Hester, John F., Jr. Attorney at Law 313 South Blount Street #200A Raleigh, NC 27601

Name: MENDY, MOSES

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals Office (�(the Clerk

5107 leesburg Pike. Smte 2000 Falls Church. Virginia 20530

OHS/ICE Office of Chief Counsel - CHL 5701 Executive Ctr Dr., Ste 300 Charlotte, NC 28212

A 096-598-212

Date of this notice: 11/21/2014

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

Enclosure

Panel Members: Manuel, Elise

Sincerely,

DOWtL c t1/v\J

Donna Carr Chief Clerk

Usertea m: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished

Imm

igrant & Refugee A

ppellate Center | w

ww

.irac.net

Cite as: Moses Mendy, A096 598 212 (BIA Nov. 21, 2014)

U.S� Department of Justice .Executive Office for Immigration Review

r ,

Decision of the Board of Immigration Appeals

Falls Church, Virginia 20530

File: A096 598 212-Charlotte, NC

In re: MOSES :MENDY

IN REMOVAL PROCEEDINGS

APPEAL

Date:

ON BEHALF OF RESPONDENT: John F. Hester Jr., Esquire

ON BEHALF OF DHS: Caroline Youngblade Assistant Chief Counsel

APPLICATION: Continuance; voluntary departure

NOV 212014

The respondent has filed a timely appeal of the Immigration Judge's January 31, 2013, decision finding him removable as charged and ineligible for any relief from removal. The record will be remanded.

As an initial matter, we point out that the Immigration Judge did not prepare a separate oral or written decision in this matter setting out the reasons for the decision. An explanation of the reasons in the transcript is not sufficient. See Matter of A-P-, 22 I&N Dec. 468 (BIA 1999). Under such circumstances, we ordinarily would return the record to the Immigration Judge for preparation of a full decision. However, in this case, it is also apparent from a review of the transcript that the Immigration Judge did not consider the respondent's eligibility for relief for which he was apparently eligible and did not give him a full opportunity to apply for relief (Tr. at 35-40). 8 C.F.R. § 1240.1 l(aX2); see also Matter of Martinez-Espinoza, 25 I&N Dec. 118 (BIA 2009) (finding that an alien inadmissible for a drug paraphernalia offense may qualify for a waiver of inadmissibility under section 212(h) of the Act if the offense "relates to a single offense of simple possession of 30 grams or less of marijuana"); Matter of Abosi, 24 I&N Dec. 204 (BIA 2007) (finding that a returning lawful pennanent resident may seek a 212(h) waiver of inadmissibility without applying for adjustment of status). Given that the respondent has submitted new evidence on appeal that appears to show his 2010 conviction for possession of drug paraphernalia related to possession of 1.5 grams of marijuana, such that he may qualify for a section 212(h) waiver, we find that a remand is warranted to allow the respondent a full opportunity to apply for relief from removal, including the consideration of new evidence, and for the entty of a decision that reflects consideration of all factual and legal issues. Accordingly, the following order is entered.

ORDER: The Immigration Judge's decision of January 31, 2013, is vacated, and the record is remanded for further proceedings in accordance with the foregoing opinion.

FOR THE BOARD .

Imm

igrant & Refugee A

ppellate Center | w

ww

.irac.net

Cite as: Moses Mendy, A096 598 212 (BIA Nov. 21, 2014)

'· ..... ,. '''f .,

. • Jo1 •• •••

, ··.

·' ·• . ...

j . {. � ...

11·/ ,

, .1 �

" �// . . /

In the Matter of

MENDY, MOSES Respondent

it. � ..

r� �·--'

IMMIGRATION COURT 5701 EXECUTIVE CENTER DR. #400

CHARLOTTE, NC 28212

Case No.: A096-598-212

IN REMOVAL PROCEEDINGS

ORDER OF THE IMMIGRATION JUDGE .

This is a summary of the oral decision entered on ··/. ? I J ? This rnemorand s solely for the convenience of the parties. If the proceedi should be appealed or reopened, the oral decision will become

cial opinion in the case. The respondent was ordered removed from the United States to GAMBIA O:J!I in tl'I 8 alt a I j JI I

J Respondent's application for voluntary departure was denied and respondent was ordered removed to GAMBIA or in the alternative to . Respondent's application for voluntary departure was granted until

upon posting a bond in the amount of $ with an alternate order of removal to GAMBIA.

Respondent's application for: [ l Asylum was· ( )gran,ted )denied( )withdrawn. [ ) Wi thhoJ.ding of removal was ( ) granted ( ) denied ) withdrawn. [ ] A· Wai.ver unde_5.,. 'Section ___ was ( ) granted ( ) denied { ) withdrawn. [ ] Cancella-tion of removal under section 2.40A (a) was ( ). granted ( ) denied

( )withdrawn. Respondent's application for:. [ ] Cancellation under· section 240A(b) (1) �as ( ) granted ) denied •

( ) withdrawn. If granted, it is ord�red that the respondent be �ssued 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 '1:�,. ) withdrawn.

""'-� Respondent's status was rescinded under section 246. Respondent is admitted to the United States as a until ---As a condition of admission, respondent is to post a $ bond. -----Respondent knowingly filed a frivolous asylum application a.fter proper notice. Respondent was advised of the limitation on discretionary relief for failure to appear as ordered in the Immigration Judge's oral d Proceedings were terminated. Other: Date: Jan 31, 2013

Immigration Appeal: Waived

Imm

igrant & Refugee A

ppellate Center | w

ww

.irac.net