Enrique Ramos, A022 833 741 (BIA Mar. 8, 2012)

7/28/2019 Enrique Ramos, A022 833 741 (BIA Mar. 8, 2012)

1/10

RAMOS, ENRIQUE8915 MONTANA AVE022-833-741EL PASO, 79925

Name: RAMOS ERQUE

U D f Juc

Executive Oce r Immigration Review

B Immg lOc h Clk

5107 leebrg /ik, Sie 2000Fa Chr/ Viia 22041

HS/CE Oice of Chief Counse - ELP1545 Hawkns Blvd.El Paso, TX 79925

A022833741

Date of this notice: 3/8/2012

nclosed is a copy of the Board's decision and order in the above-rerenced case.

closure

Pane Members:Cole Patrcia A.

Sincerely,

Donna CarrChief Clerk

Cite as: Enrique Ramos, A022 833 741 (BIA March 8, 2012)


2/10

U.S Department of JusticeExecuve Oce r Imigration Review

Flls Church, Vrgina 22041

Fie: A022 833 74 - El Po, TX

re Q U

E RAOS

I REMOVAL PROCEEDGS

PEAL

ON BEF OF RESPONDENT ro se

ON BHAF OF DHS

CHARGE

Willa M. HuntAssstant Chief Counse

Decison of the Board o Imaon Appeas

DateMR -8 Z0\2

Notice Sec. 212(a)(6)(A)(i), I&N Act [8US.C82(a)(6)(A)()] resent wthout beng admtted or paroed (not sustaned)

Sec 22(a)(2)(A)()(), &N Act [8USC82(a)(2)(A)()() Controlled substance volation (not sustne)

Loge Sec. 237(a)(l ){B), &N Act [8UC.1227(a)()) - theUnte States in volaton of law (sustned)

Sec 237(a)(2)(B)(i), &N Act [8US.C.227(a)(2)(B)() Convcted of ontroled substance violation (sustained)

APICATION Tenation

The responent appeals an mmaton Judge's October 9, 2011, decson denyng hs motonto teinate hs remova proceedngs he Departent of Homeland Secuy("D) opposes eappeal, whch w be ssse

The respondent chalenges the miation Judges detenato that the DHS estabshed hsMexcan ienage despite his clam to nted States citizenshp He contens that he was denie dueprocess because the gration Juge ssued a nal decision whie his request r a delayed Teasbrth certicate reained pending. he respondent also asserts that hs e process rts werevolated because he brought wtnesses w kowedge ofhis nited States br to several hearigsut they were not petted to testi e argues that hs er counse provded neectveassstance by not avisng hm that during a May 4, 201, hearing whch the respondent d notattend, e mation Juge inscted counse to have a wtnesses present at the Septeber 6,20, hearng, deprvng the responent of the oppouny to present hs wess Fnay, e



3/10

,

A022 833 4

respondent assers that his eorts to prove hs citienship have been warted by hs oers erepoyers d ther relative, an iiation ocial

The Bord reviews an iation Judge's ndings of ct, cludig dngs a to the

credibilty of testiony, under e "clely eoneous stdd. 8 CF.R 3l()(3)(). Wereviewde novoquesions of law, discretion, judgent, d all other issues in appeals o decisiosofato Judges. 8CR13()(3)();Maer of-SB 24 I&NDec 493 (BI28).

The iatio Judge und at the evidence of the respondents exicn birh ncluded acopy of a Mexican bir certicate recorded by his oer several ons aer hs bir (IJ atExh. 3 Tab A); records of encounters with iiatio auores where the respodent reportedthat he was bo i Mexico includig bioaphic infoation, -3 petio led by the

respondents wi on his behalf, and vous Fos I23 Record ofDortable Ae (Exh 3 Tabs,BC, G H ); d a reecting the revocation of the respondents border crossing cd xh3 Tab G)

he iatio Judge also cosidered a swo stateent by e respodents goder aestingtohis presence at the respodents brth in El Paso Texa and asertng hat the goder wessede birth papers presented by e idwife (I J. at2; Exh. 5) However, the aton Judgeattrbuted little weigt to e swo stateent because e godther n iterested wiess, was notavailable r cross-exiation (I.J at2)

he respodent contends at his godther previously appeed at several hergs but erespondent w unaware that the goder should appe at the Septeber6 2hearing wherethe iation Judge evaluated the evidence d deteried that e DS s evidece of Mexicaeage ouweighed the evidence ofUnted States citizenshp. The repodent argues that theinaby to present hs wiesss testioy constitutes a due process violation. We e upersuadedby this uent a the script of the Septeber 6, 20, hearng reects hat e respondetdid ot obect to e Iiation Judges stateet that e witness wa uavailable to testi, nddid not request a cotiuance to present te wiess. oreover, despite e fact that the proceedingswere contnued to allow the respondent tie to respond to new chges lodged by the DHS, switness dd not appear at the subsequent hearng. Thus the respodent waived hs due processclai. Zhang v Gonzaes, 432 F3d 339, 346-4 (5th Cir. 25) (failure to raise a due processobectio waives that obection on appeal)

Therespondent atrbutes hs godthers absence o te Septeber 6, 2heang to hscounsels falure to advise h that e godther should appear To the extent that e repondetasers that counsel provided ineective assistce he has not set rth a clai n coplce withe aework outlined i Maer oLozada 9 I&N Dec 637 639 (BI 988). he respondent

has not provided an adavit atesting to the relevt cts ilding the tes ofhis agreeent witcosel has not ined cosel of the allegatios or provided counsel with the opporui to

respond; and has not led or explained why a evance has not been led wit the govegauthorties. d see aso Mai v Gonzaes 473 F.3d 62 65 (5th C 26) Furter therespondent ha ot shown hat he wa preudiced by hs er cousels represetation MatteofLozada supra;Mai v Gonzaes supra. Althou the respodent serts that hs aoey did otadvise that is godther should be present at the Septeber6, 21, hearng, as discussed

2

Cite as: Enrique Ramos A022 833 741 (BIA March 8 2012)


4/10

02 833 741

above he did not request a continuance or raise an ojection with the Imigraion Judge n c theheaig was continued so the responden could respond o new charges lodged y the DHS ye therespondent did no presen his witness at the susequent Octoer 19, 11 hearing or profer thedetails of how the winess's tesimony would olser the previousl sumied swo staemenherere the respondent ha not staed a claim of ineective assistance his rmer counsel

We are unpersuaded y the respondents remaining agments First the decision to gant acontinuance in a removal proceeding is within the miation udge's discretion and e denial ofa continuance wll not e oveed uless the respondent estaishes that he denal depivd himof hs due process ght to a l d far heing Matter ofPerez-Anade 19 &N Dec 433 434 (BA198) he alien must show that actual prejudice materiall afcting the outcome of the caeresuted om the denial of the continuance Matter ofSibrun 18 & Dec 354 356-5 (BA 1983 )The record reecs that the iation udge coninued the proceedings om Ma 4 11 untilSeptemer 16 11 whie the responden sought to oain a delaed irth ceticate om the Stateof Texa (Tr at 363) At th Septemer 16 11 heang he respondent indicated tha eots

were sill udeway o ge he cericate (Tr at 47) The Septemer 6 11 heaing was continued

unti coer 19 11 aeit r a dierent pose ut the responden sti had not otained thedeaed ith ceicate (Tr a 61 ) n igh of he prior coninuces he mmigration udge actedwithin his discretion y decining to coninue the case er and issuing a rling as to therespondents exican alienage Moreover even if the respondent does receive a delaed ihceicae such a document is not conclusive evidence of his ih in the United Staes See Matterof Serna 16 & Dec 643 64445 (BA 1978); Matter of Herrera, 13 &N Dec 755 58 ( 1971 )hus we cannot say that the respondent has een deprived of his due process righs and he has notdemonsated actual prejudice Matter of PerezAndrade supra; Matter ofSbrun, sura.

Second to the extent that he responden agues hat iigation ofcials conspired with hismoher's empoyer to inerere with his aemp o esalish Ued States citizenship i is uncleaom he record how the actions of hose ocias thwaed his eots he respondent contends thahis mother's nited States employers took advanage of her lack of education to convince her tootain he respondents order crossing cad despite his ith in he nited States so that he couldive wth his moher at he employers' home and atend school local He ther assets that theorder crossing cad was revoked and other immiation processes were sied an imiaionocialwho wa aed o he emploers We oseve hat the order crossing cad revocation ansevera os 3 Record of Deoale Aien appea to e sied b a "Tomas Silva thedividua idenie he respondent he emploes' relave owever tere is no indicationtha he docuents were signed oher han in he regla cose of business an he responden hano presented persuasive evidence that he was the victim of unscupuous acs y immigation

authoriies

ollowing ourde novorevew, we concur ha he DHS saised is uden of esalishing herespondent's Mexican alienage We agree wih the migration udge ha he respondents moionto terminae he removal proceedings was hou merit Conseuenl we will dismiss herespondents appea

3



5/10

A0 833 74

ccdg e wg dewbe eered

OER: he appea dmed

FORT O

4

Cite as: Enrique Ramos A022 833 741 (BIA March 8 2012)


6/10

ITED STATES DEPARTMENT OF JUSTCE

EXECUIVE OFFCE FOR IMMIGRATION REVEW

MMGRATON COURT

8915 MONTA AVENUE

EL PASO TX 79925

AW OFFICES OF EL SOIS

GUTIERREZ LORENA N. ESQ

1411 MONTA AVENUE

EL PASO TX 79902

N THE ATTER OF

OS ENRQUE

FLE A 022-833741 DATE: Oct 20, 2011

LE TO FORWRD NO ADDRESS PROVIDED

ATTACHED IS A COPY OF THE DECSION OF THE IMMIGTION JGE. THIS DEqISON

S FNAL LESS APPEAL S FED WTH THE BOD OF MMGTON APPES

WTHN 30 CLENDAR DAYS OF THE DATE OF THE NG OF THIS WRITTEN DECfSION SEE THE ENCOSED FORMS D NSRUCTONS FOR PROPERY PREPRING YO APE.YO NOTCE OF APPEL ATTACHED DOCENTS FEE OR FEE WAR REQUESTMUST BE ED TO BOD OF IMMGRATON APPEALS

OFFCE OF THE CLERK

PO BOX 850

FALS CHURCH VA 22041

ATTACHED IS A COPY OF THE DECISION OF THE IMMIGATON GE AS THE RESULT

OF YOR FALURE TO APPEAR AT YOUR SCHEDUED DEPORTATON OR REMOV HENG.

THIS DECISION S FN ESS A MOTON TO REOPEN S FLED IN ACCORDCE

WTH SECTION 242B(c) (3) OF THE MMIGRATON A NATONATY ACT 8 USCSECTON 1252B(c) (3) IN DEPORTATION PROCEEDNGS OR SECTON 240(c) (6)

8 us.c. SECTION 1229a(c) (6 N REMOV PROCEEDNGS F YOU FE A MOTONTO REOPEN YOUR MOTON MUST BE FED WITH THIS COURT

OTHER

IGTION COT

8915 MONTA AE

E PASO TX 79925

co:GATON COURTCC H WI TAEPD

1545 HAWKNS SUITE 275

EL PASO TX 79925

FF


7/10

A-022 833 741

ITED STATES DEPARTMENT OF JUSTICEEXECTIVE OFFICE FOR IMMIGTION REVIEW

Immigration CourtEl Paso, Texas

In the Matter of In Removal Proceedings

Enrique Ramos

CHARGE(S):

LODGED

CHGE{S)

APLICTION

Respondent

212{a) 6 (A){i)(illegal entry); and212{a){2)(A) (i) (II) {drug violation).

237(a){1)(B)(overstay visa) and237(a} (2) (B) (i)(drug violation)

Termination/Claim o nited States Citizenship bybirth in the U.S

ON BEHALF OF RESPONDENT ON BELF OF HOMELD SECURITY

Lorena Gutierrez Esq William Hunt Esq.

OER OF THE IMIGTON JGE:

1. Say

The Deprtment of Homeland Securit {DHS) issued a Notice toAppear charging respondent with being inadmissible as articulatedabove The DHS subsequentl lodged the charges of deportabilityarticulated above Respondent denies either inadmissibility ordeportabilit as charged. Instead, respondent asserts UnitedStates citizenship by birth in the nited States. This decisionfollows.

2 US Ctzenshp Cam

Respondent has asserted ta e is a nited States citizenby birth in the United Staes. Because respondent is claimingUnited States citizenship by birth in the United States it isthe DHS who ears the urden of proving alienage.

On the government's side the DHS submitted copiousdocumentation that shows respondents irth was recorded y hismother in Mexico; that respondent had claimed birth in Mexico

Page 1 of 4


8/10

val ti in prviou ncountr wit iirationutoriti and alo apparntly claid Mxican birt orcitiznip wn applyin or a viitor via at t ricanconulat in Ciudad Juarz Mxico Howvr t only vidncrpondnt a i a worn tatnt ad by rpondnt

Godparnt artin tat witnd t rpondnt birt int nitd Stat nortunatly ti witn wa not availablto ttiy in court Rpondnt xplanation or tidicrpancy i tat only jut ound out trou i Godatrtat wa actually born in Mxico and tat all t tim int pat rpondnt blivd tat wa actually born inxico

tr rviwin t vidnc ubmittd by t parti tcourt ind tat t qantity and qality o t ovrnmntvidnc clarly outwi t inl worn tatnt ad byrpondnt Godatr Firt t aiant i not availabl to

b cro xamind by t DHS or court uc tat t court ay babl to acrtain t crdibility o ti pivotal witn Inact ti witn i t only witn o rpondnt alldbirt in t nitd Stat tat i till aliv Rpondnt

motr i dcad no on know t idntity o t idwi orpyician wo prord t birtin opration; and non orpondnt otr rlativ wr prnt at t ti orpondnt birt

rpondnt birt i oicially rcordd in Mxicoowat contporanouly wit i birt t court ind tat

vidnc to b mor pruaiv tan t aidavit ivn by awitn wo i not ubct to cro xamination. Tror tcourt ind tat t DHS a provn alina by clar andconvincin vidnc and rpondnt otion to trinat rovalprocdin will b dnid

1 T court do not ind ti a iant to b a di

intrtd witn wo aidavit can b accptd witout pauIn t court xprinc aily br and clo ailyrind will omti do unxplaind and xtraordinary tinor my mbr acin prion or dportation Tror tcourt i unwillin to iv uc wit to ti aidavit in lito t act tat t aiant a not bn ubct to croxamination to dtrin wtr tr it b om bia orultrior otiv

Pa 2 o 4


9/10

3 . Removal Charges

The HS originally harged responden wih beingnassbe However during he ourse o he hearing ibeame apparen ha he responden was he reipien o a

Mexian Border Crossing ID ard (B/B2 visa alernaive) andhere was no evidene in he reord o show any deparures romhe nied Saes Thus he our indiaed o he HS ha idid no ind any lear and onvining evidene onadmssblty

The our gave he DHS he opporuniy o lodge harges odeportablty, whih he DHS ook advanage o hargingresponden wih being ou o saus/oversaying his visa and orbeing deporable due o some drug onviions

The responden has admied o he drug violaions

ariulaed in he harging doumen marked exhibi 2 bu deniesbeing ou o saus (apparenly or ear ha admiing suh a a migh jeopardize heir laim o iizenship on appeal) owever responden did indiae ha hey had no evidene o heme plae or manner o respondens admission or period oauhorized say and was unable o esablish any permission byDHS o remain in he nied Saes

Based upon he evidene o reord inluding respondensadmissions he our inds ha responden alhough apparenlyadmied o he nied Saes had no esablished ha he wasurrenly in saus on his visior's visa and deporable underseion 237(a) (1) (B) The our also inds ha respondenshree separae onviions in he Sae o Texas or illegalpossession o marijuana render him deporable under seion237 (a) (2)(B) (i)

4 Relif from Remova

Oher han respondens iizenship laim responden hasideniied no relie rom removal available o him Due o hisdrug onviions responden is no ineligible or adjusmen osaus anellaion o removal and beause his ase is more

han 30 days rom he iniial maser alendar he is now

The our would noe ha he ype o visa respondenapparenly used o possess was good or brie visis o he

nied Saes o 30 days or less and here was also ageographial resriion upon where he alien ould ravel

Page 3 o 4


10/10

t : -

niibl fo olna dau Th sondn dos noa scuion o ou in xico so h a no fu

ssus o sol

5. Conclusion ad rders

Th cou has found ha h dn submid by h DSsablshs sondns bh in Mxo by cla and connnn Th cou fuh finds sondn doab asha n h lod han ocumn, and ha h s noaan lif fom moal aaiabl o h sndn

Thfo, h ou ill n h folloin os:

ODR:

URTRORDER

@.

sondns moion o mna moal odins sdn.

sondn is hby od mod fom h Unidas o xico

Da Oob 9 20

Th o no dun h han ha n f

sponn liib fo olunay au h cou ouln such lf n h xs of h ous dsconbcus sondns du onons ll ha h ff ofannly ban sondn as bn amd o h nidSas n h fuu Thus, olunay da ould no assssponn in nomalzn his saus o unin o h

Und Sas

Pa 4 of 4

Enrique Ramos, A022 833 741 (BIA Mar. 8, 2012)

Documents

Transcript of Enrique Ramos, A022 833 741 (BIA Mar. 8, 2012)