zapata chavez, a200 227 250 (bia march 30, 2015)
DESCRIPTION
In this unpublished decision, the Board of Immigration Appeals (BIA) reopened proceedings at which the respondent was ordered removed in absentia and granted administrative closure in light of a favorable exercise of DHS prosecutorial discretion while the appeal was pending. The decision was issued by Vice Chairman Charles Adkins-Blanch and joined by Member John Guendelsberger and Member Edward Grant.Looking for IRAC’s Index of Unpublished BIA Decisions? Visit www.irac.net/unpublished/indexTRANSCRIPT
Cedillo-Pereira, Mary Elizabeth Cedillo-Pereira and Associates 433 E. Las Colinas Blvd, Ste. 1225 Irving, TX 75039
Name: CHAVEZ, ZAPATA
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals Office of the Clerk
5107 Leesburg Pike, Suite 2000 Falls Church, Virginia 20530
OHS/ICE Office of Chief Counsel - DAL 125 E. John Carpenter Fwy, Ste. 500 Irving, TX 75062-2324
A 200-227-250
Date of this notice: 3/30/2015
Enclosed is a copy of the Board's decision and order in the above-referenced case.
Enclosure
Panel Members: Adkins-Blanch, Charles K. Guendelsberger, John Grant, Edward R.
Sincerely,
DorutL c t1/V1.)
Donna Carr Chief Clerk
Userteam: Docket
For more unpublished BIA decisions, visit www.irac.net/unpublished/index
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Cite as: Zapata Chavez, A200 227 250 (BIA March 30, 2015)
U.S. Department of Justice Executive Office for Immigration Review
Falls Church, Virginia 20530
File: A200 227 250 - Dallas, TX
Decision of the Board of Immigration Appeals
Date:
In re: ZAPATA CHAVEZ a.k.a. Luis Antonio Chavez Zapata
IN REMOVAL PROCEEDINGS
APPEAL
ON BEHALF OF RESPONDENT: Mary Elizabeth Cedillo-Pereira, Esquire
APPLICATION: Reopening
ORDER:
The respondent's appeal from the Immigration Judge's March 13, 2014 , decision denying his motion to reopen proceedings is sustained. On appeal, the respondent has submitted evidence that the Department of Homeland Security (DHS) granted his application for an exercise of prosecutorial discretion on April 25, 2014 . Considering the circumstances presented, the appeal is sustained, proceedings are reopened and we will administrativelY. close these removal proceedings.
If either party to this case wishes to reinstate the proceedings, a written request to reinstate the proceedings may be made to the Board. The Board will take no further action in the case unless a request is received from one of the parties. The request must be submitted directly to the Clerk's Office, without fee, but with certification of service on the opposing party.
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Cite as: Zapata Chavez, A200 227 250 (BIA March 30, 2015)
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
1100 COMMERCE ST., SUITE 1060 DALLAS; TX 75242
VARGAS, MARIANELA PORRES
433 E. LAS COLINAS BLVD., STE 1225 IRVING, TX 75039
IN THE MATTER OF
CHAVEZ-ZAPATA, LUIS ANTONIO
FILE A 200-227-250
UNABLE TO FORWARD - NO ADDRESS PROVIDED
DATE: Mar 18, 2014
�ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE. THIS DECISION
IS FINAL UNLESS AN APPEAL IS FILED WITH THE BOARD OF IMMIGRATION APPEALS
WITHIN 30 CALENDAR DAYS OF THE DATE OF THE MAILING OF THIS WRITTEN DECISION.
SEE THE ENCLOSED FORMS AND INSTRUCTIONS FOR PROPERLY PREPARING YOUR APPEAL.
YOUR NOTICE OF APPEAL, ATTACHED DOCUMENTS, AND FEE OR FEE WAIVER REQUEST
MUST BE MAILED TO: BOARD OF IMMIGRATION APPEALS
OFFICE OF THE CLERK
5107 Leesburg Pike, Suite 2000 FALLS CHURCH, VA 20530
ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE AS THE RESULT
OF YOUR FAILURE TO APPEAR AT YOUR SCHEDULED DEPORTATION OR REMOVAL HEARING.
THIS DECISION IS FINAL UNLESS A MOTION TO REOPEN IS FILED IN ACCORDANCE
WITH SECTION 242B(c) (3) OF THE IMMIGRATION AND NATIONALITY ACT, 8 U.S.C.
SECTION 1252B(c) (3) IN DEPORTATION PROCEEDINGS OR SECTION 240(c) (6) , 8 u.s.c. SECTION 1229a(c) (6) IN REMOVAL PROCEEDINGS. IF YOU FILE A MOTION
TO REOPEN, YOUR MOTION MUST BE FILED WITH THIS COURT:
OTHER:
IMMIGRATION COURT
1100 COMMERCE ST., SUITE 1060 DALLAS, TX 75242
COURT CLERK' IMMIGRATION COURT
CC: ALLUMS, JOHN L.
125 E. HWY 114, STE 500 IRVING, TX, 75062
FF
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..
UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT DALLAS, TEXAS
IN THE MATTER OF: ) ) IN REMOVAL PROCEEDINGS
CHAVEZ ZAPATA, Luis Antonio )
RESPONDENT
CHARGE:
APPLICATION:
) A 200-227-250 ) )
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 in the United States at any time or place other than as designated by the Attorney General.
Motion to Reopen In Absentia Order
ON BEHALF OF THE RESPONDENT: ONBEHALF OF THEDEPARTMENT OF HOMELAND SECURITY:
Marianel� Porres Vargas, Esq. 4 33 E. Las Colinas Blvd. , Ste . 1225 Irving, Texas 75039
Lynn G. Javie r, Esq. Assistant Chief Counsel- DHS/ICE 125 E. John Carpenter Fwy. , Ste . 500 Irving, Te xas 75062
WRITTEN DECISION OF THE IMMIGRATION JUDGE
FACTUAL & PROCEDURAL IDSTORY
The Respondent is a native and citizen of Mexico. Exhibit I. He arrived in the United
States at an unknown time and place , but either was not then admitted or paroled after inspection
by an Immigration Officer or arrived at a time or place other than as designated by the Attorney
General. Id. In June 2012, the Respondent was arrested. Motion to Reopen, pg. 5. The
Respondent was later taken into the custody of the Department of Homeland Security (DRS or
the Government) . Consequently, on August 1, 2012, DRS personally served the Respondent with
a Notice to Appear (NTA) , charging him with removability under Section 212(a)(6)(A)(i) of the
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Act. Exhibit 1. At that time, the Respondent was provided oral notice of the consequences of his
failure to appear as provided in Section 240(b )(7) of the Act. Id.
On August 21, 2012, the Court mailed the Respondent's attorney of record a Notice of
Hearing (NOH) setting the Respondent's case for October 4 , 2012.
The Respondent was released from custody on bond on August 24 , 2012.
On August 29, 2012, the Court mailed the Respondent's attorney a second NOH resetting
the Respondent's case for March 4, 2013. Exhibit 3.
At a hearing on March 4 , 2013, the Respondent and his counsel failed to appear and the
proceedings were conducted in absentia. The Government submitted Form 1-213 in support of its
charge of removability. See Exhibit 4 . Based on the evidence of record, the Court found
removability established. See 8 C. F.R. § 1240. S(c) . The Court designated Mexico as the country
of removal and ordered the Respondent removed in absentia.
On August 30, 2013, the Respondent submitted a Motion to Reopen requesting the Court
to reopen the proceedings based on lack of notice and ineffective assistance of counsel. DHS has
not filed a response. 1
STATEMENT OF LAW
If an alien does not attend a removal hearing after written notice has been provided to the
alien or the alien's counsel of record, the alien will be ordered removed in absentia if the
Government's establishes by clear, unequivocal, and convincing evidence that written notice was
provided and that the alien is removable. INA § 240(b )(5) . A party is limited to only one motion
1 Respondent's counsel claims that OHS Assistant Chief Counsel Danial Gividen has been contacted and "communicated that OHS-ICE's position would be unopposed to the granting of this motion." Motion to Reopen, pg. 2. However, no written statement has been filed by OHS. The Court does not consider representations by either party of the opposing party's position to be dispositive. Either a joint motion or affirmative written statement filed by OHS would suffice to confirm this assertion. However, a blanket statement of OHS' non-opposition is insufficient.
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to reopen and that motion m ust be filed no later than 90 days after the date on which the final
administrative decision was rendered in the proceedings sought to be reopened. 8 C.F .R. §
1003. 23(b)(l). However, an in absentia order may be rescinded upon the filing of a motion to
reopen, filed at any time, if an alien has not received adequate notice of the hearing. INA §
240(b)(5)(C)(ii); 8 C. F.R. § 1003.23(b)(4)(iii)(2).
Adequate notice can be accomplished through personal service, or if personal service is
not practicable, through service by m ail to the alien or the alien's counsel of record. INA §
239(a)(l). Service by m ail is proper upon proof of attempted delivery to the alien's most recently
provided address. INA § 239( c ). Thus, if the alien actually receives notice or can be charged
with receiving constructive notice, through receipt of a NT A , then the address used by
immigration officials is a sufficient address and in absentia proceedings are thereafter
authorized. INA § 239(a)(l)(F); Matter of G-Y-R-, 23 I. & N. Dec. 181, 186 (BIA 2001). The
written notice m ust specify the alien's duty to immediately provide the Attorney General with a
written record of any change in his address or telephone number and the consequences of failing
to do so. INA § 239(a)(l)(F). Within five days of any change of address, the alien m ust
complete and file with the Court a Change of Address Form (Form EOIR-33). 8 C.F.R. §
1003.15(d)(2). Thus, if the alien fails to file a Form EOIR-33 when required, and this is the
reason he has not received proper notice of a scheduled hearing, then lack of notice cannot serve
as the basis for granting a motion to reopen. Matter of M-R-A-, I&N Dec. 665, 675 (BIA 2008).
A motion to reopen based on ineffective assistance of counsel will be evaluated under the
standards articulated in Matter of Lozada, 19 l&N Dec. 63 7 (BIA 1998). According to Matter of
Lozada, a motion to reopen based upon a claim of ineffective assistance of counsel requires:
(1) that the motion be supported by an affidavit of the allegedly aggrieved respondent setting forth in detail the agreement that was entered into with counsel
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with respect to the actions to be taken and what representations counsel did or did not make to the respondent in this regard,
(2) that counsel whose integrity or competence is being impugned be informed of the allegations leveled. against him and be given the opportunity to respond, and
(3) that the motion reflect whether a complaint has been filed with appropriate disciplinary authorities with respect to any violation of counsel's ethical or legal responsibilities, and if not, why not.
Id at 639.
Ineffective assistance of counsel may only constitute grounds for the reopening of
removal proceedings where the proceedings were so fundamentally unfair that the alien was
prevented from reasonably presenting his case. Id. at 638; Goonsuwan v. Ashcroft, 252 F. 3d
383, 385 n. 2 (5th Cir. 2001) (citing Zadvydas v. Underdown, 185 F. 3d 279, 395 (51h Cir. 1999) )
(noting that an alien's right to procedural due process in removal proceedings is violated when
the representation by an alien's lawyer is so deficient as to impinge on the fundamental fairness
of the proceedings) . A determination of whether an alien's hearing was fundamentally fair must
be made on a case-by-case basis. Barthold v. INS, 517 F. 2d 689, 691 (5th Cir. 1975). In order to
make a successful case for ineffective assistance of counsel, the alien m ust demonstrate that he
was substantially prejudiced by counsel's incompetent representation. Goonsuwan, 252 F. 3d at
385 n. 2 (citing Ogbemudia v. INS, 988 F. 2d 595, 598 (51h Cir. 1993) ) ; see also Miranda-Lores v.
INS, 17 F. 3d 84 , 85 (5th Cir. 1994) . In so doing, the alien m ust make a prima facie case of
eligibility for the requested relief. Miranda-Lores, 17 F . 3d at 85.
The Court m ay also exercise its sua sponte authority to reopen in "truly exceptional
situations" where the interests of justice would be served. Matter of G-D-, 22 I&N Dec. 1132
(BIA 1999) ; Matter of J-J-, 21 I&N Dec. 976 (BIA 1997) .
ANALYSIS
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A: Lack of Notice
Initially, the Court notes that the Respondent does not contest personal receipt of his
NT A. Thus, the Respondent was advised of his address obligations as well as the consequences
of his failure to appear as required by Section 239(a)(l) of the Act. Respondent claims that he
did not receive notice of the date and time of his hearing as he did not receive an NOH and was
not informed of his hearing date by his attorney. However, notice to counsel is sufficient to
constitute notice to the respondent. See INA §§ 239(a)(l), 240(b)(S)(A); 8 C. F.R. §§
1003.26(c)(2), 1292.S(a); see Matter of Barcio, 1 9 I&N Dec. 255, 259 (BIA 1985); see also Link
v. Wabash R. Co., 370 U.S. 626, 633-634 (1962) ("[E]ach party is deemed bound by the acts of
his lawyer-agent and is considered to have notice of all facts, notice of which can be charged
upon the attorney") (internal quotations omitted).
The record reflects that Mr. Mills was the Respondent's counsel of record from A ugust 8,
2012 until the present Motion to Reopen was filed on August 30, 2013. See Exhibit 2; Notice of
Entry of Appearance as Attorney or Representative Before the Immigration Court, filed August
30, 2013. This Court sent Mr. Mills a NOH on August 29, 2012, when he was still counsel of
record. Exhibit 3. Furthermore, Mr. Mill's affidavit acknowledges receipt of that NOH. Motion
to Reopen, pg. 27. Thus, this Court provided sufficient notice to the Respondent of the time and
place of the hearing and the consequences of his failure to appear when the Court sent the
Respondent's counsel of record the NOH, as required by the statute and regulations. Since the
Court mailed the NOH to the Respondent's counsel of record at the time, and the notice
contained all the proper advisements, service of the NOH was sufficient. See INA § 239(a).
Therefore, the Court finds that the Respondent had proper notice of the proceedings.
B. Ineffective Assistance of Counsel
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The Respondent was ordered removed in absentia March 4 , 2013. The Respondent filed the
present motion on August 30, 2013. Thus, the Respondent's motion as it pertains to the
ineffective assistance of counsel claim is untimely as it was not filed within 90 days of the
Respondent's order of removal. 2
However, even if the Respondent's motion was filed timely, the Court would still deny the
motion for failure to m eet the standards articulated in Matter of Lozada. The Respondent has
submitted an affidavit outlining the attorney-client relationship between himself and Mr. Mills,
as well as the allegedly inadequate actions taken by his former attorney. See Motion to Reopen,
pgs. 5-7. In addition, Mr. Mills has been informed of the allegations leveled against him and
been afforded the opportunity to respond, as evidenced by his affidavit included with the
Respondent's motion. See Motion to Reopen, pgs. 27-28. However, the Respondent failed to file
a complaint with the proper disciplinary authorities. Respondent's counsel indicates that no
formal grievance was filed because Mr. Mills "submitted an A ffidavit accepting the error. "
Motion to Reopen, pg. 6. However, this Court does not find such an explanation to be sufficient
to meet the standards set forth in Matter of Lozada.
The Fifth Circuit and BIA have held that similar reasons for failure to file a bar complaint
were inadequate. See Lara v. Tominski, 216 F. 3d 487 (51h Cir. 2000) (failed to file bar complaint
because counsel's error was "inadvertent" ); Matter of Rivera-Claros, 21 l&N Dec. 599 (BIA
1996) (same). The purpose of the filing of a bar complaint as an element of an ineffective
assistance of counsel claim is "to deter meritless claims and to aid in policing the immigration
bar. " See Lara, 216 F. 3d at 496 (citing Matter of Lozada, 19 I&N Dec. at 639). The Fifth Circuit
upheld the BIA' s determination that failure to file a bar complaint because former counsel's
2 The Respondent does not claim that his former counsel's ineffective assistance constitutes an "exceptional circumstance," but even if he did, such a claim would also be untimely. See INA§ 240(b)(5)(C)(i).
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errors were inadvertent would "eviscerate" the bar complaint requirement. Lara, 216 F. 3d 498.
The Court determined that "if ineffective assistance based on simple inadvertence was enough to
escape the bar discipline requirement. . . the requirement would lose much of its applicability" as
many ineffective assistance of counsel claims would not be investigated further by the
appropriate disciplinary authorities based on an assessment that the error was inadvertent. Id. In
the same way, if an aggrieved respondent could avoid filing a bar complaint simply through
former counsel's admittance of the error, even the most egregious error might not require a
formal bar complaint if the offending counsel simply admitted their m istake. This would clearly
thwart the purpose of the grievance requirement of Matter of Lozada. This Court finds that the
fact that the Respondent's former counsel "accepted" his alleged error, does not excuse his
obligation to file a bar complaint if he truly believes that counsel's actions violated an ethical or
legal duty. The filing of such a grievance serves as an important tool for this to Court to evaluate
the merit of ineffective assistance of counsel claims. The Court finds that the Respondent has
failed to provide an adequate explanation for his failure to file such a complaint.
Furthermore, the Respondent has failed to dem onstrate that he is prima facie eligible for
relief. The Respondent has contended that he is eligible for Deferred Action for Childhood
Arrivals. Motion to Reopen, pg. 6. However, the Court would note that this is not relief before
the Court. As such, the Respondent has demonstrated no substantial prejudice as a result of any
claimed ineffective assistance of counsel. See Miranda-Lores, 17 F.3d at 85.
C. Sua Sponte
Additionally, the Court will not reopen the Respondent's proceedings sua sponte. The
Respondent was at least aware that his hearing was scheduled for March 2013, but by his own
admission made no further inquiry to determine the exact date of his hearing. See Motion to
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Reopen, pg. 6. The Court would also note that Mr. Mill's affidavit asserts that the Respondent
only obtained a copy of his file from his office under after his in absentia order was entered.
Motion to Reopen, pg. 27. If the Respondent failed to obtain a copy of his file after releasing
his counsel, which would have included the NOH, then the Respondent is responsible for the
consequences such actions. While the Respondent contends that he had obtained the services of a
non-lawyer, this person apparently never obtained the required release to receive the
Respondent's file. Id. The Respondent's failure to take any further action to discover the exact
date of his hearing does not excuse his absence. Thus, the Court finds this case presents no "truly
exceptional" situation warranting the exercise of such authority. See Matter of G-D-, 22 I&N
Dec. 1132 (BIA 1999) ; Matter of J-J-, 21 l&N Dec. 976, 984 (BIA 1997) .
Accordingly, the following Order shall be entered:
ORDER
IT IS HEREBY ORDERED that the Respondent's Motion to Reope
Date:· ".3 lt '3 f I 't Dallas, Texas
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Deitrich H. Sims Immigration Judge
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