U.S.

Department of Justice

Executive Office for Immigration Review

Board of Immigralion Appeals
Office of the Clerk
5/07 leesburg Pike. Suite 2000
Falls Church. Virginia 22041

DHS/ICE Office of Chief Counsel - SEA

1000 Second Avenue, Suite 2900
Seattle, WA 98104

Name: GUTIERREZ-MARTINEZ, RAFAEL

A 205-648-373
Date of this notice: 8/10/2016

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

DcrutL C

(1ftA.)

Donna Carr
Chief Clerk
Enclosure
Panel Members:

O'Connor, Blair

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/
Cite as: Rafael Gutierrez-Martinez, A205 648 373 (BIA Aug. 10, 2016)

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Healey, Sharon Arlene

Law Office of Sharon A. Healey
11036 8th Ave., NE
Suite 75014
Seattle, WA 98175

Decision of the Board of Immigration Appeals

U.S. Department of Justice

Executive Office for Immigration Review
1

Falls Church, Virginia 22041

File: A205 648 373 - Seattle, WA

Date:

AUG 1 0 2016

In re: RAFAEL GUTIERREZ-MARTINEZ

APPEAL
ON BEHALF OF RESPONDENT: Sharon Arlene Healy, Esquire

ORDER:
The respondent, a native and citizen of Mexico, appeals from the Immigration Judge's
decision dated July 29, 2015, which granted voluntary departure under section 240B of the
Immigration and Nationality Act, 8 U.S.C. 1229c, with an alternate order of removal. The
Department of Homeland Security has not replied to the respondent's appeal. The record will be
remanded.
We review Immigration Judges' findings of fact for clear error, but we review questions of
law, discretion, and judgment, and all other issues in appeals de novo.
8 C.F.R.
1003.l(d)(3)(i), (ii).
The record shows that the respondent was pro se at the initial master calendar hearing on
June 4, 2014, when the Immigration Judge reset proceedings until November 6, 2014, to allow
him the opportunity to seek counsel (Tr. at 2). That master calendar hearing was rescheduled for
July 29, 2015, when the respondent appeared pro se and indicated that he had an attorney who
could not be there that day and asked multiple times for a continuance. The Immigration Judge
denied his requests (Tr. at 5, 8-9, 11). In his Notice of Appeal, the respondent explains the
attempts he made to obtain an attorney after his initial master calendar hearing.
Under the totality of the circumstances present here, we find that a remand is in order to
ensure a fair opportunity for the respondent to retain counsel. See Montes-Lopez v. Holder,
694 F.3d 1085, 1089-90 (9th Cir. 2012); Matter of C-B-, 25 l&N Dec. 888, 889-90 (BIA 2012).
Accordingly, the record is remanded to the Immigration Judge for further proceedings consistent
with the foregoing opinion and for the entry of a new decision.

FOR THE BOARD

Cite as: Rafael Gutierrez-Martinez, A205 648 373 (BIA Aug. 10, 2016)

Immigrant & Refugee Appellate Center, LLC | www.irac.net

IN REMOVAL PROCEEDINGS


.....

:....

July 29, 2015

File: A205-648-373
In the Matter of:

IN REMOVAL PROCEEDINGS

Rafael GUTIERREZ-MARTINEZ,
Respondent
CHARGE:

Section 212(a)(6)(A)(i), an alien present in the United States without

having been admitted or paroled.

APPLICATION: Voluntary departure.

On Behalf of OHS:
CARA CUTLER, Esquire
Assistant Chief Counsel

On Behalf of Respondent:
PRO SE

ORAL DECISION OF THE IMMIGRATION JUDGE

The respondent is a 25-year-old single, male, native and citizen of Mexico. On
May 29, 2013, the Bureau of Immigration and Customs Enforcement issued a Notice to
Appear alleging that the respondent was unlawfully present in the United States and
that he should be ordered removed from the United States. See Exhibit 1.
At a Master Calendar proceeding conducted before the undersigned on June 4,
2014, the respondent, who was unrepresented, indicated that he would like the
opportunity to secure legal counsel. Accordingly, the case was adjourned to allow the

Immigrant & Refugee Appellate Center, LLC | www.irac.net

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
OFFICE OF THE IMMIGRATION JUDGE
SEATTLE, WASHINGTON

At the reconvened Master Calendar proceeding conducted before the

undersigned on July 291 2015, the respondent returned to court unrepresented, and was
.. ( Formatted: Font: Italic

compelled to proceed pro se.

The respondent, under oath, admitted the factual allegations contained in the
Notice to Appear. Based on the respondent's admissions, I am satisfied that he is
removable as charged by evidence which I consider to be clear, convincing and
unequivocal in nature. Woodby v. INS, 385 U.S. 276 (1966).
The respondent has indicated in response to questioning from the Court that he
does wish to remain in the United States. The Court has explored with the respondent
whether he may be eligible for any reliefs from removal. The respondent does not
appear to be eligible for adjustment of status, or for cancellation of removal pursuant to
INA Section 240A(b)(1). He has indicated that he does have two United States citizen
children, aged four and one, but it does not appear that the children are eligible to
sponsor the respondent for any kind of lawful status in this country.
The respondent has further indicated that he does not possess any fear of
returning to his country of origin, Mexico.
The respondent has indicated that he does wish to apply for voluntary departure
pursuant to INA Section 240B(b). The Court is satisfied that the respondent qualifies for
the relief of voluntary departure and will grant that relief in the positive exercise of
discretion.
For all of the foregoing reasons, the Court enters the following order:
ORDER
IT IS HEREBY ORDERED that the respondent's application for voluntary
departure be, and hereby is, granted. The respondent will be required to depart the

A205-648-373

July 29, 2015

Immigrant & Refugee Appellate Center, LLC | www.irac.net

respondent an opportunity to return to court with an attorney.

by the District Director of the Bureau of Immigration and Customs Enforcement. The
respondent's voluntary departure order will be conditioned upon payment by the
respondent of a bond in the amount of $500 to the aforementioned District Director by
August 5, 2015, and upon presentation by the respondent of appropriate travel
documentation to the aforementioned District Director at some point prior to departure.
Should the respondent fail to depart the country as ordered, or fail to comply with the
conditions aforesaid to departure as set herein by the Court, then an order for his
removal to Mexico shall be entered without further notice or proceeding.

Date: July 29, 2015

signature

A205-648-373

Please see the next page for electronic

PAUL A. DEFONZO
Immigration Judge

July 29, 2015

Immigrant & Refugee Appellate Center, LLC | www.irac.net

country voluntarily by September 28, 2015, or any extension thereof as may be granted

,... r,

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/Isl/

Immigration Judge PAUL DEFONZO

defonzop on September 24, 2015 at 10:45 PM GMT

A205-648-373

July 29 1 2015