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Department of Justice
Executive Office for Immigration Review
Board ofImmigration Appeals
Office ofthe Clerk
5/07 leesburg Pike, S11ile 2000
falls Church, Virginia 22041
Enclosed is a copy of the Board's decision and order in the above-referenced case.
Sincerely,
DOW1L c
t1AA)
Donna Carr
Chief Clerk
Enclosure
Panel Members:
Greer, Anne J.
O'Herron, Margaret M
Kendall-Clark, Molly
Userteam: Docket
DonrtL c
Q/\A)
Donna Carr
Chief Clerk
Enclosure
Panel Members:
Greer, Anne J.
O'Herron, Margaret M
Kendall-Clark, Molly
Userteam:
S_H_Y_B
187
A
STEWART DETENTION CENTER
146 CCA ROAD, P.O. BOX 248
LUMPKIN, GA 31815
File:
Date:
MAY - 6 2016
In re: Yall!IB-
APPEAL
ON BEHALF OF RESPONDENT:
ON BEHALF OF DHS:
Lisa P. Durant
Assistant Chief Counsel
CHARGE:
Notice: Sec.
212(a)(6)(A)(i), I&N Act [8 U.S.C. 1182(a)(6)(A)(i)] Present without being admitted or paroled
APPLICATION: Reopening
The respondent, a native and citizen of El Salvador, appeals the Immigration Judge's
February 2, 2016, decision denying the respondent's motion to reopen removal proceedings. The
appeal will be sustained and the record will be remanded.
We review for clear error the findings of fact, including the determination of credibility,
made by the Immigration Judge. 8 C.F.R. 1003.l(d)(3)(i). We review de novo all other issues,
including whether the parties have met the relevant burden of proof, and issues of discretion.
8 C.F.R. 1003.l(d)(3)(ii).
On January 16, 2015, the Immigration Judge ordered the respondent removed and the
respondent waived appeal. On February 1, 2016, the respondent, through new counsel, filed a
motion to reopen, requesting sua sponte reopening of proceedings to allow the respondent to
apply for asylum, withholding of removal and protection under the Conv_ention Against Torture
("CAT") (Respondent's Motion to Reopen at 2-3). The respondent also stated that he may raise
a claim of ineffective assistance of former counsel, after obtaining additional information
(Respondent's Motion to Reopen at 4, fn 3). The Department of Homeland Security ("DHS")
opposed reopening, arguing that the respondent did not assert exceptional circumstances to
justify sua sponte reopening (DHS Opposition to Motion at 4). The DHS further asserted that, to
the extent that the respondent was asserting ineffective assistance of counsel, the respondent's
motion should be denied for failure to comply with the requirements of Matter of Lozada,
19 I&N Dec. 637 (BIA 1988) (DHS Opposition to Motion at 5-6).
On February 2, 2016, the Immigration Judge denied the respondent's motion, finding that the
respondent did not comply with the requirements in Matter of Lozada, supra. The respondent
appeals this determination ..
Cite as: Y-B-S-H-, AXXX XXX 187 (BIA May 6, 2016)
IN REMOVAL PROCEEDINGS
187 '
The respondent has shown ineffective assistance of counsel, which justifies a remand. Based
on the totality of the circumstances, we determine it appropriate to remand the record to the
Immigration Judge to allow the respondent to pursue an application for asylum and related
relief. 1 The Immigration Judge should also consider whether, in accordance with section
235(d)(7)(B) of the William Wilberforce Trafficking Victims Protection Reauthorization Act of
2008 ("TVPRA"), Pub. L. No. 110-457, 122 Stat. 5044 (codified at 8 U.S.C. 1158(b)(3)(C)),
the USCIS has initial jurisdiction over any application for asylum and withholding of removal.
On remand, the parties should be given the opportunity to present additional evidence and
arguments. Accordingly, the following orders will be entered.
ORDER: The appeal is sustained.
FURTHER ORDER: The removal proceedings are reopened.
FURTHER ORDER: The record is remanded to the Immigration Judge for further
proceedings consistent with the foregoing opinion and entry of a new decision.
1 We emphasize that the Immigration Judge did not err in denying the respondent's motion to
reopen given the evidence before him at the time of his decision.
2
Cite as: Y-B-S-H-, AXXX XXX 187 (BIA May 6, 2016)
In his motion to reopen and on appeal, the respondent claims that previous counsel rendered
ineffective assistance. Along with his brief on appeal, the respondent has filed new evidence that
he claims supports his assertion that his former attorney provided ineffective assistance of
counsel and that his actions prejudiced the respondent (see Respondent's Brief at 7-9, see also
attachments A-D). Among these documents is a letter written by the respondent's prior counsel
stating that although the respondent articulated a fear of return to El Salvador, no asylum
application was pursued before the Immigration Court or the United States Citizenship and
Immigration Services ("USCIS") (see attachment D).
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FILE A 187
IN THE MATTER OF
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IMMIGRATION COURT
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[
] DEPORTATION
[ ] EXCLUSfON
A MOTION TO RE-OPEN has been filed in the above captioned case. The Motion has been
duly considered and it appears to the Cou1t that:
[ ] The quest is timely and reasonable. Therefore, IT IS HEREBY ORDERED that the
Motior e GRANTED.
[
The Motion has been duly considered and it appears to the Court that no substantial grounds
have been advanced to warrant its grant. Therefore, IT IS HEREBY ORDERED that the Motion
be and the same is hereby DENIED.
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Mailed out:
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By El/--
. '
Respondent's motion to reopen is denied for the reasons set forth in DHS's
opposition.
Respondent seeks reopening based upon a claim of ineffective assistance against his
prior counsel Theodore Maloney and Joseph Baker. A motion to reopen based
upon a claim of ineffective assistance of counsel requires ( l) 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 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 an 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. Matter ofLozada, 19 I&N Dec. 637
(BIA 1988).
Respondent claims he received defective representation from his prior attomies
because he was not advised of his right to apply for asylum. Respondent has failed
to comply with the procedural requirements set forth in Lozada. Most significantly,
respondent has provided no evidence that he filed a complaint against his prior
counsel with respect to any violation of counsel's ethical or legal responsibilities.
As such, respondent has not complied with the Lozada requirements.
Finally, respondent argues he has the right to apply for asylum before USCIS as he
was an unaccompanied child at the time he entered the United States . The
respondent's application for asylum before USCIS is separate and apart from his
removal proceedings. Respondent may pursue said application even if he is under a
final order of removal. Accordingly, there is no basis for reopening the removal
proceedings. Should it become necessary, a request for a stay of removal pending
consideration of an application before USCIS can be addressed to DHS. See 8
C.F.R. 241.6(a) and 1241.6(a).
A motion to reopen must be filed within 90 days of the final administrative order.
See 8 C.F.R. 1003.23(b). Respondent was ordered removed on January 16,
20 I 5, and waived appeal. As such a motion to reopen was due on or about April 16,
20 I 5. Respondent, however, did not file his motion to reopen until February 1,
2016, more than nine months out of time. Respondent's motion to reopen is
therefore untimely.
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