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In this unpublished decision, the Board of Immigration Appeals (BIA) found the respondent did not validly waive appeal because the immigration judge did not provide the respondent with a copy of the Written Notice of Appeal Rights (Form 1-618) at the onset of proceedings or make clear during the hearing that the waiver was irrevocable. The decision was written by Member Elise Manuel.
In this unpublished decision, the Board of Immigration Appeals (BIA) found the respondent did not validly waive appeal because the immigration judge did not provide the respondent with a copy of the Written Notice of Appeal Rights (Form 1-618) at the onset of proceedings or make clear during the hearing that the waiver was irrevocable. The decision was written by Member Elise Manuel.
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In this unpublished decision, the Board of Immigration Appeals (BIA) found the respondent did not validly waive appeal because the immigration judge did not provide the respondent with a copy of the Written Notice of Appeal Rights (Form 1-618) at the onset of proceedings or make clear during the hearing that the waiver was irrevocable. The decision was written by Member Elise Manuel.
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A055-938-461 NEWARK, NJ 07105 Name: SAMUELS, WINSTON EVERTON U.S. Department of Justice Executive Ofce fr Immigation Review 8oorJo/Ioo|gmt|oonppeols uceo/t/ec|er| 5107 leesb11rg Pike, S11ile 2000 Fals C/111rc/1, Vrgi11ia 12041 OHS/ICE Ofice of Chief Counsel - NEW P .0. Box 1898 Newark, NJ 07101 A055-938-461 Date of this notice: 3/29/2012 Enclosed is a copy of the Board's decision and order in the above-refrenced case. Enclosure Panel Members: Manuel, Elise L. Sincerely, Donna Carr Chief Clerk I m m i g r a n t
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w w w . i r a c . n e t Cite as: Winston Everton Samuels, A055 938 461 (BIA Mar. 29, 2012) For more unpublished BIA decisions, visit www.irac.net/unpublished . . U.S. Deparent of Justice 'xecutive Ofce fr Imigration Review Falls Church, Virginia 22041 File: A055 938 461 - Newark, NJ Decision of te uoard of Imigation Appeals Date: MAR 32012 In re: WISTON EVERTON SAMUELS a.k.a. Winston Samuels a.k.a. Winston Samuel a.k.a. Winston E. Samuels IN REMOVAL PROCEEDIGS APPEAL ON BEHALF OF RESPONDENT: Pro se On November 22, 2011, an Immigation Judge fund the respondent removable, ineligible fr relief fom removal, and ordered him removed fom the United States (Tr. at 12-14). The respondent, a native and citizen of Jaaica, has appealed fom that decision. The appeal will be dismissed. The Board reviews an Immigration Judge's fndings of fct, including fndings as to the credibility of testimony, under the "clearly erroneous" standard. See 8 C.F .R. 1003 .1 ( d)(3 )(i). The Board reviews questions of law, discretion, and judgent and all other issues i appeals fom decisions oflmmigation Judges de novo. See 8 C.F.R. 1003. l(d)(3)(ii). As an initial matter, the Sumary of the Immigration Judge's decision dated November 22, 2011, refects that the respondent and the goverent waived appeal. We fnd that the respondent's waiver was not knowingly and intelligently made. See Matter of Shih, 20 I&N Dec. 687 (BIA 1993). The Immigration Judge asked the unrepresented respondent if he wished to reserve his right to appeal, or accept the decision as fnal and the respondent stated he wanted a fnal decision (Tr. at 14). Based upon the colloquy between the Immigation Judge and the respondent, we do not fnd that the Immigration Judge had made it clear to the unrepresented respondent that such acceptance of the decision constitutes an irevocable waiver of the respondent's appeal rights. See Matter of Rodrigez-Diaz, 22 l&N Dec. 1320 (BIA 2000). Moreover, the Immigation Judge did not provide the respondent with a copy of the Written Notice of Appeal Rights (For 1-618) at the onset of proceedings. See 8 C.F.R. 1240.48(a). Accordingly, we fnd that an efective waiver of appeal did not occur and that the respondent's appeal is properly befre us. The respondent was fund removable as an alien convicted of an aggravated felony under section 237(a)(2)(A)(iii) of the Immigration and Nationality Act, 8 U.S.C. 1227(a)(2)(A)(iii), in conjunction with section 101(a)(43)(B) of the Act, 8 U.S.C. l 101(a)(43)(B), and a an alien convicted of a controlled substance violation under section 237(a)(2)(B)(i) of the Act. A supported by conviction documents, on Januar 24, 2006, the respondent was convicted in the Superior Court of New Jersey at Passaic County of possession of a controlled dangerous substance with intent to distribute within 1000 fet of school property (Exh. 2). The respondent was admitted to the United States on August 31, 2002 as a child of a United States citizen. Upon de nova review, we fnd correct the Immigration Judge's conclusions concering the respondent's removability and ineligibilit fr removal relief. I m m i g r a n t
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w w w . i r a c . n e t Cite as: Winston Everton Samuels, A055 938 461 (BIA Mar. 29, 2012) zw ' A055 938 4ql On appeal, the respondent requests that these proceedings be remanded to the Immigration Judge so he may have another opportunity to be represented by counsel. We decline to remand these proceedings to the Imigration Judge. The record refects that on September 15, 2011, the respondent ackowledged receipt of te list of fee and low cost legal service providers and the Immigation Judge continued the respondent's hearing to retain the services of an attorey {Tr. at 1-2). On November 7, 2011, the respondent again ackowledged receipt of te list of fee and low cost legal service providers and the Immigation Judge continued the respondent's hearing to retain the services of an attorey (Tr. at 4-6). On November 22, 2011, the respondent appeared without an attorney and the Immigration Judge proceeded with the respondent's case. Upon de novo review, we fnd that the Immigation Judge's decision to proceed wit te respondent's hearing was proper under these circumstances. See generally Leslie v. US. Att ' Gen'!, 611 F.3d 171 (3rd Cir. 2010) (olding that the regulations at 8 C.F.R. 1240.10(a)(2)-(3), requiring Immigation Judge's to infrm aliens of the availability of fee legal services protect the fndamental right to counsel at removal hearings). We also fnd that he has not demonstated any resultant prejudice such as would amount to a due process violation. See Romanishyn v. Attorey General of US., 455 F.3d 175 (3d Cir. 2006). Accordingly, the fllowing order will be issued. ORDER: The appeal is dismissed. FOR THE BOARD 2 I m m i g r a n t
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w w w . i r a c . n e t Cite as: Winston Everton Samuels, A055 938 461 (BIA Mar. 29, 2012) - UNITED STATES IMMIGRATION COURT 970 BROA STREET, ROOM 1135 NEWARK, NJ 07102 IN THE REMOVAL CASE OF SAUELS, WINSTON EVERTON RESPONENT ORDERS CASE NO.: A055-938-461 This is a memorandum of the Court's Decision and Orders entered on This memorandum is solely for the convenience of the parties. The oral or written Findings, Decision and Orders is the official opinion in this case. { ) Both parties waived issuance of a formal oral decision in the case. The rese: w orred REMOVED . from the . United States to
{ ) in absentia. [ ) Respondent's application for VOLUTAY DEPATURE was DENIED and respondent was ordered removed to , in the alternative to Respondent's application for VOLUTAY DEPARTURE was GRATED until
' upon posting a voluntary departure bond in the amoqt
of $ to OHS within five business days from the date of this Order, with an alternate Order of removal to or Respondent shall present to OHS within ) thirty days ) sixty days from the date of this Order, all necessary travel documents for voluntary departure. Respondent's application for ASYLUM was { ) granted ) denied { ) withdrawn with prejudice. { ) subject to the A A CAP under the INA section 207{a) (5). { ) Respondent knowingly filed a FRIVOLOUS asylum application. Respondent's application for WITHHOLDING of removal under INA section 24l{bl (3) was { ) granted ( ) denied { ) withdraw with prejudice. Respondent's application for WITHHOLDING of removal under the Torture Convention was { l granted { ) denied { ) withdrawn with prejudice. Respondent's application for DEFERRAL of removal under the Torture Convention was { ) granted { ) denied ( ) withdrawn with prejudice. Respondent's application for CACELLTION of removal under section { l 203 {b) of NACARA, { ) 240A{a) l 240A(b) (1) { ) 240A(b) (2) of the INA, was { ) granted ( ) denied ( ) withdrawn with prejudice. If granted, it was ordered that the OHS issue all appropriate documents necessary to give effect to this Order. Respondent { ) is ( ) is not subject to the AA CAP under INA section 240A(e) . Respondent's application for a WAIVER under the INA section was ( ) granted ( ) denied ( ) withdrawn or ) other ( ) The conditions imposed by INA section 216 on the repondent s permanent resident status were removed. Respondent's application for ADJUSTMENT of status under section of the ( ) INA ( ) NACARA ( ) was ( l granted ( ) denied ( ) withdrawn with prejudice. If granted, it was ordered that DHS issue all appropriate documents necessary to give effect to this Order. CASE NUMBER: 055-938- 461 RESPONDENT: SAUELS, WINSTON EVERTON Respondent's status was RESCINDED pursuant to the INA section 246. , 0 I m m i g r a n t
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w w w . i r a c . n e t Respondent's motion to WITHDRAW his application for admission was ( ) granted ( ) denied. If the respondent fails to abide by any of the conditions directed by the district director of OHS, then the alternate Order of removal shall become immediately effective without further notice or proceedings: the respondent shall be removed from the United States to Respondent was AMITTED ordered to post a $ as a until As a condition of admission, the respondent was bond. Case was ( ) TERMINATED ) with ) without prejudice AMINISTRATIVELY CLOSED. Respondent was orally advised of the LIMITATION on discretionary relief and consequences for failure to depart as ordered. [ 1 If you fail to voluntarily depart when and as required, you shall be subject to civil money penalty of at least $1,000, but not more than $5,000, and be ineligible for a period of 10 years for any further relief under INA sections 240A, 240B, 245, and 248 (INA Section 240B(d)). [ ) If you are under a final order of removal, and if you willfully fail or refuse to 1) depart when and as required, 2) make timely application in good faith for any documents necessary for departure, or 3) present yourself for removal at the time and place required, or, if you conspire to or take any action designed to prevent or hamper your departure, you shall be subject to civil money penalty of up to $500 for each day wider such violation. (INA section 274D(a)). If you are removable pursuant to INA 237(a), then you shall further be fined and/or imprisoned for Up to 10 years. (INA section 243 (a) (1)). Other: Date: Nov 22, 2011 s APPEAL' (aived DUE BY: ) reserved by ) Respondent ) OHS ( oth CERTIFICATE OF SERV BY: [ ) MIL [ ERSONAL SERVICE [ ] Alien's ATT/R [ IEN c/ stodial Offir [ ] COUT STAFF GE