, U.S.

Department of Justice

Executive Office for Immigration Review

Board oflmmigration Appeals

Office of the Clerk

5107 Leesburg Pike, Suite 2000

Falls Church. Virginia 2204 J

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Delgado, Violeta DHS/ICE
Law Offices of Violeta Delgado 606 S. Olive Street, 8th Floor
2112 North Main Street Unit 200 LOS ANGELES, CA 90014
Santa Ana, CA 92706

Name: GAITAN, GUSTAVO A 205-712-334

Date of this notice: 3/31/2017

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

Sincerely,

,7
u, .J'"'-
Cynthia L. Crosby
Acting Chief Clerk

Enclosure

Panel Members:
Grant, Edward R.
Mann, Ana
Pauley, Roger

Userteam: Docket

For more unpublished BIA decisions, visit

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Cite as: Gustavo Gaitan, A205 712 334 (BIA March 31, 2017)
U.S. Department of Justice Decision of the Board of Immigration Appeals
Execufr,e Office for Immigration Review

Falls Church, Virginia 22041

File: A205 712 334-Los Angeles,CA Date:

MAR 3 f 2017
In re: GUSTAVO GAITAN

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IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Violeta Delgado,Esquire

APPLICATION: Continuance

The respondent, a native and citizen of Mexico, has appealed the Immigration Judge's
decision dated March 29, 2016, denying his request for a continuance. The Immigration Judge
granted voluntary departure with an alternative order of removal. The Department of Homeland
Security (DHS) has not filed a brief or other response. The appeal will be sustained, and the
record will be remanded.
On appeal, counsel for the respondent argues that the Immigration Judge abused her
discretion in denying a continuance pursuant to Ahmed v. Holder, 569 F.3d 1009 (9th Cir. 2009)
(Resp. Br. at 2-5). 1 The first factor to be considered under Ahmed v. Holder, supra, is the nature
of the evidence excluded. The second Ahmed factor is reasonableness of the respondent's
conduct. Ahmed v. Holder, supra, at 1013. Here, it appears that the detained respondent's
attempts at obtaining counsel in a timely manner were reasonable (Resp. Br. at 3-4; I.J. at 2; Tr.
at 6-7). The respondent also argues that a further continuance would not have inconvenienced
the court (Resp. Br. at 4). Ahmed v. Holder, supra, at 1013-14. Finally, he notes that the
Immigration Judge granted just one prior continuance, of only 2 weeks. (Resp. Br. at 4-5; Resp.
Notice of Appeal). Ahmed v. Holder, supra, at 1014. In his appeal brief, counsel also argues
that the respondent's due process rights were violated (Resp. Br. at 5).

The respondent was not afforded a reasonable and realistic period of time in which to obtain
counsel. Matter of C-B-, 25 I&N Dec. 888 (BIA 2012). We appreciate why the Immigration
Judge proceeded as she did, given the docket pressures of a detained calendar. However further
safeguards were required. Matter of C-B-, supra, at 890. Most importantly, this case arises
within the jurisdiction of the United States Court of Appeals for the Ninth Circuit, and the
respondent at no time explicitly waived his right to counsel. Matter of C-B-, supra, at 890, n.1.
Furthermore, the Immigration Judge did not advise the respondent, either at a prior hearing or on
the date of the final proceeding, that the Immigration Judge would proceed in adjudicating the
1
Furthermore, the Immigration Judge did not explicitly address the respondent's verbal request
for a continuance, discussing whether or not he established good cause for a continuance (I.J. at
1-3). See 8 C.F.R. 1003.29; Matter ofSibrun, 18 I&N Dec. 354,355 (BIA 1983).

Cite as: Gustavo Gaitan, A205 712 334 (BIA March 31, 2017)
A205 712 334

respondent's case without counsel (Tr. at 1-7). We note that pursuant to Montes-Lopez v. Holder,
694 F.3d 1085 (9th Cir. 2012), prejudice need not be shown if there is a violation, such as
denying a continuance, of the statutory right to counsel.

Accordingly, the following order will be entered.

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ORDER: The appeal is sustained and the record is remanded for further proceedings and the
entry of a new decision consistent with the foregoing opinion.

2
Cite as: Gustavo Gaitan, A205 712 334 (BIA March 31, 2017)
 UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
LOS ANGELES, CALIFORNIA

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File: A205-712-334 March 29, 2016

In the Matter of

)
GUSTAVO GAITAN ) IN REMOVAL PROCEEDINGS
)
RESPONDENT )

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

APPLICATIONS: None.

ON BEHALF OF RESPONDENT: PRO SE

ON BEHALF OF DHS: DAN BURKHART

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

12, 2016, which has been marked and admitted as Exhibit 1. The respondent admitted

the allegations and the charge was sustained. The respondent testified that his first

date of entry was in February 1990. The Government reported a criminal history

including a conviction in the year 2000 for Penal Code Section 459, a 2008 conviction

for driving without a license. The respondent claims to be married. That his wife was

born in Mexico. That he and the wife have what he refers to as an adoptive son.
However, the son was never formally adopted. It appears to be a relationship that they
raised this person. This person was born in Mexico, although came to the United States
in 2006. However, the respondent is not the biological or the legally adoptive father.
The respondent states that he has no fear of returning to Mexico because somebody

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may want to harm him. His parents were born in Mexico. Neither parent has ever
become a lawful permanent resident or citizen of the United States. The respondent
was arrested currently as the result of what appears to be a Fugitive Operation. The
respondent has requested that the proceeding be continued in order that he may seek
counsel. However, the matter was specifically continued on March 15 at his master
calendar hearing. He was advised of his right to seek counsel and the matter was
rescheduled to March 29. On March 29, the respondent appeared without counsel,
indicated that he had been in contact with an organization but that they could not be
present and wanted a continuance in the matter. The Court asked the respondent if he
could more specifically give the name of an individual or somebody with whom he
believed he would have an attorney relationship with. The respondent was unable to
provide the name of an individual lawyer. Nobody has filed an E-28 with the court to
indicate that they would be representing the respondent and nobody has filed a motion
to continue. Therefore, the Court declines to continue the matter for this speculative
representation that the respondent is hopeful. The respondent does not appear to be
eligible for any relief. As stated above, he has no qualifying relative for a cancellation of
removal under Section 240A(b). He states he does not have any fear. There is no

A205-712-334 2 March 29, 2016

basis for an asylum application and there does not appear to be any derivative

citizenship through his parents. The respondent may be eligible for voluntary return.

The Court will consider that.

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LORRAINE J. MUNOZ
Immigration Judge

A205-712-334 3 March 29, 2016