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Saborio, Juan Manuel

Law Ofice of Juan M. Saborio


2050 Coral Way, Suite 404
Miami, FL 33145
U.S. Department of Justice
Executive Offce fr Immigration Review
Board of Immigration Appeals
Ofce of the Clerk
5107 Leesburg Pike, Suite 2000
Fals Church, Virginia 20530
OHS/ICE Ofice of Chief Counsel - MIA
333 South Miami Ave., Suite 200
Miami, FL 33130
Name: ZMBRANO, CARLOS ALBERTO A 088-741-973
Date of this notice: 9/5/2014
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosure
Panel Members:
Holmes, David B.
Sincerely,
Dc c a
Donna Carr
Chief Clerk
Usertea m: Docket
For more unpublished BIA decisions, visit www.irac.net/unpublished
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Cite as: Carlos Alberto Zambrano, A088 741 973 (BIA Sept. 5, 2014)
U.S. Department of Justce
Executive Ofce fr Imigation Review
Decision of te Board of Imigraton Appeals
Falls Cuch Virgia 20530
File: A088 741 973 -Miami, FL
I re: CAOS ALBERTO ZARO
I REMOVAL PROCEEDIGS
MOTION
Date:
ON BEHALF OF RSPONENT: Jua M. Saboro, Esquire
ON BEHALF OF DHS: Shaa Belyeu
Assistat Chef Counsel
APPLCATION: Reconsideration
SEP052014
This case is befre te Boad pursuat_ to a December 4, 2013, order of te United States
Cour of Appeals fr te Eleventh Circuit. The paes jointly moved fr remad to te Boad to
allow us to revisit our May 3, 2013, decision. The Elevent Circuit vacated our May 3, 2013,
decision. The Deament of Homelad Securty opposes gating fher relief to te
respondent. The record will be remaded.
I our October 17, 2012, decision we dismissed the respondent's appeal fom te
Immigaton Judge's decision which fund h removable ad deed his applicaton fr
adjustent of status. We denied his timely moton to reopen proceedings in a decision dated
Febray 13, 2013. I our now vacated May 3, 2013, deision we denied te respondent's tmely
motion to reconsider, ad also denied hs untimely ad nuber baed consted motion to
reopen.
I Avila-Santoyo v. US. Atty Gen., 713 F.3d 1357, 1359 (11th Cir. 2013), the Elevet
Circuit held tat the 90-day deadline to fle a moton to reopen is a non-juisdictional clam
processing rle subject to equitable tolling. For puoses of our decision today, we will assume
that the "one-moton rle" is also a non-jusdictional claim processing rule subject to equitable
tolling. See Ruiz-Turcios v. US. Aty Gen., 717 F.3d 847, 850 (11th Cir. 2013) (tang te view
that te one-motion rule is also subject to equitable tolling, but leaving it to te Boad in te frst
instace to addess the issue).
The respondent ha aleged inefective assistace of frer counsel (Jua Blaco). The
respondent meets te requirements i Mater of Lozada, 19 I&N Dec. 637 (IA 1988), to allege
inefective asistace of M. Blaco. The respondent presents hs afdavit, his leter to M.
Blaco, ad a copy of te complat fled aganst M. Blaco.
On Jauar 17, 2014, the respondent submitted a copy of the approval notice fr te visa
petition fled on his behalf by his U.S. citizen spouse. The approval notice was not previously in
te record of proceeding. I te respondent's brief fled on June 9, 2014, he discusses fcts
regadng his dving without a license whch were not preseted to the Imigation Judge, ad
which may have affected te Imigation Judge's discretionay fndings. The respondent also
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Cite as: Carlos Alberto Zambrano, A088 741 973 (BIA Sept. 5, 2014)
A088 741 973
presented new ta rets ad fnacial docuents to support the Affdavit of Support (For 1-
864) with hs moton to reopen fled in December of 2012. Upon reconsideration, we conclude
that the resondet shows prejudice regading M. Blaco's reresentaton befre the
Imigation Judge. See Dakne v. US. Att' Gen., 399 F.3d 1269, 1274-75 (11t Cir. 2005)
(rejudice exists when te perfrace of counsel is so inadequate that tere is a reaonable
probaility tat but fr te attorey's eror, te outcome of te proceedings would have been
diferent).
The respondent shows due diligence. See Ruiz-Turcios v. US. Atty Gen., supra, at 851
(equitable tolling generally requires a alien to show tat he or she ha been pusuing his or her
rigts diligently, ad tat some extaordinay circumstace stood in his or her way). The
respondent's fst motion to reopen was timely fled. His motion to reconsider wa timely fled
[even thoug when constued as a motion to reopen it was untimely ad nuber bar ed]. He
timely fled a petiton fr review wit the Eleventh Circuit.
I su ay, te respondent meets the requirements in Matter of Lozada, supra, shows
prejudice, ad shows due diligence. Equitable tolling of te time ad numercal limitatons on
fling a moton to reopen is waated.
Accordingly, te fllowing orders will be entered.
ORER: The motion to reconsider is grated.
FURTHR ORER: Upon reconsideraton, the motion to reopen 1s gated, ad
proceedings ae reopened.
ORDER: Te record is remaded to te Imigation Judge fr fer proceedings m
accordace with the fregoig opinon.
FOR T BOA
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Cite as: Carlos Alberto Zambrano, A088 741 973 (BIA Sept. 5, 2014)