12/2016

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.S(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,

DoYUtL C

t1/Vl.)

Donna Carr
Chief Clerk
Enclosure
Panel Members:
O'Leary, Brian M.

Userteam:

Cite as: Francisco Ramirez Ramos, A208 414 180 (BIA May 12, 2016)

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

RAMIREZ RAMOS, FRANCISCO


A208-414-180
STEWART DETENTION CENTER
146 CCA ROAD
P.O. BOX 248
LUMPKIN, GA 31815

u.s. Department of Justice

Decision of the Board of Immigration Appeals

Executive Office for Immigration Review


Falls Church, Virginia 22041

File:

A208 414 180 - Lumpkin, Georgia

Date:

In re: FRANCISCO RAMIREZ RAMOS

MAY 1 2 2016

APPEAL
ON BEHALF OF RESPONDENT:
ON BEHALF OF DHS:

Fred (Rocky) Rawcliffe, Esquire

Blake Doughty
Assistant Chief Counsel

CHARGE:
Notice: Sec.

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

APPLICATION: Continuance
The respondent filed a timely appeal of the Immigration Judge's December 2, 2015, decision.
The record will be remanded to the Immigration Court for further proceedings in accordance with
this opinion, and the entry of a new decision.
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 ofZ-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, judgment, and all other issues in an appeal from an
Immigration Judge's decision de novo. See 8 C.F.R. 1003.l(d)(3)(ii).
The sole issue presented on appeal is a due process challenge to the Immigration Judge's
conduct of the proceedings by failing to continue the proceedings to allow the respondent to
appear with the counsel of his choice.
The record reflects that when the respondent first appeared before the Immigration Judge at a
master calendar hearing on November 12, 2015, the Immigration Judge continued the proceedings
for 6 days, until November 18, 2015, to allow the respondent to appear with counsel. On that
date, the respondent appeared with counsel, at which time the pleadings were taken (Tr. at 31).
Respondent's counsel indicated that respondent would likely seek cancellation of removal under
section 240A(b) of the Immigration and Nationality Act, 8 U.S.C. 1229b(b). The Immigration
Judge (Tr. at 31) continued the proceedings for one week, until November 25, 2015, for the filing
of all applications for relief from removal, admonishing the respondent and his attorney that if not
filed by that time they would be deemed abandoned. At the reconvened proceedings, no
applications were submitted. The respondent's counsel claimed {Tr. at 33) that he had not
prepared any applications for relief because respondent's wife had told him his "services would no
Cite as: Francisco Ramirez Ramos, A208 414 180 (BIA May 12, 2016)

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

IN REMOVAL PROCEEDINGS

'

A208 414 180

We note that all applications and related documents that are to be considered in a proceeding
before an Immigration Judge must be filed with the Immigration Court having administrative
control over the record of proceedings. See 8 C.F.R. 1003.3 l(a). The regulations provide that if
an application or supportive documentation is not filed within the time set by the Immigration
Judge, the opportunity to file that application shall be deemed waived. See 8 CF.R. 1003.3 l(c);
Matter ofR-R-, 20 I&N Dec. 547,549 (BIA 1992) ("The Board has long held that applications for
benefits under the Act are properly denied as abandoned when the alien fails to timely file them.");
Matter ofJean, 17 I&N Dec. 100 (BIA 1979). Failure to file necessary documentation or to meet
security and biometric requirements also "constitutes abandonment of the application" unless the
applicant demonstrates "good cause" for such failure. See 8 C.F.R. 1003.47(c).
We acknowledge the regulations allow an Immigration Judge to fmd the respondent's failure
to submit his application for relief from removal within the time set to constitute an
abandonment of the application. However, that decision must be balanced against the due
process concerns of ensuring the respondent has a full and fair hearing. The respondent's entire
immigration proceedings before the Immigration Judge commenced and were concluded in less
than 3 weeks. The record clearly reflects that the continued representation of the respondent by
said attorney was not viewed favorably by either party, and the record indicates the respondent
was in the process of obtaining new legal representation. The outcome of the respondent's case
was clearly prejudiced by said attorney's actions, i.e., his failure to timely submit the
respondent's application for cancellation of removal. 1
Consequently, we find that under the particular circumstances of this case, in order to ensure
the respondent's right to a full and fair hearing, a remand is appropriate to allow the respondent to
1

Although the respondent was clearly prejudiced by the failure to timely file the application for
relief from removal,we do not find it necessary at this juncture to determine whether the actions
(or inaction) of said attorney constituted ineffective assistance of counsel.
2
Cite as: Francisco Ramirez Ramos, A208 414 180 (BIA May 12, 2016)

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longer be required." This was contrary to the respondent's explanation to the Immigration Judge
(Tr. at 33) that his wife had told him that his attorney no longer wanted to represent him.
Respondent's counsel (Tr. at 34) sought clarify the communication he had with respondent's wife
claiming he had advised them that "there was very little likelihood that [the respondent] can
prevail on any kind of application," notwithstanding the substantial equities supporting the
respondent's request, because "a cancellation of removal is very difficult to win." The
Immigration Judge continued the case until December 2, 2015, for the filing of all applications for
relief, noting that as respondent's counsel had yet to submit a motion to withdraw, he continued to
represent the respondent (and not his wife) in these proceedings. A week later at the reconvened
proceedings, when no applications were filed, respondent's counsel told the Immigration Judge
(Tr. at 40) that he thought respondent's newly-retained counsel would appear and file the
application for cancellation of removal. The Immigration Judge (Tr. at 40) rejected that
explanation, noting that as no new Notice of Appearance (Form EOIR-28) had been filed with the
Immigration Court by any other attorney on behalf of the respondent, he still continued to
represent him as the attorney of record. The Immigration Judge proceeded to find all applications
for relief abandoned for failure to timely file and ordered the respondent's removal from the
United States.

,A208 414 180


appear represented by his newly-retained counsel, who could then properly file the necessary
application for relief from removal.
Accordingly, the record will be remanded to the Immigration Judge for further proceedings
consistent with this opinion, and the entry of a new decision.

3
Cite as: Francisco Ramirez Ramos, A208 414 180 (BIA May 12, 2016)

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

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

UNITED STATES DEPARTMENT OF JUSTICE


EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
LUMPKIN, GEORGIA

In the Matter of
)
)
)
)

FRANCISCO RAMIREZ RAMOS


RESPONDENT

IN REMOVAL PROCEEDINGS

CHARGE:

Section 212(a)(6)(A)(i) - present without being admitted or paroled.

APPLICATIONS:

None.

ON BEHALF OF RESPONDENT: JOSEPH ANTHONY AZAR, Esquire


ON BEHALF OF OHS: BLAKE DOWDY, Esquire

ORAL DECISION OF THE IMMIGRATION JUDGE


Exhibit:
1

Notice to Appear.
FINDINGS OF FACT AND CONCLUSIONS OF LAW

Exhibit 1 was served on the respondent on 21 October 2015.


On 18 November 2015, in accordance with the respondent's pleas, the
allegations in Exhibit 1 were sustained, and the respondent was found by clear and
convincing evidence to be removable as charged in Exhibit 1. Mexico is designated as
the country of removal.
1

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

December 2, 2015

File: A208-414-180

I first saw the respondent in this case on 12 November 2015. After advising the
respondent of his rights, the respondent asked for time to get a lawyer. I granted the

On 18 November 2015, after accepting the respondent's pleas and entering the
findings described above, I directed that all applications for relief be filed on or before
10:00 on the 25th of November 2015. Counsel for the respondent indicated that the
respondent was going to file an application for cancellation of removal.
On 25 November 2015, the respondent had not submitted any applications for
relief. I granted the respondent additional time to submit all applications for relief until
10:00 on the 2nd of December 2015. I once again directed that all applications for relief
should be filed on or before 10:00 on the 2nd of December 2015 or I would deem that
they had been abandoned.
On 2 December 2015, counsel for the respondent indicated that he had no
applications for relief to submit but that it was possible that the respondent may obtain a
different lawyer and that a different lawyer might end up submitting an application for
relief. Counsel for the respondent submitted no motion to withdraw, nor had the Court
received any motion to substitute counsel. Because I had twice directed that the
respondent submit all applications for relief on or before a date certain or I would deem
that they had been abandoned, I deem that the respondent's applications for relief have
been abandoned as of 2 December 2015.
The respondent stated that he did not want to ask for voluntary departure, but
instead wanted to reserve appeal in his case.
Since the respondent has asked for no relief, I enter the following order:

ORDER
The respondent will be removed from the United States to Mexico.

A208-414-180

December 2, 2015

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

respondent's request and continued the case until 8:30 on the 18th of November 2015.

A written order reflecting the above decision will be provided separately and
made part of the record.

signature

A208-414-180

DAN TRIMBLE
Immigration Judge

December 2, 2015

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

Please see the next page for electronic

/Isl/
Immigration Judge DAN TRIMBLE

A208-414-180

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

trimbled on April 18, 2016 at 11:46 AM GMT

December 2, 2015