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U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals


Office <f the Clerk

5107 Leesburg Pike, Suite 2000


Falls Church, Virginia 2204/

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SANTOS GIJON, EFRAIN DHS/ICE
A208-837-339 606 S. Olive Street, 8th Floor
C/O CUSTODIAL OFFICER LOS ANGELES, CA 90014
501 THE CITY DRIVE SOUTH
ORANGE, CA 92868

Name: SANTOS GIJON, EFRAIN A 208-837-339

Date of this notice: 6/22/2017

Enclosed is a copy of the Board's decision in the above-referenced case. If the attached
decision orders that you be removed from the United States or affirms an Immigration Judge's
decision ordering that you be removed, any petition for review of the attached decision must
be filed with and received by the appropriate court of appeals within 30 days of the date of
this decision.

Sincerely,

Cynthia L. Crosby
Deputy Chief Clerk
Enclosure
Panel Members:
Pauley, Roger
Mann, Ana
Grant, Edward R.

Userteam: Docket

For more unpublished BIA decisions, visit


www.irac.net/unpublished/index/

Cite as: Efrain Santos-Gijon, A208 837 339 (BIA June 22, 2017)
U.S. Department of Justice Decision of the Board oflmmigration Appeals
Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A208 837 339 - Los Angeles, CA Date:


11" .2 2 2017
In re: EFRAIN SANTOS-GIJON

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IN REMOVAL PROCEEDINGS

APPEAL AND MOTION

ON BEHALF OF RESPONDENT: Pro se

APPLICATION: Remand

On March 30, 2017, the Immigration Judge found the respondent removable as charged, found
the respondent ineligible for relieffrom removal, and ordered him removed. The respondent has
appealed the Immigration Judge's order ofremoval. The record will be remanded.

This Board reviews an Immigration Judge's findings of fact, including findings as to the
credibility oftestimony, under the "clearly erroneous" standard. See 8 C.F.R. 1003.1(d)(3)(i).
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).

Respondents in immigration proceedings have the statutory and regulatory "privilege ofbeing
represented" by counsel of their choice at no expense to the Government. See sections
240(b)(4)(A), 292 ofthe Act; 8 U.S.C. 1229a(b)(4)(A), 1362. See also 8 C.F.R. 1003.16(b),
1240.3, 1240.I0(a), 1240.ll(c)(l)(iii). 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-, 25 l&N
Dec. 888, 889-890 (BIA 2012). See also sections 239(a){l)(E) and 239(b)(l) ofthe Act, 8 U.S.C.
1229(a)(l)(E); (b)(l).

The detained respondent appeared pro se before the Immigration Judge. At his first hearing
on March 15, 2017, he asked for time to find an attorney. He was granted two weeks (Tr. at 7).
At his second hearing on March 30, 2017, when the Immigration Judge asked the respondent ifhe
had retained an attorney, he said "not yet" (Tr. at 8-9). The Immigration Judge did not ask what
efforts he had made to hire counsel, whether he wanted more time to hire counsel, or whether he
wanted to represent himself. Instead, the Immigration Judge apparently concluded that he had
waived his right to counsel and proceeded to take pleadings (Tr. at 9). On appeal, the respondent
argues he was denied his right to counsel. We conclude that the respondent was not granted a
reasonable and realistic amount of time and provided a fair opportunity to seek, speak with, and
retain counsel. See Matter ofC-B-, supra. See also Montes Lopez v. Holder, 694 F.3d 1085, 1090-
1094 (9th Cir. 2012) (alien who shows that he has been denied the statutory right to be represented
by counsel in an immigration proceeding need not also show that he was prejudiced by the absence
ofthe attorney)

Cite as: Efrain Santos-Gijon, A208 837 339 (BIA June 22, 2017)
A208 837 339

Accordingly, the following orders will be entered.

ORDER: The motion is granted.

FURTHER ORDER: The record is remanded to the Immigration Judge for further proceedings
consistent with the foregoing opinion and entry of a new decision..

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Board Member Ana Mann respectfully dissents without separate opinion.

2
Cite as: Efrain Santos-Gijon, A208 837 339 (BIA June 22, 2017)
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
LOS ANGELES, CALIFORNIA

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File: A208-837-339 March 30, 2017

In the Matter of

)
EFRAIN SANTOS GIJON ) IN REMOVAL PROCEEDINGS
)
RESPONDENT )

CHARGES: 212(a)(6)(A)(i) present without being admitted or paroled.

APPLICATIONS: None.

ON BEHALF OF RESPONDENT: PRO SE

ON BEHALF OF OHS: MATTHEW CHAN

ORAL DECISION OF THE IMMIGRATION JUDGE


The respondent is a male, native and citizen of Mexico. Removal proceedings

were commenced with the issuance of a Notice to Appear dated February 3, 2017,

which has been marked and admitted as Exhibit 1. The respondent admitted the

allegations and the charge was sustained. The Government submitted lwo items. The

first item is a police report from the Santa Barbara County Sheriff, which is Exhibit 2.

And Exhibit 3 is a packet of items which include the respondent's l-213, his FBI criminal

history record, court records regarding his conviction for Penal Code Section 245(a)(1)

assault with a deadly weapon, and a case summary of multiple other prosecution.

1
The respondent also testified that his first date of entry was in 1998 and he has

never dep.arted.. The. respondent acknowledged, and the records corroborate, that he
was recently convicted for assault with a deadly weapon .. The prosecution began after

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a domesUc dispute and ultimately the respondent negotiated the- plea and the other
charges were dismissed. The respondent was prosecuted as a felon and he was

sentenced to 180 days. The respondent's other criminal history includes a false report
to the police stemming out of a police encounter where he was being sought for what he
characterized as burning rubber. He then abandoned his car and reported it as stolen
in 2007, as well as a DUI in 2009 for which he ultimately was sentenced to community

service, another disorderly conduct 2009 offense.

Respondent is married. His wife is naturalized. He has five children, four with
his wife and one is a different mother. His parents were born in Mexico. Neither parent

has ever become a lawful permanent resident or citizen of the United States, and he

has no fear of harm if he were to return to Mexico. The respondent does not appear to
be eligible for any relief. The respondent has no basis for claiming asylum. By his own
admission, he has no fear of harm. His wife, though she is naturalized, has never filed

a petition to immigrate him, and because the respondent entered without inspection and

has never re-entered and been inspected, he would be ineligible to adjust status even if
the wife were to petition for him at this time on account of 245(i) bar.
With regard to cancellation of removal for non-lawful permanent residents under
Section 240A(b), the respondent is ineligible because he cannot establish good moral
character. The Court is mindful that the Ninth Circuit has recently remanded the Ceron
decision regarding whether or not 245 assault with a deadly weapon is in fact a crime of
moral turpitude, however there is prior precedent that it is.
The respondent also, because it was acknowledged and claimed in the charging

A208-837-339 2 March 30, 2017


document that the respondent used a knife to assault the victim and that there is a

special allegation that it is a serious violent felony offense, the Court finds that the
respondent's conviction is a crime of moral turpitude. And because he was prosecuted

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as a felony, it is not subject to the petty offense exception. Therefore, the respondent is
not eligible for cancellation of removal for non-lawful permanent residents. Similarly, he

is not eligible for voluntary return post hearing because h cannot establish good moral
character. The respondent wishes to appeal the decision and, therefore, is not seeking
. .

prehearing VR. The respondent is ordered removed.

Please see the next page for electronic


signature
LORRAI NE J. MUNOZ
Immigration Judge

A208-837-339 3 March 30, 2017


/Is// .. '

Immigration Judge LORRAINE J. MUNOZ


munozl on May 17, 2017 at 2:19 PM GMT

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A208-837-339 4 March 30, 2017