U.S.

Department of ,Justice
Executive Office for l mmigration Review

Board of Immigration Appeals

Qffice of the Clerk
5107 Leesh11rg Pike. Suite 2000
Falls Church. Virginia 20530

OHS/ICE Office of Chief Counsel - HON

Law Offices of Emmanuel G. Guerrero,

LLLC
8 South King Street, Suite 202

595 Ala Moana Boulevard

Honolulu, HI 96813-4999

Honolulu, HI 96813

Name: MOSES, BERNARTITA

A 206-352-760

Date of this notice: 12/9/2014

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

DCYutL ctVv\)
Donna Carr
Chief Clerk

Enclosure

Panel Members:
Miller, Neil P.

Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: Bernartita Moses, A206 352 760 (BIA Dec. 9, 2014)

Immigrant & Refugee Appellate Center | www.irac.net

Emmanuel G. Guerrero, Esquire

U.S. Department of Justice

Executive Oflice 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 - HON

04238-122/A206-352-760
FDC HONOLULU
PO BOX 30080

595 Ala Moana Boulevard

Honolulu, HI 96813-4999

HONOLULU, HI 96820

Name: MOSES, BERNARTITA

A 206-352-760

Date of this notice: 12/9/2014

Enclosed is a copy of the Board's decision in the above-referenced case. This copy is being
provided to you as a courtesy.
decision pursuant to 8 C.F.R.

Your attorney or representative has been served with this

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,

DcnrtL ca.AA)
Donna CmT
Chief Clerk

Enclosure

Panel Members:
Miller, Neil P.

Userteam:

Cite as: Bernartita Moses, A206 352 760 (BIA Dec. 9, 2014)

Immigrant & Refugee Appellate Center | www.irac.net

MOSES, BERNARTITA

U.S. Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office of the Clerk
5 /07 Leesburg Pike. Suite 2000
Falls Church. Virginia 20530

OHS/ICE Office of Chief Counsel - HON

595 Ala Moana Boulevard
Honolulu, HI 96813-4999

HONOLULU, HI 96819

A 206-352-760

Name: MOSES, BERNARTITA

Date of this notice: 12/9/2014

Enclosed is a copy of the Board's decision in the above-referenced case. This copy is being
provided to you as a courtesy.
decision pursuant to 8 C.F.R.

Your attorney or representative has been served with this

1292.5(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,

bCn.JtL {!tVvV
Donna Carr
Chief Clerk

Enclosure

Panel Members:
Miller! Neil P.

Userteam:

Cite as: Bernartita Moses, A206 352 760 (BIA Dec. 9, 2014)

Immigrant & Refugee Appellate Center | www.irac.net

MOSES, BERNARTITA
04238-122/A206-352-760
FDC HONOLULU
351 ELLIOT STREET

U.S. Department of Justice

Decision of the Board of Immigration Appeals

Executive Office for Immigration Review

Falls Church, Virginia 20530

File:

A206 352 760 - Honolulu, HI

Date:

DEC

9 2014

In re: BERNARTITA MOSES a.k.a. Bemartita Moses a.k.a. Bemartita Mariano Moses

APPEAL
ON BEHALF OF RESPONDENT:
ON BEHALF OF DHS:

Emmanuel G. Guerrero, Esquire

Rieth M. Kaneshige
Assistant Chief Counsel

The respondent, through counsel, filed a timely appeal of an Immigration Judge's decision
finding her subject to removal as charged by the Department of Homeland Security ("DHS") and
1
ordering her removal from the United States. In response to the respondent's appeal, DHS
urges the Board to affirm the Immigration Judge's decision. The appeal will be sustained and
the record will be remanded to the Immigration Judge for further proceedings.
On appeal, the respondent asserts that she was denied a fair hearing.

In support of her

argument, the respondent, in essence, asserts that the Immigration Judge erred by not granting
her recently retained attorney a continuance in order to fully review her case and represent her
before the court. The respondent also, in essence, asserts that the Immigration Judge failed to
fully explain how he reached the conclusion that the allegation (e.g., conviction of theft in the
second degree) supported the charge that she had been convicted of a crime involving moral
turpitude.
We agree with the respondent that the Immigration Judge erred in not continuing proceedings
to allow her attorney a meaningful opportunity to review and present her case before the court.
The record indicates that the respondent, before she obtained counsel, experienced difficulties
understanding the proceedings as well as the court provided interpreter. The Immigration Judge,
in his decision, acknowledges that her counsel was retained at the last minute.

While we

appreciate an Immigration Judge's desire to keep a detained docket moving efficiently, it is also
essential that Immigration Judges be mindful of a respondent's invocation of procedural rights

and privileges. See Matter ofC-B-, 25 I&N Dec. 888 (BIA 2012). We find that the respondent
presented good cause for a continuance.
In addition, we agree with the respondent that the Immigration Judge did not meaningfully
explain his reasons for finding that the conviction records submitted by DHS supported the
charge of removability (l.J. at 4; Tr. at 37-38). Since the Immigration Judge did not fully explain
1

The respondent's request to waive the appellate filing fee is granted.

Cite as: Bernartita Moses, A206 352 760 (BIA Dec. 9, 2014)

Immigrant & Refugee Appellate Center | www.irac.net

IN REMOVAL PROCEEDINGS

A206 352 760

why the conviction constituted a crime of moral turpitude, the respondent was deprived an
opportunity to contest such determination on appeal.
Accordingly, the respondent's appeal will be sustained, and the record will be remanded for
further proceedings, and the entry of a new decision.

Immigrant & Refugee Appellate Center | www.irac.net

\_/

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR I MMIGRATION REVIEW
UNITED STATES IMMIGRATIO N COURT
HONOLULU, HAWAII

In the Matter of

)
)
)
)

BERNARTITA MOSES
RESPO NDENT

CHARGES:

IN REMOVAL PROCEEDINGS

Section 237(a)(2)(A)(i) of the Immigration and Nationality Act and

237(a)(2)(A)(iii) of the Immigration and Nationality Act.

APPLICATIONS:

ON BEHALF OF RESPONDENT: E MMANUEL GUE R RERO, Esquire

ON BEHALF OF OHS: HEITH KANES HIGE, Assistant Chief Counsel

ORAL DECISI O N OF THE IMMIGRATION JUDGE

The respondent is a 59-year-old female who is a native and citizen of the
Federated States of Micronesia. The Department of Homeland Security initiated
removal proceedings pursuant to their authority under the Immigration and Nationality
Act upon filing the Notice to Appear with the Honolulu Immigration Court August 26,
2014. The Notice to Appear alleged that the respondent is not a citizen or national of
the United States and that the respondent is a native of the Federated States of
Micronesia and a citizen of the Federated States of Micronesia. The Notice to Appear

Immigrant & Refugee Appellate Center | www.irac.net

September 18, 2014

File: A206-352-760

-..__/

further alleged that the respondent was admitted to the United States at Guam on or
about August 13, 2001, as a nonimmigrant under the Compact of Free Association with
the Federated States of Micronesia. The Notice to Appear also alleged that the

First Circuit at Honolulu, Hawaii, for the offense of theft in the second degree committed
on or_ about April 1 , 2003, through September 30, 2004, in violation of Section 708-8302
and 708-8311-8 of the Hawaii Revised Statutes. The Notice to Appear further alleged
that for that offense a sentence of one year or longer may be imposed.
The respondent appeared initially at a Master Calendar hearing on September 2,
2014. The respondent indicated that she speaks Trukese. The Court utilized a Trukese
interpreter. The Court was requested to allow the respondent an opportunity to have
her own interpreter interpret for her so that she would understand the proceedings. The
respondent proceeded to ask substantive questions through the interpreter certified to
translate from English to Trukese and Trukese to English. The Court made a
determination that because of the substantive questions that the respondent was asking
that proceeding with the certified interpreter would be appropriate in the respondent's
case. The respondent was advised of her rights in these proceedings. The Court
advised her of her rights over a period of a half an hour, stopping multiple times to
ensure that the respondent understood what was taking place. The respondent was
informed that her hearing would be reset to September 1 6, 2014, at 8:30 a.m. and that
the Court would permit the individual that she identified as the interpreter that she
wished to use to provide interpretation in conjunction with the certified interpreter.
The respondent did not have the individual identified appear at her hearing on
September 1 6, 2014, at 8:30 a.m. The respondent requested that the Court call this
individual. The Court did not allow for a telephonic connection with this interpreter, but

A206-352-760

September 1 8, 2014

Immigrant & Refugee Appellate Center | www.irac.net

respondent, on April 8, 2008, was convicted in the State of Hawaii Circuit Court of the

instead allowed the respondent additional time to have the individual appear in the
Honolulu Immigration Court. The Court made a determination that it would be too
complicated or unnecessarily complicated in order to conduct a hearing with an

let alone telephonically, to interpret on the respondent's behalf in conjunction with the
interpreter that is certified to translate from English to Trukese and Trukese to English.
The respondent had multiple family members in Court and the Court was very clear
about what would take place in today's proceedings. That this matter would proceed
today and that the Court would give the respondent an additional opportunity to have
her interpreter present and also to have counsel present.
In today's proceedings, September 18, 2014, the respondent appears and the
respondent has counsel present. Counsel for the respondent informed the Court that
he had had an opportunity to meet with his client for a very brief period of time and had
not had the benefit of an interpreter during the meeting or interaction with this client and
also that the respondent did not bring her documents to the meeting area in which the
respondent was permitted to meet with her attorney. The respondent's counsel
informed the Court that he again had limited opportunities to communicate with his
client. Respondent's counsel assumes the case in the posture that it was in.
Respondent's counsel did not review the Court's records. There is no information in the
Court's record reflecting that the record was reviewed by respondent's counsel and
respondent's counsel has not taken efforts to pursue under due diligence a review of
the Record of Proceedings in this matter.
Respondent's counsel essentially was articulating circumstances which would
raise issues of a continuance, which a continuance the respondent's counsel was
informed would not take place today as the respondent had been substantially informed

J\206-352-760

September 18, 2014

Immigrant & Refugee Appellate Center | www.irac.net

individual that the Court has no information on relating to their qualifications to interpret,

'---._...;/

that these proceedings would take place today. It is unfortunate that respondent's
counsel did not review the record. It is unfortunate that respondent's counsel was
retained last minute. It is unfortunate that respondent did not pursue more vigorously

documents to respondent's counsel. However, in reviewing the case, the Court has had
the opportunity over weeks to review the documents that have been submitted as a
matter of record, the Department of Homeland Security's evidence having been
submitted at the first Master Calendar hearing, of which the respondent had an
opportunity to locate an attorney or to have an interpreter appear, of which the
respondent did not proceed with locating an attorney or having the interpreter that she
articulated would be necessary in order to assist her with understanding these
proceedings.
The Court at this time on today's hearing conducted substantial inquiry of the
respondent to determine what relief from removal, if any, the respondent would be
eligible for.
The Court found that the Department of Homeland Security had submitted
conviction documents to support the charge of removal under Section 237(a)(2)(A)(i) of
the Immigration and Nationality Act and, as such, sustained factual allegation 4
contained in the Notice to Appear and also sustained the charge of removal under
Section 237(a)(2)(A)(i) of the Immigration and Nationality Act.
The Court inquired of the respondent whether or not she would have any fear of
returning to her country if removal became necessary. The respondent articulated that
she has no family remaining in the Federated States of Micronesia and that she is
taking care of a disabled child that needs her care and that the respondent herself is ill.
The respondent did not articulate any basis which would support eligibility or

A206-352-760

September 18, 2014

Immigrant & Refugee Appellate Center | www.irac.net

the opportunity to communicate with counsel and to convey and provide the necessary

consideration of asylum, withholding of removal or protection under the Convention

against Torture.
The Court inquired of the respondent to her marital status. The respondent is not

respondent's parents are not United States citizens or legal permanent residents of the
United States. The respondent has ten children identified in the record. The
respondent has a 1 7-year-old child who is a United States citizen. The respondent's
other children are not United States citizens and, therefore, are unable to file petitions
on the respondent's behalf allowing her to remain in the United States. The
respondent's youngest child is not of the age to file a petition allowing for the
respondent to remain in the United States.
The Court evaluated the respondent's case, inquired of respondent's counsel
whether or not he was able to identify any relief from removal that the respondent would
be eligible for. Respondent's counsel was unable to articulate any relief from removal
that the respondent would be eligible for. The Court acknowledges that respondent's
counsel did not have substantial time to review the case to make an informed decision
based upon research. The Department of Homeland Security was inquired whether or
not the Department of Homeland Security was aware of any relief from removal that the
respondent would be eligible for. The Department of Homeland Security was unable to
identify any relief from removal that the respondent would be eligible for. The Court,
upon making an independent and separate evaluation finds that the respondent would
not be eligible for any relief from removal at this time.
The Court, in evaluating the second charge of removal in the respondent's case
under Section 237(a)(2)(A)(iii) of the Immigration and Nationality Act, the Court did not
make a finding as it relates to the aggravated felony offense. . The Court in evaluating

A206-352-760

September 1 8, 20 1 4

Immigrant & Refugee Appellate Center | www.irac.net

married to a United States citizen or legal permanent resident of the United States. The

the respondent's eligibility for voluntary departure would find that the respondent would
be eligible for voluntary departure as the Court has not made a finding of the
aggravated felony offense. However, the Court, in considering voluntary departure for

of discretion based upon the seriousness of the offense in which the respondent has
been convicted.
The Court at this time would issue the following order:
ORDERS
IT IS ORDERED that the respondent's request for voluntary departure be denied.
IT IS ORDERED that the respondent be ordered removed from the United
States.
The respondent has indicated her desire to appeal the Court's decision. The
Department of Homeland Security has indicated their desire to waive appeal in this
matter.

CLARENCE M. WAGNER, JR.

Immigration Judge

A206-352-760

September 1 8, 20 1 4

Immigrant & Refugee Appellate Center | www.irac.net

the respondent would deny the respondent's request for voluntary departure as a matter

__ ,

CERTIFICATE PAGE

I hereby certify that the attached proceeding before J UDGE CLARENCE M.

WAGNER, in the matter of:

A206-352-760

HONOLULU, HAWAII

was held as herein appears, and that this is the original transcript thereof for the file of
the Executive Office for Immigration Review.

LORI A. GOCHNOUR (Transcriber)

FREE STATE REPORTING, lnc.-2
OCTOBER 24, 2014
(Completion Date)

Immigrant & Refugee Appellate Center | www.irac.net

BERNARTITA MOSES