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    Hiram Abecardo Gonzalez-Sarat, A205 164 431 (BIA Nov. 23, 2015)

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    Immigrant & Refugee Appellate Center, LLC
    In this unpublished decision, the Board of Immigration Appeals (BIA) granted a motion to reconsider its prior decision, reopened proceedings in light of ineffective assistance of counsel provided by the respondent's prior attorney, and remanded for consideration of the respondent’s application for cancellation of removal. The Board had previously denied the motion to reopen because the respondent had not presented his argument for equitable tolling to the immigration judge. The decision was issued by Member Neil Miller. Looking for IRAC’s Index of Unpublished BIA Decisions? Visit www.irac.net/unpublished/index

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    Hiram Abecardo Gonzalez-Sarat, A205 164 431 (BIA Nov. 23, 2015)

    Uploaded by

    Immigrant & Refugee Appellate Center, LLC
    324 views7 pages
    In this unpublished decision, the Board of Immigration Appeals (BIA) granted a motion to reconsider its prior decision, reopened proceedings in light of ineffective assistance of counsel provided by the respondent's prior attorney, and remanded for consideration of the respondent’s application for cancellation of removal. The Board had previously denied the motion to reopen because the respondent had not presented his argument for equitable tolling to the immigration judge. The decision was issued by Member Neil Miller. Looking for IRAC’s Index of Unpublished BIA Decisions? Visit www.irac.net/unpublished/index

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    In this unpublished decision, the Board of Immigration Appeals (BIA) granted a motion to reconsider its prior decision, reopened proceedings in light of ineffective assistance of counsel provided by the respondent's prior attorney, and remanded for consideration of the respondent’s application for cancellation of removal. The Board had previously denied the motion to reopen because the respondent had not presented his argument for equitable tolling to the immigration judge. The decision was issued by Member Neil Miller. Looking for IRAC’s Index of Unpublished BIA Decisions? Visit www.irac.net/unpublished/index

    Copyright:

    © All Rights Reserved
    Download as PDF, TXT or read online from Scribd
    Download as pdf or txt
    324 views7 pages

    Hiram Abecardo Gonzalez-Sarat, A205 164 431 (BIA Nov. 23, 2015)

    Uploaded by

    Immigrant & Refugee Appellate Center, LLC
    In this unpublished decision, the Board of Immigration Appeals (BIA) granted a motion to reconsider its prior decision, reopened proceedings in light of ineffective assistance of counsel provided by the respondent's prior attorney, and remanded for consideration of the respondent’s application for cancellation of removal. The Board had previously denied the motion to reopen because the respondent had not presented his argument for equitable tolling to the immigration judge. The decision was issued by Member Neil Miller. Looking for IRAC’s Index of Unpublished BIA Decisions? Visit www.irac.net/unpublished/index

    Copyright:

    © All Rights Reserved
    Download as PDF, TXT or read online from Scribd
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    of 7
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    The document discusses the case of Hiram Abecardo Gonzalez-Sarat before the Board of Immigration Appeals. It indicates that Gonzalez-Sarat filed a motion to reopen and reconsider claiming ineffective assistance of counsel in his initial case.

    In his initial case on October 28, 2013, Gonzalez-Sarat appeared with counsel, did not contest removability, did not pursue any relief, and was granted voluntary departure. He waived his right to appeal.

    In his motion to reopen, Gonzalez-Sarat alleged that his former counsel provided ineffective assistance because she only sought voluntary departure, whereas he was also eligible for cancellation of removal.

    U.S. Department of ,T.. .

    ,tice
    Executive Office for Immigration Review
    Board of Immigration Appeals
    Office of the Clerk
    5107 Leesburg Pike, Suite 2000
    Faffs Church. Virginia 22041

    DHS/ICE Office of Chief Counsel - SNA


    8940 Fourwinds Drive, 5th Floor
    San Antonio, TX 78239

    Name: GONZALEZ-SARAT, HIRAM ABE...

    A 205-164-431
    Date of this notice: 11/23/2015

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

    Dc.nnJL Cw'V'LJ
    Donna Can
    Chief Clerk
    Enclosure
    Panel Members:

    Miller, Neil P.

    Userteam: Docket

    For more unpublished BIA decisions, visit


    www.irac.net/unpublished/index/
    Cite as: Hiram Abecardo Gonzalez-Sarat, A205 164 431 (BIA Nov. 23, 2015)

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

    Gonzalez, Raed Olivieri


    Gonzalez Olivieri LLC
    2200 Southwest Frwy Ste 550
    Houston, TX 77098

    U.S. Department of Justk....

    Decision oftti" Board ofImmigration Appeals

    Executive Office for Immigration Review


    Falls Church, Virginia 22041

    Date:

    File: A205 164 431 - San Antonio, TX

    NOV 2 3 2015

    IN REMOVAL PROCEEDINGS
    MOTION
    ON BEHALF OF RESPONDENT: Raed Gonzalez, Esquire
    APPLICATION: Reconsideration
    This proceeding is currently before the Board on the respondent's timely motion to
    reconsider our June 24, 2015, decision dismissing the respondent's appeal of the Immigration
    Judge's denial of reopening. For the following reasons, the motion is granted, the proceedings
    are reopened, and the record is remanded.
    The respondent alleged that his former counsel provided ineffective assistance of counsel
    because she only sought voluntary departure, whereas he was also eligible for cancellation of
    removal. The respondent complied with the requirements of Matter ofAssaad, 23 I&N Dec. 553
    (BIA 2003), and Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), ajf'd, 857 F.2d 10 (1st Cir.
    1988). The respondent's former counsel did not submit a response to the respondent's complaint
    and allegations. On this record, we find that former counsel provided ineffective assistance.
    Further, the respondent demonstrated due diligence as his motion to reopen was filed
    approximately four months after the grant of voluntary departure. As to prejudice, we find that
    the respondent should have the opportunity to demonstrate that his removal would result in
    exceptional and extremely unusual hardship to his qualifying relatives. Moreover, the
    respondent alleges that he is eligible to adjust his status based on his marriage to a United States
    citizen. Accordingly, the following orders shall be issued.
    ORDER: The motion to reconsider is granted, the proceedings are reopened, and the
    Immigration Judge's orders are vacated,
    FURTHER ORDER: The record is remanded to the Immigration Judge for further
    proceedings and entry of a new decision. 1

    oc

    Q ,1' -----
    /'
    FOR THE BOARD

    t,. -

    The parties should notify the United States Court of Appeals for the Fifth Circuit that this
    proceeding has been remanded.
    1

    Cite as: Hiram Abecardo Gonzalez-Sarat, A205 164 431 (BIA Nov. 23, 2015)

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

    In re: HIRAM ABECARDO GONZALEZ-SARAT

    U.S. Department of Justice

    Executive Office for Immigration Review


    Board of Immigration Appeals
    Qffice of the Clerk
    5/07 Leesburg Pike, Suite 2000
    Falls Church, Virginia 20530

    DHS/ICE Office of Chief Counsel - SNA


    8940 Fourwinds Drive, 5th Floor
    San Antonio, TX 78239

    Name: GONZALEZ-SARAT, HIRAM ABE ...

    A 205-164-431
    Date of this notice: 6/ 24/2015

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

    DGnltL

    a.JVu

    Donna Carr
    Chief Clerk
    Enclosure
    Panel Members:
    Grant, Edward R.

    Userteam: Docket

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

    Gonzalez, Raed Olivieri


    Gonzalez Olivieri LLC
    2200 Southwest Frwy, Suite 550
    Houston, TX 77098

    U:S. Department of Justice

    Decision of the Board of Immigration Appeals

    Executive Office for Immigration Review

    Falls Church, Virginia 20530

    File: A205 164 431 - San Antonio, TX

    Date:

    JUN 14 2015

    In re: HIRAM ABECARDO GONZALEZ-SARAT

    APPEAL
    ON BEHALF OF RESPONDENT: Raed Gonzalez, Esquire
    APPLICATION: Reopening
    The respondent, a native and citizen of Guatemala, appeals the decision of the Immigration
    Judge, dated March 17, 2014, denying his motion to reopen. We will dismiss the appeal.
    We review Immigration Judges' findings of fact for clear error, but questions of law,
    discretion, and judgment, and all other issues in appeals, de novo. 8 C.F.R. 1003.1(d)(3).
    We affirm the Immigration Judge's decision to deny the respondent's motion to reopen.
    These removal proceedings were completed when, on October 28, 2013, the respondent was
    granted the privilege of voluntarily departure. As such, the respondent's motion to reopen, filed
    on February 26, 2014, was untimely (I.J. at 1). See section 240(c)(7)(C)(i) of the Immigration
    and Nationality Act, 8 U.S.C. 1229a(c)(7)(C)(i); 8 C.F.R. 1003.23(b)(l); Matter of
    Goo/charan, 23 l&N Dec. 5 (BIA 2001).
    Inasmuch as the respondent's request for equitable tolling was not presented to the
    Immigration Judge, the request is not properly before this Board for the purposes of appellate
    review. See, e.g., Matter of R-S-H-, 23 I&N Dec. 629, 638 (BIA 2003); Matter of Jimenez,
    21 I&N Dec. 567, 570 n.2 (BIA 1996); Matter of Fedorenko, 19 I&N Dec. 57, 74 (BIA 1984).
    Moreover, the respondent's generalized references to having pursued his rights diligently,
    without identifying specific actions that he actually took, do not persuade this Board that
    equitable tolling would be warranted, had it been properly presented to the Immigration Judge
    for consideration (Respondent's Br. at 4-6). See Holland v. Florida, 560 U.S. 631, 649 (2010)
    (holding that equitable tolling is warranted only if the movant shows that he has been pursuing
    his rights diligently, and that some extraordinary circumstance stood in his way and prevented
    timely filing); Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96 (1990).
    Finally, we have considered the totality of the circumstances presented in this case, including
    the respondent's claims to having been provided ineffective assistance of counsel and that he is
    eligible for cancellation of removal under section 240A(b)(l) of the Act, 8 U.S.C. 1229b(b)(l).
    Nonetheless, we are not persuaded that he has demonstrated that an exceptional situation exists
    which would warrant the sua sponte reopening of these proceedings. See Matter of G-D-,
    22 I&N Dec. 1132, 1133-34 (BIA 1999); Matter ofJ-J-, 21 l&N Dec. 976 (BIA 1997).

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

    IN REMOVAL PROCEEDINGS

    A205 164 431


    For the reasons set forth above, we will not disturb the Immigration Judge's decision to deny
    the respondent's motion to reopen. Accordingly, the following order is entered.
    ORDER: The respondent's appeal is dismissed.

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

    ,I

    1,

    UNITED STATES DEPARTMENT OF JUSTICE


    EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
    IMMIGRATION COURT
    800 DOLOROSA STREET, SUITE 300
    SAN ANTONIO, TX 78207

    FILE A 205-164-431
    IN THE MATTER OF
    GONZALEZ-SARAT, HIRAM ABECARDO

    DATE: Mar 17, 2014

    UNABLE TO FORWARD - NO ADDRESS PROVIDED


    ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE. THIS DECISION
    IS FINAL UNLESS AN APPEAL IS FILED WITH THE BOARD OF IMMIGRATION APPEALS
    WITHIN 30 CALENDAR DAYS OF THE DATE OF THE MAILING OF THIS WRITTEN DECISION.
    SEE THE ENCLOSED FORMS AND INSTRUCTIONS FOR PROPERLY PREPARING YOUR APPEAL.
    YOUR NOTICE OF APPEAL, ATTACHED DOCUMENTS, AND FEE OR FEE WAIVER REQUEST
    MUST BE MAILED TO:
    BOARD OF IMMIGRATION APPEALS
    OFFICE OF THE CLERK
    5107 Leesburg Pike, Suite 2000
    FALLS CHURCH, VA 20530
    ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE AS THE RESULT
    OF YOUR FAILURE TO APPEAR AT YOUR SCHEDULED DEPORTATION OR REMOVAL HEARING.
    THIS DECISION IS FINAL UNLESS A MOTION TO REOPEN IS FILED IN ACCORDANCE
    WIT SECTION 242B(c) (3) OF THE IMMIGRATION AND NATIONALITY ACT, 8 U.S.C.
    SECTION 1252B(c) (3) IN DEPORTATION PROCEEDINGS OR SECTION 240(c) (6),
    8 U.S.C. SECTION 1229a(c) (6) IN REMOVAL PROCEEDINGS. IF YOU FILE A MOTION
    TO REOPEN, YOUR MOTION MUST BE FILED WITH THIS COURT:
    IMMIGRATION COURT
    800 DOLOROSA STREET, SUITE 300
    SAN ANTONIO, TX 78207
    OTHER:

    CC: DISTRICT COUNSEL


    8940 FOURWINDS DR., 5TH FLOOR
    SAN ANTONIO, TX, 782971939

    IMMIGRATION COURT

    FF

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

    Gonzalez Olivieri LLC


    Gonzalez, Raed Olivieri
    2200 Southwest Frwy Ste 550
    Houston, TX 77098

    UNITED STATES DEPARTMENT OF JUSTICE


    Executive Office for Immigration Review
    Immigration Court
    File A205 164 431
    )

    In the Matter of
    Hiram Abecardo Gonzalez-Sarat

    )
    )
    )
    )

    In Removal Proceedings

    Order of the
    Immigration Judge

    The respondent appeared personally with counsel for a removal proceeding on October 28, 2013, did
    not contest the factual allegations or charge of removability, did not pursue any application for relief,
    requested solely voluntary departure, which was granted, and waived appeal. The respondent, through
    new counsel, filed a motion to reopen with the Court on February 26, 2014. The motion will be denied.
    The respondent's motion was received by the Court on February 26, 2014. The Court's order became
    administratively final on October 28, 2013 as appeal was waived. See Matter of Shih, 20 l&N Dec 697 (BIA
    1993). This motion is clearly outside the time limit set in Title 8 CFR 1003.23(b)(1). I also note that the
    respondent did not comply with the voluntary departure he was granted and the motion was received by
    the court after the voluntary departure date had passed. The respondent is therefore ineligible for
    Cancellation of Removal. Since it was not filed within 90 days of the administratively final order and does
    not comply with the relevant regulations, it must be denied.
    Since the motion is filed untimely and the respondent was fully aware of the order the day it was entered
    there is no basis for disregarding the time limit set by regulation and statute. The Court declines to reopen
    the case sua sponte at the request of the respondent. Any request based on humanitarian considerations
    or the exercise of various forms of discretion by the Department of Homeland Security does not require
    reopening or further hearing by the Court and would not create any relief under the jurisdiction of the Court.
    The motion to reopen and accompanying request for a stay of removal shall be, and are hereby, DENIED.
    SO ORDERED.

    Date: March 17, 2014


    Place: San Antonio, Texas

    CERTIFICATE OF SERVICE
    THIS DOCUMENT WAS SERVED BY; MAfL (M)
    PERSONAL SERVICE (P)
    TO ALIEN [ J ALIEN c/o Custodial Officer
    / i \I.ALIEN'S ATT/REP NS _.,,,.Jcv'

    DATE:3-/?-) lf' BY: COIJRt STAFF


    Attachments: [ J EOIR-33 [ J EOIR-28
    [ ] l.P.?.3' SP.rviP.t:; ' ic:t [ J ()thr:r

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

    )
    )
    )
    )

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