U.S.

Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

Qffice of the Clerk
5107 leesburg Pike, Suite 2000
Falls Church, Virginia 20530

OHS/ICE Office of Chief Counsel - MIA

Eduardo Soto, P.A.

333 South Miami Ave., Suite 200

Miami, FL 33130

999 Ponce de Leon Blvd., Suite 1040

Coral Gables, FL 33134

Name: CARRALERO,ANTONIO

A 088-015-223

Date of this notice: 12/23/2014

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

D Ca.AAJ
Donna Carr
Chief Clerk

Enclosure
Panel Members:
Grant, Edward R.
Guendelsberger, John
Hoffman, Sharon

Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: Antonio Carralero, A088 015 223 (BIA Dec. 23, 2014)

Immigrant & Refugee Appellate Center | www.irac.net

Soto, Eduardo, Esq.

U.S. Department of Justice

Decision of the Board of Immigration Appeals

Executive Office for Immigration Review

Falls Church, Virginia 20530

File:

A088 015 223 - Miami, FL

Date:

DEC 2 3 2014

In re: ANTONIO CARRALERO

APPEAL
ON BEHALF OF RESPONDENT:

Eduardo Soto, Esquire

ON BEHALF OF DHS:

Michele Drucker
Assistant Chief Counsel

APPLICATION: Reopening

The respondent is a native and citizen of Cuba.

On June 18, 2012, an Immigration Judge

ordered his removal from the United States after determining that the respondent had abandoned
his application for asylum, withholding of removal, and protection under the Convention Against
Torture (Form I-589) because he did not file it by the June 15, 2012, deadline.

On

September 13, 2012, the respondent filed a motion to reopen which the Immigration Judge
denied on October 3, 2012. The respondent's appeal from that decision will be sustained.
The Board defers to the factual findings of an Immigration Judge, unless they are clearly
erroneous, but it retains independent judgment and discretion, subject to applicable governing
standards, regarding pure questions of law and the application of a particular standard of law to
those facts. 8 C.F.R. 1003.l (d)(3)(i), (ii).
In his appellate brief, the respondent states that he appeared before the Immigration Court on
March 22, 2012, represented by former counsel, and was told that he had until June 15, 2012, to
submit his Form I-589. He further states that his former counsel filed a motion to withdraw on
May 31, 2012, which the Immigration Judge granted on June 5, 2012.

The respondent argues

that he did not receive the Immigration Judge's June 5, 2012, decision granting the motion, and
even if did, he was given an insufficient opportunity to obtain a new attorney or submit his Form
1-589 without the assistance of an attorney.
We disagree with the Immigration Judge's decision to deny the respondent's motion to
reopen. The regulations authorize an Immigration Judge to set and to extend deadlines for the
filing of applications. See 8 C.F.R. 1003.3 l(c). The Immigration Judge, on March 22, 2012,
set a June 15; 2012, deadline for submitting the Form I-589.

On May 24, 2012, respondents

former counsel informed the respondent of his intention to withdraw as his attorney, provided
him with a blank Form I-589, and instructed the respondent to file the Form I-589 by
June 15, 2012 (Motion to Withdraw).

However, the respondent was not informed that his

counsel's motion to withdraw was granted which is presumptively prejudicial to the respondent.
In light of the foregoing, the respondent was not given an adequate opportunity to file his Form

I-589, and we will reopen these proceedings.

Cite as: Antonio Carralero, A088 015 223 (BIA Dec. 23, 2014)

Immigrant & Refugee Appellate Center | www.irac.net

IN REMOVAL PROCEEDINGS

A088 015 223

Accordingly, the following order will be entered.

ORDER:

The appeal is sustained, and these proceedings are reopened and remanded for

further proceedings consistent with the foregoing opinion.

Immigrant & Refugee Appellate Center | www.irac.net

Cite as: Antonio Carralero, A088 015 223 (BIA Dec. 23, 2014)
$%

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
MIAMI, FLORIDA

INRE:

IN REMOVAL PROCEEDINGS

Respondent
A# 088-015-223
ORDER
On September 13, 2012, the Respondent, through counsel, filed a motion to reopen his
case. ICE has not responded to the motion. Respondent incorrectly argues that he was ordered
removed in absentia. Instead, he was ordered removed from the US on June 18, 2012 because he
failed to timely file any applications for relief which had a filing deadline of June 15, 2012. This
is not an in absentia order (which is an order of removal when an individual fails to appear in
court for a hearing).
Respondent argues that he did not file any application for relief because he was not aware
of the filing deadline. Respondent appeared in person in court on March 22, 2012 and was given
an oral deadline by the court to file his application for relief. This was explained to him in
English and his native language of Spanish. When asked by the court if he understood the
deadline, he responded "yes."
His former counsel filed a Motion to Withdraw with the court on May 31, 2012 and
mailed a copy to Respondent advising him of the filing deadline and included a blank Form I589, Application for Withholding of Removal. On June 6, 2012, the Court then entered an Order
allowing counsel to withdraw and reminding Respondent that the call-up date was June 15, 2012
for his applications for relief. Respondent claims that he was not aware of the filing deadline
because his counsel did not advise him of that deadline. The court had advised him verbally on
March 22, 2012 of the deadline, his former counsel reminded him of the deadline in the motion
to withdraw and mailed him a copy of the application and again the Court reminded him of the
deadline in the Order of June 6, 2012 (order was mailed to his former attorney and to the
Respondent directly).
An Immigration Judge has the authority to set deadlines for filing of documents.

8 C.F. R.

1003.31 ( c); Immigration Court Practice Manual 3.1 (b)(i)(B), (b)(ii)(B). An application or
document that is not timely filed within the time established by the Immigration Judge may be
deemed waived.

8 C.F. R. 1003.31 ( c); See also Matter of Villarreal-Zuniga, 23 l&N Dec. 886,
892 (BIA 2006); Matter ofShanu, 23 l&N Dec. 754, 765 (BIA 2005); Matter ofRR-, 20 l&N
Dec. 547, 549 (BIA 1992). Respondent's argument that his attorney did not give him a copy of
the Immigration Judge's June 6, 2012 order is without merit, since the order was mailed to
Respondent directly to his last known address as he had indicated to the court during his earlier

Immigrant & Refugee Appellate Center | www.irac.net

Antonio Carralero

,.

Antonio Carralero

A# 088-015-223

hearing on January 19, 2012.

For all the foregoing reasons, the following order is entered:

IT IS HEREBY ORDERED that the Respondent's Motion to Reopen is DENIED.

'-'('vcJ?_
( J)J\4-l-f:Jc

Lourdes Martinez-Esquivel
U.S. Immigration Judge

cc:

ICE Counsel

//

Respondent's Attorney

.44 J.&m:

...,;

Immigrant & Refugee Appellate Center | www.irac.net

Done and ordered in chambers in Miami, Florida on October 3, 2012.

/@WWM