U.S.

Department of Justice
Executive Office for Immigration Review

Board ofImmigration Appeals

Office ofthe Clerk
5107 leesburg Pike, Suite 2000
Falls Church, Virginia 20530

OHS/ICE Office of Chief Counsel - LOS

606 S. Olive Street, 8th Floor
Los Angeles, CA 90014

Name: SEGUNDO SANCHEZ, MARCELi ...

A 200-248-313

Date of this notice: 12/29/2014

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

DOWtL ca.AA)
Donna Carr
Chief Clerk

Enclosure

Panel Members:
Adkins-Blanch, Charles K.
Guendelsberger. John
Hoffman, Sharon

Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: Marcelino Segundo-Sanchez, A200 248 313 (BIA Dec. 29, 2014)

Immigrant & Refugee Appellate Center | www.irac.net

Jaffe, Arnold S., Esq.

Attorney at law
330 East Carrillo Street
Santa Barbara, CA 93101-1411

U.S. Department of Justice

Decision of the Board of Immigration Appeals

Executive Office for Immigration Review

Falls Church, Virginia 20530

File:

A200 248 313 -Los Angeles, CA

Date:

DEC 2 9 2014

In re: MARCELINO SEGUNDO-SANCHEZ a.k.a. Marcelino Sanchez

APPEAL
ON BEHALF OF RESPONDENT:

Arnold S. Jaffe, Esquire

APPLICATION: Continuance; voluntary departure

The respondent, a native and citizen of Mexico, has appealed the Immigration Judge's
decision dated January 31, 2013, denying his motion for a continuance and his application for
voluntary departure. The appeal will be dismissed in part and sustained in part.
The Board reviews an Immigration Judge's findings of fact, including findings as to the
credibility of testimony, under a clearly erroneous standard. See 8 C.F.R. 1003.l(d)(3)(i). The
Board reviews questions of law, discretion, and judgment, and all other issues raised in an
Immigration Judge's decision de novo. See 8 C.F.R. 1003.l(d)(3)(ii).
As an initial matter, we find no merit in the respondent's argument that the Immigration
Judge deprived him of the privilege of counsel in these proceedings because he did not grant the
respondent a further continuance to retain the counsel. The respondent had already been granted
a continuance of approximately 3 months to retain counsel (Tr. at 9, 12-13). We are satisfied
that the respondent was afforded a reasonable and realistic period of time to seek, speak with,
and retain counsel of his choice, and therefore failed to demonstrate good cause to further delay
the proceedings. See Matter

ofC-B-, 25

I & N Dec. 888 {BIA 2012); Matter

of Perez-Andrade,

19 l&N Dec. 433 (BIA 1987) (the decision to grant or deny a continuance for good cause is
within the sound discretion of the Immigration Judge and will not be overturned on appeal unless
it is shown that the respondent was denied a full and fair hearing); 8 C.F.R. 1003.29 and
1240.6.
The respondent's claim that he was deprived of an opportunity to apply for "prosecutorial
discretion" is also without merit and provides no basis for reversing the Immigration Judge's
decision. The discretion to defer action on the respondent's removal lies with the Department of
Homeland Security. The respondent can pursue that relief at any time independent of these
proceedings, until such time as he is actually removed from the United States.
We disagree with the Immigration Judge1s conclusion that the respondent did not
demonstrate he merits voluntary departure in the exercise of discretion. While we take the
respondent's admission of a relatively recent arrest in 2011 for driving under the influence with
young children present in his vehicle very seriously, we conclude that the respondent's positive
equities outweigh the negative. As noted by the Immigration Judge, the respondent lives in a
family unit in which he serves as a father-figure to young children, he is gainfully employed, and
he has had a long period of residence in the United States. In balancing these positive equities

Cite as: Marcelino Segundo-Sanchez, A200 248 313 (BIA Dec. 29, 2014)

Immigrant & Refugee Appellate Center | www.irac.net

IN REMOVAL PROCEEDINGS

f).200 248 313

against the negative, we find that the respondent merits voluntary departure in the exercise of
discretion, and we will grant him that limited form of relief under our de novo review authority.
Accordingly, the following orders will be entered.
ORDER: The respondent's appeal is dismissed in part and sustained in part.

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 ("DHS").

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.
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 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).
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).

Cite as: Marcelino Segundo-Sanchez, A200 248 313 (BIA Dec. 29, 2014)

Immigrant & Refugee Appellate Center | www.irac.net

FURTHER ORDER: Pursuant to the Immigration Judge's order and conditioned upon
compliance with conditions set forth by the Immigration Judge and the statute, the respondent is

UNITED STATES IMMIGRATION COURT

LOS ANGELES,

File:
In

CALIFORNIA

A200-24B-313

January 31,

2013

the Matter of

MARCELINO SEGUNDA SANCHEZ

IN REMOVAL PROCEEDINGS

RESPONDENT

INA Section 212(a)

CHARGES:

APPLICATIONS:

(6) (A) (i).

Post-hearing voluntary departure pursuant to INA

Section 240B( a).

ON BEHALF OF RESPONDENT:
ON BEHALF OF OHS:

PRO SE

SIRIN OZEN-HALLBERG

ORAL DECISION OF THE IMMIGRATION JUDGE

The respondent is a 24-year-old native and citizen of
Mexico.

He is present in the United States without having been

admitted or paroled.

See Exhibit 1.

Removal proceedings were commenced with the filing,

February

6,

2012,

of a Notice to Appear dated October 12,

At a master calendar hearing on November B,

on

2011.

2012,

the

Immigrant & Refugee Appellate Center | www.irac.net

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OE'FICE FOR IMMIGRATION REVIEW

At that time,

the Court explained

the nature and purpose of the proceedings to the respondent.

Additionally,
him.

the Court explained the respondent's rights to

The Court explained to the respondent his right to present

evidence and object to evidence presented by the Department of

Homeland Security,

his right to question witnesses,

appeal from any decision of the Immigration Judge,

to have an attorney at his own expense.

his right to
and his right

The respondent was

provided with a listing of attorneys who may be willing to

assist him at reduced expense or for free along with warnings
regarding the use of notarios.
The Court provided the respondent with a healthy
adjournment period.
initial hearing date,
attorney.

Nonetheless,

almost three months after the

the respondent appeared again without an

With the assistance of a court interpreter,

the Court

began to undertake to question the applicant to determine

whether he properly was removable and whether he might be
eligible for relief or protection from removal.
The respondent testified that he entered the United
States without inspection.
Mexico.

He testified that he was born in

His parents were born in Mexico.

born in Mexico.

His grandparents were

Neither of his parents nor any of his

grandparents ever became citizens of the United States.

respondent attests that he is a citizen of Mexico,
of the United States of America.

A200-24 8-313

The

not a citizen

The Court finds that the

January 31,

2013

Immigrant & Refugee Appellate Center | www.irac.net

respondent appeared pro se.

Immigrant & Refugee Appellate Center | www.irac.net

respondent's sworn testimony is sufficient to present clear,

convincing and unequivocal evidence of alienage.
Alienage having been established,

the burden of proof

was upon the respondent to demonstrate his time,

place,

and

matter of entry and to establish that he is not inadmissible as

charged.

In this case,

the respondent conceded that he entered

the United States without inspection by foot in or about March

He testified that he did not encounter inunigration

2003.

officers at that time.

He testified that no immigration

officer waved him through or otherwise permitted him entry into

the United States.

Under the circumstances,

the Court finds the

respondent has failed to satisfy his burden of proving that he

is not inadmissible pursuant to INA Section 212(a) (6) {A) {i)
That charge of inadmissibility,

therefore,

4:-t-is sustained.

The respondent designated Mexico as the country for

removal should removal become necessary.
Mexico,

The Court directs that

the country of the respondent's citizenship,

is the

appropriate country for removal in this case.

Consistent with its statutory,
obligations,

regulatory,

and ethical

the Court then questioned the respondent to

determine whether he may be eligible for some form of relief or

protection.

The Court was unable to locate any form of relief

or protection that the respondent may be eligible for except for

voluntary departure.
The respondent testified that he entered the United States

A200-24 8-313

January 31,

2013

____

( Fonnatted: Indent: First llne:

OS

October 2011.

He was served with the Notice to Appear in

See Exhibit 1.

As such,

he does not appear to

have sufficient time for cancellation of removal.

notes,

in any event,

qualifying relatives

The Court

that the respondent failed to disclose any

for this purpose.

The evidence also failed to disclose any requisite for

the respondent to adjust his status.

Nobody appears to have

filed any paperwork on behalf of the respondent by which he

might regularize his status.
The respondent does not appear to have been a victim
of violent crime here in the United States.

He +has not

provided testimony against any criminal elements

States.

in the United

He does not appear to be eligible for a visa on any

such basis.
The respondent testified that he never suffered past
harm in Mexico on account of his race,

religion,

membership in a particular social group,

nationality,

or political opinion.

He testified that he does not fear being tortured.

feared at all returning to Mexico,

Asked if he

the respondent first

testified with words to the effect of "I

don't know."T

Asked

repeatedly whether he had any fear that somebody would harm him
because of his race,
sort of group,

religion,

nationality,

or political opinion,

membership in some

the respondent ultimately

answered "No."
The Court had the opportunity to observe the demeanor

A200-24 8-313

January 31,

2013

Immigrant & Refugee Appellate Center | www.irac.net

in March 2003.

The Court is

satisfied that the respondent understood the questions that he

was being asked and understood the interpreter.

The Court

hastens to add that it is very quick to provide respondents with

applications for asylum and related protection under 'i:-fre
circumstances in which it is evident or in which it is even
possible that the respondent may present a potential claim.
This simply did not appear to be the case in this instance.
The respondent testified that he did not complete his
high school education.

He is not going to school now.

never been in the United States armed forces.

He has

The Department of

Homeland Security has not advised me that it wishes to dismiss

or administratively close this case in the exercise of its
prosecutorial discretion.

The respondent does apparently have a

criminal history.
Under the circumstances,

the only form of relief that

was apparent the applicant could apply for before the Court was
an application for voluntary departure.

The Court explained the

two different types of voluntary departureL particularly in

light of the respondent's desire to preserve his appellate
rights.
_ ;--E-! he respondent resolved to proceed with an
application pursuant to INA Section 240B(b).
Testimony was taken concerning the respondent's
application for voluntary departure
below,

For reasons set forth

that application is denied.

A200-248-313

January 31,

2013

Immigrant & Refugee Appellate Center | www.irac.net

of the applicant throughout this colloquy.

for voluntary departure,

it is within the Immigration Judge's

discretion whether to grant this form of relief.

U. S.

v.

discretion,

(9th Cir.

Ct.

959 (2009).

2fl_:_,

2008),

ln
e
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In exercising this

the Irrunigration Judge must weigh both favorable and

unfavorable factors.

history,

(9th Cir.

Becerril-Lopez, 54 1 F. 3d 881,887

searched denied, 129 S.

See,

1999}.

See Lafarga v.

INS,

170 F. 3d 1213,

1216

Factors include the alien's prior immigration

the nature of his

entries,

!rnmigration laws and other laws,

the alien's violation of the

and compensating elements such

as long res idence in the United States,

humanitarian considerations.

family ties,

See Matter of Gamboa,

24 4

(BIA 1972), modified theE_ grounds

_

I& N

Dec.

and other
14

I&N

Dec.

Matter of Torre, 19

(.

___

. ,

18 (BIA 198 4 ) .
In this case there are several factors

in favor of a grant of voluntary departure.

been in the United States

that militate

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The respondent has

since 2003, albeit in illegal status

and under circumstances in which he entered the United States

illegally.

The res pondent entered the United States

The res pondent is

jus t about to turn 16 years old.

albeit under circums tances
is

when he was
employed,

in which there is no evidence that he

authorized to work in the United States .

Nonetheles s , the

Court deems this to be a favorable factor.

The res pondent is in a relationship with a woman who
als o is undocumented.

A200-24 8-313

She has s everal children.

The res pondent

January 31,

2013

Immigrant & Refugee Appellate Center | www.irac.net

Even after an alien meets the statutory qualifications

----( Fonnatte
:
d Ind
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1"

be credited for this.

The Court finds this to be a favorable

factor.
The respondent Cert has no other significant family
ties in the United States.
United States.

His !f.fte-parents are not in the

He is unmarried.

He has no children.

brothers or sisters in the United States.

He has no

There is no evidence

of significant property ties in the United States.

The

respondent has not served in the United States Armed Forces.

He

does attend church_.-although the respondent's religion is

certainly no business of the Court,

the Court treats this as a

favorable factor insofar as it shows ties to the community.

The

respondent does not engage in volunteer work.

The Court also has considered the respondent's
testimony that he was arrested in or about September 2011 for
driving under the influence of alcohol.

He explained that this

arrest culminated from circumstances in which,

while driving

without a license, the respondent saw fit to drink five to six

beers and get behind the wheel of a car.

He testified that

there were children in the car.

... _ ./

There is no evidence that anybody was injured as a

result.

a-fl:&-ftonetheless,

the Court makes a specific finding

ofa fact that the respondent presented a risk to the community

when without a license he drove under the influence of five to
six beers.

The Court finds this to be

A200-24 8-313

an

adverse discretionary

January 31,

2013

---{ Fonnatted: Indent: First line:

l"

Immigrant & Refugee Appellate Center | www.irac.net

has been serving as a father figure to these children ad is to

The Court also notes the recency of this event,

occurring in September 2011.

Weighing all these factors together,

the Court does

not believe it would be a responsible exercise of its discretion

to grant the respondent's application
Accordingly,

for voluntary departure.

that application is denied.

There being no other applications for relief or

protection pending before the Court,

the respondent is ordered

removed from the United States to Mexico on the charge contained

in the Notice to Appear.
ORDER
For all foregoing reasons,

IT IS HEREBY ORDERED that

the respondent's application for voluntary departure pursuant to

INA Section 240B{b}

and 8 C.F.R.

Section 1240.26 is denied.

IT IS HEREBY FURTHER ORDERED that the respondent shall

be removed from the United States to Mexico on the charge
contained in the Notice to Appear.

P.lease see the neJrt page

or electronic

signature

PHILIP J. COSTA
Immigration Judge

A200-248-313

January 31,

2013

Immigrant & Refugee Appellate Center | www.irac.net

factor.

Immigrant & Refugee Appellate Center | www.irac.net

/Isl/
Inunigration Judge PHILIP J.
costap on April 18,

A200-248-313

COSTA

2013 at 11:45 PM GMT

January 31,

2013