Cedillo-Pereira, Mary Elizabeth Cedillo-Pereira and Associates 433 E. Las Colinas Blvd, Ste. 1225 Irving, TX 75039

Name: CHAVEZ, ZAPATA

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals Office of the Clerk

5107 Leesburg Pike, Suite 2000 Falls Church, Virginia 20530

OHS/ICE Office of Chief Counsel - DAL 125 E. John Carpenter Fwy, Ste. 500 Irving, TX 75062-2324

A 200-227-250

Date of this notice: 3/30/2015

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

Enclosure

Panel Members: Adkins-Blanch, Charles K. Guendelsberger, John Grant, Edward R.

Sincerely,

DorutL c t1/V1.)

Donna Carr Chief Clerk

Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished/index

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Cite as: Zapata Chavez, A200 227 250 (BIA March 30, 2015)

U.S. Department of Justice Executive Office for Immigration Review

Falls Church, Virginia 20530

File: A200 227 250 - Dallas, TX

Decision of the Board of Immigration Appeals

Date:

In re: ZAPATA CHAVEZ a.k.a. Luis Antonio Chavez Zapata

IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Mary Elizabeth Cedillo-Pereira, Esquire

APPLICATION: Reopening

ORDER:

The respondent's appeal from the Immigration Judge's March 13, 2014 , decision denying his motion to reopen proceedings is sustained. On appeal, the respondent has submitted evidence that the Department of Homeland Security (DHS) granted his application for an exercise of prosecutorial discretion on April 25, 2014 . Considering the circumstances presented, the appeal is sustained, proceedings are reopened and we will administrativelY. close these removal proceedings.

If either party to this case wishes to reinstate the proceedings, a written request to reinstate the proceedings may be made to the Board. The Board will take no further action in the case unless a request is received from one of the parties. The request must be submitted directly to the Clerk's Office, without fee, but with certification of service on the opposing party.

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Cite as: Zapata Chavez, A200 227 250 (BIA March 30, 2015)

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

IMMIGRATION COURT

1100 COMMERCE ST., SUITE 1060 DALLAS; TX 75242

VARGAS, MARIANELA PORRES

433 E. LAS COLINAS BLVD., STE 1225 IRVING, TX 75039

IN THE MATTER OF

CHAVEZ-ZAPATA, LUIS ANTONIO

FILE A 200-227-250

UNABLE TO FORWARD - NO ADDRESS PROVIDED

DATE: Mar 18, 2014

�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:

OTHER:

IMMIGRATION COURT

1100 COMMERCE ST., SUITE 1060 DALLAS, TX 75242

COURT CLERK' IMMIGRATION COURT

CC: ALLUMS, JOHN L.

125 E. HWY 114, STE 500 IRVING, TX, 75062

FF

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..

UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

IMMIGRATION COURT DALLAS, TEXAS

IN THE MATTER OF: ) ) IN REMOVAL PROCEEDINGS

CHAVEZ ZAPATA, Luis Antonio )

RESPONDENT

CHARGE:

APPLICATION:

) A 200-227-250 ) )

Section 212(a)(6)(A)(i) of the Immigration and Nationality Act, as amended, in that you are an alien present in the United States without being admitted or paroled, or who arrived in the United States at any time or place other than as designated by the Attorney General.

Motion to Reopen In Absentia Order

ON BEHALF OF THE RESPONDENT: ONBEHALF OF THEDEPARTMENT OF HOMELAND SECURITY:

Marianel� Porres Vargas, Esq. 4 33 E. Las Colinas Blvd. , Ste . 1225 Irving, Texas 75039

Lynn G. Javie r, Esq. Assistant Chief Counsel- DHS/ICE 125 E. John Carpenter Fwy. , Ste . 500 Irving, Te xas 75062

WRITTEN DECISION OF THE IMMIGRATION JUDGE

FACTUAL & PROCEDURAL IDSTORY

The Respondent is a native and citizen of Mexico. Exhibit I. He arrived in the United

States at an unknown time and place , but either was not then admitted or paroled after inspection

by an Immigration Officer or arrived at a time or place other than as designated by the Attorney

General. Id. In June 2012, the Respondent was arrested. Motion to Reopen, pg. 5. The

Respondent was later taken into the custody of the Department of Homeland Security (DRS or

the Government) . Consequently, on August 1, 2012, DRS personally served the Respondent with

a Notice to Appear (NTA) , charging him with removability under Section 212(a)(6)(A)(i) of the

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Act. Exhibit 1. At that time, the Respondent was provided oral notice of the consequences of his

failure to appear as provided in Section 240(b )(7) of the Act. Id.

On August 21, 2012, the Court mailed the Respondent's attorney of record a Notice of

Hearing (NOH) setting the Respondent's case for October 4 , 2012.

The Respondent was released from custody on bond on August 24 , 2012.

On August 29, 2012, the Court mailed the Respondent's attorney a second NOH resetting

the Respondent's case for March 4, 2013. Exhibit 3.

At a hearing on March 4 , 2013, the Respondent and his counsel failed to appear and the

proceedings were conducted in absentia. The Government submitted Form 1-213 in support of its

charge of removability. See Exhibit 4 . Based on the evidence of record, the Court found

removability established. See 8 C. F.R. § 1240. S(c) . The Court designated Mexico as the country

of removal and ordered the Respondent removed in absentia.

On August 30, 2013, the Respondent submitted a Motion to Reopen requesting the Court

to reopen the proceedings based on lack of notice and ineffective assistance of counsel. DHS has

not filed a response. 1

STATEMENT OF LAW

If an alien does not attend a removal hearing after written notice has been provided to the

alien or the alien's counsel of record, the alien will be ordered removed in absentia if the

Government's establishes by clear, unequivocal, and convincing evidence that written notice was

provided and that the alien is removable. INA § 240(b )(5) . A party is limited to only one motion

1 Respondent's counsel claims that OHS Assistant Chief Counsel Danial Gividen has been contacted and "communicated that OHS-ICE's position would be unopposed to the granting of this motion." Motion to Reopen, pg. 2. However, no written statement has been filed by OHS. The Court does not consider representations by either party of the opposing party's position to be dispositive. Either a joint motion or affirmative written statement filed by OHS would suffice to confirm this assertion. However, a blanket statement of OHS' non-opposition is insufficient.

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to reopen and that motion m ust be filed no later than 90 days after the date on which the final

administrative decision was rendered in the proceedings sought to be reopened. 8 C.F .R. §

1003. 23(b)(l). However, an in absentia order may be rescinded upon the filing of a motion to

reopen, filed at any time, if an alien has not received adequate notice of the hearing. INA §

240(b)(5)(C)(ii); 8 C. F.R. § 1003.23(b)(4)(iii)(2).

Adequate notice can be accomplished through personal service, or if personal service is

not practicable, through service by m ail to the alien or the alien's counsel of record. INA §

239(a)(l). Service by m ail is proper upon proof of attempted delivery to the alien's most recently

provided address. INA § 239( c ). Thus, if the alien actually receives notice or can be charged

with receiving constructive notice, through receipt of a NT A , then the address used by

immigration officials is a sufficient address and in absentia proceedings are thereafter

authorized. INA § 239(a)(l)(F); Matter of G-Y-R-, 23 I. & N. Dec. 181, 186 (BIA 2001). The

written notice m ust specify the alien's duty to immediately provide the Attorney General with a

written record of any change in his address or telephone number and the consequences of failing

to do so. INA § 239(a)(l)(F). Within five days of any change of address, the alien m ust

complete and file with the Court a Change of Address Form (Form EOIR-33). 8 C.F.R. §

1003.15(d)(2). Thus, if the alien fails to file a Form EOIR-33 when required, and this is the

reason he has not received proper notice of a scheduled hearing, then lack of notice cannot serve

as the basis for granting a motion to reopen. Matter of M-R-A-, I&N Dec. 665, 675 (BIA 2008).

A motion to reopen based on ineffective assistance of counsel will be evaluated under the

standards articulated in Matter of Lozada, 19 l&N Dec. 63 7 (BIA 1998). According to Matter of

Lozada, a motion to reopen based upon a claim of ineffective assistance of counsel requires:

(1) 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

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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 the 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.

Id at 639.

Ineffective assistance of counsel may only constitute grounds for the reopening of

removal proceedings where the proceedings were so fundamentally unfair that the alien was

prevented from reasonably presenting his case. Id. at 638; Goonsuwan v. Ashcroft, 252 F. 3d

383, 385 n. 2 (5th Cir. 2001) (citing Zadvydas v. Underdown, 185 F. 3d 279, 395 (51h Cir. 1999) )

(noting that an alien's right to procedural due process in removal proceedings is violated when

the representation by an alien's lawyer is so deficient as to impinge on the fundamental fairness

of the proceedings) . A determination of whether an alien's hearing was fundamentally fair must

be made on a case-by-case basis. Barthold v. INS, 517 F. 2d 689, 691 (5th Cir. 1975). In order to

make a successful case for ineffective assistance of counsel, the alien m ust demonstrate that he

was substantially prejudiced by counsel's incompetent representation. Goonsuwan, 252 F. 3d at

385 n. 2 (citing Ogbemudia v. INS, 988 F. 2d 595, 598 (51h Cir. 1993) ) ; see also Miranda-Lores v.

INS, 17 F. 3d 84 , 85 (5th Cir. 1994) . In so doing, the alien m ust make a prima facie case of

eligibility for the requested relief. Miranda-Lores, 17 F . 3d at 85.

The Court m ay also exercise its sua sponte authority to reopen in "truly exceptional

situations" where the interests of justice would be served. Matter of G-D-, 22 I&N Dec. 1132

(BIA 1999) ; Matter of J-J-, 21 I&N Dec. 976 (BIA 1997) .

ANALYSIS

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A: Lack of Notice

Initially, the Court notes that the Respondent does not contest personal receipt of his

NT A. Thus, the Respondent was advised of his address obligations as well as the consequences

of his failure to appear as required by Section 239(a)(l) of the Act. Respondent claims that he

did not receive notice of the date and time of his hearing as he did not receive an NOH and was

not informed of his hearing date by his attorney. However, notice to counsel is sufficient to

constitute notice to the respondent. See INA §§ 239(a)(l), 240(b)(S)(A); 8 C. F.R. §§

1003.26(c)(2), 1292.S(a); see Matter of Barcio, 1 9 I&N Dec. 255, 259 (BIA 1985); see also Link

v. Wabash R. Co., 370 U.S. 626, 633-634 (1962) ("[E]ach party is deemed bound by the acts of

his lawyer-agent and is considered to have notice of all facts, notice of which can be charged

upon the attorney") (internal quotations omitted).

The record reflects that Mr. Mills was the Respondent's counsel of record from A ugust 8,

2012 until the present Motion to Reopen was filed on August 30, 2013. See Exhibit 2; Notice of

Entry of Appearance as Attorney or Representative Before the Immigration Court, filed August

30, 2013. This Court sent Mr. Mills a NOH on August 29, 2012, when he was still counsel of

record. Exhibit 3. Furthermore, Mr. Mill's affidavit acknowledges receipt of that NOH. Motion

to Reopen, pg. 27. Thus, this Court provided sufficient notice to the Respondent of the time and

place of the hearing and the consequences of his failure to appear when the Court sent the

Respondent's counsel of record the NOH, as required by the statute and regulations. Since the

Court mailed the NOH to the Respondent's counsel of record at the time, and the notice

contained all the proper advisements, service of the NOH was sufficient. See INA § 239(a).

Therefore, the Court finds that the Respondent had proper notice of the proceedings.

B. Ineffective Assistance of Counsel

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The Respondent was ordered removed in absentia March 4 , 2013. The Respondent filed the

present motion on August 30, 2013. Thus, the Respondent's motion as it pertains to the

ineffective assistance of counsel claim is untimely as it was not filed within 90 days of the

Respondent's order of removal. 2

However, even if the Respondent's motion was filed timely, the Court would still deny the

motion for failure to m eet the standards articulated in Matter of Lozada. The Respondent has

submitted an affidavit outlining the attorney-client relationship between himself and Mr. Mills,

as well as the allegedly inadequate actions taken by his former attorney. See Motion to Reopen,

pgs. 5-7. In addition, Mr. Mills has been informed of the allegations leveled against him and

been afforded the opportunity to respond, as evidenced by his affidavit included with the

Respondent's motion. See Motion to Reopen, pgs. 27-28. However, the Respondent failed to file

a complaint with the proper disciplinary authorities. Respondent's counsel indicates that no

formal grievance was filed because Mr. Mills "submitted an A ffidavit accepting the error. "

Motion to Reopen, pg. 6. However, this Court does not find such an explanation to be sufficient

to meet the standards set forth in Matter of Lozada.

The Fifth Circuit and BIA have held that similar reasons for failure to file a bar complaint

were inadequate. See Lara v. Tominski, 216 F. 3d 487 (51h Cir. 2000) (failed to file bar complaint

because counsel's error was "inadvertent" ); Matter of Rivera-Claros, 21 l&N Dec. 599 (BIA

1996) (same). The purpose of the filing of a bar complaint as an element of an ineffective

assistance of counsel claim is "to deter meritless claims and to aid in policing the immigration

bar. " See Lara, 216 F. 3d at 496 (citing Matter of Lozada, 19 I&N Dec. at 639). The Fifth Circuit

upheld the BIA' s determination that failure to file a bar complaint because former counsel's

2 The Respondent does not claim that his former counsel's ineffective assistance constitutes an "exceptional circumstance," but even if he did, such a claim would also be untimely. See INA§ 240(b)(5)(C)(i).

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errors were inadvertent would "eviscerate" the bar complaint requirement. Lara, 216 F. 3d 498.

The Court determined that "if ineffective assistance based on simple inadvertence was enough to

escape the bar discipline requirement. . . the requirement would lose much of its applicability" as

many ineffective assistance of counsel claims would not be investigated further by the

appropriate disciplinary authorities based on an assessment that the error was inadvertent. Id. In

the same way, if an aggrieved respondent could avoid filing a bar complaint simply through

former counsel's admittance of the error, even the most egregious error might not require a

formal bar complaint if the offending counsel simply admitted their m istake. This would clearly

thwart the purpose of the grievance requirement of Matter of Lozada. This Court finds that the

fact that the Respondent's former counsel "accepted" his alleged error, does not excuse his

obligation to file a bar complaint if he truly believes that counsel's actions violated an ethical or

legal duty. The filing of such a grievance serves as an important tool for this to Court to evaluate

the merit of ineffective assistance of counsel claims. The Court finds that the Respondent has

failed to provide an adequate explanation for his failure to file such a complaint.

Furthermore, the Respondent has failed to dem onstrate that he is prima facie eligible for

relief. The Respondent has contended that he is eligible for Deferred Action for Childhood

Arrivals. Motion to Reopen, pg. 6. However, the Court would note that this is not relief before

the Court. As such, the Respondent has demonstrated no substantial prejudice as a result of any

claimed ineffective assistance of counsel. See Miranda-Lores, 17 F.3d at 85.

C. Sua Sponte

Additionally, the Court will not reopen the Respondent's proceedings sua sponte. The

Respondent was at least aware that his hearing was scheduled for March 2013, but by his own

admission made no further inquiry to determine the exact date of his hearing. See Motion to

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Reopen, pg. 6. The Court would also note that Mr. Mill's affidavit asserts that the Respondent

only obtained a copy of his file from his office under after his in absentia order was entered.

Motion to Reopen, pg. 27. If the Respondent failed to obtain a copy of his file after releasing

his counsel, which would have included the NOH, then the Respondent is responsible for the

consequences such actions. While the Respondent contends that he had obtained the services of a

non-lawyer, this person apparently never obtained the required release to receive the

Respondent's file. Id. The Respondent's failure to take any further action to discover the exact

date of his hearing does not excuse his absence. Thus, the Court finds this case presents no "truly

exceptional" situation warranting the exercise of such authority. See Matter of G-D-, 22 I&N

Dec. 1132 (BIA 1999) ; Matter of J-J-, 21 l&N Dec. 976, 984 (BIA 1997) .

Accordingly, the following Order shall be entered:

ORDER

IT IS HEREBY ORDERED that the Respondent's Motion to Reope

Date:· ".3 lt '3 f I 't Dallas, Texas

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Deitrich H. Sims Immigration Judge

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