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 22041

OHS/ICE Office of Chief Counsel - NEW

970 Broad Street, Room 1104B
Newark, NJ 07102

Name: GOMEZ OTOYA, LUIS FERNANDO

A 087-245-163
Date of this notice: 11/15/2016

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

Ooruu.., Ca.Nu
Donna Carr
Chief Clerk
Enclosure
Panel Members:
Adkins-Blanch, Charles K.
Grant, Edward R.
Mann, Ana

Userteam: Docket

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Simbron, Noemi Cintya

Noemi C. Simbron, Attorney at Law
175 Market Street, Suite 306
Paterson, NJ 07505

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/
Cite as: Luis Fernando Gomez Otoya, A087 245 163 (BIA Nov. 15, 2016)

U.S. Department of Justice

Executive Office for Immigration Review
Board ofImmigration Appeals
Office ofthe Clerk
5107 Leesburg Pike, Suite 2000
Falls Church. Virginia 2204 J

DHS/ICE Office of Chief Counsel - NEW

970 Broad Street, Room 11048
Newark, NJ 07102

Name: GOMEZ OTOYA, LUIS FERNANDO

A 087-245-163
Date of this notice: 11/15/2016

Enclosed is a copy of the Board's decision in the above-referenced case. This copy is being
provided to you as a courtesy. Your attorney or representative has been served with this
decision pursuant to 8 C.F.R. 1292.S(a). If the attached decision orders that you be
removed from the United States or affirms an Immigration Judge's decision ordering that you
be removed, any petition for review of the attached decision must be filed with and received
by the appropriate court of appeals within 30 days of the date of the decision.
Sincerely,

DonttL c

t1/VL)

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Adkins-Blanch, Charles K.
Grant, Edward R.
Mann, Ana
' . i--. : ,

Userteam:

Cite as: Luis Fernando Gomez Otoya, A087 245 163 (BIA Nov. 15, 2016)

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GOMEZ OTOYA, LUIS FERNANDO

A087-245-163
C/0 ICE/OHS/ELIZABETH DETENTION
CENTER
625 EVANS STREET
ELIZABETH, NJ 07201

'
U.S. Department of Justice

Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 22041

File: A087 245 163 - Newark, NJ

Date:

In re: LUIS FERNANDO GOMEZ OTOYA

NOV 1 5 2016

APPEAL
ON BEHALF OF RESPONDENT: Noemi C. Simbron, Esquire
APPLICATION: Motion to reopen
The respondent, a native and citizen of Peru, has appealed from the Immigration Judge's
June 23, 2016, decision denying his motion to reopen proceedings. The Department of
Homeland Security (DHS) has not filed an opposition to the motion. The respondent's
proceedings will be reopened and the record will be remanded to the Immigration Judge.
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)(i),
(ii).
The respondent was ordered removed in absentia on October 9, 2015, after failing to appear
for his hearing scheduled on August 25, 2015 (I.J. Decision of October 9, 2015). On
March 24, 2016, the respondent's former attorney filed a motion to reopen proceedings alleging
notice was not properly served. In a decision dated March 30, 2016, the Immigration Judge
issued a decision denying the motion. On April 26, 2016, the respondent filed a motion to
reconsider, noting that the Immigration Judge had not considered a filing submitted on
March 31, 2016, and alleging additional grounds for reopening. On May 5, 2016, the
Immigration Judge issued a new decision, acknowledging the respondent's filing that was
received on March 31, 2016, and denying the motion to reconsider and reopen.
On June 9, 2016, the respondent filed a new motion to reopen proceedings, filed with a new
attorney, alleging he had received ineffective assistance of counsel, which had caused the
original in absentia order on October 9, 2015. On June 23, 2016, the Immigration Judge denied
this latest motion, finding ineffective assistance of counsel was not established. Specifically, the
respondent argued that his former counsel had failed to keep the Immigration Court apprised of
his changing office addresses, and therefore, had not received notice of the respondent's hearing.
The Immigration Judge determined that the respondent had not established that his former
counsel had not received notice of the hearings, and therefore, had not committed ineffective
assistance of counsel.
In this instance, under the totality of the circumstances, we find that reopening is warranted.
See 8 C.F.R. 1003.2(a); see also Matter of G-D-, 22 l&N Dec. 1132 (BIA 1999);
Matter ofJ-J-, 21 I&N Dec. 976 (BIA 1997). We note that in the several motions the
respondent's former attorney filed on the respondent's behalf, he presents no argument that he
attempted to communicate the receipt of hearing notices, or lack thereof, to the respondent. The
Cite as: Luis Fernando Gomez Otoya, A087 245 163 (BIA Nov. 15, 2016)

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IN REMOVAL PROCEEDINGS

A087 245 163

In light of the evidence of some misconduct by the respondent's former attorney, we find
reopening for a hearing is warranted in this case. Accordingly, the following order will be
entered.
ORDER: The respondent's in absentia order of removal is rescinded, the proceedings are
reopened, and the record is remanded for further proceedings.

2
Cite as: Luis Fernando Gomez Otoya, A087 245 163 (BIA Nov. 15, 2016)

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respondent, on the contrary, submitted evidence that he maintained communication with his
former attorney during the period of time when the hearing notices would have been mailed
(Respondent's Motion to Reopen). We additionally note, as the Immigration Judge did in her
March 30, 2016, decision, that the respondent's former counsel did not have his most recent
office address on file with the Immigration Court and that he (the former counsel) incorrectly
argued that the hearing notice should have been sent directly to the respondent instead of to the
respondent's counsel of record. See section 240(b)(5)(A) of the Immigration and Nationality
Act, 8 U.S.C. 1229a(b)(5)(A); 8 C.F.R. 1292.S(a); see also Matter of Barocio, 19 l&N Dec.
255 (BIA 1985) (concluding that the mailing of notice of a removal proceeding date to the alien's
attorney of record at the correct address constitutes notice to the alien).

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
970 BROAD STREET, ROOM 1200
NEWARK, NJ 07102

IN THE MATTER OF
GOMEZ OTOYA, LUIS FERNANDO

FILE A 087-245-163

DATE: Jun 23, 2016

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 PREPRING YOUR APPEAL.
YOUR NOTICE OF APPEAL, ATTACHED DOCUMENTS, AND EE OR FEE WAIVER REQUEST
MUST BE MAILED 'I'O:
BOARD OF IMMIGRATION APPEALS
OFFICE OF THE CLERK
5107 Leesburg Pike, Suite 2000
FALLS CHURCH, VA 22041
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:
IMMIGRATION COURT
970 BROAD STREET, ROOM 1200
NEWARK, NJ 07102

IMMIGRATION COURT
CC: CHIEF COUNSEL, DEPARTMENT OF HOMELAND SECURITY
970 BROAD STREET, ROOM 1300
NEWARK, NJ, 07102

FF

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Noemi C. Simbron, Attorney at Law

Simbron, Noemi Cintya
175 Market Street, Suite 306
Paterson, NJ 07505

U.S. Department of Justice

Executive Office for Immigration Review

Immigration Court, Newark, New Jersey

IN THE MATTER OF:

GOMEZ OTOY A, Luis Fernando

CASE NO. A087 245 163

RESPONDENT.
IN REMOVAL PROCEEDINGS
AT NEWARK, NEW JERSEY
DECISION ON RESPONDENT'S SECOND MOTION TO REOPEN
Respondent, through a new attorney, has filed a Second Motion To Reopen on
June 9, perfected on June 22, 2016 that contends that it is not numerically barred. The
contention is that prior counsel, Martin Asatrian, provided Respondent with ineffective
assistance of counsel by failing to keep this court advised of his address change(s) after
his first entry as counsel for the Respondent. OPLA Office of Chief Counsel has filed no
response despite the fact that the Respondent is in DHS custody at this time.
Also Considered a Timely Filed Motion to Reconsider
The June, 2016 Motion to Reopen can be considered as a Motion to Reconsider,
as it was filed within 30 days of the last decision issued by this court, but a Motion to
Reconsider is not calculated to repair or supplement the original Motion to Reopen
denied. Instead, a Motion to Reconsider is to address errors of law or of fact made by the
Immigration Judge in the decision made.

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Rodino Federal Building

970 Broad Street, Rooml 200
Newark, New Jersey 07102
973/645-3524


)JI

A087 245 163

Decision on Respondent's
Second Motion to Reopen

As to possible error by the undersigned, although new counsel possibly argues at

paragraph 17 that this court previously erred in failing to consider Mr. Asatrian's reply to
the DHS opposition, that assertion is refuted by the record. The May 5, 2016 decision
considered Mr. Asatrian's reply and discussed its contents.
New Evidence Supplied with Second Motion to Reopen

Respondent has supplied this court with proof of his marriage to Beatriz Moreno,
a United States citizen. In addition, evidence of Respondent's friends and community
ties and activism are supplied. Respondent has also provided copies of a complaint letter
mailed to his previous attorney and evidence that his previous attorney moved his office.
No evidence that his previous attorney, Mr. Martin Asatrian, failed to arrange for mail to
be forwarded by the Postal Service after his law office moved is supplied. No affidavit or
evidence from Mr. Martin Asatrian that the law office experienced problems with mail
delivery due to relocation was supplied.
The Basis ofthe Claimed Ineffective Assistance of Counsel

The contention is that Mr. Martin Asatrian, Respondent's previous attorney in this
matter, failed to update his address change(s) with this court during the time that he
represented the Respondent. While that is evidently so, that is insufficient to establish
ineffective assistance of counsel or even attorney neglect because that does not establish
that Mr. Asatrian did not receive this court's July 21, 2015 mailed notice of the date,
place, and time of the final hearing (or any previous hearing) scheduled by this court.
As this court noted in its first decision, signed on March 30, 2016, Mr. Asatrian
never claimed that he was not served with notice of the date, place, and time of hearings
held. In this modern day, the United States Postal Service has a forwarding mechanism
that this court assumes or speculates was utilized by Mr. Asatrian as a businessman who
wanted to be sure that his law office mail would be received by him even after his move.
The basis of this court's speculation or assumption is that notices mailed to Mr. Asatrian
were never returned to this court by the Postal Service. Similarly, the removal order
mailed out in October, 2015 to Mr. Asatrian was not returned to this court by the Postal
Service. 1 In addition, Mr. Asatrian notified the Respondent of the address change by
1

The first time that this court's mail to attorney Asatrian was returned to this court by the Postal
Service was when this court mailed out its decision on the Motion to Reopen on April I, 2016. Using Mr.
Asatrain's address on Broad Street was a court error because Mr. Asatrian signed his Motion with his
correct address provided under his signature line, which this court should have noticed. Mr. Asatrian

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This Court Considered All Filings by Previous Counsel

,
.
.

A087 245 163

Decision on Respondent's
Second Motion to Reopen

While the Motion to Reopen attaches this court's notices of many scheduled
hearings that were copies from this court's Record of Proceeding, that does not actually
assist this court, except to the extent that this court can confirm the address for attorney
Asatrian on each notice. Rather, the question is what is in Mr. Asatrian's client file-are
those court notices in Mr. Asatrian's file? Mr. Asatrian has never claimed that they were
not received.
Even now, there is no evidence or affidavit from Mr. Asatrian claiming that he did
not receive this court's written notices of the date, place, and time of the scheduled
hearings-specifically the hearing scheduled for August 25, 2015. It appears from the
evidence before this court that Mr. Asatrian made certain that he did receive correspond
dence mailed to him even after he moved his law office because none of the court's
notices were returned to this court by the Postal Service.
Insufficient Evidence ofLack o.fNotice
This court is not convinced that Mr. Asatrian failed to receive this court's mailed
notices of the hearings scheduled even after his law office relocated. Therefore, this
court cannot find that Respondent was not provided with such notice from Mr. Asatrian
because there is no claim by Respondent and no concession by Mr. Asatrian that
Respondent was not provided with notice of the hearings scheduled in this case that he
received through the mail.
Finding that the Respondent has not established ineffective assistance of counsel
by attorney Martin Asatrian, this court denies the second Motion to Reopen as
numerically barred.
Considering the June, 2016 Filings as a Timely Motion to Reconsider
This court has reviewed the most recent filings and concludes that there is no
argument and no evidence that the previous decisions by the undersigned contain errors
of law or of fact.

kindly appeared at this court to be personally served with the decision, according to our notes in the Record
of Proceeding.
3

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written letter of February 4, 2013, convincing this court that Mr. Asatrian took
responsible action to assure that his mail delivery would continue.

A087 245 163

Decision on Respondent's
Second Motion to Reopen

This court considers whether to reopen sua sponte based on all motions filed by
both attorneys and all materials attached to the Motions.
The evidence that Respondent's wife, Ms. Beatriz Moreno, in her 2016 Affidavit
would be willing to testify in this matter is not material to whether Respondent was
provided with notice of the hearings scheduled in this case.
The sworn statement that Ms. Moreno providedto DHS at the time of the
interview on December 15, 201 1 (Exhibit 5) is vividly different from her 2016 statement;
Ms. Moreno swore to the CIS adjudicator in 201 1 that the Respondent and she never
lived together and never consummated their marriage because she married Mr. Gomez as
a . favor to him.
She admits that she did not even confide in Mr. Gomez that she had
.
withdrawn her support for the Joint Petition until much later. That conduct - keeping
secret from her husband the fact that she had demolished his immigration status in this
country - is not consistent with her claim that she and Mr. Gomez had a marriage based
on love. In addition, if she felt that she had been mistreated at the interview, then Ms.
Moreno fails to explain why she did not hire a lawyer or file a complaint against the CIS
officer at that time.
In fact, Mr. Gomez presents a different version of the state of the marriage with
Ms. Moreno. He claims in his statement that she was abusive, insulting, and sarcastic to
him and caused him psychological harm during their relationship because he could not
bear her conduct toward him. Ms. Moreno, in contrast, certainly makes no admission to
having insulted her husband in the past and insists that the only reason they lived apart in
201 1 was due to her allergy to bedbugs and the misery it caused her.
Years have passed since the Respondent was served with the Notice to Appear in
2012 giving him notice of these proceedings. Respondent has had ample opportunity to
gather evidence of the circumstances of their marriage and why he married Ms. Moreno.
Yet, even of the letters filed on June 22, 2016, none mention Mr. Gomez as being
a married man and none speak of having met Ms. Moreno at all. No objective evidence
that Mr. Gomez married Ms. Moreno to establish a bona fide marital relationship with her
has been provided except for utility bills and tax returns and the types of papers that
could be filed by even a couple involved in a fraudulent marriage. In other words, even
considering the additional evidence supplied to this court in 2016, the evidence indicates
that the Respondent cannot prove that he and Ms. Moreno entered into a marriage in good
faith.
4

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Whether to Reopen Sua Sponte

,.
A087 245 163
Decision on Respondent's
Second Motion to Reopen

Because the undersigned issues the court's decision below, the court will not
decide Respondent's Motion to Stay removal as it is rendered moot.
ORDER
IT IS ORDERED that Respondent's Second Motion to Reopen is DENIED.
The court's decision signed on October 9, 2015 remains in full force and effect.
SIGNED on June 23, 2016 at Newark, New Jersey.

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Given the evidence presented, this court is not convinced that the matter should be
reopened sua spo nte, as there is no evidence presented that the Respondent might prevail
before this court or be eligible for any other form of relief from removal.