U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals
Office of the Clerk
5107 leesburg Pike, Suite 2000
Falls Church. Virginia 20530

OHS/ICE Office of Chief Counsel - SOC

146 CCA Road, P.O.Box 248
Lumpkin, GA 31815

Name: HERRERA-MUNOZ, CESAR

A 097-708-351

Date of this notice: 6/24/2015

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

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Guendelsberger, John

Usertea m: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/
Cite as: Cesar Herrera-Munoz, A097 708 351 (BIA June 24, 2015)

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Wong, Margaret W
Margaret W. Wong
3150 Chester Avenue
Cleveland, OH 44114

U.S. Department of Justice

Executive Office for Immigration Review
Board ofImmigration Appeals
Office of the Clerk
5107 Leesburg Pike. Suite 2000
Falls Church, Virginia 20530

DHS/ICE Office of Chief Counsel - SDC

146 CCA Road, P.O.Box 248
Lumpkin, GA 31815

Name: HERRERA-MUNOZ, CESAR

A 097-708-351

Date of this notice: 6/24/2015

Enclosed is a copy of the Board's decision in the above-referenced case. This copy is being
provided to you as a courtesy. Your attorney or representative has been served with this
decision pursuant to 8 C.F.R. 1292.S(a). If the attached decision orders that you be
removed from the United States or affirms an Immigration Judge's decision ordering that you
be removed, any petition for review of the attached decision must be filed with and received
by the appropriate court of appeals within 30 days of the date of the decision.
Sincerely,

DOWtL Ca.AAJ
Donna Carr
Chief Clerk
Enclosure
Panel Members:

Guendelsberger, John

Userteam:

Cite as: Cesar Herrera-Munoz, A097 708 351 (BIA June 24, 2015)
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HERRERA-MUNOZ, CESAR
A097-708-351
146 CCA ROAD
P.O. BOX 246
LUMPKIN, GA 31815

U.S. Depa-rtment of Justice

Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 20530

File:

A097 708 351-Lumpkin, GA

Date:

In re: CESAR HERRERA-MUNOZ a.k.a. Cesar Herrera

JUN 94 2015

APPEAL
ON BEHALF OF RESPONDENT: Margaret W. Wong, Esquire
ON BEHALF OF DHS: Diane Dodd
Assistant Chief Counsel
APPLICATION: Voluntary departure under section 240B of the Act
The respondent, a native and citizen of Mexico, appeals the decision of the Immigration
Judge, dated March 10, 2015, denying his request for voluntary departure under section 240B of
the Immigration and Nationality Act, 8 U.S.C. 1229c, and ordering his removal from the
United States. 1 The Department of Homeland Security is opposed to the appeal.
Considering the totality of the circumstances presented in this case, we agree with the
respondent that these removal proceedings should be remanded to the Immigration Judge in
order to provide him with a renewed opportunity to present his request for voluntary departure.
Here, the respondent is apparently seeking voluntary departure prior to the conclusion of removal
proceedings, a privilege which does not require an alien to establish, by clear and convincing
evidence, that he has the means to depart this country. Cf 8 C.F.R. 1240.26(c)(l)(iv).
Moreover, with respect to the issue of discretion, the authority to grant voluntary departure prior
to the conclusion of removal proceedings can be used broadly to quickly and efficiently dispose
of cases. See Matter ofArgu.elles-Campos, 22 I&N Dec. 811 (BIA 1999). While the respondent
apparently has been convicted of serious offenses, the Immigration Judge, upon remand, should
also consider the respondent's coootervailing equities, such as his claimed family ties to this
country and his residence in the United States for many years.
At the present time, we express no opinion regarding the ultimate disposition of the
respondent's request for voluntary departure. The following order is entered.
ORDER: The record is remanded to the Immigration Court for further proceedings
consistent with the foregoing opinion and the entry of a new decision.

The respondent is subject to remo al from the United States because he is an alien who is
present in this country without being admitted or paroled by an immigration officer or who
arrived at any time or place other than as designated by the Attorney General (I.J. at 2; Exh. 1;
Tr. at 55-56). See section 212(a)(6)(A)(i) of the Act, 8 U.S.C. 1182(a)(6)(A)(i).
Cite as: Cesar Herrera-Munoz, A097 708 351 (BIA June 24, 2015)

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IN REMOVAL PROCEEDINGS

'

File: A097-708-351

March 10, 2015

In the Matter of

CESAR HERRERA-MUNOZ
RESPONDENT

)
)
)
)

IN REMOVAL PROCEEDINGS

CHARGE:

Section 212(a)(6)(A)(i) of the Immigration and Nationality Act, as

amended, in that you are an alien present in the United States
without being admitted or paroled, or who arrived at the United
States at any time or place other than as designated by the
Attorney General.

APPLICATION:

Desire to remain in the United States.

ON BEHALF OF RESPONDENT: Pro Se

ON BEHALF OF OHS: Assistant Chief Counsel

ORAL DECISION OF THE IMMIGRATION JUDGE

INTRODUCTION AND JURISDICTIONAL STATEMENT
On February 10th, 2015, the Department of Homeland Security filed a
Notice to Appear against the above named respondent. The filing of this charging
document commenced proceedings and vested jurisdiction with this court, 8 C.F.R.
1003.14(a). The Notice to Appear has been admitted into evidence as Exhibit Number
1.

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

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
LUMPKIN, GEORGIA

The respondent is a married, native and citizen of Mexico who entered the
United States on or about sometime in 1991 or 1992. He entered not having been

The respondent has admitted and conceded that he is removable as

1id

charged and was prepared, it appears, to seek relief under non-legal permanent
resident cancellation of removal. It is the truth of such desire {-B.tgJJQ. eligibility for relief
sought that are currently at issue before this court.
The respondent's 1O days have been waived. And the history of the case
is as follows,

2Hd

the -'1 i} da

av:: ri:is:,e,i. Respondent was first before the court

March 3rd, 2015. At that time he received his initial advisals. He was given a list of
legal service providers and information on Catholic Charities, and he was given time to
find an attorney.
Today is March the 10th, 2015. Respondent has informed the court that
his wife had tried to find an attorney but had no money to hire an attorney. The court
then asked the respondent is he a citizen or national of the United States to which he
answered no. The court asked if he was a native of Mexico and citizen of Mexico to
which he answered yes. When queried as to whether he was born in Mexico, the
respondent answered yes. When queried as to when he crossed the border, he
answered 1991 or 1992. When asked if he was given permission to enter by an
immigration officer, he answered no. When asked if he was in the country illegally, he
answered yes. At that point, the court made the following findings: that the Notice to
Appear is Exhibit Number 1, and the 1-213 is Exhibit Number 2. Based on the evidence
and the respondent's admissions and concessions, the court found that the respondent
is removable to Mexico. The court noticed that the respondent had four very large

A097-708-351

March 10, 2015

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

admitted or paroled after an inspection by an immigration officer.

envelopes on the table before him. Respondent informed the court that those

he wanted to stay in the United States.

To the question whether or not the respondent is legally married to a
United States citizen or a legal, permanent resident, the answer is no. To the question
whether the respondent's parents or grandparents are United States citizens or legal,
permanent residents, the answer is no.
The respondent has three United States citizen daughters, ages 15, 13,
and 10.
The respondent does not have a brother or a sister who's a United States
citizen and over the age of 21, nor has anyone filed any paperwork for the respondent
Respondent did not clearly answer whether or not he could pay his way
back to Mexico, but that became a moot point further in the hearing.
To the question whether or not the respondent was afraid of the
government of Mexico or anyone the government could not or would not control based
on his race, his religion, his nationality, his political opinion, or his membership in a
particular social group, the answer was no. It came to the attention of the court after the
submission of the 1-213 that the respondent had a problem. The court was ready to
issue a 428 application to the respondent when it became apparent that the respondent
was convicted in 2001 for drug possession and sentenced to six months, and that
further, he was arrested and convicted for the crime of possession with intent to sell or
distribute marijuana which was also a sentence of six months. Those crimes, falling
under Section 212(a)(2), barred respondent from his desire to have a hearing on
cancellation of removal. The respondent has also had a series of traffic offenses going
back to 1996. The court explained to the respondent, based on his drug convictions,
A097-708-351

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March 10, 2015

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

envelopes were papers that his spouse had put together because

those were crimes that barred him from having cancellation of removal as they were
indicative of his not having good moral character, but even more importantly, as a

respondent is removable to Mexico. The government has waived appeal. Respondent

has reserved appeal, and he has been provided with an appellate form and been
informed that his appeal date is April the 9th, 2015. Based on everything that is before
the court, the court enters the following order.
ORDER OF THE COURT
It is herein ordered that the respondent is denied voluntary departure as
he never was clear on the answers to whether or not he could buy his ticket and,
furthermore, as a matter of discretion based on his drug conviction. The court has
considered the facts that he is illegally in the United States, has been working illegally,
no spouse, no parent. The court has considered his three United States daughters, no
siblings, no one has filed papers, and no fear of return. Furthermore, the court orders
that the respondent be removed from the United States to Mexico.

Please see the next page for electronic

signature

A097-708-351

SAUNDRA D. ARRINGTON DEMPSEY

Immigration Judge

March 10, 2015

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matter of law, as they fell under Section 212(a)(2). The court then found that the

. ,

//s//
Immigration Judge SAUNDRA D. ARRINGTON

A097-708-351

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

arringts on April 28, 2015 at 4:57 PM GMT

March 10, 2015