Jose Marildo Goncalves, A206 278 919 (BIA Sept. 29, 2016)
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Immigrant & Refugee Appellate Center, LLCJose Marildo Goncalves, A206 278 919 (BIA Sept. 29, 2016)
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Immigrant & Refugee Appellate Center, LLCU.S.
Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
Office of the Clerk
5/07 leesburg Pike, Suite 2000
Falls Church, Virginia 22041
OHS/ICE Office of Chief Counsel - CHL
5701 Executive Ctr Dr., Ste 300
Charlotte, NC 28212
Name:GONCALVES,JOSE
A 206-278-919
Date of this notice: 9/29/2016
Enclosed is a copy of the Board's decision and order in the above-referenced case.
Sincerely,
b&utL
{!11/lA)
Donna Carr
Chief Clerk
Enclosure
Panel Members:
Pauley, Roger
Userteam: Docket
For more unpublished BIA decisions, visit
www.irac.net/unpublished/index/
Cite as: Jose Marildo Goncalves, A206 278 919 (BIA Sept. 29, 2016)
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Keaveny, Amanda Bethea
Amanda Bethea Keaveny, PA
752 St. Andrews Blvd.
Charleston, SC 29407
U.S. Department of Justice
Decision of the Board of Immigration Appeals
Executive Office for Immigration Review
Falls Church, Virginia 22041
File: A206 278 919-Charlotte, NC
Date:
SEP 2 9 2016
In re: JOSE MARILDO GONCALVES a.k.a. Jose Marcos Sousas a.k.a Jose Marildo Concalves
APPEAL
ON BEHALF OF RESPONDENT: Amanda Bethea Keaveny, Esquire
CHARGE:
Notice: Sec.
212(a)(6)(A)(i), l&N Act [8 U.S.C. l182(a)(6)(A)(i)] Present without being admitted or paroled
APPLICATION: Continuance; post-conclusion voluntary departure
The respondent appeals from the Immigration Judge's July 6, 2015, decision denying his
request for a continuance to await the adjudication of a visa petition filed on his behalf by his
alleged United States citizen wife. The record will be remanded.
This Board reviews an Immigration Judge's findings of fact, including findings as to the
credibility of testimony, under the "clearly erroneous" standard. See 8 C.F.R. 1003.l(d)(3)(i);
see also Matter of Z-Z-0-, 26 I&N Dec. 586 (BIA 2015) (holding that determinations as to
the likelihood of future events are findings of fact that are reviewed for clear error); see also
Turkson v. Holder, 661 F.3d 523 (4th Cir. 2012) (holding that the likelihood of an event is a
question of fact). This Board reviews questions of law, discretion, and judgment in appeals from
decisions oflmmigration Judges de novo. See 8 C.F.R. 1003.l(d)(3)(ii).
On appeal, the respondent argues that the Immigration Judge improperly denied his motion
for a continuance. Matter ofHashmi, 24 I&N Dec. 785 (BIA 2009). The respondent also argues
that the Immigration Judge erred in failing to admit evidence that supports his motion.
We find that the Immigration Judge's decision is not adequate for appellate review. See
generally Matter ofA-P-, 22 l&N Dec. 468 (BIA 1999); Matter ofM-P-, 20 I&N Dec. 786, 78788 (BIA 1994) (stating that an Immigration Judge must fully explain a decision's reasoning in
order to allow the respondent a fair opportunity to contest the decision and the Board an
opportunity for meaningful appellate review). While it appears that the Immigration Judge
assessed the respondent's evidence and made factual findings and conclusions of law with
respect to his motion, insufficient reasoning is reflected in the minute order. To the extent the
Immigration Judge's findings and conclusions are not present in a separate decision, but rather
found embedded in the transcript, the record is inadequate for appellate review. We note that the
Immigration Judge is responsible for the substantive completeness of the analysis and reasoning
ofthe decision in the removal proceeding. See Matter ofA-P, supra.
Cite as: Jose Marildo Goncalves, A206 278 919 (BIA Sept. 29, 2016)
Immigrant & Refugee Appellate Center, LLC | www.irac.net
IN REMOVAL PROCEEDINGS
A2'06 278 919
Accordingly, the following order will be entered.
ORDER: The record is remanded to the Immigration Judge for further proceedings
consistent with this opinion.
SC:::::.
2
Cite as: Jose Marildo Goncalves, A206 278 919 (BIA Sept. 29, 2016)
Immigrant & Refugee Appellate Center, LLC | www.irac.net
In light of the limited record before us, we will remand the record to the Immigration Judge
for a complete decision reflecting the findings of fact and legal conclusions underlying the denial
of the continuance, the alleged exclusion of proffered evidence, and.the grant of post-conclusion
voluntary departure. See i\tfatter ofFedorenko, 19 I&N Dec. 57, 74 (BIA 1984) (noting that
"[t] he Board is an appellate body whose function is to review, not create, a record"); see also
Matter of S-H-, 23 l&N Dec. 462, 463 (BIA 2002) (remanding to the Immigration Judge noting
the lack of factual findings and legal analysis). On remand, the parties shall be given the
opportunity to supplement the record as appropriate.
In the Matter of
Case No.: A206-278-919
IN REMOVAL PROCEEDINGS
ORDER OF THE IMMIGRATION JUDGE
/5 .
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GONCALVES, JOSE
Respondent
IMMIGRATION COURT
5701 EXECUTIVE CENTER DR. #400
CHARLOTTE, NC 28212
This is a summary of the oral decision entered on
This memorandum is solely for the convenience of the
If the
proceedings should be appealed or reopened, the oral
become
the official opinion in the case.
[ ] The respondent was ordered removed from the United States to
BRAZIL or in the alternative to .
Respondent's application for voluntary departure was denied and
respondent was ordered removed to BRAZIL or in the
alternative to .
Respondent's application for voluntary departure was granted until C, 'I /.S/ /
upon posting a bond in the amount of $ S-(2/) 00
with an alternate order of removal to BRAZIL.
Respondent's application for:
[ ] Asylum was ( )granted
)denied{ )withdrawn.
[ ] Withholding of removal was
)granted ( )denied
)withdrawn.
[ J A Waiver under Section ___ was ( )granted ( )denied
)withdrawn.
[ ] Cancellation of removal under section 240A(a) was ( )granted
)denied
( )withdrawn.
Respondent's application for:
[ J Cancellation under section 240A(b)(1) was ( ) granted
) denied
( ) withdrawn. If granted, it is ordered that the respondent be issued
all appropriate documents necessary to give effect to this order.
Cancellation under section 240A(b) {2) was ( )granted ( )denied
( )withdrawn. If granted it is ordered that the respondent be issued
all appropriated documents necessary to give effect to this order.
Adjustment of Status under Section
was ( )granted ( }denied
( )withdrawn. If granted it is ordered that the respondent be issued
all appropriated documents necessary to give effect to this order.
Respondent's application of ( ) withholding of removal ( } deferral of
removal under Article III of the Convention Against Torture was
{ ) granted { ) denied { ) withdrawn.
Respondent's status was rescinded under section 246.
Respondent is admitted to the United States as a
until
As a condition of ad.mission, respondent is to postal$ ____ bond.
Respondent knowingly filed a frivolous asylum application after proper
notice.
Respondent was advised of the limitation on discretionary relief for
failure to appear as ordered in the Inunigration Judge's oral decision.
[ ] Proceedgs were term'nated. ,
[ X J Other: /<
{003,2Cf.
Date: Jul 6, 2015
'/
NOTICE TO RESPONDENTS
GRANTED VOLUNTARY DEPARTURE
You will be subject to a civil penalty of not less than $1,000 and not more than $5,000; and
You will be ineligible, for a period of 10 years, to receive cancellation of removal,
adjustment of status, registry, voluntary departure, or a change ofnonimmigrant status.
I.
2.
The Court further advises you that:
You have been granted pre-conclusion voluntary departure.
l.
2.
If you file a motion to reopen or reconsider during the voluntary departure period, the grant
of voluntary departure will be terminated automatically, the alternate order of removal will
take effect immediately, and the penalties for failure to depart voluntarily under section
240B(d) ofthe Act will not apply. 8 C.F.R. 1240.26(b)(3)(iii).
There is a civil monetary penalty ifyou fail to depart within the voluntary departure period.
In accordance with the regulation, the Court has set the presumptive amount of$3,000 (or
__ instead ofthe-presumptive amount). 8 C.F.R. 1240.260).
You have been granted post-conclusion voluntary departure.
Ifthe Court set any additional conditions, you were advised of them, and were given an
1.
opportunity to accept or decline them. As you have accepted them, you must comply with
the additional conditions. 8 C.F.R. 1240.26(c)(3).
The Court set a specific bond amount. You were advised of the bond amount, and were
2.
given an opportunity to accept or decline it. As you have accepted it, you have a duty to
post that bond with the Department of Homeland Secuiity, hnmigration and Customs
Enforcement, Field Office Director within 5 business days of the Court's order granting
voluntary departure. 8 C.F.R. 1240.26(c)(3)(i).
If you have reserved your right to appeal, then you have the absolute right to appeal the
3.
decision. If you do appeal, you must provide to the Board of Immigration Appeals, within
3 0 days of filing an appeal, sufficient proofof having posted the voluntary departure bond.
The Board will not reinstate the voluntary departure period in its final order if you do not
submit timely proof to the Board that the voluntary departure bond has been posted.
8 C.F.R. 1240.26(c)(3)(ii).
If you do not appeal and instead file a motion to reopen or reconsider during the voluntary
4.
departure period, the period allowed for voluntary departure will not be stayed, tolled, or
extended, the grant of voluntary departure will be terminated automatically, the alternate
order of removal will take effect immediately, and the penalties for failure. to depart
voluntarily under section 240B(d) of the Act will not apply. 8 C.F.R. 1240.26(c)(3)(ili),
(e)(l).
There is a civil monetazy penalty if you fail to depart within the vohmtary departure period.
5.
In accordance with the regulation., the Court has set the presumptive amount of $3,000 (or
__ instead of the presumptive amount). 8 C.F.R. 1240.26(j).
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You have been granted the privilege of voluntarily departing from the United States ofAmerica. The
Court advises you that, ifyou fail to voluntatily depart the United States within the time period specified,
a removal order will automatically be entered against you. Pursuant to section 240B(d) of the hnmigration
and Nationality Act, you will also be subject to the following penalties:
