U.S.

Department of Justice
Executive Office for Immigration Review

Board ofImmigration Appeals

Office of the Clerk
5107 Leesburg Pike, Suite 2000
Falls Church, Virginia 20530

DHS/ICE Office of Chief Counsel - PHO

P.O.Box 25158
Phoenix, AZ 85002

Name: DOMINGUEZ-VITELA, SAMI

A 076-703-827

Date of this notice: 6/30/2015

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

DcY!.n.4.-

lVv'tJ

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Cole, Patricia A.
Wendtland, Linda S.
Pauley, Roger

Use rteam: Docket

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Cite as: Sami Dominguez-Vitela, A076 703 827 (BIA June 30, 2015)

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Alexandrovich, Marina N., Esq.

Marina Alexandrovich, Esq., PLLC
405 W. Southern Avenue, Suite 1-24
Tempe, AZ 85282

U.S. Department of Justice

Decision of the Board of Immigration Appeals

Executive Office for Immigration Review

Falls Church, Virginia 20530

File: A076 703 827 - Phoenix, AZ

Date:

JUN 3 0 2015

In re: SAMI DOMINGUEZ-VITELA

APPEAL
ON BEHALF OF RESPONDENT: Marina N. Alexandrovich, Esquire
ON BEHALF OF DHS:

Cara 0. Knapp
Assistant Chief Counsel

APPLICATION: Reopening

The respondent, a native and citizen of Mexico, appeals from the Immigration Judge's
December 9, 2013, decision denying his motion to reopen. The appeal will be sustained and the
record will be remanded.
The respondent initially entered the United States in 1996. On January 17, 2008, U.S.
Citizenship and Immigration Services denied his application for adjustment of status. These
removal proceedings were subsequently initiated on April 28, 2008 (Exh. 1). The respondent
was represented by attorney Kevin Gibbons during the underlying removal proceedings.
At a March 6, 2009, master calendar hearing, the Immigration Judge set a January 3, 2011,
deadline for the respondent to file his relief applications. The respondent did not comply with
the filing deadline, and on January 20, 2011, the Immigration Judge deemed the respondent's
relief applications abandoned and ordered him removed from the United States to Mexico. See
8 C.F.R. 1003.3l(c) (the opportunity to file applications and related documents shall be
deemed waived if not filed within the time set by the Immigration Judge). The Immigration
Judge also vacated the next scheduled hearing on March 22, 2011.
On February 17, 2011, attorney Gibbons filed a timely motion to reopen with the
Immigration Judge, claiming that he did not know about the January 3, 2011, filing deadline. On
March 9, 2011, the Immigration Judge denied the motion to reopen. The Immigration Judge
found that the respondent had not supplemented his motion with his relief applications as
required by regulation. See 8 C.F.R. 1003.23(b)(3). The Immigration Judge also deemed the
respondent's motion abandoned by regulation because he was physically removed from the
United States on February 25, 2011. See 8 C.F.R. 1003.2(d), 1003.23(b)(i) (a motion to
reopen or a motion to reconsider shall not be made by or on behalf of a person who is the subject
of exclusion, deportation, or removal proceedings subsequent to his or her departure from the
United States).
Cite as: Sami Dominguez-Vitela, A076 703 827 (BIA June 30, 2015)

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IN REMOVAL PROCEEDINGS

A076 703 827

The respondent appeals from this decision. The respondent continues to assert that he was
ineffectively assisted by attorney Gibbons. He claims that he did not know that attorney Gibbons
filed the first motion to reopen, and that he did not authorize that motion. He also claims that
attorney Gibbons misled him into believing that he missed a hearing advanced from March 22,
2011, to January 20, 2011, when in reality there was no hearing on January 20, 2011. The
respondent argues that under these circumstances, the numerical limitation on motions to reopen
should not apply in his case and that his motion should be granted.
As previously noted, the respondent's current counsel filed the second motion to reopen on
November 15, 2013, arguing that attorney Gibbons committed ineffective assistance of counsel
for failing to inform the respondent of a January 20, 2011 hearing. It is undisputed that there was
no hearing on January 20, 2011; rather, the Immigration Judge issued his written decision on that
date. Current counsel now argues on appeal that attorney Gibbons misled the respondent into
believing that he missed a hearing on January 20, 2011.
Considering the totality of the circumstances and in the interest of justice, and without
deciding the respondent's allegations of ineffective assistance of counsel, we will reverse the
Immigration Judge's decision to the extent he declined to exercise his sua sponte authority to
reopen the respondent's case. See generally Matter of G-D-, 22 I&N Dec. 1132, 1133-34 (BIA
1999). In the original motion to reopen, attorney Gibbons specifically admitted that he missed
the January 2, 2011, filing deadline because of "an error by counsel's office," and asserted that
he had misunderstood or had not heard the Immigration Judge. The Immigration Judge did not
ever address this aspect of the respondent's motion. We also observe that the record contains the
respondent's original application for adjustment of status, as well as an updated application filed
in 2009 and a copy of the approved visa petition (Exh. 5). See Matter ofInteriano-Rosa,
25 I&N Dec. 264 (BIA 2010) (holding that when an application for relief is timely filed but
supporting documents are not submitted within the time established, the Immigration Judge may
deem the opportunity to file the documents to be waived but may not deem the application itself
abandoned). Finally, we note that the respondent's removal from the United States did not
1

The respondent submitted additional supporting documentation with his second motion to
reopen.

Cite as: Sami Dominguez-Vitela, A076 703 827 (BIA June 30, 2015)

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On November 15, 2013, the respondent filed a second motion to reopen through current
counsel. The respondent claimed that reopening was warranted under the in absentia statutory
and regulatory provisions, and also that proceedings should be reopened sua sponte, because he
did not receive notice of the "January 20, 2011 hearing." The respondent asserted that he was
ineffectively assisted by attorney Gibbons and provided evidence that attorney Gibbons had been
suspended from practicing law in Arizona On December 9, 2013, the Immigration Judge denied
the motion. The Immigration Judge found that the respondent's motion was numerically barred
and that his prior motion was considered abandoned by regulation due to his removal. See
8 C.F.R. 1003.23(b)(l), 1003.2(d). The Immigration Judge also explained that the
respondent's contention that he did not receive notice of a January 20, 2011, hearing was
nonsensical because there was no hearing conducted on that date.

A076 703 827

preclude his ability initially to seek reopening within the jurisdiction of the United States Court
of Appeals for the Ninth Circuit. See Toor v. Lynch, - F.3d -, 2015 WL 3756503 (9th Cir.
June 17, 2015); Reyes-Torres v. Holder, 645 F.3d 1073 (9th Cir. 2011); Coyt v. Holder, 593
F.3d 902 (9th Cir. 2010).

ORDER: The respondent's appeal is sustained and the denial of his motion for sua sponte
reopening of his removal proceedings is reversed.
FURTHER ORDER: The record is remanded to the Immigration Judge for further
proceedings consistent with the foregoing opinion.

3
Cite as: Sami Dominguez-Vitela, A076 703 827 (BIA June 30, 2015)

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Under these facts, we will sustain the respondent's appeal and reverse the Immigration
Judge's denial of his motion to sua sponte reopen these removal proceedings. We express no
view as to whether the respondent ultimately can demonstrate that he is eligible for and
deserving of a grant of adjustment of status or other relief. Accordingly, the following orders are
entered.

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UNITED STATEEPARTMENT OF JUSTICE

EXECUTIVE OFFIjFOR IMMIGRATION REVIEW
IMMIGTION COURT
200 E. MITCHELL DR., SUITE 200
PHOENIX, AZ 85012

IN THE MATTER OF
DOMINGUEZ-VITELA, SAM!

FILE A 076-703-827

DATE: Dec 16, 2013

UNABLE TO FORWARD - NO ADDRESS PROVIDED

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:

;s:.

OTHER:

Od

IMMIGRATION COURT
200 E. MITCHELL OR., SUITE 200
PHOENIX, AZ 85012

CC: DISTRICT COUNSEL

2035 N. CENTRAL AVENUE
PHOENIX, AZ, 850040000

IMMIGRATION COURT

FF

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MARINA ALEXANDROVICH ESQ PLLC

Alexandrovich, Marina Nicole
405 w Southern Avenue Suite 1-24
Tempe, AZ 85282

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
OFFICE OF THE IMMIGRATION JUDGE
PHOENIX, ARIZONA

Sarni Dominguez-Vitela
A 076 703 827
IN REMOVAL PROCEEDINGS
On Behalf of the D.H.S.:

On Behalf of the Respondent:

Marina Alexandrovich, Esq.
405 W. Southern Ave., Suite 1-24
Tempe, Arizona 85282

District Counsel
2035 N. Central Ave.
Phoenix, Arizona 85004

ORDER
The Court is in receipt of the Respondent's second Motion To Reopen Proceedings and
the Department's reply in opposition.
The Motion To Reopen is denied. The motion is numerically barred. Further, the
motion's premise is baseless. As District Counsel points out, no hearing was conducted in this
matter on January 20, 2011. Thus, Respondent's contention that he did not receive proper notice
of said hearing is nonsensical. Further, as iterated in this Court's order denying the Respondent's
first Motion To Reopen, Respondent was removed from the United States during the pendency of
the motion, and the motion was deemed abandoned (see 8 C.F.R. 1003.2(d), 1003.23(b)(l)).

Dated this 9th day of December, 2013

Immigrant & Refugee Appellate Center, LLC | www.irac.net

IN THE MATTER OF