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7/26/2019 Antonio Palomino-Herrera, A205 765 691 (BIA May 24, 2016)
1/8
F
re e
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rt A.
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aw
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TN
381
02
Na
me:
PAL
OMIN
O-H
ERR
ERA
AN
TON
IO
A
205
-765-
69 1
Date
of
th is notic e: 5/2 4/2016
Enc
lo sed
is a
cop y
o t
he Bo
ar d
s dec
ision
a n d
ord e
r in t
he ab
ove-
re fer
ence
d cas
e.
En
closu
re
Pane
l Me
mbe r
s:
Gue
ndel
sb erg
er J
ohn
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,
O
W
U
1
/V t.
Don
na C
arr
C hie
f Cle
rk
Us
ert e
am :
Dock
et
For more unpublished BIA decisions, visitwww.irac.net/unpublished/index/
ggpp
Cite as: Antonio Palomino-Herrera, A205 765 691 (BIA May 24, 2016)
7/26/2019 Antonio Palomino-Herrera, A205 765 691 (BIA May 24, 2016)
2/8
U
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a
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ed
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m
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fi
rs
t
an
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8
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.F
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circumstances, including the fact th at
this
was the respondent s fi rs t
re
q
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or
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O
R
D
ER
:
T
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a
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th
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a
c
co
r
da
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c
e
w
it
h
t
hi
s
d
ec
is
io
n
.
Cite as: Antonio Palomino-Herrera, A205 765 691 (BIA May 24, 2016)
7/26/2019 Antonio Palomino-Herrera, A205 765 691 (BIA May 24, 2016)
3/8
UNITED STATES DEPARTMENT
OF
JUSTICE
EXECUTIVE
OFFICE
FOR IMMIGRATION
REVIEW
UNITED STATES IMMIGRATION
COURT
MEMPHIS,
TENNESSEE
File: A205-765-691
In the Matter
of
March 4, 2015
ANTONIO PALOMINO HERRERA
RESPONDENT
)
)
)
IN
REMOVAL
PROCEEDINGS
CHARGES: Section 212 a) 6) A) i) - alien present without being admitted or
paroled.
APPLICATIONS: Continuance; voluntary departure.
ON BEHALF OF RESPONDENT: PRO SE
ON BEHALF OF OHS:
JAMEE
E.
COMANS
ORAL
DECISION AND
ORDER
Respondent is a married male, native and citizen of Mexico. Based upon
admissions that were made at an earlier Master Calendar hearing, the Court sustained
the charge.
STATEMENT OF
THE CASE
Respondent had been represented by the law offices
of
Elliott Ozment. The
Immigration
Judge
takes administrative notice that Mr.
Ozment
is one of the premiere
Immigration lawyers in the State
of
Tennessee.
1
pp
7/26/2019 Antonio Palomino-Herrera, A205 765 691 (BIA May 24, 2016)
4/8
During the course
o
that representation, respondent had occasion to work
closely with an associate
o Mr. Ozment, Bethany Eichler. Ms. Eichler filed a motion
received by the Immigration Court in August 2014, stating that respondent and she had
come to a mutual agreement by which respondent and Ms. Eichler would terminate their
attorney client relationship. By order found at Exhibit 28, the Immigration Judge signed
an
order allowing Ms. Eichler to withdraw as counsel. Notice was then sent to
respondent at Exhibit
3
informing him o today s hearing and respondent proceeded
prose
Respondent appeared in Court today without any applications even though this
was the day for the filing o all applications. The Immigration Judge questioned the
respondent concerning his length
o
time
in
the United States. Respondent testified that
he has been in the United States for about 22 years, and has a child who is a United
States citizen. Respondent also was convicted at least three times
o
DUI and has
been arrested in 2012 for possession
o
a controlled substance, which he claims was
dismissed and public intoxication which he claims was also dismissed. However,
respondent tenders no application or documents in support o his contention that these
charges were dismissed.
Respondent asks either for a continuance or for an opportunity to file some
application. The Department opposes noting that respondent has been represented by
very able counsel for a long period
o
time, and that the respondent has failed to do
what he was expected to do which was to file his application in open Court today.
ANALYSIS
An Immigration Judge may grant a continuance for good cause shown. 8 C.F.R.
Section 1003.29. The decision to continue a case is reviewed for abuse
o
discretion.
See cases such as Kwak v. Holder, 607 F.3d 1140 (6th Cir. 2010). Among the factors
A205-765-691
2
March 4, 2015
pp
7/26/2019 Antonio Palomino-Herrera, A205 765 691 (BIA May 24, 2016)
5/8
to
be considere
d n determ in
ing whether a
n Immigratio n
Judge has a
bused his
d
iscretion isw h
ether there h
as been a su
ff icient t imeto
gather
the
do
cuments and
w
hethe r there
had been a p
revious contin
uance,
as
we
ll as whethe
r the Depar tm e
nt
opposes.
n
this case,
the Immigra t
ion Judge not
es that the
ep
artment
opp
oses a
cont inuance
in
that the resp
ondent has b
een represen
ted by verya
ble counsel w
ho
concluded th a
t when respo
ndent started
talking, had v
ery little chan
ce
of
proceed
ing n
an a
pplicat ion fo r
cancellat ion
o
f
removal.
In Matter of Inte r iano R osa, 25 l N Dec. 264
BIA
2010), the Boardnotes that an
Im m
igration Judg
e has broad d
iscret ion toc
onduct and co
ntrol Immigra
t ion proceedi
ngs
and
to adm it and
consider rela
t ive and prob
at ive evidence
. If an appli c
at ion is notfil
ed
withinth
e dead l ine, it
can be
deemed
abandoned
.
See
cases
col lected the
rein.
R
espondent
may have the p
hysical prese
nce necess~r
y for cancella
t ion
of
rem
oval, but he
also has three
DUI convicti
ons and charg
es for posses
sion
of
a
contro ll
ed substance
and pub l icint
oxication. He
was represe
nted by very
able counsel
fo
r a long tim e a
nd there isst
il l no applicati
on to fi le toda
y. Responde
nt wants the C
ourt
to
con t inue the
case so tha t h
e can bringa
ll his papers
n so
that
th e C
ourt can look
through
his papers.
This is both in
appropr iate a
nd unnecess
ary because r
espondent
ha
s had ample
t ime since th e
signing
of
th
e order last
September fo r
him to retain
ne
w
couns
el. Indeed,th
e Immigratio n
Judge asked
the responde
nt
if
he had t
alked to a
la
wyer, and ag
ain responden
t breaching t
he at torneyc l
ient pr ivi lege
before the C o
urt
h
ad an opport u
nity to sto ph
im, said tha t t
hat lawyer to l
d the respondent that hed id not
h
ave a strong
cancellat ion c
ase.
It wou ld ap pe
ar that both M
r. Ozment an
d the unnam e
d lawye r gave
respondent
g
ood advice, n
amely thathe
does not hav
e a st rong ca
ncel lat ion cas
e. Responde
nt
A2
05-765-691
3
M
arch 4, 2015
pp
7/26/2019 Antonio Palomino-Herrera, A205 765 691 (BIA May 24, 2016)
6/8
would h
ave difficulty d
em onstrat ing
the requ isite
goo d mora l c
haracter give
n histhree
DUI convict
ions, and his a
rr ests for pos
session
of
a c
ontrol led su b
stance and fo
r publ ic
in toxication.
R espondent
also would no
t be el igible n
all l ikel ihood
n the exerc
ise of
discret io
n. It is well-s
ettled tha t an
Im m igrat ion J
udge can
jump over, so to
spe ak,
s ta
tutory eligibil i
ty and deny a
m o tion to con
tinue n the e
xerc ise
of
dis
cretion. This
has
been held a
s fa r back as
IN Sv. Bagam
asbad, 429
U.S .
4
(1976
).
It is t
rue that respo
ndent has be
en pros s in
ce the Immigr
at ion Judge s
igned
Exhibit
8 allowing the
Oz
ment
f irm to
w it hdraw as
respondent s
legal represen
tative.
However, respondent has had ample opportun ity to bring an appl icat ion to Co ur t and he
has fa
iledto do so.
This lea
vesthe issue
of voluntary d
eparture. Re
sponde nt is r
equired to
d
em onstrate go
od moral cha
ra cter fo r f ive
yea rs, and th
e arrests in q
uest ion took p
la ce
n
2012. Resp
ondent repea
tedly says tha
t thecases
were dismissed
, bu t he has
no
document
s to day to sho
w that . Resp
ondent was o
ffered the op
portuni ty
of
pre-complet io
n vo luntary de
parture, for u
p to 120 days
, but respond
ent chose to a
vail
h ims
elf of
his appe
al rights.
Co
nsidering then
w h ether res
pondent has d
em onst rated
elig ibi l ity for
post
com plet ion vo
lu ntary depar
ture , the Imm
igra t ion Jud g
e f inds that he
ha s not. Th
ere is
the ques
tion
of
these a
rrests, and th
ere are no do
cum ents that
the C our t can
co nsider.
G overnment
cou nsel was
candid n stati
ng that there
are no
judgment and convi
ct ion
documents n
th e A file, an
d so the burd
en s squarely
on the respo
ndent, and he
ha s
notmet
the b
urd en
of
sho
wing that he is
eli gible eithe
r f o r post com
ple t ion volun
tary
dep
artu re or the e
xtraordinary
rem edy
of
can
cellat ion
of
r
em oval.
The Immigr
at ionJudge a
lso denies vo
luntary depar t
ure in the exe
rcise
of
dis cret ion. R
espondent h
as been convi
cted three t im
es o
f
DUI. T
he United Sta
tes
A
205-765-691
4
M a
rch 4, 2015
pp
7/26/2019 Antonio Palomino-Herrera, A205 765 691 (BIA May 24, 2016)
7/8
Court of Appeals for the Sixth Circuit recognizes that three DUI convictions, even
in
the
context
o
an asylum application,
is
sufficient to conclude that a respondent
is
not
worthy o a favorable exercise o discretion. Kouljinski v Keisler, 505 F 3d 534 (6th Cir.
2007).
Thus, the Immigration Judge denies the request for voluntary departure, both
in
the exercise of discretion and for failure o demonstrating the requisite good moral
character. The Immigration Judge denies a request to continue so that respondent can
file
an
application for cancellation
o
removal both because respondent has not
demonstrated
prim f cie
eligibility for the relief, given his three DUI convictions and his
arrests, and
in
the exercise
o
discretion.
In
light
o
the foregoing, the Court enters this
order:
ORDER
Respondent s request for a continuance is denied;
Respondent s request for voluntary departure is denied;
Respondent
is
hereby ordered removed to Mexico.
lease
s
the next page for electronic
signature
A205-765-691
CHARLES E PAZAR
Immigration Judge
5
March 4, 2015
ggpp
7/26/2019 Antonio Palomino-Herrera, A205 765 691 (BIA May 24, 2016)
8/8
I s l
Im
migration
Jud
ge
CH RLES E.
P Z R
pazarc
on
May
14
2015
t
4:44
PM MT
A
205-765-691
6
Marc
h 4 2015
ggpp