U.S.

Department of Justice
Executive Office for Immigration Review

Board of Immigration Appeals

Office of the Clerk
5107 Leesburg Pike, Suite 2000
Falls Church, Virginia 20530

OHS/ICE Office of Chief Counsel - CHI

Kozoll, Hash & Nett PLLC

746 E. Broadway
Louisville, KY 40202

525 West Van Buren Street

Chicago, IL 60607

Name: RODRIGUEZ-GIL, RIGOBERTO

A 200-808-429

Date of this notice: 11/5/2014

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

DCrt.ltL ctVVU
Donna Carr
Chief Clerk

Enclosure

Panel Members:
Malphrus, Garry D.
Mullane, Hugh G.
Liebowitz, Ellen C

Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: Rigoberto Rodriguez-Gil, A200 808 429 (BIA Nov. 5, 2014)

Immigrant & Refugee Appellate Center | www.irac.net

Kozoll, Christopher Michael, Esq

Decision of the Board of Immigration Appeals

U.S. Department of Justice

Executive Office for Immigration Review
Falls Church, Virginia 20530

File:

Date:

A200 808 429 - Chicago, IL

NOV -5 2014

In re: RIGOBERTO RODRIGUEZ-GIL

APPEAL
ON BEHALF OF RESPONDENT:

Christopher Michael Kozoll, Esquire

CHARGE:
Notice:

212(a)(6)(A)(i), l&N Act [8 U.S.C. 1182(a)(6)(A)(i)] Present without being admitted or paroled

Sec.

APPLICATION: Termination; removability; voluntary departure

The respondent appeals from the Immigration Judge's December 5, 2012, decision finding
him

removable

as

charged

and

pretermitting

his

application

for

post-conclusion

voluntary departure. Sections 212(a)(6)(A)(i), 240B(b) of the Immigration and Nationality Act,
8 U .S.C. 1186(a)(6)(A)(i), 1229c(b). The Department of Homeland Security ("DHS") has not
filed a brief on appeal. We will remand the record for further proceedings and issuance of a
new decision.
We review for clear error the findings of fact, including determinations of credibility, made
by the Immigration Judge.

8 C.F.R.

1003.l(d)(3)(i). We review de novo all other issues,

including whether the parties have met the relevant burden of proof, and issues of discretion.
8 C.F.R. 1003.l(d)(3)(ii).
We will remand the record because the December 5, 2012, decision does not adjudicate or
otherwise address the respondent's written motion to terminate. Instead, the Immigration Judge
denied the motion to terminate on the record at the October 17, 2012, hearing (Tr. at 35-44).
This does not suffice, however, because the Immigration Judge did not make adequate findings
of fact to allow for adequate appellate review, particularly with respect to whether the DHS
served the respondent with the Notice to Appear that it filed with the Immigration Court (Exh. 1;
Respondent's Brief at 7-9).
Matter of A-P-, 22 I&N Dec. 468, 476-77 (BIA 1999)
(record should include a complete decision that is separate from the transcript and which
accurately summarizes relevant facts, reflects analysis of applicable legal precedents, and clearly
sets forth the legal conclusions);

see also Matter of S-H-, 23 l&N Dec. 462 (BIA 2002)

(explaining the importance of an Immigration Judge's decision containing clear and complete
findings of fact that are supported by the record and are in compliance with controlling law).
Furthermore, it is not clear that the respondent was given a sufficient opportunity to present
his testimony in support of his motion to terminate. The transcript of the hearing reflects that
at some point during the respondent's testimony, his counsel's telephone access was cut off,

Cite as: Rigoberto Rodriguez-Gil, A200 808 429 (BIA Nov. 5, 2014)

Immigrant & Refugee Appellate Center | www.irac.net

IN REMOVAL PROCEEDINGS

A200 80$ 429

and he did not hear a significant portion of the respondent's testimony (Tr. at 39-43). Although
the Immigration Judge subsequently summarized the testimony for counsel, she denied his
request for an opportunity to ask the respondent follow-up questions in support of his motion to
terminate (Tr. at 43-45).
For these reasons, we will remand the record for the Immigration Judge to allow the
and for the issuance of a separate decision regarding the respondent's motion to terminate that
makes specific findings of fact.

Furthermore, during the individual hearing on remand, the

respondent should be given an opportunity to qualify for post-conclusion voluntary departure.

Section 240B(b) of the Act.
ORDER:

The record is remanded to the Immigration Court for further proceedings

consistent with the foregoing opinion and for entry of a new decision.

Cite as: Rigoberto Rodriguez-Gil, A200 808 429 (BIA Nov. 5, 2014)

Immigrant & Refugee Appellate Center | www.irac.net

respondent an opportunity to fully present his testimony in support of his motion to terminate,

UN ITED STATES DE PARTMENT O F JUST ICE

EXECUTIVE OFF ICE FOR
UN ITED STATES

IMM IGRAT ION

COURT

ILL INO IS

December

A200-808-429

5,

2012

In the Matter of

IN REMOVAL

R IGOBERTO RODR IGUEZ-G IL

PROCEED INGS

RESPONDENT

CHARGES:

212(a) (6) (A) (i) of the Immigration and Nationality Act

- alien present in the United States without being admitted or

paroled,

or who arrived in the

United

States at any time or

place other than as designated by the Attorney General

A P PL ICATIONS:

Section

240B(b) voluntary departure - post

conclusion

ON BEHALF OF RES PONDENT:

ON BEHALF

OF

OHS:

ORAL
I.

CHR IS

SARAH ZELD,

KOZOLL,

ESQUIRE

ESQU IRE

DEC IS ION OF THE

IMM IGRAT ION JUDGE

Background
The Respondent is a native and citizen of Mexico.

entered the United States at or near an unknown place or

date.

5,

The Respondent

2010,

He

unknown

was issued the Notice to Appear on October

initiating removal proceedings against Respondent.

Immigrant & Refugee Appellate Center | www.irac.net

CH ICAGO,

File:

IMMIGRAT ION REV IEW

Please see Exhibit

#1.

The NTA charges that Respondent is

removable from the United States pursuant to Section

counsel,

The Respondent states,

through

that he is not admitting to that allegation,

as well as

the allegation that he was not admitted or paroled after

inspection.

He also denied the charge under Section

21 2(a) (6) (A)(i) of the Immigration and Nationality Act,

amended,

that he's an alien present in the

being admitted or paroled.

as

United States without

The Respondent is not able to show

or demonstrate to the Court that he has been present in the

United States after being admitted or paroled,
Respondent's burden to show that,

therefore,

and it is the

the Court has

sustained the charge and has found that based on the pleadings
and examination of the charges that the Respondent is removable
as charged by clear and convincing evidence as required by
Section 240(c) (3)
also 8 C.F. R.

of the INA,

Section 1240. 8

8 U. S. C.

Section 1 2 29 (c) (3)

(see

[ (a/c)]).

The Respondent appeared at a Master Calendar hearing

on February

2 2,

2012,

at 9: 00 a. m.

The Respondent appeared

without counsel and requested more time in order to speak to an

attorney regarding his case.
August

2,

2012,

at 1: 00 p. m.

Immigration Court.

On August

Chicago Immigration Court,

The case was then scheduled on

to appear in the
2,

201 2,

Chicago

at one o'clock at the

the Respondent appeared with counsel,

at which time counsel requested more time to prepare

A 200-808-429

for the

December

5,

2012

Immigrant & Refugee Appellate Center | www.irac.net

212(a) (6) (A)(i) of the INA.

case.

The Court then rescheduled the case to October 17,

At the hearing on October 17,

2012,

2012.

the attorneys requested that

prosecutorial discretion from the Department of Homeland

Also,

Security.

the Respondent was contemplating filing a U

visa based on that he's a victim of felonious assault by his

girlfriend;

however,

the Respondent was hesitant to pursue the

visa application because he didn't want his girlfriend to be

prosecuted for these charges.

The Court required that counsel

submit dispositions in this case that related to the U visa

application,

as well as any and all arrests and convictions of

the Respondent.
The case was continued for November 28,
Court then scheduled
10: 00 a. m.

the case for today,

Through counsel,

departure under Section

voluntary departure,

Respondent

December

5,

2012,

at

requested voluntary

240B(b) for 60 days,

a post-conclusion

rather than pre-conclusion voluntary

departure at a Master Calendar hearing.

The Court finds that

this is not the conclusion of any removal proceedings;

it is a Master

The

2012.

not an

Calendar hearing,

rather,

Individual hearing where

there is any case that was presented to the

Court,

continued on the Master call for the Court docket.

rather
The Court

finds that the Respondent then may not apply for voluntary
departure under Section

but rather,

240B(b),

voluntary departure under Section 240B (a).

A200-808-429

may request
The Respondent,

December 5,

2012

Immigrant & Refugee Appellate Center | www.irac.net

the Court continue the case so that the Respondent may seek

through counsel,
under Section

240B(a).

He wishes to reserve his right to appeal

Court's ruling on the Motion to Terminate these proceedings.

Therefore,

the Respondent's application for voluntary departure

under Section

240B(b) will be denied.

The Respondent then seeks

an Order of Removal.
ORDERS
IT IS HEREBY

ORDERED that the Respondent's application

for voluntary departure under Section

240B(b) of the Act be

DENIED;
IT IS

FURTHER ORDERED that the Respondent be removed

to Mexico on the charges on the Notice to Appear.

Please see the next page for electronic signature

VIRGINIA

PEREZ-GUZMAN

Immigration

A200-808-429

Judge

December

5,

2012

Immigrant & Refugee Appellate Center | www.irac.net

the

did not wish to apply for voluntary departure

, ,

'

/Isl/
Immigration Judge VIRGINIA PEREZ-GUZMAN

A200-808-429

2013 at 2:38 PM GMT

Immigrant & Refugee Appellate Center | www.irac.net

perezv on February 25,

December 5,

2012