U.S.

Department of Justice Executive Office for Immigration Review

Board of Immigration Appeals Office ofthe Clerk

5/07 Leesburg l'ike. Suite 2000 Falls Churclr. l'irgit1ia :!2041

Karuri-Kihumba, Barbara Gonzalez & Associates 4611 Buford Highway Atlanta, GA 30341

OHS/ICE Office of Chief Counsel - SOC 146 CCA Road Lumpkin, GA 31815

Immigrant & Refugee Appellate Center | www.irac.net

Name: VELASQUEZ PEREZ, ANDELINO VICENTE

A200-936-429

Date of this notice: 3/11/2011

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

Donna Carr Chief Clerk

Enclosure

Panel Members: Grant, Edward R.

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: Andelino Vicente Velasquez Perez, A200 936 429 (BIA March 11, 2011)

. U.S. Bepartment of Justice

Execufr ve Office for Immigration Review
Falls Church, Virginia 22041

Decision of the Board of Immigration Appeals

File: In re:

A200 936 429 - Lumpkin, GA ANDELINO VICENTE VELASQUEZ PEREZ

Date:

MAR 11 20\1

IN RE MOVAL PROCEEDINGS APPEAL ON BEHALF OF RESPONDENT: APPLICATION: Reopen Barbara Karuri-Kihumba, Esquire

Immigrant & Refugee Appellate Center | www.irac.net

The respondent, a native and citizen of Guatemala, appeals the Immigration Judge's decision of October 25, 2010, denying his motion to reopen. The Department of Homeland Security ("DHS") has not filed an opposition to the respondent's appeal, and did not oppose the motion to reopen before the Immigration Judge. The respondent's appeal will be sustained and the record will be remanded. We review the findings of fact, including the determination of credibility, made by .the Immigration Judge under a "clearly erroneous" standard, and review all other issues, including whether the parties have met their burden of proof, and issues of discretion, under a de standard. 8 C.F.R. 1003. l (d)(3)(i), (ii). Matter
o novo

fA-S-B-, 24 l&N Dec. 493 (BIA 2008).

The respondent asserts that during his first master calendar hearing on September 9, 2010, he was granted a continuance to seek counsel. Upon being retained by the respondent, his counsel found that on September 10, 2010, the day after the respondent's master calendar hearing, a final order of removal was entered into the Executive Office for Immigration Review's automated system (Respondent's brief at 5). On November 4, 2010, the respondent requested that the Immigration Judge reopen his proceedings. On November 16, 2010, after the Immigration Judge's denial of the motion to reopen, the respondent's counsel received an audio recording of the September 9, 2010, master calendar hearing, which indicates that the Immigration Judge had granted the respondent a continuance until October 19, 2010 (Respondent's brief at 6, Tab 5). The respondent has submitted evidence to the Board of an application for cancellation of removal and extensive documentary records to support his argument that he is prima facie eligible for this relief. Further, the record does not contain an order of removal. Given the circumstances presented by the respondent, and the absence of opposition from the OHS, his appeal will be sustained. The record will be remanded to allow the respondent an opportunity to present his claim at a merits hearing. ORDER: The appeal is sustained. FURTHER ORDER: The respondent's motion for an emergency stay of removal is denied as moot.

Cite as: Andelino Vicente Velasquez Perez, A200 936 429 (BIA March 11, 2011)

.A200.936 429'
I

FURTHER ORDER: The record is remanded to the Immigration Court for further proceedings

consistent with the foregoing order.

Immigrant & Refugee Appellate Center | www.irac.net

2
Cite as: Andelino Vicente Velasquez Perez, A200 936 429 (BIA March 11, 2011)

U.S. DEPARTMENT OF JUSTICE

Executive Office for lmmigr:uioo Review

Office of the Immigration Judge

Immigrant & Refugee Appellate Center | www.irac.net

RESPONDENT/APPLICANT

ORDEROFTHEIMMIGRA110NJUDGE
Upon consideration of respondent's/applicant's

Motion to Reconsider an Inunigration Judge's decision Motion to Reopen proceedings

filed in rhe above entitled matter, it is

HEREBY ORDERED that the motion

Cl

be granted. be denied

for the ons indicall:d in the anached decision.

\ppeaJ:

RFSERVED/WAIVED (A/ I/ B )