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Andrei Jose Picado, A200 440 226 (BIA Sept. 25, 2013)

Andrei Jose Picado, A200 440 226 (BIA Sept. 25, 2013)

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In this unpublished decision, the Board of Immigration Appeals (BIA) reversed the denial of a motion to reopen an order of removal issued in absentia where the respondent contended that his prior attorney provided ineffective assistance of counsel by failing to inform him that his motion to change venue was denied or that he had to appear at his scheduled hearing; by failing to appear at the hearing herself or make alternative arrangements for representation; and by filing an untimely appeal with the Board and an untimely motion to reopen with the Immigration Judge. The decision was written by Member Neil Miller.
In this unpublished decision, the Board of Immigration Appeals (BIA) reversed the denial of a motion to reopen an order of removal issued in absentia where the respondent contended that his prior attorney provided ineffective assistance of counsel by failing to inform him that his motion to change venue was denied or that he had to appear at his scheduled hearing; by failing to appear at the hearing herself or make alternative arrangements for representation; and by filing an untimely appeal with the Board and an untimely motion to reopen with the Immigration Judge. The decision was written by Member Neil Miller.

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Published by: Immigrant & Refugee Appellate Center, LLC on Sep 30, 2013
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10/12/2013

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U.S.

Department of Justice Executive Office

for Immigration Review

Board ofImmigration Appeals Office ofthe Clerk
5107 Leesburg Pike. Suite 2000 Falls Church, Virginia 22041

Eva Kozlowska, Esquire The Law Offices of Eva Kozlowska, PLLC 233 Broadway 23rd Fl. Ste. 2348 New York, NY 10279

OHS/ICE Office of Chief Counsel - ORL 3535 Lawton Road, Suite 100 Orlando, FL 32803

Immigrant & Refugee Appellate Center | www.irac.net

Name: PICADO, ANDREI JOSE

A 200-440-226

Date of this notice: 9/25/2013

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

DonJtL ct1AAJ
Donna Carr Chief Clerk

Enclosure Panel Members: Miller, Neil P.

lucasd Usertea m: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: Andrei Jose Picado, A200 440 226 (BIA Sept. 25, 2013)

,,

(

U.S. Department of Justice
Executive Office for Immigration Review Falls Church, Virginia 22041 Decision of the Board of Immigration Appeals

File:

A200 440 226 - Orlando, FL

Date:

SEF' 2 5 2013

In re: ANDREI JOSE PICADO IN REMOVAL PROCEEDINGS MOTION ON BEHALF OF RESPONDENT: APPLICATION: Reopening The respondent was ordered removed in absentia by an hnmigration Judge on May 26, 2011. His first motion to reopen that order was denied by an hnmigration Judge on October 13, 2011, and on January 26, 2012, the Board found that the appeal of that decision was untimely filed. The· respondent then filed a second motion to reopen which was also denied by an hnmigration Judge, and the Board dismissed the appeal of that decision on March 29, 2013. On June 25, 2013, the respondent submitted the instant motion to reopen. The Department of Homeland Security has not responded to the motion. The record will be remanded.
An alien who seeks to reopen removal proceedings following the entry of an in absentia

Immigrant & Refugee Appellate Center | www.irac.net

Eva Kozlowska, Esquire

removal order must demonstrate that the alien's failure to appear was due to "exceptional circumstances." Section 240(b)(5)(C)(i) of the hnmigration and Nationality Act, 8 U.S.C. § 1229a(b)(5)(C)(i). Ineffective assistance of counsel may be an exceptional circumstance only if the alien shows prejudice. Dakane
v.

U.S. Att'y Gen., 399 F.3d 1269, 1274 (11th Cir.2005). A

claim of ineffective assistance of counsel may amount to exceptional circumstances "when an applicant's f ailure to appear is due to his attorney's errant instruction." Montano Cisneros v. U.S. Att'y Gen., 514 F.3d 1224, 1226 (11th Cir. 2008) (concluding the respondent showed prejudice as his attorney told him he did not need to appear at hearing and that venue had been changed);

see also Matter of Grijalva, 21 I&N Dec. 472, 473-74 (BIA 1996) (a respondent showed
prejudice where he was incorrectly informed by his attorney's staff that there had been a continuance and he did not need to appear at the hearing). The respondent contends that former counsel, Ms. Goldenberg, provided ineffective

assistance by not telling him that his motion to change venue was denied or that he had to appear at his scheduled hearing, and as counsel did not appear at the hearing herself , or make alternative arrangements for his representation. The respondent further notes that counsel filed a facially defective motion to change venue, an untimely appeal before the Board, and an untimely motion to reopen before the Immigration Judge. While the record reflects that the noted submissions were filed pro se, Ms. Goldenberg has not responded to the allegations that she, in fact, was responsible for filing them. The respondent has submitted evidence reflecting compliance with the procedural

requirements in Matter ofLozada, 19 I&N Dec. 637 (BIA 1988) (Motion, Tabs C, I, J). Daka.ne

v. U.S. Att'y Gen., 399 F.3d 1269 (11th Cir. 2005). Moreover, as counsel's errors prevented him from presenting his case, she caused him prejudicial harm.. In light of this record, we find it
Cite as: Andrei Jose Picado, A200 440 226 (BIA Sept. 25, 2013)

'

,

A200 440 226

appropriate to grant the respondent's motion to reopen, vacate the prior decisions, and remand the record for further proceedings. Accordingly, the following orders shall be issued. ORDER: The motion is granted.

FURTHER ORDER: The Board's decisions dated January 26, 2012, and March 29, 2013, and the Immigration Judge's decisions dated May 26, 2011, November 14, 2011, and March 29, 2012, are hereby vacated.

Immigrant & Refugee Appellate Center | www.irac.net

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

2

Cite as: Andrei Jose Picado, A200 440 226 (BIA Sept. 25, 2013)

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