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Department of Justice
A 099-049-720
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
Cite as: Mai The Lu, A099 049 720 (BIA June 26, 2015)
Aquino, Romben
Law Office of Romben Aquino
709 East Colorado Boulevard
Suite 250
Pasadena, CA 91101
Date:
JUN 2620l5
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)
IN REMOVAL PROCEEDINGS
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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
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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
Anna Ho
Immigration Judge
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