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

Nguyen, Vi., Esq. Law Office of Manuel E. Solis 6657 Navigation Blvd PO Box 230529 Houston, TX 77223

OHS/ICE Office of Chief Counsel - HOU 126 Northpoint Drive, Suite 2020 Houston, TX 77060

Immigrant & Refugee Appellate Center | www.irac.net

Name: TIPAZ PONCIO, LUIS JOSE

A 201-069-002

Date of this notice: 3/19/2014

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

DOrutL ct1/Vt)
Donna Carr Chief Clerk

Enclosure Panel Members: Guendelsberger, John Hoffman, Sharon Manuel, Elise

Lulseges
Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: Luis Jose Tipaz Poncio, A201 069 002 (BIA Mar. 19, 2014)

U.S. 'Deprtment of Justice

Executive Office for ,Immigration Review

Decision of the Board oflmmigration Appeals

Falls Church, Virginia 20530

File:

A201 069 002 - Houston, TX

Date:

M.AR 1 9 2014

In re: LUIS JOSE TIPAZ PONCIO a.k.a. Luis Poncio a.k.a. Luis Jose Tipaz-Poncio a.k.a. Luis Jose Poncio

Immigrant & Refugee Appellate Center | www.irac.net

IN REMOVAL PROCEEDINGS APPEAL ON BEHALF OF RESPONDENT: ON BEHALF OF DHS: Vi Nguyen, Esquire

Rory H. Potter Assistant Chief Counsel

APPLICATION: Voluntary departure under section 240B(b) of the Act

The respondent, a native and citizen of Guatemala, appeals the decision of the Immigration removal from the United States. 1 The respondent's appeal, which is opposed by the Department of Homeland Security ("DHS"), will be sustained. The record will be remanded. 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.l(d)(3). The Immigration Judge erred in concluding that the respondent was precluded from being granted voluntary departure under the provisions of section 240B(b) of the Immigration and Nationality Act, 8 U.S.C. 1229c(b), as a result of his criminal history (I.J. at 2). While the respondent's conviction for "Class A" assault with family violence, which resulted in the imposition of a 45-day sentence of imprisonment, may constitute a conviction for a crime involving moral turpitude, the Immigration Judge erred in basing his denial of voluntary departure solely upon this conviction as said conviction falls under the so-called "petty offense" exception described at section 212(a)(2)(A)(ii)(II) of the Act, 8 U.S.C. 1182(a)(2)(A)(ii)(II), and does not preclude the respondent from establishing the requisite 5 years of good moral character needed to be granted voluntary departure (l.J. at 2). See section 240B(b)(l)(B) of the Act. Judge, dated August 20, 2012, denying his request for voluntary departure and ordering his

1 The respondent, through counsel, has conceded that he is subject to removal from the United States as charged in the Notice to Appear (l.J. at 1-2; Tr. at 12; Exh. 1). Section 212(a)(6)(A)(i)

of the Act. In his appeal brief, he does not pursue his Application for Suspension of Deportation (Form EOIR-40), which the Immigration Judge denied (l.J. at 2). Likewise, aside from voluntary departure, he makes no claim in his appeal brief that he is eligible for other forms of

immigration benefits. See Claudio v. Holder, 601 F.3d 316, 319 (5th Cir. 2010) (holding that an alien's appeal brief is the "operative document" through which any issues that he wishes to have considered must be raised before this Board); Thuri v. Ashcroft, 380 F.3d 788, 793 (5th Cir. 2004) (holding that issues not addressed in an opening brief are deemed waived).

Cite as: Luis Jose Tipaz Poncio, A201 069 002 (BIA Mar. 19, 2014)

A201069002 Accordingly, 'for the reasons set forth above, we will remand the record to the Immigration Judge for further consideration of the respondent's request for voluntary departure. Upon remand, the Immigration Judge should determine, among other things, whether the respondent has established that, during the past 5 years, he has been a person of good moral character under the "catch all" provisions of section IOl(f) of the Act, 8 U.S.C. llOl(f), and has otherwise established that he warrants voluntary departure as a matter of law and discretion. The following order is entered.
ORDER:

The respondent's appeal is sustained and the record is remanded to the

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Immigration Court for further proceedings consistent with the foregoing opinion and the entry of a new decision.

Cite as: Luis Jose Tipaz Poncio, A201 069 002 (BIA Mar. 19, 2014)

UNITED STATES DEPARTMENT OF

JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW UNITED STATES IMMIGRATION COURT HOUSTON, TEXAS

Immigrant & Refugee Appellate Center | www.irac.net

File:

A201-069-002

August 20,

2012

In the Matter of

LUIS JOSE TIPAZ PONCIO RESPONDENT

IN REMOVAL PROCEEDINGS

CHARGES:

APPLICATIONS:

ON BEHALF OF RESPONDENT:

JOAN BENNETT, Conroe,

Esquire Suite 315

1300 South Frazier, Texas 77301

ON BEHALF OF DRS:

RORY POTTER,

Esquire

ORAL DECISION OF THE IMMIGRATION The respondent is a young man,

JUDGE a native and

27 years old,

citizen of Guatemala who entered the United States without inspection at some unknown place and time. At a Master Calendar hearing held before Judge Greenstein on July 7, 2011, I note, over a year, the respondent admitted

all allegations of fact,

conceded removability as charged under

Section 212(a) (6) (A) (i) deportable by clear, removable as well.

and on that basis,

I find him to be

convincing and unequivocal evidence and He is in fact in removal proceedings. February

Immigrant & Refugee Appellate Center | www.irac.net

He appeared at a Master Calendar in this Court in 2012 and was asked what relief he wished to file. through counsel, at the filing, application. think of.

He said, Today

an EOIR-42B for cancellation of removal.

he

filed an EOIR-40 suspension of deportation counsel replied that's all I could the respondent is ineligible for

When asked,

In point of fact,

this relief because he has a crime involving moral turpitude in the last year for assault for family violence, Courts have found to be a CIMT which would have ineligible for 42B relief. proceedings, which in fact rendered him

As we are not in deportation

the EOIR-40 is hereby denied by pretermission.

He is ineligible for voluntary departure as he has been convicted of CIMT within five years. I hereby find t hat he has no other relief and order his removal from the United States to Guatemala. It is so ordered.

RICHARD D.

WALTON

Immigration Judge

A201-069-002

August 20,

2012

r'

CERTIFICATE PAGE

I hereby certify that the attached proceeding before JUDGE

Immigrant & Refugee Appellate Center | www.irac.net

RICHARD D.

WALTON,

in the matter of:

LUIS JOSE TIPAZ

PONCIO

A201-069-002

HOUSTON,

TEXAS

is an accurate,

verbatim transcript of the recording as provided

by the Executive Office for Immigration Review and that this is the original transcript thereof for the file of the Executive Office for Immigration Review.

for
MARY ANGELA ROSSI (Transcriber) Inc.

FREE STATE REPORTING, OCTOBER 12, 2012

(Completion Date)