U.S.

Department of Justice Executive Office for Immigration Review

Board ofImmigration Appeals Office of the Clerk

5107 Leesburg Pike, Suite 2000 Falls Church, Virginia 20530

Garcia, Anna I., Esq Ahmad Law Office, PLLC 333 W Vine Street, Suite 1220 Lexington, KY 40507

OHS/ICE Office of Chief Counsel - BUF 130 Delaware Avenue, Room 203 Buffalo, NY 14202

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Name: MACAL-VENTURA , SERGIO AL ...

A 200-589-069

Date of this notice: 2/20/2014

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

DOYl.ltL ctVlA)
Donna Carr Chief Clerk

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

Trane Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: Sergio Alberto Macal-Ventura, A200 589 069 (BIA Feb. 20, 2014)

Executive Office for Immigration Review

Falls Church, Virginia 20530

U.S. Department of Justice

Decision of the Board of Immigration Appeals

File:
In re:

A200 589 069-Buffalo, NY

Date:

SERGIO ALBERTO MACAL-VENTURA

FEB 2 0 2014

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IN REMOVAL PROCEEDINGS
{ '".

APPEAL ON BEHALF OF RESPONDENT: ON BEHALF OF DHS:

Anna I.

Garcia, Esquire

Michele Henriques Assistant Chief Counsel

The respondent, a native and citizen of Mexico, was ordered removed in absentia on July 18, 2011. On January 12, 2012, the respondent filed a timely motion to reopen proceedings, which the Immigration Judge denied on May 7, 2012. The respondent filed a timely appeal of that decision. The appeal will be sustained, proceedings will be reopened and the record will be remanded. The Immigration Judge denied the respondent's motion to reopen finding that he failed to establish exceptional circumstances for his failure to appear at the hearing. However, upon review, we find that the totality of circumstances presented in this case constitute exceptional circumstances for the respondent's failure to appear at his hearing. Section 240(e)(1) of the Act; 8 U.S.C. 1229(e)(l). Accordingly, we will allow the respondent another opportunity to appear for a hearing.

ORDER:

The appeal is sustained, the in absentia order is rescinded, the proceedings are

reopened, and the record is remanded to the Immigration Judge for further proceedings.

Cite as: Sergio Alberto Macal-Ventura, A200 589 069 (BIA Feb. 20, 2014)

'

UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW UNITED STATES IMMIGRATION COURT BUFFALO, NEW YORK

File No.: 200-589-069 In the Matter of: Macal-Ventura, Sergio Alberto Respondent

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) ) ) ) )

In Removal Proceedings

ON BEHALF OF RESPONDENT

ON BEHALF OF THE GOVERNMENT Michele Henriques, Asst. Chief Counsel 130 Delaware Ave., Ste. 203 Buffalo, NY 14202

Anna I. Garcia, Esq.

333 W. Vine St., Ste. 1220 Lexi ngton, KY 40507

ORDER OF THE IMMIGRATION JUDGE

I. BACKGROUND AND PROCEDURAL HISTORY Respondent is a 47-year-old male, native and citizen of Mexico. He entered the United States without inspection at an unknown place on an unknown date. On March 24, 2011, immigration authorities encountered respondent, took him into custody, and served him with a Notice to Appear

("NTA") charging him as removable pursuant to INA 212(a)(6)(A)(i), as

an

alien present in the United States without having been admitted or paroled, or who arrived at any time or place other than as designated by the Attorney General (Ex. l ) The Government initiated
.

proceedings against respondent by filing his NTA 30,

with the Batavia Immigration Court on March

2011.
On April 13, 2011, respondent appeared for an initial detained master calendar hearing,

and his counsel, Wael Ahmad ("Mr. Ahmad"), appeared telephonically from his office in

..

Lexington, Kentucky. Mr. Ahmad requested additional

time to prepare, aIJ.d the Court eentinned

respondent's case until April 27, 20 1 1. Respondent was released from custody on April 1 8, 20 1 1, and his case was transferred to the Buffalo Immigration Court. Respondent was scheduled to appear for a master calendar hearing on June 14, 2011. On June 13, 2011, respondent filed
an

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untimely motion to appear telephonically for the

an

June 14, 2011, hearing. Respondent claimed he failed to timely file the motion "due to

oversight of counsel" (Motion to Accept Untimely Filing at 1, June 13, 2011). On June 14, 2011, respondent filed a second untimely motion for a telephonic hearing. The June 14 motion was accompanied by an affidavit from Anna Garcia ("Ms. Garcia"), office, claiming she mailed the June
an

associate in Mr. Ahmad's

13 motion on June 7, 2011, but learned after calling the

Court to follow up that the Court never received it. The Court agreed to allow both respondent and Mr. Ahmad to appear telephonically from Mr. Ahmad's office for the June 14, 2011, hearing. But when the Court called Mr. Ahmad's office to begin the hearing, respondent was not there. Mr. Ahmad's office informed the Court that respondent had been there earlier, but left temporarily. When the Court called a second time, Mr. Ahmad's office claimed respondent had returned, but Mr. Ahmad left to attend another hearing. When the Court called Mr. Ahmad's office a third time, the Court agreed to continue respondent's case until June 16, 2011, and again agreed that respondent and Mr. Ahmad could appear telephonically. The Court sent respondent a hearing notice for the June 16 hearing indicating that he should be prepared to proceed with his case, as the Court would grant no further continuances. On June 16, 20 11, respondent and Mr. Ahmad appeared telephonically from Mr. Ahmad's office. Respondent admitted all of the allegations and conceded the charge of

..

f }JJ)

<!}JJ)

removability in his NTA, and designated Mexico

as

the

c01mtry of removal. The Court fownl

respondent's admissions had established his inadmissibility. Despite the Court's warning that it did not intend to grant any further continuances, Mr. Ahmad was unprepared and requested additional time to decide what relief respondent would be seeking. The Government objected but indicated it would not oppose a request for voluntary departure.The Court asked Mr. Ahmad what grounds he had for believing respondent may be eligible for relief other than voluntary departure. Mr. Ahmad did not answer, but stated that he had not yet had an opportunity to "go(] through an exhaustive list of possible relief." The Court agreed to one final continuance and set respondent's case for an individual hearing on July

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19,

2011, at 1 :00 P.M. The Court provided both Mr. Ahmad and respondent, through the interpreter,
with oral notice of the date and time of the hearing. The Court also provided respondent with a written hearing notice expressly stating that he and Mr. Ahmad, unless otherwise authorized, were to appear in person in Buffalo, New York (Ex. lA). On July

1, 2011, respondent filed a motion for a change of venue stating that he resides in

Lexington, Kentucky, and that "[t]ravel to Buffalo ... would be prohibitively expensive and difficult to arrange" (Motion for Change of Venue at

2, July 1, 2011). Respondent claimed he

would suffer "considerable hardship and inconvenience in adequately preparing and presenting testimony in support of his possible application for asylum or withholding of removal" because his "[p]otential witnesses and supporting evidence" were located in Kentucky (Id). Also on July
1, 20 1 1, respondent filed a motion for a telephonic hearing in case the Court denied his motion for a change of venue.

On July 7, 2011, the Government filed a memorandum opposing respondent's July motions. On July 12, 2011, the Court denied both motions and expressly stated that respondent's

.,

hearing would go forward in Buffalo. The Court noted respondent still had not set forth with any specificity what relief he intended to seek, and had failed to identify any witnesses or evidence he would be unable to bring to Buffalo. On July

18, 2011, apparently unaware of the Court's July 12, 2011, order, respondent

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filed a reply to the GovernmenC s response to his motions. Respondent failed to appear for his July

19, 2011, individual hearing and, as he had been

provided with written notice of the time, date and location of the hearing, the Court conducted the hearing in absentia. The Court found respondent's failure to appear constituted abandonment of any applications for relief he may have been eligible to file, and ordered respondent removed to Mexico. On January

12, 2012, respondent filed a motion to reopen claiming he did not receive 19, 2011, hearing. On February 13, 2012, the Government filed a 2012, the Court notified the parties that

proper notice of his July

response to respondent's motion to reopen. On March 5,

it would defer its decision on respondent's motion until after they had presented oral arguments. On March

9, 2012, the Court withdrew respondent's case from the oral argument calendar and

informed the parties that it would issue a written decision. II. LEGAL STANDARDS and ANALYSIS Any alien who fails to appear for removal proceedings shall be ordered removed in absentia if the Government establishes by clear, unequivocal and convincing evidence that written notice of the proceedings was properly provided to the alien and

(1)

(2) the alien is

removable. INA 240(b)(5)(A). Section 240(b)(5)(C)(i) provides for the rescission of an in

absentia removal order if the alien files a motion to reopen within

180 days after the order and

demonstrates that his failure to appear was because of exceptional circumstances. Alternatively,

subsection (ii) provides for reopening at any time if the alien demonstrates that he notice in accordance with INA

did not recebre

239(a). 19, 2011, and respondent filed his motion

The Court ordered respondent removed on July to reopen

178 days later on January 12, 2012. Respondent's motion, therefore, is timely. INA

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240(b)(S)(C)(i). While respondent does not expressly argue that exceptional circumstances
should excuse his failure to appear, he claims he "did not receive proper notice" of his July I 9,

2011, hearing "solely" because Mr. Ahmad instructed him to appear at his office rather than at
the Court (Motion to Reopen at Respondent's

2, January 12 2012).
,

claim that he did not receive notice is without merit. At his June 16, 2011,

hearing, the Court informed respondent orally through the interpreter that his next hearing would be July

19, 2011, at 1:00 P.M. The Court also provided respondent with a written hearing notice

containing the date, time and location of the he ari ng, expressly stating that he and Mr. Ahmad, unless otherwise authorized, were to appear in person in Buffalo (Ex. IA). The fact that respondent disregarded the Court's instructions and followed his attorney's erroneous ones does not mean he Jacked notice. Respondent, therefore, is not entitled to have his removal proceedings reopened under INA

240(b)(S)(C)(ii). may constitute

Misadvising a client as to the date, time, or location of his hearing ineffective assistance of counsel, and ineffective assistance of counsel 'exceptional circumstance'
.

"may constitute an
v.

warr

anting the reopening of' removal proceedings. Aris

Mukasey,

517 F.3d 595, 596 (2"d Cir 2008); Matter of Grijalva-Barrera, 21 I&N Dec. 472, 473-74 (BIA
1996). An

alien seeking to reopen removal proceedings based upon a claim of ineffective (1) include with his motion to reopen an affidavit "attesting to the

assistance of counsel must relevant facts";

(2) inform the attorney in question of the allegations against him and give him an

opportunity to respond; and (3) indicate whether

complaint has been filed with the appropriate

disciplinary authorities and, if not, explain why not.Matter of Lozada, 19 I&N Dec.637, 639 (BIA 1988).The requirement of filing a complaint with the appropriate disciplinary authorities serves to "increase[]confidence in the validity" of the alien's claim, and also "protects against possible collusion between counsel and the alien client." Matter of Rivera-Claros, 21 I&N Dec. 599, 605 (BIA 1996). Respondent states that he believes Mr. Ahmad's advising him not to go to Buffalo "was ineffective," but does not "warrant ... [the] filing of a bar complaint[]" because Mr. Ahmad acted on the "mistaken belief that either the Motion for Change of Venue or . . . Motion for Telephonic [Hearing] would be granted." (Respondent's Affidavit at 3, January 12, 2012). A belief that counsel's error was "inadverten[t]" is not an adequate explanation for the failure to file a bar complaint, and Hminimize[s] significantly the questions raised by the attorney's apparent conduct." Matter of Rivera-Claros, 2 l I&N Dec. at 603.Because respondent has not filed a bar complaint against Mr.Ahmad or adequately explained his failure to do so, the Court cannot find he received ineffective assistance of counsel constituting exceptional circumstances. Thus respondent is not entitled to have his removal proceedings reopened under INA 240(b)(5)(C)(i). The Court notes that, if the facts are as presented in respondent and Mr. Ahmad's affidavits, Mr. Ahmad's actions may well have amounted to ineffective assistance of counsel. Matter of Grijalva-Barrera, 21 I&N Dec. at 4 73-74. Mr. Ahmad should have known that the mere filing of respondent's motions for a change of venue and telephonic hearing did not excuse respondent from appearing for his hearing in Buffalo, and should not have advised respondent not to go to Buffalo based on his assumption that the Court would grant the motions.Moreover,

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..

Mr. Ahmad's "overlook[ing]" the Court's denial of those

motkms

week before the heating is

inexcusable. Finally, Mr. Ahmad's failure to contact the Court on the day of respondent's hearing and his deliberate decision to wait until the following day shows an alarming lack of diligence. The Court waited nearly
an

hour before proceeding in absentia and, had Mr. Ahmad

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contacted the Court promptly after realizing the time for respondent's hearing had come and gone, respondent might have at least been able to explain his absence prior to being ordered removed. Beyond the actions directly related to respondent's failure to appear, Mr. Ahmad consistently unprepared respondent's June 13, Then, on June throughout respondent's removal proceedings. Mr.
was

Ahmad filed
an

2011, motion for a telephonic hearing late because of

"oversight."

14, 2011, Mr. Ahmad left his office without first informing the Court that he had a

scheduling conflict, and was not present when the Court called to conduct respondent's hearing. Despite several continuances, Mr. Ahmad was never able to state

with any certainty what relief

respondent would be seeking. In fact, Mr. Ahmad admitted that, by the time of respondent's June

16, 201 1, hearing, he had "not even had a chance to discuss" respondent's case with him (Mr.
Ahmad's Affidavit at

2, January 12, 20 12).

The fact that Mr. Ahmad's associate, Ms. Garcia, prepared respondent's motion to reopen raises questions
as

to the authenticity of respondent's claim that he does not believe Mr.

Ahmad's actions warranted filing a bar complaint. Nonetheless, respondent makes other claims which raise questions about his credibility. For example, respondent claims he went to Mr. Ahmad's office at 9:00 A.M. on July affidavit at 2-3, January

19, 2011, and waited until 6:00 P.M. (Respondent's

1, 2012). Respondent's hearing was not scheduled until 1:00 P.M., and

respondent offers no explanation for why he began waiting four hours before he could have

.. . .

expected the Court to call. The Court is also skeptical of respondent's claim that he spent nine hours in Mr. Ahtnad's office passively waiting for the phone to ring, even up until an hour and
a

half after the Court had closed for the evening. These questions illustrate the difficulty involved in determining whether
an

alien's failure to appear was truly the result of ineffective assistance

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of counsel, and highlight the importance of the bar complaint requirement. Again, despite Mr. Ahtnad's shortcomings, because respondent has not filed a bar complaint against him or adequately explained his failure to do so, the Court cannot find Mr. Ahmad's representation amounted to ineffective assistance of counsel. For all of the foregoing reasons, respondent's motion to reopen will be denied.

ORDER IT IS HEREBY ORDERED that respondent's motion to reopen be DENIED.

Date: Philip J. Montante, Jr.

U.S. Immigration Judge