U.S.

Department of Justice
Executive Office for Immigration Review

Board of Immigration Appeals

Qfjlce of the Clerk
5107 Leesburg Pike. S1111e 2000
Falls Church. Virgmta 20530

OHS/ICE Office of Chief Counsel - HLG

1717 Zoy Street
Harlingen, TX 78552

Name: PATEL, RAKESH KUMAR NATV ...

A 200-961-784

Date of this notice: 12/18/2014

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

DOrutL ct1IVt.)
Donna Carr
Chief Clerk

Enclosure

Panel Members:
Guendelsberger, John

Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: Rakesh Kumar Natvarbhai Patel, A200 961 784 (BIA Dec. 18, 2014)

Immigrant & Refugee Appellate Center | www.irac.net

Ahmad, Usman B., Esq.

Law Office of Usman B. Ahmad
29-27 41st Avenue, 9th Floor
Long Island City, NY 11101

U.S. Department of Justice

Decision of the Board of Immigration Appeals

Executive Office for Immigration Review

Falls Church, Virginia 20530

File: A200 961 784 - Harlingen, TX

Date:

DEC 18 2014

In re: RAKESH KUMAR NATVARBHAI PATEL

APPEAL
ON BEHALF OF RESPONDENT: Usman B. Ahmad, Esquire
ON BEHALF OF DHS:

Delia Irene Gonzalez

Assistant Chief Counsel

APPLICATION: Reopening

The respondent, a native and citizen of India, appeals from the Immigration Judge's
October 31, 2012, decision denying his motion to reopen. The respondent has filed an appeal
brief. In response, the Department of Homeland Security (DHS) has moved for summary
affirmance. The record will be remanded to the Immigration Judge for further proceedings.
We review Immigration Judges' findings of fact for clear error, but questions of law,
discretion, and judgment, and all other issues in appeals, de novo. 8 C.F.R. 1003.l(d)(3).
These removal proceedings concluded when, on February 23, 2012, the Immigration Judge
ordered the respondent removed in absentia after finding that the respondent had abandoned any
and all claims for relief from removal. See section 240(b)(5)(A) of the Immigration and
Nationality Act, 8 U.S.C. 1229a(b)(5)(A). On August 20, 2012, the respondent filed a motion
to reopen, which was opposed by the DHS.
In his motion to reopen, the respondent alleged, through counsel, and in an affidavit that he
signed under oath, that he never received his prior counsel's January 28, 2012, letter notifying
him of his February 23, 2012, hearing and that he never intended to miss his court date or
abandon his claim for asylum. The respondent also alleged in his motion, also through counsel,
that he was not competent to stand trial and appear before the Immigration Judge due to illnesses
that included post-traumatic stress disorder {PTSD) and possible mild mental retardation.
the decision now before our review, dated October 31, 2012, the Immigration Judge
denied the motion after finding that the respondent was afforded proper notice of his
February 23, 2012, hearing through his counsel of record, to whom the hearing notice was sent
{l.J. at 1). The hnmigration Judge also found that the respondent did not follow all the
requirements set forth in Matter ofLozada, 19 I&N Dec. 637 (BIA 1988), to establish a claim of
ineffective assistance of prior counsel and that he did not meet our definition of mental
incompetence, as required under Matter of M-A-M-, 25 I&N Dec. 474 (BIA 2011) (1.J. at 1-2).
In

Cite as: Rakesh Kumar Natvarbhai Patel, A200 961 784 (BIA Dec. 18, 2014)

Immigrant & Refugee Appellate Center | www.irac.net

IN REMOVAL PROCEEDINGS

- A200 961 784

Given the foregoing and since we are precluded from making findings of fact, we find it
appropriate to remand the case to give the Immigration Judge an opportunity to re-adjudicate the
respondent's motion to reopen and issue a new, more complete decision. The new decision
should address the respondent's allegation of non-receipt of his prior counsel's January 28, 2012,
letter, include a finding as to whether that allegation is sufficient to overcome the weaker
presumption of delivery that attaches to notices sent by regular mail, revisit the issue of
ineffective assistance of prior counsel, and include a new determination as to the respondent's
competency. The new decision should reflect consideration of all the pertinent evidence in the
record, including the September 6, 2012, psychological evaluation report and a December 18,
2012, letter (submitted on appeal) purporting to show that the respondent has filed a formal
grievance against his prior counsel with the Office of the Chief Disciplinary Counsel for the
State Bar of Texas. Prior to the issuance of the new decision, both parties should be given
another opportunity to submit additional evidence and argument. By this remand, we express no
opinion as to the ultimate outcome of this case. Accordingly, the following order shall be
entered.
ORDER: The record is remanded to the Immigration Judge for further proceedings
consistent with the foregoing and the issuance of a new decision.

1 This report indicates that the respondent suffers from possible mild mental retardation and has
symptoms consistent with PTSD, including paranoid ideation, auditory hallucinations, and strong
"avoidance of reminders of the trauma, such as [a] discussion of the events [in his past in a
courtroom setting]." The report also indicates that the respondent appeared culturally
marginalized and ill informed, likely due to comprehension deficits about his rights and
American practices, that his fearfulness interfered with his ability to process information, and
that his understanding of basic concepts appeared distorted. According to the report's author, the
respondent's PTSD symptoms appeared to explain the respondent's self-defeating behavior.

2
Cite as: Rakesh Kumar Natvarbhai Patel, A200 961 784 (BIA Dec. 18, 2014)

Immigrant & Refugee Appellate Center | www.irac.net

We agree with the Immigration Judge that notice to an alien's attorney of record constitutes
proper notice to that alien. See Matter of Barocio, 19 I&N Dec. 255 (BIA 1985); 8 C.F.R.
1292.5. However, the Immigration Judge's decision did not include a finding as to whether the
respondent's allegation under oath that he never received his prior counsel's January 28, 2012,
letter informing him of his February 23, 2012, hearing overcame the weaker presumption of
delivery that attaches to notices sent by regular mail. Nor did the decision address what
probative weight was assigned, if any, to a psychological evaluation report dated September 6,
2012, which was submitted subsequent to the filing of the motion, but before the issuance of the
Immigration Judge's decision, in assessing the respondent's mental competency.1


- .

If'

......

<

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION EVIEW
IMMIGRATION COURT
2009 W. JEFFERSON AVE,
HARLINGEN,

USMAN B. I

29-27 4lst.

ESQ

AVENUE,

LONG ISLAND CITY,

9TH FLOOR

NY

11101

DATE:

FILE A 200-961-784

IN.THE MATTER OF
PATEL,

STE 300

78550

Oct 31,

2012

RAKESH KUMAR NATVARBHAI

UNABLE TO FORWARD -

NO ADDRESS PROVIDED

TTACHED 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 NOTI.CE OF APPEAL,
MUST BE MAILED TO:

ATTACHED DOCUMENTS,

AND FEE OR FEE WAIVER REQUEST

BOARD OF IMMIGRATION APPEALS

OFFICE OF THE CLERK
P.O.

BOX 8530

FALLS CHURCH,

VA

22041

ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATON JUDGE AS THE RESULT

,OF YOUR FAILURE TO APPEAR AT YOUR SCHEDULED DEPORTATION OR REMOVAL HEARING.
TRIS DECISION IS FINAL UNLESS A MOTION TO REOPEN IS FILED IN ACCORDANCE

W TH SECTION 242B{c) (3)

SECTION 1252B(c) (3)

OF THE IMMIGRATION AND NATIONALITY ACT,

,8 U.S.C. SECTION 1229a{c} (6)

Tb

REOPEN,

8 U.S.C.

IN DEPORTATION PROCEEDINGS OR SECTION 240{c) (6),

IN REMOVAL PROCEEDINGS.

IF YOU FILE A MOTION

YOUR MOTION MUST BE FILED WITH THIS COURT:

IMMIGRATION COURT
2009 W. JEFFERSON AVE,
HARLINGEN,

TX

STE 300

78550

OTHER:

......

C0\1R'f CL'ERK
CC:

ASSISTANT CHIEF COUNSEL

1717 ZOY ST.

HARLINGEN,

TX,

785520000

IMMIGRATION COURT

FF

Immigrant & Refugee Appellate Center | www.irac.net

AHMAD I

TX

UNITED STATES DEPARTMENT OF WSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
HARLINGEN IMMIGRATION COURT
2009 WEST JEFFERSON A' SUITE 300
HARLINGEN, TEXAS 78550

)
)

Rakesh Patel

Octob

2012

Case Number: A200-961-784

)
)

RESPONDENT

APPLICATION:

IN REMOVAL PROCEEDINGS

Motion to Reopen

ON BEHALF OF THE RESPONDENT

ON BEHALF OF THE GOVERNMENT

Usman B. Ahmad

Mark Whitworth

Law Office ofUsman B. Ahmad

Assistant ChiefCounsel-OHS

29-27 41st Ave.

1717 Zoy St.

The Clocktower Building, 9th Fl.

Harlingen, TX

78552

Long Island City, NY 11101

ORDER OF THE IMMIGRATION JUDGE

On February 23, 2012, the Court ordered respondent removed to India based upon a
hearing held in absentia on that same date pursuant to section 240(b)(5)(A) ofthe Immigration
and Nationality Act (INA or Act). In his motion to reopen, the respondent claims that
exceptional circumstances prevented his attendance. Respondent's motion will be denied.
Initially, the Court finds the respondent received proper notice ofhis February 23, 2012,
removal hearing because he was personally served with the Notice to Appear in accordance with
section 239(a) ofthe Act, and the notice ofhis hearing was received by his attorney. See Matter

ofBarocio, 19 l&N Dec. 255, 259 (BIA

1985)(recognizing that notice to the attorney ofrecord

constitutes notice to the alien); 8 C.F.R. 1292.5(a)(stating that whenever an alien is required to be
given notice, such notice shall be given to the attorney ofrecord).
Respondent claims that his attorney's ineffective assistance ofcounsel prevented him
from attending his hearing. See Resp't Mot. However, respondent has not followed the

requirements set forth in Lozada, which the Fifth Circuit, under whose jurisdiction this Court

lies, applies in their entirety. See Matter

ofLozada,

19 I&N Dec. 637 (BIA 1988). Specifically,

respondent has not described the fee and scope ofservices agreed upon by the attorney and
respondent, nor has he filed a complaint with the proper authorities.

Immigrant & Refugee Appellate Center | www.irac.net

IN THE MATTER OF

As to respondent's claim that he was mentally incompetent at the time he was to have

. received his notice of hearing, the Court finds that respondent does not meet the BIA-issued
definition of mental incompetence in that he was able to understand enough of his case to seek

legal assistance. See Matter ofM-A-M-, 25 I&N Dec. 274 (BIA 2011). Further, he clearly had a
rational and factual understanding of the proceedings as he actively participated in a credible fear
interview and in a bond hearing and was aware that he could potentially be removed from the
country if he lost his case. Id.; see ROP.

this original claim after missing his original hearing. Respondent's current asylum claim is not
based on changed country conditions and so cannot be considered as an independent reason for
reopening these proceedin gs. 8 CFR 1003.23(b)(4).
Finally, the Court concludes the circumstances of this case do not warrant the exercise of

the Court's limited discretion to reopen sua sponte. See Matter ofJ-J-, 21 I&N Dec. 976 (BIA
1997).
Accordingly, the following orders shall be entered:
ORDER: The respondent's motion to reopen

is DENIED.

"\.

Immigrant & Refugee Appellate Center | www.irac.net

As to the respondent's claim of asylum, the Court finds that the Respondent abandoned

RE:

PATEL,

File:

'

RAKESH KUMAR NATVARBHAI

A200-961-784

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