U.S.

Department of Justice

Executive Office for Immigration Review

Board of!mmigration Appeals
Office of the Clerk
5107 Leesburg Pike. Suite 2000
Falls Church, Virginia 22041

DHS/ICE Office of Chief Counsel - SEA

1000 Second Avenue, Suite 2900
Seattle, WA 98104

Name: CARRILLO-PABLO, JOSEFA

Riders:202-097-909

A 202-097-908
Date of this notice: 9/21/2015

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

DorutL CtVvu
Donna Carr
Chief Clerk
Enclosure
Panel Members:
Wendtland, Linda S.
Pauley, Roger
O'Herron, Margaret M

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/
Cite as: Josefa Carrillo-Pablo, A202 097 908 (BIA Sept. 21, 2015)

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

Jagannath, Gautam J.
Social Justice Collaborative
420 3rd Street, Suite 130
Oakland, CA 94607

U.S. Department of ustice

Executive Office for Immigration Review

Decision ofthe Board of Immigration Appeals

Falls Church, Virginia 22041

Files: A202 097 908 - Seattle, WA

A202 097 909

Date:

SEP 2 I 20J5

IN REMOVAL PROCEEDINGS
APPEAL
ON BEHALF OF RESPONDENTS: Gautam Jagannath, Esquire
ON BEHALF OF DHS: Eric Bakken
Senior Attorney
CHARGE:
Notice: Sec.

212(a)(7)(A)(i)(I), I&N Act [8 U.S.C. 1182(a)(7)( A)(i)(I)] Immigrant - no valid immigrant visa or entry document (both respondents)
(sustained)

APPLICATION: Reopening

The respondents, natives and citizens of Guatemala, were ordered removed in absentia on
November 21, 2014. 1 On February 20, 2015, the respondents filed a motion to reopen
proceedings, which the Immigration Judge denied on April 8, 2015. The respondents filed
a timely appeal of that decision. The record will be remanded.
We review the findings of fact made by the Immigration Judge, including the determination
of credibility, for clear error. 8 C.F.R. 1003.l(d)(3)(i). We review all other issues, including
questions of judgment, discretion, and law, de nova. 8 C.F.R. 1003.l(d)(3)(ii).
The record reflects that the Notice to Appear (Form I-862) was personally served on the
respondents on October 7, 2014. On November 5, 2014, a notice of hearing was mailed to the
respondent at the address contained on the Notice to Appear, informing her that she was
scheduled for a hearing on November 21, 2014. The record does not contain any evidence that
the notice of hearing was returned to the Immigration Court. The Immigration Judge ordered the
respondents' removal on November 21, 2014, when they failed to appear for their scheduled
1

The respondents are an adult mother (A202 097 908) and her minor child (202 097 909). All
references in this decision to "the respondent" relate to the adult respondent.

Cite as: Josefa Carrillo-Pablo, A202 097 908 (BIA Sept. 21, 2015)
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Immigrant & Refugee Appellate Center, LLC | www.irac.net

In re: JOSEFA CARRILLO-PABLO

MELINDA MARIBEL CALMO-CARRILLO

A202 097 908 et al.

hearing. The respondents filed a motion to reopen on February 20, 2015. The Immigration
Judge denied the respondents' motion and the respondents filed a timely appeal.

The adult respondent's declaration is ambiguous as to the degree to which, if any, the
respondent relied upon any inaccurate representations made to her by the notario with respect to
attending the November 21, 2014, master calendar hearing. The respondent does not detail any
particular false or misleading statement made to her by the notario with respect to her attendance
at the hearing. She notes only that "Manuel did not tell us that I had to go to court. He did not
say anything about that" (Respondent's Motion to Reopen, Exh. B at 1). The respondent does
not dispute that she received a Notice to Appear that includes a warning indicating that she may
be ordered removed if she does not attend a hearing. Thus, the respondent was aware of the
consequences offailing to appear, even assuming that the notario did not affirmatively advise her
in this regard. Moreover, the respondent's declaration acknowledges that the notario told her
that he was not an attorney. See Singh-Bhathal v. INS, 170 F.3d 943, 946-47 (9th Cir. 1999)
(holding that reliance on mistaken advice of non-attorney immigration consultant was
insufficient to demonstrate exceptional circumstances warranting reopening of in absentia
deportation order). Thus, we affirm the Immigration Judge's determination that the respondent
did not establish that exceptional circumstances warrant reopening these proceedings. We also
affirm the Immigration Judge's ruling that because the respondent knowingly retained
a non-attorney, she could not establish a valid claim of ineffective assistance of counsel.
See Hernandez v. Mukasey, 524 F.3d 1014 (9th Cir. 2008) (aliens' reliance on deficient advice of
immigration consultant who they knew was not an attorney could not support ineffective
assistance claim).
However, we conclude that remand is warranted for additional consideration of whether the
respondent established that she did not receive notice of the November 21, 2014, hearing. The
Immigration Judge correctly applied the presumption that the properly addressed notice sent via
regular mail was received by the respondent. Matter of M-R-A-, 24 l&N Dec. 665, 671-72
(BIA 2008). However, in assessing whether the respondent overcame this presumption, the
Immigration Judge did not consider all the factors we set forth in Matter of M-R-A-, supra.
See also Sembiring v. Gonzales, 499 F.3d 981, 986 (9th Cir. 2007). Instead, the Immigration
Judge only considered the respondent's declaration, which the Immigration Judge concluded was
insufficient to meet the respondent's burden ofproof.2
2

We acknowledge the Immigration Judge articulated the factors. However, the decision does
not reflect that the factors were actually considered.

2
Cite as: Josefa Carrillo-Pablo, A202 097 908 (BIA Sept. 21, 2015)
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Immigrant & Refugee Appellate Center, LLC | www.irac.net

We affirm the Immigration Judge's determination that the respondents did not establish that
rescission of the in absentia order of removal and reopening of these proceedings is warranted
based on exceptional circumstances (I.J. at 3-5). See sections 240(b)(S)(A), (C), (e)(l) of the
Immigration and Nationality Act, 8 U.S.C. 1229a(b)(5)(A), (C), (e)(l); 8 C.F.R.
1003.23(b)(4)(ii). We agree with the Immigration Judge that the respondents' association with
a notario does not constitute exceptional circumstances as contemplated under section 240(e)(1)
ofthe Act.

A202 097 908 et al.

ORDER: The record is remanded for further proceedings consistent with the foregoing
opinion and for the issuance ofa new decision.

Board Member Roger A. Pauley respectfully dissents and would affirm the decision below
that the respondent failed to establish a lack of notice or exceptional circumstances warranting
reopening. See Joshi v. Ashcroft, 389 F.3d 732, 735 (7th Cir. 2004) ("a bare, uncorroborated,
self-serving denial of receipt, even if sworn, is weak evidence"). Furthermore, the majority's
finding that the Immigration Judge failed to consider other relevant factors, despite
acknowledging that he enumerated them in his decision, is unfounded.

3
Cite as: Josefa Carrillo-Pablo, A202 097 908 (BIA Sept. 21, 2015)

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

In light of our conclusion that the Immigration Judge did not appropriately consider the full
range of the factors we set forth in Matter of M-R-A-, supra, we conclude that remand is
warranted. On remand, the Immigration Judge should consider whether due diligence was
exercised in seeking to redress the situation, any prior applications for reliefthat would indicate
an incentive to appear, the respondent's prior appearance at immigration proceedings, if
applicable, and any other factors that may be relevant in determining whether the respondent met
her burden of proof to overcome the presumption that she received notice of the hearing.
Id. at 674-75. Accordingly, the following order will be entered.

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
SEATTLE, WASHINGTON

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In the Matters of:

Josefa CARRILLO PABLO,
Melinda Maribel CALMO CARRILLO,
Respondents.

File Numbers:

A202-097-908
A202-097-909

IN REMOVAL PROCEEDINGS

CHARGES:

INA 212(a)(7)(A)(i)(I) -Alien Not in Possession of Valid Entry

Document

APPLICATIONS:

Motion to Reopen

ON BEHALF OF RESPONDENTS
Guatam Jagannath, Esq.
Social Justice Collaborative
420 Third Street, Suite 130
Oakland, CA 94607

ON BEHALF OF DHS
Erik Bakken, Assistant Chief Counsel
Department of Homeland Security - ICE
1000 Second Avenue, Suite 2900
Seattle, WA 98104

DECISION OF THE IMMIGRATION JUDGE

I. Introduction and Procedural History
The Department of Homelan.d Security ("DHS" or "Government") initiated removal
proceedings against the respondents, Josefa Carrillo Pablo and her minor daughter, Melinda
Maribel Calmo Carrillo, by filing two Notices to Appear ("NTAs") with the Seattle Immigration
Court on October 30, 2014. Exh. 1. The NTAs allege that the respondents are natives and
citizens of Guatemala, who attempted to enter the United States from Mexico via the San Ysidro
Port of Entry without presenting themselves for inspection on August 6, 2014. Id The NTAs
further allege that the respondents did not then possess a valid unexpired immigrant visa, reentry
permit, border crossing card, or other valid entry document. Id. On the basis of these allegations,
the DHS charged the respondents with removability under section 212(a)(7)(A)(i)(I) of the
Immigration and Nationality Act ("INA" or "Act"), as immigrants who, at the time of application
for admission, were not in possession of a valid unexpired immigrant visa, reentry permit, border
crossing card, or other valid entry document, and a valid unexpired passport, or other suitable
travel document, or identity and nationality document. Id.

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II. Motion to Reopen

The Court may rescind an in absentia order of removal only where (1) an alien files a
motion to reopen within 180 days of the date of the order of removal and demonstrates that the
failure to appear was due to exceptional circumstances as defined in INA 240(e)(l) or (2) the
alien, at any time, demonstrates that he did not receive notice. INA 240(b)(5)(C); 8 C.F.R.
1003.23(b)(4)(ii).
A. Notice
The respondent's affidavit and her attorney's brief are unclear on whether she is asserting
a lack of notice in addition to her argument that the case should be reopened on the basis of
exceptional circumstances. However, even if the respondents are alleging a lack of proper
service, they have not offered sufficient evidence to rebut the presumption of effective service.
The BIA "ha[s] recognized that a letter properly addressed, stamped and mailed is presumed to
have been duly delivered to the addressee." Matter ofM-R-A-, 24 l&N Dec. 665, 671 (BIA 2008)
(citation and internal quotation marks omitted). As such, the Court applies a presumption of
receipt to an NTA or hearing notice "sent by regular mail when the notice was properly
addressed and mailed according to normal office procedures," but this presumption is weaker
than that accorded to notices sent by certified mail. Id. at 673.
When examining "all relevant evidence submitted to overcome the weaker presumption
of delivery" by regular mail, the Court "may consider a variety of factors including, but not
limited to, the following:" (I) the alien's affidavit; (2) affidavits from others who are
knowledgeable about "facts relevant to whether notice was received"; (3) whether the alien
exercised due diligence upon learning of the in absentia order; and (4) "any prior affirmative
application for relief, indicating that the [alien] had an incentive to appear." Id. at 674. In both
A202-097-908
A202-097-909

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On November 5, 2014, the Court mailed the respondents a hearing notice ordering them
to appear for their master calendar hearing on November 21, 2014. The respondents failed to
appear at their hearing. The Court then granted the Government's motion to proceed in absentia,
found that the Government had established removability by clear and convincing evidence, and
ordered the respondents removed in absentia to Guatemala. See IJ Removal Proceedings Order
(Nov. 21, 2014). On February 20, 2015, the respondents, through counsel, filed a motion to
reopen and change venue. Respondents' Emergency Motion to Reopen Removal Proceedings
and Change Venue (Feb. 20, 2015) [hereinafter "MTR"]. The Government filed its opposition on
March 3, 2015. Department of Homeland Security Opposition to Motion to Reopen (Mar. 3,
2015) [hereinafter "Opp'n"]. The respondents filed their reply on March 24, 2015. Respondent's
Response to Opposition to Motion to Reopen (Mar. 24, 2015) [hereinafter "Resp't's Reply"]. For
the following the reasons, the Court denies the respondents' motion to reopen.

I
\

Here, the lead respondent' s affidavit states that she never received a notice in the mail
and that the notario with whom she dealt did not tell her that she had to go to court. MTR,
Section A, at 1 . However, there is no record of a notice being returned to the Court as
undeliverable. In addition, beyond saying she never received a notice, the lead respondent's
affidavit focuses on the fact that the notario told her she did not need to go to Court rather than
not receiving notice. Id. This bare assertion standing alone is insufficient to overcome the
presumption of service. Matter ofM-R-A-, 24 I&N Dec. at 674. As such, the respondents' motion
to reopen is denied on this ground.
B. Exceptional Circumstances
The respondents have filed their motion to reopen within 180 days of the removal order
and therefore it is timely as a motion to reopen on the basis of exceptional circumstances.
Nevertheless, the Court finds the respondents have failed to demonstrate that exceptional
circumstances beyond their control prevented them from appearing at their hearing. Exceptional
circumstances are circumstances beyond the control of the alien, "such as battery or extreme
cruelty to the alien or any child or parent of the alien, serious illness of the alien, or serious
illness or death of the spouse, child, or parent of the alien, but not including less compelling
circumstances." INA 240(e)(l). The lead respondent states that at the time of her hearing, the
notario did not tell the respondents that they had to go to court. MTR, Section A, at 1 . The lead
respondent admits that this notario "told [them] that he was not an attorney." Id.
The Ninth Circuit has allowed deficient performance on the part of a non-attorney to
form the basis of relief in certain circumstances, such as equitably tolling the deadline to file a
motion or equitably tolling the numerical limit on motions to reopen. See, e.g. , Abillo-De Leon v.
Gonzales, 4 1 0 F.3d 1 090, 1 099 (9th Cir. 2005); Fa/ardo v. INS, 3 00 F.3d 10 1 8, 1 022 (9th Cir.
2002); Rodriguez-Lariz v. INS, 282 F.3d 1 218, 1227 (9th Cir. 2002). However, the Circuit has
not been so ready to allow the ineffective assistance of a non-attorney to form the basis of
reopening. See Singh-Bhathal v. INS, 1 70 F.3d 943, 946-47 (9th Cir. 1 999) (determining that the
alien's reliance on a non-attorney's advice to not attend his hearing was not an exceptional
circumstance excusing his failure to appear). Nevertheless, even assuming that the principles that
underlie equitable tolling on the basis of ineffective assistance of a non-attorney apply with equal
A202-097-908
A202-097-909
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Matter of M-R-A- and Matter of C-R-C-, for example, in addition to immediately seeking
assistance from counsel after receiving the in absentia orders of removal and filing motions to
reopen, the aliens indicated that they had an incentive to appear at proceedings by previously
affirmatively filing for relief. See id. at 675; Matter of C-R-C-, 24 l&N Dec. 677, 679-80 (BIA
2008). However, even if every type of evidence is provided, the Court is not obligated to grant
the motion, but rather should evaluate the case based on its own particular circumstances. Matter
ofM-R-A-, 24 l&N Dec. at 674.

Moreover, the respondents have failed to comply with the Matter of Lozada
requirements. See Correa-Rivera v. Holder, 706 F.3d 1 128, 1 1 31 (9th Cir. 2013); Matter of
Lozada, 1 9 I&N Dec. 637 (BIA 1988). Under Lozada, a motion to reopen based on ineffective
assistance of counsel requires: (1) an affidavit from the respondent detailing the agreement that
was entered into with counsel; (2) proof that counsel was informed of the allegations, and had an
opportunity to respond; and (3) proof that a bar complaint has been filed with the appropriate
disciplinary authority and if not, why not. Lozada, 19 I&N Dec. at 63 7. Here, the respondents
have not explained what their agreement with the non-attorney was. The lead respondent's
affidavit states that the notario "made the court change the appointment from one location to
another" and that "[i]t seemed like he ade identity documents at his store or he had someone
make it. He also could get permission to buy land." MTR, Section A, at 1. The lead respondent's
affidavit also states that the respondents thought the notario would be able to help them and they
trusted him because he "knew where the appointments were." Id She states that the notario did
not tell them that they had to go to Court and charged her $175 to fill out the Form 1-589. Id. at
1 -2. Based on these statements, it is unclear if the respondents were expecting this non-attorney
to represent them throughout proceedings, or merely to help request a change of venue and fill
out an asylum application. As for the second requirement, the respondents' attorney submitted
his own affidavit stating that he contacted the notario, but the affidavit does not mention whether
the respondents' attorney told the notario that the respondents are pursuing an ineffective
assistance of counsel claim against the notario. Lastly, the respondents' attorney claims a
complaint has been submitted to the Washington State Attorney General's Office but has
provided no copy thereof. See Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980)
(statements by counsel are not evidence); but see Resp't's Reply at 6 (copy of email from
Assistant Attorney General instructing how to file a complaint).

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

force in the context of rescinding in absentia removal orders, the respondents' situation is
distinguishable from that of the aliens mentioned above. In Fajardo, for example, the non
attorney provided his address as the address of record and then failed to inform the alien of the
upcoming hearing, despite the alien's requests for status updates, causing her through fraud to
miss the hearing. 300 F.3d at 1 0 1 8-19. Under these circumstances, the Ninth Circuit held that the
deadline to file the motion to reopen should be equitably tolled. Id at 1022. By contrast, the
respondents had their notices informing them of the need to appear. Indeed, the respondents'
situation is more comparable to that of the alien in Singh-Bhathal, where the alien chose to
disregard the written notice given to him by the Government and follow the incorrect advice of
the non-attorney; such reliance is not an exceptional circumstance excusing the alien's failure to
appear. See 170 F.3d at 946.

The Court recognizes that the Lozada requirements are not rigidly applied in the Ninth
Circuit. See Ray v. Gonzales, 439 F.3d 582, 588 (9th Cir. 2006) (citing Rodriguez-Lariz v. INS,
282 F.3d 1 218, 1227 (9th Cir. 2002); Castillo-Perez v. INS, 212 F.3d 518, 525 (9th Cir. 2000);
A202-097-908
A202-097-909

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In addition, as mentioned above, the Ninth Circuit has not yet held that knowingly relying
on the advice on a non-attorney is an exceptional circumstance. See Hernandez v. Mukasey, 524
F.3d 1 01 4, 1 020 (9th Cir. 2008) ( "If . . . an individual chooses not to retain an attorney, and
instead knowingly relies on assistance from individuals not authorized to practice law, such a
voluntary choice will not support a due process claim based on ineffective assistance of
counsel.") The Court understands that, unlike the alien in Hernandez, the respondents have
obviously not appeared in Court, so the Court was not able to ask the lead respondent if she
wished to retain actual counsel. These warnings, however, are not the central reason for
distinguishing an ineffective assistance of counsel claim directed at actual counsel from that
directed at a non-attorney. See Monjaraz-Munoz, 327 F.3d at 897. For the reasons above, the
Court finds that the respondents have failed to demonstrate that exceptional circumstances
beyond their control prevented them from attending their hearing. Accordingly, the Court finds
that the respondents have also failed to satisfy the standard for a motion to reopen on this basis.
Because th Court denies the respondents' motion to reopen removal proceedings, it also denies
their motion to change venue.
ORDERS
IT IS HEREBY ORDERED that the respondents' motion to reopen is DENIED;
IT IS FURTHER ORDERED that the respondents' motion to change venue is DENIED.

Date
Immigration Judge

The Circuit also noted in Lo that "[r]eopening the removal hearing would not be an idle act." 3 9 1 F.3d at 938. The
DHS states in its brief that the respondents' counsel indicated that the lead respondent's asylum claim would be
based on the harm she suffered at the hands of her violent husband in Guatemala. Opp'n at 4. However, the DHS
notes, the respondent has stated that she came to the United States to be with her husband, who was already in the
United States. Id. (citing MTR, Section A, at I ).

A202-097-908
A202-097-909

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Escobar-Grivalja v. INS, 206 F.3d 133 1 , 1 335 (9th Cir. 2000)). Nevertheless, the respondents
have not established an ineffective assistance of counsel claim on the merits. Neither of the cases
cited by the respondents dealt with the deficient performance of a non-attorney who is not
working for an actual attorney. See Lo v. Ashcroft, 938, 938 (9th Cir. 2003) (discussing
attorney's deficient performance) 1 ; Monjaraz-Munoz v. INS, 327 F.3d 892, 897 (9th Cir. 2003),
amended by Monjaraz-Munoz v. INS, 339 F.3d 1 0 1 2, 1 013 (9th Cir. 2003) (discussing attorney's
agent's deficient performance and highlighting "the crucial difference" between the deficient
performance of an attorney and that of a non-attorney).