Cite as 25 I&N Dec. 888 (BIA 2012) Interim Decision #3764
888
Matter of C-B-, Respondent
Decided August 15, 2012
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) In order to meaningfully effectuate the statutory and regulatory privilege of legal
representation where it has not been expressly waived by a respondent, an Immigration
Judge must grant a reasonable and realistic period of time to provide a fair opportunity
for the respondent to seek, speak with, and retain counsel.
(2) If a respondent expresses a fear of persecution or harm in a country to which
he or she might be removed, the regulations require the Immigration Judge to advise the
respondent of the right to apply for asylum or withholding of removal (including
protection under the Convention Against Torture) and make the appropriate application
forms available.
(3) If a respondent indicates that he or she will not waive appeal and is therefore ineligible
for a grant of voluntary departure prior to the completion of removal proceedings under
section 240B(a)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1229c(a)(1)
(2006), the Immigration Judge should consider the respondent’s eligibility for voluntary
departure at the conclusion of the proceedings under section 240B(b)(1).
FOR RESPONDENT: Pro se
FOR THE DEPARTMENT OF HOMELAND SECURITY: Dion A. Morwood, Assistant
Chief Counsel
BEFORE: Board Panel: GUENDELSBERGER and ADKINS-BLANCH, Board Members;
HOFFMAN, Temporary Board Member.
GUENDELSBERGER, Board Member:
In a decision dated January 25, 2012, an Immigration Judge found the
respondent removable and ineligible for relief from removal. The respondent
has appealed from that decision, arguing that the Immigration Judge should
have continued the proceedings to permit him to obtain legal representation
and should have allowed him to apply for asylum, withholding of removal, and
protection under the Convention Against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment, adopted and opened for signature
Dec. 10, 1984, G.A. Res. 39/46. 39 U.N. GAOR Supp. No. 51, at 197, U.N.
Doc. A/RES/39/708 (1984) (entered into force June 26, 1987; for theCite as 25 I&N Dec. 888 (BIA 2012) Interim Decision #3764
889
United States Apr. 18, 1988) (“Convention Against Torture”). The appeal will
be sustained and the record will be remanded to the Immigration Judge for
further proceedings.
I. FACTUAL AND PROCEDURAL HISTORY
The respondent is a native and citizen of Guatemala who was placed
in removal proceedings by the issuance of a notice to appear on January 17,
2012. His only removal hearing, at which he was detained and unrepresented,
was held on January 25, 2012. At first the respondent was included
in an initial master calendar hearing of detained aliens who received group
advisals. The Immigration Judge advised the respondent in that context that
he had a right to be represented by counsel in removal proceedings and
confirmed that he had received the list of attorneys and qualified organizations
that provide free legal services.
When the Immigration Judge first addressed the respondent individually,
the respondent stated that he did not think he wanted more time to get a lawyer
and that he wanted to be removed that day. The Immigration Judge then
directed the respondent to return to the back of the courtroom while she heard
the cases of other detainees in the group.
When the Immigration Judge returned to questioning the respondent, she
again asked him if he wanted more time to get a lawyer to fight his case.
At this point, the respondent answered in the affirmative. When reminded
of his prior response, the respondent indicated that he had changed his mind
because he had a son. The Immigration Judge did not ask for clarification
regarding the respondent’s request for a continuance to seek counsel; nor did
she rule on the request for a continuance. Instead, she proceeded to take
pleadings and find the respondent removable.
II. ANALYSIS
A. Right to Representation
Respondents in immigration proceedings have the statutory and regulatory
“privilege of being represented” by counsel of their choice at no expense to the
Government. See sections 240(b)(4)(A), 292 of the Act, 8 U.S.C.
§§ 1229a(b)(4)(A), 1362 (2006); see also 8 C.F.R. §§ 1003.16(b), 1240.3;
1240.11(c)(1)(iii) (2012). In order to meaningfullyeffectuate the statutoryand
regulatory privilege of legal representation where it has not been expressly
waived, the Immigration Judge must grant a reasonable and realistic period
of time to provide a fair opportunity for a respondent to seek, speak with, and
retain counsel.Cite as 25 I&N Dec. 888 (BIA 2012) Interim Decision #3764
1
In order for a waiver to be valid, an Immigration Judge must generally (1) inquire
specifically as to whether a respondent wishes to continue without a lawyer and (2) receive
a knowing and voluntary affirmative response. See Ram v. Mukasey, 529 F.3d 1238,
1242 (9th Cir. 2008); Hernandez-Gil v. Gonzales, 476 F.3d 803, 807 (9th Cir. 2007);
Baltazar-Alcazar v. INS, 386 F.3d 940, 945 (9th Cir. 2004); Castro-O’Ryan v. INS, 847 F.2d
1307, 1313 (9th Cir. 1988); Reyes-Palacios v. INS, 836 F.2d 1154, 1155-56 (9th Cir. 1988);
Colindres-Aguilar v. INS, 819 F.2d 259, 261 (9th Cir. 1987); Rios-Berrios v. INS, 776 F.2d
859, 863 (9th Cir. 1985); Castro-Nuno v. INS, 577 F.2d 577, 579 (9th Cir. 1978). Failure
to obtain such a waiver is an effective denial of the right to counsel. See Tawadrus
v. Ashcroft, 364 F.3d 1099, 1103 (9th Cir. 2004).
890
The respondent did not waive his privilege of legal representation.1
We appreciate why the Immigration Judge proceeded as she did, given the
docket pressures of a detained calendar and the respondent’s differing
responses during the course of the proceedings. However, since the
respondent did express a change of heart, the Immigration Judge should have
asked for further clarification or explanation from the respondent. She should
have expressly ruled on the request for a continuance and explained the
reasons for not continuing the proceeding. See 8 C.F.R. §§ 1003.29, 1240.6
(2012).
While it is critical that a detained docket move efficiently, it is also
essential that Immigration Judges be mindful of a respondent’s invocation
of procedural rights and privileges. Consequently, we conclude that in the
absence of a knowing and voluntary waiver of the privilege of legal
representation, the Immigration Judge’s denial of a continuance to seek such
representation resulted in the denial of the respondent’s statutory and
regulatory privilege. See sections 240(b)(4)(A), 292 of the Act; 8 C.F.R.
§§ 1003.16(b); 1240.3, 1240.10(a) (2012); see also Biwot v. Gonzales, 403
F.3d 1094, 1100 (9th Cir. 2005); Tawadrus v. Ashcroft, 364 F.3d 1099, 1103
(9th Cir. 2004); Velasquez Espinosa v. INS, 404 F.2d 544, 546 (9th Cir. 1968);
cf. Matter of Perez-Andrade, 19 I&N Dec. 433, 434 (BIA 1987) (finding that
the denial of a continuance will not be overturned on appeal unless it appears
that the respondents were deprived of a fair hearing); Matter of Sibrun, 18 I&N
Dec. 354 (BIA 1983) (same).
B. Advisals Regarding Asylum
At the hearing, the respondent expressed a fear of returning to Guatemala
because it is a country with a lot of violence. Without further inquiry, the
Immigration Judge concluded that the respondent was not eligible for relief
from removal on that basis.
If a respondent expresses a fear of persecution or harm in a country
to which he might be removed, the regulations require the Immigration JudgeCite as 25 I&N Dec. 888 (BIA 2012) Interim Decision #3764
891
to advise the respondent of the right to apply for asylum or withholding
of removal (including protection under the Convention Against Torture)
and make the appropriate application forms available. See 8 C.F.R.
§ 1240.11(c)(1)(i)–(ii);see also 8 C.F.R. §§ 1208.13, 1208.16, 1208.17 (2012).
When the respondent expressed a fear of returning to Guatemala, the
Immigration Judge should have (1) advised the respondent that he could apply
for asylum and withholding of removal, (2) asked him if he wished to apply for
those forms of relief, and (3) made the required forms for applying for such
relief available to him in order to comply with the requirements of 8 C.F.R.
§ 1240.11(c)(1)(i) and (ii).
C. Voluntary Departure
The Immigration Judge initiallygranted the respondent voluntarydeparture
under safeguards prior to the completion of the proceedings pursuant to section
240B(a)(1) of the Act, 8 U.S.C. § 1229c(a)(1) (2006). However, when the
respondent indicated a desire to appeal, the Immigration Judge withdrew the
grant of voluntary departure without addressing his eligibility for voluntary
departure under section 240B(b)(1) of the Act at the conclusion of the hearing.
Pursuant to 8 C.F.R. § 1240.11(a)(2), an Immigration Judge must advise
a respondent of the forms of relief for which he or she is apparently eligible,
including voluntary departure. See Matter of Cordova, 22 I &N Dec. 966, 970
n.4 (BIA 1999); 8 C.F.R. § 1240.11(b). In this case, the respondent was
not eligible for voluntary departure under section 240B(a)(1) once
he indicated that he wished to preserve his right to appeal. See 8 C.F.R.
§ 1240.26(b)(1)(i)(D) (2012); see also Matter of Ocampo, 22 I&N Dec. 1301
(BIA 2000) (holding that a respondent must expressly waive the right
to appeal to qualify for voluntary departure prior to the completion of removal
proceedings).
A respondent who is ineligible for voluntary departure under section
240B(a)(1) of the Act may nevertheless apply for voluntary departure at the
conclusion of the hearing if he meets the eligibility requirements of section
240B(b)(1). Eligibility for section 240B(b)(1) voluntary departure requires
(1) physical presence in the United States for a period of at least 1 year
immediately preceding service of the notice to appear; (2) good moral
character for 5 years immediately preceding application; (3) a finding that the
respondent is not deportable on the basis of a conviction for an aggravated
felony or on grounds relating to espionage, sabotage, terrorism, and national
security; and (4) a showing that the respondent has the means to depart the
United States and intends to do so. See section 240B(b)(1) of the Act;
8 C.F.R. § 1240.26(c)(1); see also Matter of Arguelles, 22 I&N Dec. 811, 816
(BIA 1999).Cite as 25 I&N Dec. 888 (BIA 2012) Interim Decision #3764
2
In his brief on appeal the respondent indicates that he is currently seeking a
U nonimmigrant visa. The effect of an application for a U visa on removal proceedings may
be determined on remand under the framework set out in Matter of Sanchez Sosa, 25 I&N
Dec. 807 (BIA 2012).
892
Once the respondent indicated that he would not waive appeal and was
therefore no longer eligible for voluntary departure under section 240B(a)(1)
of the Act, his eligibility for voluntary departure under section 240B(b)(1)
should have been considered at the conclusion of the hearing. Under the
circumstances in this case, we conclude that the Immigration Judge should
have addressed the respondent’s potential eligibility for that relief from
removal.2
III. CONCLUSION
We conclude that the Immigration Judge should have afforded the
respondent a continuance to obtain legal representation and given him
an opportunityto apply for relief from removal. Accordingly, the respondent’s
appeal will be sustained, and the record will be remanded for further
proceedings. On remand, the Immigration Judge should give the respondent
sufficient time to obtain legal representation, advise him of his apparent
eligibility for relief from removal, and allow him to apply for any form
of relief for which he is eligible.
ORDER: The appeal is sustained.
FURTHER ORDER: The record is remanded to the Immigration Judge
for further proceedings consistent with the foregoing opinion and for the entry
of a new decision.