U.S.

Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
Office of the Clerk
5107 Leesburg Pike, Suite 2000
Falls Church, Virginia 22041

DHS/ICE Office of Chief Counsel - MEM

80 Monroe Ave., Ste 502
Memphis, TN 38102

Name: PALOMINO-HERRERA, ANTONIO

A 205-765-691

Date of this notice: 5/24/2016

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

DOWU- C

t1/Vt.)

Donna Carr
Chief Clerk

Enclosure
Panel Members:
Guendelsberger, John

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/
Cite as: Antonio Palomino-Herrera, A205 765 691 (BIA May 24, 2016)

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

Free, Robert A., Esq.

Law Office of R. Andrew Free
P .0. Box 90568
Nashville, TN 37209

U.S. Departme~t of Justice

Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 22041

File: A205 765 691-M emph is, TN

Date:

In re: ANTONIO PALOMINO-HERRERA

MAY 2 it 291fi

APPEAL
ON BEHALF OF RESPONDENT: Robert A. Free, Esquire
APPLICATION: Remand
The respondent is a native and citizen of Mexico. The respondent conce
ded removability,
and, as relief, requested the opportunity to file an application for cancel
lation of removal (Tr. at
2). Thereafter, the respondent's former counsel filed a motion to withdr
aw, which was granted.
The respondent appeared pro se at the next master calendar hearing, but
was not prepared to file
his application. The Immigration Judge denied the respondent's only
request for a continuance,
and ordered the respondent removed.
On appeal, the respondent is now represented by counsel. He contends
that the Immigration
Judge abused his discretion in denying his first and only request for a contin
uance. See 8 C.F .R.
1003.29; Suarez-Diaz v. Holder, 771 F.3d 935, 941 (6th Cir. 2014).
The respondent seeks a
remand so that he may file applications for relief from removal. Consid
ering the totality of
circumstances, including the fact that this was the respondent's first
request for a continuance,
the respondent's former counsel's motion to withdraw was granted, and
the respondent thereafter
appeared pro se, the request for a remand is granted so that the
respondent may file the
appropriate applications for relief from removal. Accordingly, the
following order shall be
issued.
ORDER: The record is remanded for further proceedings in accordance
with this

Cite as: Antonio Palomino-Herrera, A205 765 691 (BIA May 24, 2016)

decision.

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

IN REMOVAL PROCEEDINGS

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
MEMPHIS, TENNESSEE

March 4, 2015

In the Matter of

)
)
)
)

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.

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

File: A205-765-691

During the course of that representation, respondent had occasion to work

closely with an associate of Mr. Ozment, Bethany Eichler. Ms. Eichler filed a motion

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 of today's hearing and respondent proceeded

prose.
Respondent appeared in Court today without any applications even though this
was the day for the filing of all applications. The Immigration Judge questioned the
respondent concerning his length of 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 of DUI and has
been arrested in 2012 for possession of 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 of 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 of 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 of discretion.
See cases such as Kwak v. Holder, 607 F.3d 1140 (6th Cir. 2010). Among the factors

A205-765-691

March 4, 2015

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

received by the Immigration Court in August 2014, stating that respondent and she had

to be considered in determining whether an Immigration Judge has abused his

discretion is whether there has been a sufficient time to gather the documents and

opposes.
In this case, the Immigration Judge notes that the Department opposes a
continuance in that the respondent has been represented by very able counsel who
concluded that when respondent started talking, had very little chance of proceeding in
an application for cancellation of removal.
In Matter of Interiano Rosa, 25 l&N Dec. 264 (BIA 2010), the Board notes that an
Immigration Judge has broad discretion to conduct and control Immigration proceedings
and to admit and consider relative and probative evidence. If an application is not filed
within the deadline, it can be deemed abandoned. See cases collected therein.
Respondent may have the physical presence necess~ry for cancellation of
removal, but he also has three DUI convictions and charges for possession of a
controlled substance and public intoxication. He was represented by very able counsel
for a long time and there is still no application to file today. Respondent wants the Court
to continue the case so that he can bring all his papers in so that the Court can look
through his papers. This is both inappropriate and unnecessary because respondent
has had ample time since the signing of the order last September for him to retain new
counsel. Indeed, the Immigration Judge asked the respondent if he had talked to a
lawyer, and again respondent breaching the attorney client privilege before the Court
had an opportunity to stop him, said that that lawyer told the respondent that he did not
have a strong cancellation case.
It would appear that both Mr. Ozment and the unnamed lawyer gave respondent
good advice, namely that he does not have a strong cancellation case. Respondent

A205-765-691

March 4, 2015

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

whether there had been a previous continuance, as well as whether the Department

would have difficulty demonstrating the requisite good moral character given his three
DUI convictions, and his arrests for possession of a controlled substance and for public

discretion. It is well-settled that an Immigration Judge can jump over, so to speak,

statutory eligibility and deny a motion to continue in the exercise of discretion. This has
been held as far back as INS v. Bagamasbad, 429 U.S-. 24 (1976).
It is true that respondent has been prose since the Immigration Judge signed
Exhibit 28 allowing the Ozment firm to withdraw as respondent's legal representative.
However, respondent has had ample opportunity to bring an application to Court and he
has failed to do so.
This leaves the issue of voluntary departure. Respondent is required to
demonstrate good moral character for five years, and the arrests in question took place
in 2012. Respondent repeatedly says that the cases were dismissed, but he has no
documents today to show that. Respondent was offered the opportunity of
pre-completion voluntary departure, for up to 120 days, but respondent chose to avail
himself of his appeal rights.
Considering then whether respondent has demonstrated eligibility for post
completion voluntary departure, the Immigration Judge finds that he has not. There is
the question of these arrests, and there are no documents that the Court can consider.
Government counsel was candid in stating that there are no judgment and conviction
documents in the A file, and so the burden is squarely on the respondent, and he has
not met the burden of showing that he is eligible either for post completion voluntary
departure or the extraordinary remedy of cancellation of removal.
The Immigration Judge also denies voluntary departure in the exercise of
discretion. Respondent has been convicted three times of DUI. The United States

A205-765-691

March 4, 2015

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

intoxication. Respondent also would not be eligible in all likelihood in the exercise of

Court of Appeals for the Sixth Circuit recognizes that three DUI convictions, even in the
context of an asylum application, is sufficient to conclude that a respondent is not

2007).
Thus, the Immigration Judge denies the request for voluntary departure, both in
the exercise of discretion and for failure of demonstrating the requisite good moral
character. The Immigration Judge denies a request to continue so that respondent can
file an application for cancellation of removal both because respondent has not
demonstrated prima facie eligibility for the relief, given his three DUI convictions and his
arrests, and in the exercise of discretion. In light of 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.

Please see the next page for electronic

signature
CHARLES E. PAZAR
Immigration Judge

A205-765-691

March 4, 2015

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

worthy of a favorable exercise of discretion. Kouljinski v. Keisler, 505 F .3d 534 (6th Cir.

/Isl/
Immigration Judge CHARLES E. PAZAR

A205-765-691

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

pazarc on May 14, 2015 at 4:44 PM GMT

March 4, 2015