Immigration Appeals Decisions

** THIS IS AN UNPUBLISHED DECISION THAT CANNOT BE CITED **

Hilari Allred, Esquire

In an order entered on May 26, 2004, we dismissed the respondent’s appeal from the Immigration Judge’s decision. The respondent filed a motion to reopen proceedings on October 7, 2004. The Department of Homeland Security has not registered opposition to the motion, and it will be granted.

The respondent argues that his former counsel, David A. Diaz, provided ineffective assistance of counsel. It is argued that Mr. Diaz failed to obtain and present pertinent evidence regarding the hardship to the respondent’s qualifying relatives, regarding his application for cancellation of removal. It is also maintained that Mr. Diaz failed to file an appellate brief, although he had been retained to do so. Further, it is alleged that Mr. Diaz failed to inform the respondent of the Board’s order, which resulted in the expiration of the period of voluntary departure.

The respondent has provided a printout of punitive action taken against Mr. Diaz by the California State Bar, of which he is a member. The printout reveals several actions in the last several years, in which Mr. Diaz has been ordered inactive or suspended outright from the practice of law. On June 12, 2004, Mr. Diaz was ordered inactive and then “not entitled.” On September 16, 2004, Mr. Diaz was suspended.

Generally, respondents in immigration proceedings are bound by the actions of their counsel, absent egregious circumstances. In this case, Mr. Diaz’s record as a practicing attorney in California gives rise to a question as to the quality of representation that he provided the respondent, particularly in view of the dire consequences of failing voluntarily to depart.

The respondent has raised serious allegations concerning the quality of Mr. Diaz’s representation, and he has substantially complied with the requirements we set forth in Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), aff’d, Lozada v. INS, 857 F.2d 10 (1^st Cir. 1988); see also Singh v. Ashcroft, 367 F.3d 1182 (9^th Cir. 2004); Matter of Assaad, 23 I&N Dec. 553 (BIA 2003). Accordingly, we deem it appropriate to grant the motion to reopen and remand this case for another hearing. The respondent should be afforded the opportunity to present evidence regarding his eligibility and worthiness for the discretionary relief of cancellation of removal. We note that the respondent has presented compelling evidence with his motion regarding hardship to a qualifying relative for purposes of cancellation of removal. The Immigration Judge should issue a new decision either granting or denying the requested relief. The respondent’s removability is settled and need not be revisited.

ORDER: The motion is granted, the proceedings are reopened, and the appeal is reinstated.

FURTHER ORDER: The Board’s order of May 26, 2004, is vacated; except as to the issue of removability, the Immigration Judge’s decision is also vacated.

FURTHER ORDER: The record is remanded to the Immigration Court for proceedings consistent with the foregoing opinion, and for the issuance of a new decision.

** THIS IS AN UNPUBLISHED DECISION THAT CANNOT BE CITED **

Spiro Serras, Esquire

Notice: Sec. 237(a)(2)(A)(iii), I&N Act [8 U.S.C. § 1227(a)(2)(A)(iii)] – Convicted of aggravated felony (section 101(a)(43)(B) of the Act)

PER CURIAM. The Immigration Judge neglected to prepare a separate oral or written decision in this matter setting out the reasons for the decision. An explanation of the reasons in the transcript is not sufficient. Matter of A-P-, 22 I&N Dec. 468 (BIA 1999). We note, moreover, that because the respondent denied removability and did not admit all the factual allegations contained in the Notice to Appear, a summary decision pursuant to 8 C.F.R. § 1240.12(b) cannot properly be issued. Id. Therefore, the record is returned to the Immigration Judge for preparation of a full decision and for any such further proceedings as she may deem appropriate under the circumstances.

**THIS IS AN UNPUBLISHED DECISION THAT CANNOT BE CITED**

IN REMOVAL PROCEEDINGS

Rhoshunda R. Rhodes

PER CURIAM. We adopt and affirm the decision of the Immigration Judge. See Matter of Burbano, 20 I&N Dec. 872, 874 (BIA 1994) (noting that adoption or affirmance of a decision of an Immigration Judge, in whole or in part, is “simply a statement that the Board’s conclusions upon review of the record coincide with those the Immigration Judge articulated in his or her decision”). The respondent submitted a motion to reopen his proceedings conducted in absentia, claiming that he switched the dates for his state court hearing and his immigration court hearing in his notebook, and that he was absent due to this error. On October 24, 2003, the Immigration Judge denied the motion, finding that the respondent had not established exceptional circumstances for his failure to appear. Seven months later, the respondent filed a motion for reconsideration and a motion for sua sponte reopening. He claimed that his right to due process was violated because he was forced to run between his state court proceedings and his immigration court proceedings. He claimed that he was not placed in immigration proceedings for a violation of the immigration laws, but rather on the basis of the withdrawal of the visa petition filed on his behalf and his pursuit of a child protection order in state court. He claims that errors by his former attorney denied him the opportunity to pursue relief from removal, and that his failure to appear was due to exceptional circumstances. On August 3, 2004, the Immigration Judge denied the motions. He found that the respondent had proper notice of his hearing, that his scheduling error did not establish exceptional circumstances, and that the motion for reconsideration was not timely filed. We agree. We further find that the respondent has not shown that he is prima facie eligible for relief from removal, and he has not presented a claim of ineffective assistance of counsel that is compliant with our decision in Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), aff’d, 857 F.2d 10 (1st Cir. 1988). The respondent has failed to establish a basis for reconsideration. He has not shown that sua sponte reopening is warranted in his case. Accordingly, the appeal is dismissed.

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** THIS IS AN UNPUBLISHED DECISION THAT CANNOT BE CITED **

T. Douglas Stump, Esquire

Thomas R. Murphy
Assistant Chief Counsel

Notice: Sec. 237(a)(1)(C)(i), I&N Act [8 U.S.C. § 1227(a)(1)(C)(i)] – Nonimmigrant – violated conditions of status

PER CURIAM. The respondent has appealed from the Immigration Judge’s decision dated July 29, 2003. The Immigration Judge found the respondent removable as charged and granted the respondent’s request for voluntary departure. On appeal, the respondent argues that the Immigration Judge abused his discretion in failing to grant the respondent’s request for a continuance until his I-140 petition is adjudicated by the Department of Labor. We find no error in the Immigration Judge’s decision to deny the respondent’s request for a continuance. A party seeking a continuance has the burden to establish good cause for a continuance. See 8 C.F.R. § 1003.29. The respondent requested that the Immigration Judge grant him a continuance in order to allow him to become eligible for adjustment of status under section 245(i) of the Immigration and Nationality Act. The respondent’s speculative future eligibility for adjustment of status fails to establish good cause for a continuance of his removal proceedings. See Matter of Perez-Andrade, 19 I&N Dec. 433 (BIA 1987) (the decision to grant or deny a continuance is within the discretion of the Immigration Judge, if good cause is shown, and that decision will not be overturned on appeal unless it appears that the respondent was deprived of a full and fair hearing). Accordingly, we find that the Immigration Judge did not abuse his discretion in denying the respondent’s request for a continuance.

FURTHER ORDER: Pursuant to the Immigration Judge’s order and conditioned upon compliance with conditions set forth by the Immigration Judge and the statute, the respondent is permitted to voluntarily depart from the United States, without expense to the Government, within 30 days from the date of this order or any extension beyond that time as may be granted by the Department of Homeland Security (the “DHS,” formerly the Immigration and Naturalization Service). See section 240B(b) of the Immigration and Nationality Act; 8 C.F.R. §§ 1240.26(c), (f). In the event the respondent fails to so depart, the respondent shall be removed as provided in the Immigration Judge’s order.

NOTICE: If the respondent fails to depart the United States within the time period specified, or any extensions granted by the DHS, the respondent shall be subject to a civil penalty of not less than $1,000 and not more than $5,000, and shall be ineligible for a period of 10 years for any further relief under section 240B and sections 240A, 245, 248, and 249 of the Immigration and Nationality Act. See section 240B(d) of the Act.