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U.S.

Department of Justice

Executive Office for Immigration Review


Board ofImmigration Appeals
Office ofthe Clerk
5107 Leesburg Pike, Suite 2000
Falls Church, Virginia 20530

DHS/ICE Office of Chief Counsel - LOS


606 S. Olive Street, 8th Floor
Los Angeles, CA 90014

Name: LU, MAI THE

A 099-049-720

Date of this notice: 6/26/2015

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

DCrt.ltL

t1/VL)

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Grant. Edward R.
Guendelsberger, John
Adkins-Blanch, Charles K.

Userteam: Docket

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Cite as: Mai The Lu, A099 049 720 (BIA June 26, 2015)

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Aquino, Romben
Law Office of Romben Aquino
709 East Colorado Boulevard
Suite 250
Pasadena, CA 91101

Decision of the Board of Immigration Appeals

U.S. Department of Justice


Executivo Office. for Immigration Review
Falls Church, Virginia 20530

File: A099 049 720 - Los Angeles, CA

Date:

JUN 2620l5

In re: MAI THE LU a.k.a. Mai Lu

APPEAL
ON BEHALF OF RESPONDENT: Romben Aquino, Esquire
APPLICATION: Reopening
The respondent, a native and citizen of Vietnam, was ordered removed in absentia on
October 29, 2009. On March 11, 2014, the respondent filed a motion to reopen proceedings,
which the Immigration Judge denied on June 2, 2014. The respondent filed a second motion to
reopen alleging ineffective assistance by her former counsel on September 16, 2014. The
Immigration Judge denied that motion on November 19, 2014. The respondent filed timely
appeal of that decision. The appeal will be sustained, the in absentia order vacated, the
proceedings reopened, and the record remanded.
Upon review, we find that the respondent was not provided a copy of the Notice to Appear or
the Notice of Hearing concerning the hearing held in her absence on October 29, 2009 (Exhs.l,
2). See Matter of G-Y-R-, 23 I&N Dec. 181 (BIA 2001). Both the Notice to Appear and the
Notice of Hearing were mailed to an address at which the respondent no longer resided (Exhs. 1,
2). The record is devoid of evidence that the respondent received notice to apprise the
government of a change of address prior to the issuance of the Notice to Appear. In light of the
foregoing, we will sua sponte reopen the respondent's removal hearing, remand the record to the
Immigration Judge for further proceedings, and allow the respondent another opportunity to
appear. Accordingly, the following order will be entered.
ORDER: The appeal is sustained, the in absentia order is vacated, the proceedings are
reopened, and the record is remanded for furthe
dings consistent with the above opinion.

Dcq;

FO/BOARD

Cite as: Mai The Lu, A099 049 720 (BIA June 26, 2015)

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IN REMOVAL PROCEEDINGS

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UNITED STATES DEPARTMENT OF JUSTICE


EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
606 SOUTH OLIVE ST.
LOS ANGELES, CA 90014

FILE A 099-049-720

IN THE MATTER OF
LU, MAI THE

DATE: Nov 19, 2014

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 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
....:;::,..J\'IlTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE AS THE RESULT
"'t: .. OF YOUR
FAILURE TO APPEAR AT YOUR SCHEDULED DEPORTATION OR REMOVAL HEARING.
1
: T:HIS .DECISION IS FINAL UNLESS..,.A MOTION TO REOPEN IS FILED IN ACCORDANCE
'W:fTH SECTION 2 4 28 ( c) ( 3) OF .T'&Yf:{MIGRATION AND NATIONALITY ACT, 8 U.S. C.
. l}QCEEDINGS OR SECTION 240(c) (6),
SECTION 1252B(c) (3) IN DEPORTiJ.SJN1 P
..
8 U.S.C. SECTION 1229a(c) (6)
'REMOVAJ., PROCEDINGS. IF YOU FILE A MOTION ..
TO REOPEN, YOUR MOTION MUST BE FILED WfH THIS COURT:

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OTHER:

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IiRATION COURT
6'1'6 !flt1TH OLIVE ST.
,LOS AiJGELES, CA 90014
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606 so':t.,,.OLTVE; . ST . , 8 TH FLOO
LOS ANGELES, CA, 900140000.,1!

COLERK
IMMIGRATION COURT

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Law Office of Rornben Aquino


Aquino, Romben
709 East Colorado Boulevard Suite 250
Pasadena, CA 91101

UNITED STATES DEPARTMENT OF JUSTICE


EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
LOS ANGELES, CALIFORNIA
)
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In the Matter of:


LU, Mai The
Respondent
CHARGE:

IN REMOVAL PROCEEDINGS

Section 237(a)(l )(D)(i) of the Immigration and Nationality Act (INA)


(1995) - admission or adjustment ofstatus on conditional basis terminated

APPLICATION: Respondent's Motion to Reopen


ON BEHALF OF RESPONDENT:
Romben Aquino, Esquire
Law Office of Romben Aquino
709 East Colorado Boulevard, Suite 250
Pasadena, California 91101

ON BEHALF OF THE GOVERNMENT:


Malgorzata Gasior, Assistant Chief Counsel
U.S. Department of Homeland Security
606 South Olive Street, Eighth Floor
Los Angeles, California 90014

DECISION AND ORDER OF THE IMMIGRATION JUDGE


I. PROCEDURAL HISTORY
On August 24, 2009, the Government served Mai The Lu (Respondent) with a Notice to
Appear (NTA) by regular mail to 19612 Springport Dr., Rowland Heights, California 91748.
Exh. I. In the NTA, the Government alleged that Respondent is a native and citizen of Vietnam
whose status was adjusted to that of a permanent resident on a conditional basis on November
28, 2006. See id On November 29, 2008, Respondent's status was terminated because she
failed to file a Form I-751, Petition to Remove Conditions on Residence. Respondent was
charged under section 237(a)(l)(D)(i) as an alien who was lawfully admitted for permanent
residence on a conditional basis under section 216 or 2 l 6A and whose status was terminated
under such respective section.
On September 17, 2009, Respondent was sent a Notice of Hearing (NOH) to appear on
October 29, 2009. The NOH was not returned to the Court. On October 29, 2009, Respondent
failed to appear, and the Court issued an in absentia order of removal.
On March 11, 2014, Respondent filed a motion to reopen, alleging that she did not
receive notice of the hearing because she never received the NTA. She had allegedly moved out
of her husband's home in 2007, and he never forwarded mail to her. However, the Court found
that Respondent received adequate notice because she did not rebut a presumption of delivery,

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A099 049 720

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and she further admitted to learning about the removal order several years before she filed the
motion to reopen. Accordingly, the Court denied her motion.

For the following reasons, the Court will deny Respondent's motion.
II. LAW AND ANALYSIS
A. Ineffective Assistance of Counsel
Ineffective assistance of counsel may constitute an exceptional circumstance warranting
reopening of a matter. See Matter ofGrijalva-Barrera, 21 I&N Dec. 472, 473-74 (BIA 1996).
In order for the Court to grant a motion to reopen based on ineffective assistance of counsel, a
respondent must demonstrate that she suffered prejudice or harm due to her counsel's ineffective
performance. See Maravilla Maravilla v. Ashcroft, 381 F.3d 855, 858 (9th Cir. 2004). To
establish the requisite prejudice, a respondent must show that she had plausible grounds for relief
that were jeopardized by her counsel's sub-standard performance. See Lin v. Ashcroft, 377 F.3d
1014, 1027 (9th Cir. 2004). "[T]actical decision[s], even if in hindsight unwise, do(] not
constitute ineffective assistance" of counsel. Rodriguez-Gonzalez v. INS, 640 F.2d 1139, 1142
(9th Cir. 1981).
Furthermore, to prevail on an ineffective assistance claim, a respondent must satisfy the
three threshold requirements set forth in Matter ofLozada, 19 l&N Dec. 637 (BIA 1988). A
respondent must (1) provide an affidavit setting forth, in detail, the agreement she entered into
with counsel, and what actions counsel did or did not take in this regard; (2) document that
counsel was informed, prior to the respondent's bringing the ineffective assistance claim, of the
allegations against counsel and given the opportunity to respond; and (3) indicate whether a
complaint has been filed with the appropriate disciplinary authorities regarding a violation of
counsel's ethical or legal responsibilities or provide an explanation for the failure to file such a
complaint. Id. at 639. However, these factors are not rigidly applied where the record clearly
indicates ineffective assistance of counsel. See Rodriguez-Lariz v. INS, 282 F.3d 1218, 1227
(9th Cir. 2002); Correa-Rivera v. Holder, 706 F.3d 1128, 1131-32 (9th Cir. 2013) (noting that
while the second Lozada step is mandatory, the third Lozada factor is merely hortatory).
1.

Lozada Requirements

Here, Respondent has submitted a written declaration describing her agreement with Mr.
Nguyen, her former attorney, and his alleged ineffective assistance. See Respondent's Mot. to
Reopen, Supp. at 2-6. She has also submitted evidence that she filed a complaint with the
California State Bar against Mr. Nguyen. See id. at 30-31. Although she mailed a copy of the
complaint to Mr. Nguyen, she does not specify whether he was given an opportunity to respond
prior to the filing of this motion. See Respondent's Mot. to Reopen at 10. However, the factors
are not rigidly applied, and Respondent has substantially complied with the factors. See

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On September 16, 2014, Respondent fil_ed the pending motion to reopen with the Court.
Respondent alleges she received ineffective assistance of counsel in preparing her first motion to
reopen, and that this Court should reopen based on its sua sponte authority.

Rodriguez-Lariz, 282 F.3d at 1227. Accordingly, the Court finds that Respondent has complied
with the Lozada requirements.
However, Respondent is still required to additionally demonstrate that Mr. Nguyen's
deficient performance prejudiced her case, as discussed below.
Prejudicial Performance

Respondent alleges two scenarios in which Mr. Nguyen rendered sub-standard


performance that allegedly prejudiced her case. First, she alleges that he did not instruct her to
obtain evidence or statements regarding her ex-husband's failure to forward mail to her. Under
the regulations, an order of removal entered in absentia may be rescinded upon a motion to
reopen filed at any time if the alien demonstrates lack of notice. 8 C.F.R. 1003.23(b)(4)(ii). If
Respondent had been able to show she did not reside at the address to which the NTA was
mailed, or that her ex-husband did not forward her mail, she contends that she could have
demonstrated lack of notice and thus reopened her case. See Matter ofG-Y-R- , 23 I&N Dec. 181
(BIA 2001) (holding that where an alien fails to update her address with INS and as a result the
NTA is sent to an outdated address, the alien nonetheless may not be ordered removed in
absentia). However, Respondent already argued in her first motion that she did not receive
notice. Although she could have submitted additional evidence, such as a declaration from her
former husband, the failure to submit it did not amount to ineffective assistance. Moreover,
Respondent admitted in her declaration that she received notice of her removal order in May of
2010. Respondent's Mot. to Reopen at 3. Because she waited nearly four years until March l't,
2014 to file her motion to reopen, she failed to file in a timely and diligent manner. Therefore,
even with the supporting declaration, the outcome of her motion would have remained identical,
so Mr. Nguyen's alleged failure to instruct her to obtain evidence about mail forwarding did not
prejudice her case.
Next, Respondent alleges that Mr. Nguyen did not notify the Court that Respondent had
remarried and was therefore possibly eligible for adjustment of status. Respondent claimed that
she addressed her marriage with Mr. Nguyen, who stated that,
the marriage did not affect my current situation. He said that he first needed to reopen
my case and then, if the case were reopened, he would notify the court about the
marriage. He said that the court would not care about my marriage at this point. That's
the reason he didn't mention it in my declaration.
Respondent's Mot. to Reopen, Supp. at 5. First, the Court notes that "tactical decision[s], even if
in hindsight unwise, do[] not constitute ineffective assistance" of counsel. Rodriguez-Gonzalez,
640 F.2d at 1142. Because Mr. Nguyen affirmatively considered the issue and consciously
decided not to address it, the Court cannot find his choice deficient, even if unwise. Id.
Even assuming, arguendo, that his decision constituted incompetence, it did not prejudice
Respondent's case. Although her marriage may have established a prima facie ground for relief
under this Court's sua sponte authority, such authority is inherently discretionary. See Sequeira
Solano v. INS, 104 F.3d 278, 279 (9th Cir. 1997) (citing INS v. Abudu, 485 U.S. 94 (1988)).
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2.

Accordingly, Mr. Nguyen's actions did not prejudice Respondent's case and do not
provide a basis for her ineffective assistance of counsel claim.
B. Sua Sponte
An Immigration Judge may upon her own motion at any time, or upon motion of the
Government or respondent, reopen any case in which she has made a decision. 8 C.F.R.
1003.23(b)(l). The decision to grant or deny a motion to reopen is within the discretion of the
Immigration Judge. Id. The Board of Immigration Appeals has stated that "the power to reopen
on our own motion is not meant to be used as a general cure for filing defects or to otherwise
circwnvent the regulations, where enforcing them might result in hardship." Matter ofJ-J-, 21
I&N Dec. 976, 984 (BIA 1997). Proceedings should be reopened sua sponte only under
"exceptional" situations because the general rules governing motions are intended to bring
finality to proceedings. Id.
First, Respondent claims she isprima facie eligible for relief because her U.S.-citizen
husband submitted a Form 1-130, Petition for Alien Relative, on her behalf. See Mendez
Gutierrez v. Ashcroft, 340 F.3d 865, 869-70 (9th Cir. 2003) (noting that a motion to reopen will
not be granted absent aprima facie showing of eligibility for relief). She also claims to be
potentially eligible for stateside processing of inadmissibility waivers. However, even if
Respondent is eligible for relief, reopening sua sponte is an exercise of the Court's discretion.
See Sequeira-Solano, 104 F.3d at 279 (citingAbudu, 485 U.S. 94).
Further, the equities in this instance do not merit granting Respondent's motion. As
discussed above, Respondent did not suffer from ineffective assistance. Moreover, while the
Court is sympathetic to Respondent's situation, she has been under a removal order since 2009,
and she admitted receiving notice of that order in 2010. Thus, any eligibility for relief is a direct
result of Respondent's lack of due diligence and noncompliance with the immigration laws. The
Court finds that reopening sua sponte on this basis would credit Respondent for after-acquired
equities, thereby undermining the INA, circumventing the regulations, and rewarding
Respondent for disregarding the Court's order. See Rios-Pineda, 471 U.S. at 450-51 (finding
that equities which are obtained after the entry of a final deportation order do not create
substantial equities).
Accordingly, the Court will enter the following order:

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Further, Respondent married her husband on December 27, 2013, approximately three years after
she discovered this Court ordered her removed on October 29, 2009. Because she only acquired
this new ground for relief as a result of flouting the removal order, it was not an equity that
would have weighed positively in her favor. See INS v. Rios-Pineda, 471 U.S. 444, 450-51
(1985) (finding that equities which are obtained after the entry of a final deportation order do not
create substantial equities).

ORDER
IT IS ORDERED that Respondent's Motion to Reopen

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Anna Ho
Immigration Judge

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