Immigration Appeals Decisions

** THIS IS AN UNPUBLISHED DECISION THAT CANNOT BE CITED **

Georgia B. Gillett, Esquire

Claire W. Matecko
Assistant Chief Counsel

In an oral decision dated September 28, 2009, an Immigration Judge found the respondent removable; determined that he did not demonstrate eligibility for any relief from removal; and ordered him removed from the United States to Belize. [FN1] The respondent appealed from that decision. The appeal will be dismissed.

The respondent was found removable as charged, as inadmissible as convicted of a controlled substance violation under section 212(a)(2)(A)(i)(II) of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(2)(A)(i)(II). As substantiated by conviction documents (Ex. 2), he has a 2008 Florida conviction upon a guilty plea for the offense of “purchase or possession with intent to purchase cocaine.” For that crime, he was sentenced to imprisonment of 31 days. He became a lawful permanent resident by at least 1972 and possibly as early as 1969.

We agree with the Immigration Judge’s conclusions concerning the respondent’s removability and ineligibility for relief. [FN2]

On appeal, the respondent contends that the Immigration Judge should have granted him a continuance so that he could obtain immigration counsel and could pursue post-conviction relief concerning his conviction. He alleges that his conviction may be invalid due to a defective guilty plea.

We agree with the Immigration Judge’s determination to deny the continuance. The decision to grant or deny a continuance is within the discretion of the Immigration Judge, and good cause must be shown for a continuance. See Matter of Perez-Andrade, 19 I&N Dec. 433 (BIA 1997); Matter of Sibrun, 18 I&N Dec. 354 (BIA 1983); 8 C.F.R. § 1003.29 (2009). The respondent, as an alien in immigration proceedings, has no constitutional right to appointed counsel under the Sixth Amendment to the United States Constitution. However, he has a statutory right to counsel at no expense to the government. See section 292 of the Act, 8 U.S.C. § 1362. At the outset of the hearing on September 28, 2009, the Immigration Judge informed the respondent that he could secure an attorney or representative and ascertained that he had been provided the required list of free and low-cost legal services. However, when the Immigration Judge inquired whether the respondent wanted more time to locate an attorney, the respondent answered, “I’d like to proceed, sir.” (Tr. at 1-2).

We find that the Immigration Judge appropriately went forward with the proceedings without affording the respondent a continuance. Concerning the validity of the respondent’s conviction, the fact that he may be pursuing post-conviction relief in the form of a collateral attack on his conviction in state criminal court does not affect its finality for federal immigration purposes. See Matter of Adetiba, 20 I&N Dec. 506 (BIA 1992). The respondent has presented no evidence with this appeal that any attack on the conviction has resulted in any vacatur or has even been filed.

To the extent that the respondent contends that his removal proceedings were unfair, we find that he has not demonstrated any error by the Immigration Judge in not granting a continuance or in handling his hearing, under the circumstances of this case. We also find that he has not demonstrated any resultant prejudice such as would constitute a due process violation. See Ali v. Gonzales, 440 F.3d 678 (5th Cir. 2006).

Finally, the respondent appears to seek humanitarian relief. He notes that he is 61 years old, blind in one eye, and disabled. He states that he has a United States citizen wife of 49 years; a United States citizen mother who is terminally ill with cancer; and 5 children, all of whom are either United States citizens or lawful permanent residents. He indicates that he would like to stay in the United States with his family members. In this regard, we recognize that this Board and the Immigration Judges have limited jurisdiction and can grant only those forms of relief from removal that are expressly authorized by Congress. See Matter of Medina, 19 I&N Dec. 734 (BIA 1988). We have no power to grant equitable remedies or to confer general humanitarian relief on aliens, even though a particular case may pose sympathetic circumstances. If the respondent wishes to obtain relief on humanitarian grounds, including for reasons related to his family members or the health of himself or any relative, he must pursue such relief with the Department of Homeland Security.

Accordingly, we will dismiss the appeal.

ORDER: The appeal is dismissed.

John Guendelsberger
FOR THE BOARD

FN1. The proceedings before the Immigration Judge in this matter were completed in San Antonio, Texas through video conference pursuant to section 240(b)(2)(A)(iii) of the Act, 8 U.S.C. § 1229a(b)(2)(A)(iii).

FN2. As the Immigration Judge observed (I.J. at 2), the respondent is ineligible for cancellation of removal under section 240A(a) of the Act, 8 U.S.C. § 1229b(a), because he was previously granted a waiver under section 212(c) of the Act. See section 240A(c)(6) of the Act. The respondent has not specified any other form of relief for which he believes that he might be eligible or for which he would like to apply, nor do we discern any available relief for him based on the current record.

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

Micaela A. Guthrie
Assistant Chief Counsel

The respondent’s timely motion to reconsider the Board’s October 30, 2009, will be denied. See Matter of O-S-G-, 24 I&N Dec. 56 (BIA 2006); section 240(c)(6) of the Immigration and Nationality Act, 8 U.S.C. § 1229a(c)(6); 8 C.F.R. § 1003.2(b). In our previous order, we dismissed the respondent’s appeal from the Immigration Judge’s decision denying the respondent motion to terminate the proceedings based on a claim to United States citizenship. The respondent now specifically claims that the Board failed to make a determination that he is a “national” of the United States based upon service in U.S. Army and oaths of allegiance to the United States. See Motion to Reconsider at 5-6. Service in the armed forces of the United States and taking the standard military oath does not make a person a national, however. Warmington v. Keisler, 254 Fed. Appx. 287, 289 (5th Cir. 2007), citing Reyes-Alcaraz v. Ashcroft, 363 F.3d 937, 938-40 (9th Cir. 2004) (holding that service in the armed forces of the United States, along with the taking of the standard military oath, does not alter an alien’s status to that of a “national” within the meaning of the Act). Accordingly, the respondent’s motion to reconsider is denied. [FN1]

David B. Holmes
FOR THE BOARD

FN1. The respondent’s request to stay removal is also denied.

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

Steve Spurgin, Esquire

Dixie Lee Pritchard
Assistant Chief Counsel

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

The respondent, a native and citizen of Mexico, and lawful permanent resident of the United States, appeals an Immigration Judge’s September 18, 2009, decision finding that he was removable for having committed an aggravated felony under section 101(a)(43(F) of the Immigration and Nationality Act (the Act); 8 U.S.C. § 1101(a)(43)(F). The appeal will be dismissed.

On August 22, 2008, the respondent was convicted of evading arrest or detention with a motor vehicle, in violation of section 38.04 of the Texas Penal Code, and sentenced to 2 years incarceration. On the basis of this conviction, the DHS initiated the present removal proceedings, charging the respondent as removable as an alien convicted of an aggravated felony, a “crime of violence” under 18 U.S.C. § 16 for which the term of imprisonment is at least 1 year. See section 101(a)(43)(F) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(F). The Immigration Judge found the respondent’s offense was a crime of violence under 18 U.S.C. § 16, and ordered him removed from the United States.

In reaching his conclusion, the Immigration Judge found the offense of evading arrest or detention with a motor vehicle to be substantially equivalent in conduct and risk to the offense of unauthorized use of a motor vehicle under section 31.07 of the Texas Penal Code (I.J. at 3). The Immigration Judge noted that the United States Court of Appeals for the Fifth Circuit (Fifth Circuit), held in United States v. Galvan-Rodriguez, 169 F.3d 217, 219 (5th Cir. 1999), that the unauthorized use of a motor vehicle is a crime of violence. Therefore, because the offenses were substantially equivalent in conduct and risk, the Immigration Judge found the offense of evading arrest or detention with a motor vehicle to also be a crime of violence (I.J. at 3).

On appeal, the respondent argues that the Fifth Circuit has reversed its decision that the unauthorized use of a motor vehicle is a crime of violence. See Serna-Guerra v. Holder, No. 07-60634, 2009 WL 4609835 (5th Cir. 2009). Respondent’s brief at 2. The respondent argues that because the Immigration Judge relied upon grounds which are no longer valid in reaching his conclusion, the case should be remanded to the Immigration Judge for further review.

In reaching his conclusion, the Immigration Judge did rely on the Fifth Circuit’s holding in Galvan-Rodriguez, id. However, remand is not necessary as the Fifth Circuit has also recently issued a decision in United States v. Harrimon, 568 F.3d 531 (5th Cir. 2009), which supports the Immigration Judge’s conclusion that the offense of evading arrest or detention with a motor vehicle is a crime of violence under 18 U.S.C. § 16(b). This Board retains independent judgment and discretion regarding pure questions of law and the application of a particular standard of law to the facts of a case. See Matter of A-S-B-, 24 I&N Dec. 493 (BIA 2008); see also 8 C.F.R. § 1003.1(d)(3).

Under 18 U.S.C. § 16(b), an offense is a crime of violence, if the offense is a felony that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense. The Fifth Circuit held in Harrimon, that the offense of evading arrest or detention with a motor vehicle is a violent felony under the Armed Career Criminal Act (ACCA) because it presented a serious potential risk of physical injury to another. Id. at 537. While Harrimon addressed the ACCA statute and not the Immigration and Nationality Act, the two statutes use only slightly different language. Specifically, under the ACCA, the risk must be a “serious potential risk” of physical injury to another, instead of the “substantial risk” under the Act. The Fifth Circuit considered the offense generically, and concluded that fleeing by vehicle is purposeful, violent and aggressive, and in the ordinary case, poses a serious risk of injury to others. Id. at 534. Having made these findings regarding the ordinary case, we conclude that the Fifth Circuit decision that the offense of evading arrest or detention with a motor vehicle is a violent felony, carries over to the definition of crime of violence under 18 U.S.C. § 16(b) of the Act. See James v. United States, 550 U.S. 192, 207-8 (2007). Therefore, the respondent’s offense is a “crime of violence” under 18 U.S.C. § 16(b) and, in view of the 2-year sentence he received, an aggravated felony under section 101(a)(43)(F). Accordingly, the following order will be entered.

ORDER: The appeal is dismissed.

Roger A. Pauley
FOR THE BOARD

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

David P. Finn
Assistant Chief Counsel

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

Sec. 237(a)(2)(A)(i), I&N Act [8 U.S.C. § 1227(a)(2)(A)(i)] – Convicted of crime involving moral turpitude

The respondent, a native and citizen of Jamaica, has appealed from the Immigration Judge’s decision dated October 22, 2009. The appeal will be dismissed.

As found by the Immigration Judge, the respondent was admitted to the United States as a lawful permanent resident on April 22, 2004. On December 11, 2006, the respondent was convicted of second degree robbery in violation of section 211 of the California Penal Code and sentenced to a term of imprisonment of 3 years.

We will affirm the Immigration Judge’s determination that the respondent is subject to removal as charged and ineligible for any relief. The respondent’s argument on appeal that his conviction does not qualify as an aggravated felony under section 101(a)(43)(F) of the Immigration and Nationality Act, 8 U.S.C. § 1101 (43)(F), because the statute covers conduct that would not constitute a crime of violence, is without merit since the record of conviction shows that he pled guilty to count 1 of the felony complaint which charged that he took property unlawfully and by force or fear from the person of another. See also Nieves-Medrano v. Holder, 2010 WL 27339 (9^th Cir. 2010). [FN1] The respondent is ineligible for any relief for the reasons stated in the Immigration Judge’s decision (I.J. at 3-4).

Accordingly, the appeal will be dismissed.

ORDER: The appeal is dismissed.

Roger A. Pauley
FOR THE BOARD

FN1. The respondent’s reliance on United States v. Vidal, 504 F.3d 1072 (9th Cir. 2007) to argue that Cal. Penal Code § 211 is broader than a generic robbery statute is misplaced because, unlike the vehicle theft statute involved in that case (Cal. Penal Code § 10851 (a)), which expressly reaches the conduct of an accessory, there is no mention of accessory liability in Cal. Penal Code § 211. The respondent has not identified a case in which California has applied the statute in that way, and it would appear that an accessory to robbery after the fact would be charged and convicted as such under both Cal. Penal Code §§ 32 and 211. Therefore, we cannot conclude that a conviction under Cal. Penal Code § 211 may be based on a finding of something less than conduct which fits within the definition of a generic robbery offense. See Verdugo-Gonzalez v. Holder, 581 F.3d 1059, 1061-1062 (9th Cir. 2009).

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

Samuel W. Asbury, Esquire

Thomas P. Molloy
Assistant Chief Counsel

The respondent has appealed the June 4, 2008, decision of an Immigration Judge denying his request for pre-conclusion voluntary departure. The respondent, a native and citizen of Mexico, argues that the Immigration Judge applied an incorrect legal standard, namely a good moral character requirement, that does not exist for pre-conclusion voluntary departure and he asks that the record be remanded for further consideration of his request for voluntary departure. The motion to remand will be granted.

Voluntary departure under section 240B(a) of the Act is considered pre-hearing or pre-conclusion voluntary departure, which allows for a voluntary departure period of up to 120 days and has less stringent eligibility criteria than post-conclusion voluntary departure under section 240B(b) of the Act. See Matter of Arguelles, 22 I&N Dec. 811, 817 (BIA 1999); 8 C.F.R. § 1240.26(b); see also Matter of Cordova, 22 I&N Dec. 966, 967 (BIA 1999); Matter of Ocampo, 22 I&N Dec. 1301, 1303 (BIA 2000). Most significantly, an alien may be granted voluntary departure under section 240B(a) of the Act without being required to establish good moral character. Matter of Arguelles, supra, at 817. Thus, the Immigration Judge could properly grant this form of relief even if the respondent has certain criminal convictions, or has committed other actions indicative of a lack of good moral character. However, we have emphasized that discretion remains a required element of voluntary departure under both sections 240B(a) and 240B(b) of the Act. Id.

The record reveals that the respondent requested pre-conclusion voluntary departure, and that the Department of Homeland Security did not oppose this minimal form of relief. Tr. at 5. Despite the non-opposition of DHS, the Immigration Judge concluded that the respondent’s 2008 conviction for Operating a Motor Vehicle While Intoxicated precluded the respondent from demonstrating that he merited a favorable exercise of discretion. Although the respondent is not required to establish good moral character in order to be eligible for such relief under 240B(a), the Immigration Judge is within his authority to deny voluntary departure as a matter of discretion, based upon a decision that considers both favorable and unfavorable factors of record. See Matter of Gamboa, 14 I&N Dec. 244 (BIA 1972).

The respondent argues that new facts have arisen, namely his subsequent marriage to a United States citizen and the approval of a visa petition based on that marriage. He requests that the record be remanded so that the Immigration Judge may consider these new factors related to his request for voluntary departure. The DHS has not opposed the respondent’s motion to remand. Since these new facts occurred after the Immigration Judge’s discretionary denial, we will grant the respondent’s motion to remand so that the Immigration Judge may consider these new favorable factors.

Edward R. Grant
FOR THE BOARD

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

Anser Ahmad, Esquire

Bruce B. Dizengoff
Assistant Chief Counsel

The Department of Homeland Security (DHS) has filed an interlocutory appeal of an Immigration Judge’s decision dated September 8, 2009, denying its motion to vacate the August 13, 2009, order reopening the respondent’s removal proceedings. [FN1] Ordinarily the Board does not entertain interlocutory appeals, to avoid piecemeal review of the multiple queries that may arise during the course of removal proceedings. Matter of M-D-, 24 I&N Dec. 138, 139 (BIA 2007), and cases cited therein. We have on occasion accepted interlocutory appeals to address significant jurisdictional questions about the administration of the immigration laws, or to correct recurring problems in the handling of cases by Immigration Judges. See, e.g., Matter of Guevara, 20 I&N Dec. 238 (BIA 1990, 1991); Matter of Dobere, 20 I&N Dec. 188 (BIA 1990). The issue of whether the Immigration Judge properly denied the DHS’s motion to vacate is not a recurring problem in Immigration Judges’ handling of cases. Further, although the DHS characterizes as jurisdictional the issue of whether Matter of Bulnes, 25 I&N Dec. 57 (BIA 2009) controls in a case where a Motion to Reopen was filed less than 2 hours after the respondent’s removal, we decline to address that characterization at this juncture. The question raised in this interlocutory appeal does not fall within the limited ambit of cases where we deem it necessary to exercise interlocutory jurisdiction.

Accordingly, the following order will be entered.

ORDER: The record shall be returned to the Immigration Court with no further action.

Anne J. Greer
FOR THE BOARD

FN1. We observe that the Immigration Judge’s order dated September 8, 2009, titled “Order Granting Motion to Vacate,” states that the DHS’s motion to vacate is denied, but further states that the August 13, 2009, order reopening removal proceedings and staying removal “is hereby vacated.” As the order appears to have been prepared by the DHS in conjunction with the motion to vacate, it appears that the Immigration Judge struck the preprinted word “granted” and replaced it with “Denied,” but simply overlooked the portion of the pre-prepared order indicating that the August 13, 2009, order was vacated.

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

Ernest Wilson, Esquire

Lauren Farber Weintraub
Assistant Chief Counsel

The Department of Homeland Security (the “DHS”) has appealed from the Immigration Judge’s October 28, 2009, custody order granting the respondent’s request for a redetermination of the conditions of his custody and ordering that the respondent be released upon posting a bond in the amount of $15,000. On November 9, 2009, the Immigration Judge issued a brief memorandum in support of his decision. The record will be remanded to the Immigration Judge.

The Board reviews an Immigration Judge’s findings of fact, including findings as to the credibility of testimony, under the “clearly erroneous” standard. 8 C.F.R. § 1003.1(d)(3)(i); see also Matter of S-H-, 23 I&N Dec. 462, 464-65 (BIA 2002). The Board reviews questions of law, discretion, and judgment and all other issues in appeals from decisions of Immigration Judges de novo. 8 C.F.R § 1003.1(d)(3)(ii).

We acknowledge the DHS’s initial argument that the Immigration Judge lacked jurisdiction to conduct the October 28, 2009, custody redetermination hearing as the respondent is subject to mandatory detention based on his 2003 drug conviction. See section 236(c)(1)(B) of the Act, 8 U.S.C. § 1226(c)(1)(B). We also acknowledge the DHS’s alternative argument that assuming the respondent is not subject to mandatory detention, he nevertheless failed to rebut the presumption that he presents a danger and threat to the community. See section 236(a) of the Act; Matter of Guerra, 24 I&N Dec. 37 (BIA 2006); Matter of Adeniji, 22 I&N Dec. 1102, 111-13 (BIA 1999); Matter of Drysdale, 20 I&N Dec. 815, 817 (BIA 1994) (providing that the interpretation of whether an alien has rebutted the presumption against him is a two-step analysis and unless the alien demonstrates that he is not a danger to the community upon consideration of the relevant factors, we do not address likelihood that he will abscond); 8 C.F.R. § 1236.1(c)(3). Potentially dangerous aliens may be held in the custody of the Department of Homeland Security without bond during the pendency of removal proceedings. See Carlson v. Landon, 342 U.S. 524, 537-42 (1952). In this regard, we appreciate the DHS’s concern that the respondent may present a danger and threat to the community, particularly given the evidence in the record relating to the respondent’s August 12, 2003, arrest and related criminal charges resulting from that arrest, including Reckless Endangerment. Unlawful Possession of Marijuana, Criminal Possession of a Weapon, Failure to Obey Stop Signs or Yield Signs, Reckless Driving, and Unlicensed Operator. See Matter of Guerra, supra, at 40 (affording the Immigration Judge broad discretion in considering factors that may be considered including evidence in the record of serious criminal conduct, even where such conduct has not resulted in a conviction).

The bond memorandum prepared by the Immigration Judge does not adequately address whether the DHS was substantially unlikely to establish a charge of removability that would subject the respondent to mandatory detention – namely, a charge under section 237(a)(2)(B)(i) of the Act, 8 U.S.C. § 1227(a)(2)(B)(i). Nor does the bond memorandum address any of the positive and adverse factors developed in the record relevant to whether the respondent successfully rebutted the presumption that he is a danger and threat to the community or whether he presents a flight risk Given these deficiencies, the record is inadequate for appellate review. See Matter of A-P-, 22 I&N Dec. 468 (BIA 1999) (stating that the Immigration Judge is “responsible for the substantive completeness of the decision”); Matter of Fedorenko, 19 I&N Dec. 57, 74 (BIA 1984) (noting that “[t]he Board is an appellate body whose function is to review, not create, a record”). Accordingly, we will remand the record to the Immigration Judge for the issuance of a new decision. See Matter of S-H-, supra, at 463 (remanding to the Immigration Judge noting the lack of factual findings and legal analysis).

Accordingly, the following orders will be entered.

ORDER: The record is remanded to the Immigration Judge for the issuance of a new and complete decision.

John Guendelsberger
FOR THE BOARD

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

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

Lodged: Sec. 237(a)(2)(A)(iii), I&N Act [8 U.S.C. § 1227(a)(2)(A)(iii)] – Convicted of aggravated felony (as defined in section 101(a)(43)(G))

This case was previously before us on July 6, 2004. At that time we affirmed an Immigration Judge’s December 24, 2003, decision. In that decision the Immigration Judge, inter alia, concluded that the respondent’s conviction pursuant to section 10851 (a) of the California Vehicle Code constituted an aggravated felony, to wit, a “theft offense” for which the term of imprisonment was at least one year. Sections 101(a)(43)(G) and 241(a)(2)(A)(iii) of the Immigration and Nationality Act, 8 U.S.C. §§ 1101(a)(43)(G), 1251(a)(2)(A)(iii). On May 12, 2009, the United States Court of Appeals for the Ninth Circuit remanded this case to us for reconsideration in light of Penuliar v. Mukasey, 528 F.3d 603 (9th Cir. 2008). See Ulanday v. Holder, 326 Fed. Appx. 438 (9th Cir. 2009).

The Ninth Circuit, in their remand, noted that, inasmuch as the government could not have anticipated the need to build a record supporting removal under the “modified categorical approach,” this case presents a situation in which a remand to consider further evidence of respondent’s conviction is appropriate. Accordingly, we will remand the record to the Immigration Judge so that the parties may have an opportunity to supplement the record with additional relevant evidence, and to provide the respondent the opportunity to offer further testimony, if appropriate.

The following order shall be issued.

ORDER: The record is remanded to the Immigration Judge for further proceedings consistent with the foregoing decision.

Roger A. Pauley
FOR THE BOARD

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

Emmanuel Ahia, Esquire

The respondent, a native and citizen of Nigeria, appeals from the November 3, 2008, decision of the Immigration Judge denying her motion to rescind the in absentia order of removal entered on October 14, 2008, and reopen proceedings. The respondent has filed an appeal brief; the Department of Homeland Security has not. The appeal will be sustained, and the record will be remanded.

Subsequent to the entry of the Immigration Judge’s decision, the respondent retained new counsel. On appeal, the respondent asserts for the first time claims of ineffective assistance of counsel against two of her prior attorneys of record, Jennifer Klapper, Esquire, and Gary T. Jodha, Esquire. [FN1]

Claims of ineffective assistance of counsel are governed by the standards found in our precedent decision Matter of Lozada, 19 I&N Dec. 637 (BIA 1988). See Matter of Compean, Bangaly & J-E-C-, 25 I&N Dec. 1 (A.G. 2009). The United States Court of Appeal for the Third Circuit (under whose jurisdiction the instant case arises) has cautioned against a strict interpretation of the Lozada requirements, noting that the case “serve[s] as a threshold and a screening mechanism to help the agency assess the substantial number of ineffective assistance claims it receives.” Rranci v. Att’y Gen., 540 F.3d 165, 173 (3d Cir. 2008) (citing Fadiga v. Att’y Gen., 488 F.3d 142, 155 (3d Cir. 2007).

We find that attorney Jodha’s failure to inform the respondent of the date of her hearing (and to make adequate efforts to ascertain such date) constituted ineffective assistance. We additionally find that the respondent has satisfied the requirements of Matter of Lozada, supra.

Although the respondent herself did not notify Mr. Jodha of the allegations (as required by the second prong of Lozada), we find such requirement to have been satisfied. In a correspondence dated October 21, the Immigration Judge requested Mr. Jodha to inform her as to whether he had in fact substituted as the respondent’s counsel by October 14, 2008, and was “already in possession of the client file” by that date. The Immigration Judge continued that if so, “Mr. Jodha evidently owed Respondent the duty to determine the date, place, and time of the next scheduled hearing because because he had obtained her file and Respondent had already advised former counsel to stop working on Respondent’s case.”

Attorney Jodha responded in writing on October 31, 2008. As attorney of record, Mr. Jodha also received the Immigration Judge’s November 3, 2008, decision, in which she determined that there was “a lack of evidence that Mr. Jodha…made reasonable effort to determine the status of this case” (I.J. at 4). Upon review of the entire record, we find no clear error in such determination. As the present allegations of ineffective assistance by Mr. Jodha are identical to the issues already raised in the Immigration Judge’s October 14, 2008, correspondence and her November 3, 2008, decision, we find that prior counsel received adequate notice and the opportunity to respond. See Rranci v. Att’y Gen., supra.

As we find no clear error in the Immigration Judge’s determination that she and her firm “were both diligent to the Respondent” (I.J. at 4), we find no ineffective assistance by Ms. Klapper.

Based on the finding of ineffective assistance by Mr. Jodha, we will rescind the in absentia order of removal. See Matter of Rivera, 21 I&N Dec. 599 (BIA 1996). Accordingly, the following order will be entered.

ORDER: The order of removal is rescinded, and the record is remanded to the Immigration Judge for further proceedings.

Jim Hilz
FOR THE BOARD

FN1. Although referred to in the motion and complaint as Jennifer Hernandez, and in the Immigration Judge’s decision as “Ms. Hernandez Klapper,” we adopt the name used by former counsel herself in her later correspondences of record, i.e. Jennifer Klapper.

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

Gurpatwant Singh Pannun, Esquire

The final administrative order in this case was issued by the Board on December 15, 2003, when we affirmed, without opinion, the Immigration Judge’s May 3, 2002, decision finding the respondent, a native and citizen of India, removable under section 212(a)(6)(A)(i) of the Act and denying him relief from removal on discretionary grounds. The United States Court of Appeals for the Sixth Circuit denied the respondent’s petition for review in 2005. Respondent’s motion at 5. Nearly six years after the final administrative order, on November 30, 2009, the respondent filed the instant motion to reopen renewing his request to pursue adjustment of status under section 245(i) of the Immigration and Nationality Act, 8 U.S.C. § 1255(i), based on a claim of ineffective assistance of counsel. The respondent does not dispute the untimeliness of the motion, but argues that the deadline should either be equitably tolled or alternatively that we reopen sua sponte. We will deny the motion.

There is no issue regarding the respondent’s inadmissibility as charged pursuant to section 212(a)(6)(A)(i) of the Act. Rather, the respondent argues that the two counsel who represented him before the Immigration Judge and on appeal were ineffective in failing to establish his eligibility for section 245(i) relief, which he argues was denied based on the Immigration Judge’s erroneous finding that he is inadmissible under section 212(a)(9)(B)(i).

However, contrary to the respondent’s arguments, the Immigration Judge simply noted the basis for the former Immigration and Naturalization Service’s denial of his application and did not make an independent finding that any of the section 212(a)(9) statutory bars to admission apply. Rather, Immigration Judge found that the equities presented in this case were outweighed not only by the respondent’s repeated immigration violations, but also the disingenuous nature of his representations regarding his residency and immigration history (including his use of a different name which resulted in the assignment of a different alien number after his illegal reentry) and his lack of candor and forthrightness with the court. The Immigration Judge therefore found that the respondent was not deserving of a favorable exercise of discretion and denied, on discretionary grounds, even the minimal relief of voluntary departure. We are not persuaded that the Immigration Judge’s assessment of the respondent’s discretionary factors would change if these proceedings were reopened for further consideration of the respondent’s adjustment of status application. See generally Matter of Coelho, 20 I&N Dec. 464 (BIA 1992) (a party who files a motion to remand or a motion to reopen bears a “heavy burden” of proving that “if proceedings before the Immigration Judge were reopened, with all of the attendant delays, the new evidence would likely change the result in the case”). We likewise find that the respondent has not demonstrated that he is worthy of a favorable exercise of discretion. Rather than providing new favorable equities, the late motion compounds the respondent’s prior immigration violations by showing a continued disregard for the final removal order. The Sixth Circuit denied the respondent’s petition for review in 2005. See I.N.S. v. Abudu, 485 U.S. 94 (1988) (holding that the Board “may leap ahead, as it were, over two threshold concerns (prima facie case and new evidence/reasonable explanation), and simply determine that even if they were met, movant would not be entitled to discretionary grant of relief”).

Finally, we add that the failure to argue that a section 212(a)(9)(B)(i) bar did not apply, and that the former Immigration and Naturalization Service had thus incorrectly calculated the period of the respondent’s illegal presence by measuring the length of his illegal presence after his last departure, does not constitute “egregious” ineffectiveness given the undeveloped state of the law regarding the section 212(a)(9)(B) bars at the relevant times. Matter of Lozada, 19 I&N Dec. 637, 639 (BIA 1988), aff’d 857 F.2d 10 (1^st Cir. 1988) (“Litigants are generally bound by the conduct of their attorneys, absent egregious circumstances.”). See also Matter of Compean, Bangaly & J-E-C-, 25 I&N Dec. 1 (A.G. 2009), vacating 24 I&N Dec. 710 (A.G. 2009). We point out that our decision in Matter of Rodarte-Roman, 23 I&N Dec. 905 (BIA 2006), which clarified that the requisite period of illegal presence must occur prior to the departure, was not issued until well after our dismissal of the respondent’s appeal in 2003. We therefore find that untimely reopening based on a claim of ineffective assistance is not warranted here. We also decline to exercise our discretion to reopen the proceedings sua sponte. Matter of J-J-, 21 I&N Dec. 976 (BIA 1997) (the rules governing motions are intended to bring finality to proceedings and the Board’s sua sponte authority is not meant to be used as a cure for filing defects or to otherwise circumvent the regulations where enforcing them might cause hardship).

Accordingly, the motion will be denied.

ORDER: The motion is denied.

Frederick D. Hess
FOR THE BOARD