Antonio Palomino-Herrera, A205 765 691 (BIA May 24, 2016)

7/26/2019 Antonio Palomino-Herrera, A205 765 691 (BIA May 24, 2016)

1/8

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For more unpublished BIA decisions, visitwww.irac.net/unpublished/index/

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Cite as: Antonio Palomino-Herrera, A205 765 691 (BIA May 24, 2016)


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Cite as: Antonio Palomino-Herrera, A205 765 691 (BIA May 24, 2016)


3/8

UNITED STATES DEPARTMENT

OF

JUSTICE

EXECUTIVE

OFFICE

FOR IMMIGRATION

REVIEW

UNITED STATES IMMIGRATION

COURT

MEMPHIS,

TENNESSEE

File: A205-765-691

In the Matter

of

March 4, 2015

ANTONIO PALOMINO HERRERA

RESPONDENT

)

)

)

IN

REMOVAL

PROCEEDINGS

CHARGES: Section 212 a) 6) A) i) - alien present without being admitted or

paroled.

APPLICATIONS: Continuance; voluntary departure.

ON BEHALF OF RESPONDENT: PRO SE

ON BEHALF OF OHS:

JAMEE

E.

COMANS

ORAL

DECISION AND

ORDER

Respondent is a married male, native and citizen of Mexico. Based upon

admissions that were made at an earlier Master Calendar hearing, the Court sustained

the charge.

STATEMENT OF

THE CASE

Respondent had been represented by the law offices

of

Elliott Ozment. The

Immigration

Judge

takes administrative notice that Mr.

Ozment

is one of the premiere

Immigration lawyers in the State

of

Tennessee.

1

pp


4/8

During the course

o

that representation, respondent had occasion to work

closely with an associate

o Mr. Ozment, Bethany Eichler. Ms. Eichler filed a motion

received by the Immigration Court in August 2014, stating that respondent and she had

come to a mutual agreement by which respondent and Ms. Eichler would terminate their

attorney client relationship. By order found at Exhibit 28, the Immigration Judge signed

an

order allowing Ms. Eichler to withdraw as counsel. Notice was then sent to

respondent at Exhibit

3

informing him o today s hearing and respondent proceeded

prose

Respondent appeared in Court today without any applications even though this

was the day for the filing o all applications. The Immigration Judge questioned the

respondent concerning his length

o

time

in

the United States. Respondent testified that

he has been in the United States for about 22 years, and has a child who is a United

States citizen. Respondent also was convicted at least three times

o

DUI and has

been arrested in 2012 for possession

o

a controlled substance, which he claims was

dismissed and public intoxication which he claims was also dismissed. However,

respondent tenders no application or documents in support o his contention that these

charges were dismissed.

Respondent asks either for a continuance or for an opportunity to file some

application. The Department opposes noting that respondent has been represented by

very able counsel for a long period

o

time, and that the respondent has failed to do

what he was expected to do which was to file his application in open Court today.

ANALYSIS

An Immigration Judge may grant a continuance for good cause shown. 8 C.F.R.

Section 1003.29. The decision to continue a case is reviewed for abuse

o

discretion.

See cases such as Kwak v. Holder, 607 F.3d 1140 (6th Cir. 2010). Among the factors

A205-765-691

2

March 4, 2015

pp


5/8

to

be considere

d n determ in

ing whether a

n Immigratio n

Judge has a

bused his

d

iscretion isw h

ether there h

as been a su

ff icient t imeto

gather

the

do

cuments and

w

hethe r there

had been a p

revious contin

uance,

as

we

ll as whethe

r the Depar tm e

nt

opposes.

n

this case,

the Immigra t

ion Judge not

es that the

ep

artment

opp

oses a

cont inuance

in

that the resp

ondent has b

een represen

ted by verya

ble counsel w

ho

concluded th a

t when respo

ndent started

talking, had v

ery little chan

ce

of

proceed

ing n

an a

pplicat ion fo r

cancellat ion

o

f

removal.

In Matter of Inte r iano R osa, 25 l N Dec. 264

BIA

2010), the Boardnotes that an

Im m

igration Judg

e has broad d

iscret ion toc

onduct and co

ntrol Immigra

t ion proceedi

ngs

and

to adm it and

consider rela

t ive and prob

at ive evidence

. If an appli c

at ion is notfil

ed

withinth

e dead l ine, it

can be

deemed

abandoned

.

See

cases

col lected the

rein.

R

espondent

may have the p

hysical prese

nce necess~r

y for cancella

t ion

of

rem

oval, but he

also has three

DUI convicti

ons and charg

es for posses

sion

of

a

contro ll

ed substance

and pub l icint

oxication. He

was represe

nted by very

able counsel

fo

r a long tim e a

nd there isst

il l no applicati

on to fi le toda

y. Responde

nt wants the C

ourt

to

con t inue the

case so tha t h

e can bringa

ll his papers

n so

that

th e C

ourt can look

through

his papers.

This is both in

appropr iate a

nd unnecess

ary because r

espondent

ha

s had ample

t ime since th e

signing

of

th

e order last

September fo r

him to retain

ne

w

couns

el. Indeed,th

e Immigratio n

Judge asked

the responde

nt

if

he had t

alked to a

la

wyer, and ag

ain responden

t breaching t

he at torneyc l

ient pr ivi lege

before the C o

urt

h

ad an opport u

nity to sto ph

im, said tha t t

hat lawyer to l

d the respondent that hed id not

h

ave a strong

cancellat ion c

ase.

It wou ld ap pe

ar that both M

r. Ozment an

d the unnam e

d lawye r gave

respondent

g

ood advice, n

amely thathe

does not hav

e a st rong ca

ncel lat ion cas

e. Responde

nt

A2

05-765-691

3

M

arch 4, 2015

pp


6/8

would h

ave difficulty d

em onstrat ing

the requ isite

goo d mora l c

haracter give

n histhree

DUI convict

ions, and his a

rr ests for pos

session

of

a c

ontrol led su b

stance and fo

r publ ic

in toxication.

R espondent

also would no

t be el igible n

all l ikel ihood

n the exerc

ise of

discret io

n. It is well-s

ettled tha t an

Im m igrat ion J

udge can

jump over, so to

spe ak,

s ta

tutory eligibil i

ty and deny a

m o tion to con

tinue n the e

xerc ise

of

dis

cretion. This

has

been held a

s fa r back as

IN Sv. Bagam

asbad, 429

U.S .

4

(1976

).

It is t

rue that respo

ndent has be

en pros s in

ce the Immigr

at ion Judge s

igned

Exhibit

8 allowing the

Oz

ment

f irm to

w it hdraw as

respondent s

legal represen

tative.

However, respondent has had ample opportun ity to bring an appl icat ion to Co ur t and he

has fa

iledto do so.

This lea

vesthe issue

of voluntary d

eparture. Re

sponde nt is r

equired to

d

em onstrate go

od moral cha

ra cter fo r f ive

yea rs, and th

e arrests in q

uest ion took p

la ce

n

2012. Resp

ondent repea

tedly says tha

t thecases

were dismissed

, bu t he has

no

document

s to day to sho

w that . Resp

ondent was o

ffered the op

portuni ty

of

pre-complet io

n vo luntary de

parture, for u

p to 120 days

, but respond

ent chose to a

vail

h ims

elf of

his appe

al rights.

Co

nsidering then

w h ether res

pondent has d

em onst rated

elig ibi l ity for

post

com plet ion vo

lu ntary depar

ture , the Imm

igra t ion Jud g

e f inds that he

ha s not. Th

ere is

the ques

tion

of

these a

rrests, and th

ere are no do

cum ents that

the C our t can

co nsider.

G overnment

cou nsel was

candid n stati

ng that there

are no

judgment and convi

ct ion

documents n

th e A file, an

d so the burd

en s squarely

on the respo

ndent, and he

ha s

notmet

the b

urd en

of

sho

wing that he is

eli gible eithe

r f o r post com

ple t ion volun

tary

dep

artu re or the e

xtraordinary

rem edy

of

can

cellat ion

of

r

em oval.

The Immigr

at ionJudge a

lso denies vo

luntary depar t

ure in the exe

rcise

of

dis cret ion. R

espondent h

as been convi

cted three t im

es o

f

DUI. T

he United Sta

tes

A

205-765-691

4

M a

rch 4, 2015

pp


7/8

Court of Appeals for the Sixth Circuit recognizes that three DUI convictions, even

in

the

context

o

an asylum application,

is

sufficient to conclude that a respondent

is

not

worthy o a favorable exercise o discretion. Kouljinski v Keisler, 505 F 3d 534 (6th Cir.

2007).

Thus, the Immigration Judge denies the request for voluntary departure, both

in

the exercise of discretion and for failure o demonstrating the requisite good moral

character. The Immigration Judge denies a request to continue so that respondent can

file

an

application for cancellation

o

removal both because respondent has not

demonstrated

prim f cie

eligibility for the relief, given his three DUI convictions and his

arrests, and

in

the exercise

o

discretion.

In

light

o

the foregoing, the Court enters this

order:

ORDER

Respondent s request for a continuance is denied;

Respondent s request for voluntary departure is denied;

Respondent

is

hereby ordered removed to Mexico.

lease

s

the next page for electronic

signature

A205-765-691

CHARLES E PAZAR

Immigration Judge

5

March 4, 2015

ggpp


8/8

I s l

Im

migration

Jud

ge

CH RLES E.

P Z R

pazarc

on

May

14

2015

t

4:44

PM MT

A

205-765-691

6

Marc

h 4 2015

ggpp

Antonio Palomino-Herrera, A205 765 691 (BIA May 24, 2016)

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Transcript of Antonio Palomino-Herrera, A205 765 691 (BIA May 24, 2016)