U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals Office ofthe Clerk

5107 leesb11rg Pike, S11i1e 2000 Falls Ch11rcl1. Virginia 22041

GARCIA-LAINEZ, GUSTAVO DEJESUS A205-655-936 KROME 18201 S.W.12TH STREET MIAMI, FL 33194

OHS/ICE Office of Chief Counsel - KRO 18201 SW 12th St. Miami, FL 33194

Immigrant & Refugee Appellate Center | www.irac.net

Name: GARCIALAINEZ, GUSTAVO DE...

A 205-655936

Date of this notice: 6/12/2013

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

DorutL ct1/VL)
Donna Carr Chief Clerk

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

lucasd Userteam: Docket

Cite as: Gustavo DeJesus Garcia-Lainez, A205 655 936 (BIA June 12, 2013)

U;S. Department of Justice

Executive Office for Immigration Review Falls Church, Virginia 22041

Decision of the Board of Immigration Appeals

File:

A205 655 936 - Miami, FL

Date:

In re: GUSTAVO DEJESUS GARCIA-LAINEZ IN REMOVAL PROCEEDINGS APPEAL ON BEHALF OF RESPONDENT: ON BEHALF OF DHS: Pro se

JUN 1 2 2013

Immigrant & Refugee Appellate Center | www.irac.net

Christian M. Pressman Assistant Chief Counsel

APPLICATION: Continuance

The respondent, a native and citizen of Honduras, has appealed from the Immigration Judge's decision dated February 11, 2013, finding him removable and ineligible for relief from removal. The record will be remanded. This Board reviews an Immigration Judge's findings of fact, including findings as to the credibility of testimony, under the "clearly erroneous" standard. See 8 C.F.R. 1003.1(d)(3)(i); Matter of R-S-H-, 23 I&N Dec. 629 (BIA 2003); Matter of S H-, 23 l&N Dec. 462 (BIA 2002). This 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).
-

The respondent was placed in removal proceedings on January 28, 2013. His first and only removal hearing was held on February 11, 2013. He was detained and pro se at that hearing. The Immigration Judge told the respondent he had two options. He told him: "You can continue your case to a later date so that you can try to find someone to represent you or go ahead with your case today but that would require you to speak on your own behalf." In response, the respondent said, through an interpreter, he wanted to "continue with the case" (Tr. at 2). The Immigration Judge then proceeded to take pleadings, find him removable, and find him ineligible for relief from removal (Tr. at 3-4; l.J. at 2). On appeal, the respondent says he did not waive his right to counsel. He had been trying to hire an attorney to help him with his case. He also says he fears return to Honduras. 1 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. See also 8 C.F.R. 1003.16(b), 1240.3, 1240.lO(a), 1240.1 l (c)(l )(iii). In order for a waiver of the privilege to be valid, an Immigration Judge must generally: (1) inquire specifically as to whether petitioner At the hearing, the Immigration Judge did not specifically ask whether the respondent feared harm on return to Honduras. However, he did ask if there was any reason why he could not return, and the respondent said "the economic thing" (Tr. at 4).
Cite as: Gustavo DeJesus Garcia-Lainez, A205 655 936 (BIA June 12, 2013)
1

A205 655 936

wishes to continue without a lawyer; and (2) receive a knowing and voluntary affirmative response. See Matter ofC-B-, 25 I&N Dec. 888, 889-890 (BIA 2012). Failure to obtain such a waiver is an effective denial of the right to counsel. See Matter of C-B-, supra. Where the statutory and regulatory privilege of legal representation is not expressly waived, in order to meaningfully effectuate the privilege, the Immigration Judge must grant a reasonable and realistic amount of time and provide a fair opportunity for a respondent to seek, speak with, and retain counsel. See Matter ofC-B-, supra. See also sections 239(a)(l)(E) and 239(b)(l) of the Act, 8 U.S.C. 1229(a)(l)(E); (b)(l).

Immigrant & Refugee Appellate Center | www.irac.net

On review of the record, we conclude that, with regard to the "waiver" of the privilege of representation, there was a misunderstanding. We conclude that, given the options of a continuance or speaking for himself, the respondent's reply, "continue with the case," was intended to mean "continue the case." Consequently, though it is understandable that the Immigration Judge thought otherwise, we conclude that the respondent did not knowingly and 2 voluntarily waive his privilege of legal representation. Consequently, a new hearing is required. Accordingly, the following orders will be entered. ORDER: The order of the Immigration Judge is vacated. FURTHER ORDER: The record is remanded to the Immigration Judge for further proceedings consistent with the foregoing opinion.

On remand, the Immigration Judge should allow the respondent to apply for asylum and withholding of removal, under sections 208 and 24l(b)(3) of the Immigration and Nationality Act, 8 U.S.C. 1158 and 123l(b)(3), and denied his request for protection under the Convention Against Torture, under 8 C.F.R. 1208.16 through 1208.18. The Immigration Judge should also consider the respondent's eligibility for voluntary departure, under section 240B of the Act, 8 U.S.C. 1229c.
2

Cite as: Gustavo DeJesus Garcia-Lainez, A205 655 936 (BIA June 12, 2013)

UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW UNITED STATES IMMIGRATION COURT MIAMI, FLORIDA

Immigrant & Refugee Appellate Center | www.irac.net

File:

A205-655-936

February 11,

2013

In the Matter of

GUSTAVO DEJESUS GARCIA-LAINEZ RESPONDENT

IN REMOVAL PROCEEDINGS

CHARGES:

Section 212(a) (6) (A) (i), Nationality Act.

as well as Section

212(a) (7) (A) (i) (I) of the Inunigration and

APPLICATIONS:

None.

ON BEHALF OF RESPONDENT: ON BEHALF OF DHS:

PRO SE PRESSMAN, Esquire

CHRISTIAN M.

Assistant District Counsel

ORAL DECISION AND ORDER OF THE IMMIGRATION

JUDGE

The respondent is a native and citizen of Honduras who, according to his own statements, sometime in the year 2006. entered the United States

The respondent acknowledges that he

entered the United States without being properly inspected by an Inunigration officer. the United States, As a result of the respondent's entry into

the Government instituted these removal

proceedings by the issuance of a Notice to 28, 2013. The respondent, appearing pro se,

Appear dated January

admitted the truth of the

Immigrant & Refugee Appellate Center | www.irac.net

factual allegations contained in the Notice to Appear and indicated that he does not wish to be removed from the United States. removal. The Court considered all the possible available to the respondent. avenues of relief The respondent designated Honduras as the country for

The respondent has not remained in

the United States long enough to apply for cancellation of removal and assuming he had a qualifying relative. The

respondent stated he has never made any attempt to legalize his status here in the United States. The respondent does not wish

to return to Honduras because of economic reasons and none other. The Court finds unfortunately that there is no relief

available to the respondent and will issue the following order. ORDER IT IS HEREBY ORDERED that respondent be ordered removed from the United States to Honduras on the charges contained in the Notice to Appear.

Pleaso see tho next pago for electronic sigpatura

JOHN OPACIUCH Immigration Judge

A205-655-936

February 11,

2013

Immigrant & Refugee Appellate Center | www.irac.net

..

A205-655-936

February 11,

2013

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Immigration Judge JOHN OPACIUCH opaciuc j on March 28, 2013 at 12:02 PM GMT

Immigrant & Refugee Appellate Center | www.irac.net

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A205-655-936

February 11,

2013

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