U.S.

Department of Justice

Executive Office for Immigration Review

y

Board ofImmigration Appeals

Office of the Clerk
5107 Leesburg Pike, Suite 2000
Falls Church, Virginia 22041

OHS/ICE Office of Chief Counsel - DAL

125 E. John Carpenter Fwy, Ste. 500
Irving, TX 75062-2324

Name: NEUPANE, BIBEK

A 206-424-962

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OBrien, Jeffrey
The Law Office of Jeffrey O'Brien
2039 Shattuck Ave, Suite 500
Berkeley, CA 94704-1150

Date of this notice: 4/13/2016

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

DorutL C

t1./lA.)

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Mann, Ana
O'Leary, Brian M.
Grant, Edward R.

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/

Cite as: Bibek Neupane, A206 424 962 (BIA April 13, 2016)
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U.S. Department o.f Justice

Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 22041

File: A206 424 962 - Dallas, TX

Date:

In re: BIBEK NEUPANE

APR 1 3 2016

APPEAL
ON BEHALF OF RESPONDENT: Jeffrey O'Brien, Esquire
APPLICATION: Reopening
The respondent appeals from an Immigration Judge's decision dated February 25, 2015,
denying the respondent's November 17, 2014, motion to reopen his September 4, 2014, removal
proceedings, which had been conducted in absentia under section 240(b)(5)(A) of the
Immigration and Nationality Act, 8 U.S.C. 1229a(b)(5)(A). The Department of Homeland
Security (DHS) has not filed a brief in response to the appeal. The appeal will be sustained. .
Upon de novo review, in light of the totality of circumstances presented in this case,
including the respondent's diligence in filing a motion to reopen, ineffective assistance by former
counsel, and the absence of any DHS opposition to reopening, we will sustain the appeal and
allow the respondent another opportunity to appear for a hearing. See Matter of W-F-, 21 l&N
Dec. 503, 509 (BIA 1996) (stating that whether exceptional circumstances exist to excuse an
alien's failure to appear, the "totality of circumstances" pertaining to the alien's case must be
considered).
Accordingly, the following order will be entered.
ORDER: The appeal is sustained, the in absentia order is vacated, proceedings are reopened,
and the record is remanded to the Immigration Judge for further proceedings.

Cite as: Bibek Neupane, A206 424 962 (BIA April 13, 2016)

Immigrant & Refugee Appellate Center, LLC | www.irac.net

IN REMOVAL PROCEEDINGS

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UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
1100 COMMERCE ST., SUITE 1060'
DALLAS, TX 75242

IN. THE MATTER OF

NEUPANE, BIBEK

DATE: Mar 7, 2015

FILE A 206-424-962

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
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 106Q
DALLAS,
.

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CC: GONZALEZ, ROSLYN

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

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COURT CLERK
IMMIGRATION COURT

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Immigrant & Refugee Appellate Center, LLC | www.irac.net

Law office of Yagya Nepal

Nepal, Yagya Prasad
303 W. Joaquin Avenue, Suite 105
San Leandro, CA 94577

-UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
DALLAS, TEXAS
)
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NEUPANE, Bibek
RESPONDENT

IN REMOVAL PROCEEDINGS
A 206-424-962

CHARGE:

Section 212(a)(7)(A)(i)(I) of the Immigration and Nationality Act

(Act), as amended, as an immigrant who, at the time of application
for admission, is not in possession of a valid unexpired immigrant
visa, reentry permit, border crossing card, or other valid entry
document required by the Act, and a valid unexpired passport, or
other suitable travel document, or document of identity and
nationality as required under the regulations issued by the Attorney
General under section 21 l(a) of the Act.

APPLICATION(S):

Motion to Reopen

ON BEHALF OF THE RESPONDENT:

Yagya Nepal, Esq.
303 W. Joaquin Ave., Suite 105
San Leandro, CA 94577

ON BEHALF OF THE DEPARTMENT

OF HOMELAND SECURITY:
Paul B. Hunker III, Esq.
Chief Counsel - DHS/ICE
125 E. John Carpenter Freeway, Suite 500
Irving, TX 75062

WRITTEN DECISION OF THE IMMIGRATION JUDGE

I.

Factual and Procedural History

The Respondent is a native and citizen of Nepal. Exhibit 1. He applied for admission to

the United States at the Dallas/Fort Worth International Airport Port of Entry on July 2, 2014.
Id. However, he did not then possess or present a valid immigrant visa, reentry permit, border
crossing identification card, or other valid entry document. Id. As a result, the Department of
Homeland Security (Government or DHS) personally served him with a Notice to Appear (NTA)
charging him with removability pursuant to section 212(a)(7)(A)(i)(I) of the Immigration and
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IN THE MATTER OF:

Nationality Act (Act). Id. The Respondent was then placed in detention at the Johnson County
Detention Center in Cleburne, Texas. Id.
The Respondent appeared before this Court on August 14, 2014.

Although the

that the Respondent's attorney had submitted a Motion to Appear Telephonically. However, the
Court denied that request as untimely and for failure to show good cause. Nonetheless, the Court
re-set the case to September 4, 2014, at 9:30 a.m. The Court instructed the Respondent that he
must appear in his courtroom whether he is released from government custody or not and that he
would be ordered removed if he failed to appear for reasons other than exceptional
circumstances. The Respondent indicated that he understood the Court's warning and that he did
not have any further questions.
On September 2, 2014, the Respondent was released from Government custody on
$25,000 bond. See ICE Form I-830E. He indicated that he would be residing in Morton Grove,
Illinois. Id.
At the September 4, 2014, master calendar hearing, the Respondent and counsel failed to
appear. Therefore, the proceedings were conducted in absentia pursuant to section 240(b)(5)(A)
of the Act. At the hearing, the Court concluded that the Respondent had adequate notice and in
support of the charge of removability, the Government submitted Form 1-213, which established
the truth of the factual allegations contained in the NTA. See exhibit 3. Thus, the Court found
that removability had been established by dear and convincing evidence and ordered the
Respondent removed to Nepal.
On November 17, 2014, the Respondent filed a Motion to Reopen asserting that his
failure to appear at his scheduled hearing was due to the ill-advice of his attorney. Both he and

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Respondent had retained counsel, his attorney was not present at the hearing. The Court noted

his attorney submitted affidavits in support of this contention. The Government has not filed a
response.
II.

Applicable Law

alien or the alien's counsel of record, the alien will be ordered removed in absentia if the
Government 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 to reopen and that motion must 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 did not receive adequate notice of the hearing. INA
240(b)(5)(C)(ii); 8 C.F.R. 1 003.23(b)(4)(iii)(2). Adequate notice can be accomplished through
personal service, or if personal service is not practicable, through service by mail to the alien or
to the alien's counsel of record. INA 239(a)(l).
An in absentia order may also be rescinded upon a motion to reopen filed 180 days after
an administratively final order of removal is entered if the Respondent shows ''exceptional
circumstances" leading to his absence from the hearing. INA 240(b)(5)(C)(i); 8 C.F.R.
1003 .23(b )(4)(iii). "Exceptional circumstances" are circumstances beyond the control of the
alien, including "battery or extreme cruelty to the alien or any child or parent ofthe alien, serious
illness of the alien, or serious illness or death of the spouse, child, or parent of the alien, but not
including less compelling circumstances." INA 240(e)(l).
An alien alleging ineffective assistance of counsel, who satisfies the requirements set out
by the Board of Immigration Appeals in Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), has

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

established "exceptional circumstances" for purposes of rescinding an in absentia order. See

Matter of Grijalva-Barrera, 21 I&N Dec. 472 (BIA 1 996). According to Matter of Lozada, a
motion to reopen based upon a claim of ineffective assistance of counsel requires:

(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 ifnot, why not.
19 I&N Dec. at 639. Ineffective assistance of counsel may only constitute grounds for reopening
where the proceedings were so fundamentally unfair that the alien was prevented from
reasonably presenting his case. Id at 638; see Goonsuwan v. Ashcroft, 252 F.3d 383, 385 n.2
(5th Cir. 2001) (citing Zadvydas v. Underdown, 185 F.3d 279, 395 (5th Cir. 1999)) (noting that
an alien's right to procedural due process in removal proceedings is violated when the alien's
representation is so deficient as to impinge on the fundamental fairness of the proceedings).
Finally, the Court may exercise its sua sponte authority to reopen in "truly exceptional
situations" where the interests ofjustice would be served. Matter of G-D-, 22 I&N Dec. 1132,
1 133-34 (BIA 1999); see Matter of J-J-, 21 I&N Dec. 976, 984 (BIA 1997).
III.

Analysis
The Court will deny the Respondent's Motion to Reopen for the following reasons. First,

the Respondent has not filed a filing fee and fee receipt as required by the regulations. See 8
C.F.R. 1 003 .24(b). Thus, the Court does not have jurisdiction to consider this motion.

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(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
with respect to the actions to be taken and what representations counsel did or did
not make to the respondent in this regard,

Second, although the Respondent is claiming ineffective assistance of counsel, he has

failed to fully comply with the Lozada requirements. See Matter ofLozada, 19 I&N Dec. at 639.
The Respondent retained the same counsel he claims provided him with ineffective assistance to

that strict compliance with the requirements ofLozada is not necessary. He claims that because
he submitted an affidavit admitting fault and because the Respondent submitted an affidavit
detailing his arrangement with counsel, filing a state bar complaint is not required in this case.
Motion to Reopen at 7. However, the Fifth Circuit has held that any argument that strict
compliance with Lozada is not required is without merit. See Hernandez-Ortez v. Holder, 741
F.3d 644, 647 (5th Cir. 2014) (noting that "[t]he Ninth Circuit has adopted a different approach
in applying the Lozada requirements, and it will hear ineffective assistance of counsel claims
even when a petitioner has arguably failed to comply with them."). 1
The Court notes, moreover, that although Lozada does not "absolutely require that a
disciplinary complaint be filed," it does require "a reasonable explanation" for the failure to file
the complaint. See Lara v. Trominski, 216 F.3d 487, 498 (5th Cir. 2000); Matter of Lozada, 19
I&N Dec. at 639. Here, no reasonable explanation has been provided other than counsel's
incorrect assertion that strict compliance with Lozada is not necessary. Thus, the Court finds
that the Respondent failed to comply with the third Lozada requirement in that he has not
provided a sufficient explanation for failing to file a complaint against Mr. Nepal. Consequently,
the Respondent's motion to reopen based on ineffective assistance qfcounsel is denied.

The Respondent cites to Galvez-Vergara v. Gonzales, 484 F.3d 798 (5th Cir. 2007) and Matter of Grijalva
Barrera, 21 I&N Dec. 472 (BIA 1996) in support of his argument that an "alien's reliance on his attorney's
erroneous advice to not appear at his hearing constitute[s] sufficient exceptional circumstances to warrant a
reopening of the in absentia removal order." Motion to Reopen at 6. However, both cases are easily distinguishable
from this present case because, unlike here, the aliens complied with all three of the Lozada requirements. See
Galvez-Vergara, 484 F.3d at 803 n.2; Matter of Grijalva-Barrera, 21 I&N Dec. at 474.

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file his Motion to Reopen, Mr. Yagya Nepal. On behalf of the Respondent, Mr. Nepal argues

Finally, the Court will decline to exercise its discretion to reopen the Respondent's case
sua sponte. The Respondent was advised in Court of the consequences for failing to appear at
his hearing and the Court specifically asked the Respondent whether he understood the Court's

advisals and that he had no further questions. Thus, the Court finds that sua sponte reopening is
not warranted in this case. See, e.g. , Matter of G-D-, 22 I. & N. Dec. at 1135-36.
Accordingly, the following order will be entered:

ORDER
IT IS HEREBY ORDERED that the Respondent's

tion to Reopen is DENIED.

An.

Date: 51 ,,2,tJ/.<
Dallas, Texas

Deitrich If.Sims
Immigration Judge

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advisals and whether he had any questions. The Respondent stated that he understood the