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Hiliario Cisneros-Sanchez, A079 791 113 (BIA Nov. 13, 2013)

Hiliario Cisneros-Sanchez, A079 791 113 (BIA Nov. 13, 2013)

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In this unpublished decision, the Board of Immigration Appeals (BIA) remanded the record where the respondent’s attorney admitted to having failed to file an adjustment application by the court-imposed deadline, making ineffective assistance of counsel plain on the face of the record. The decision was written by Member Edward Grant and joined by Vice Chairman Charles Adkins-Blanch and Member John Guendelsberger.
In this unpublished decision, the Board of Immigration Appeals (BIA) remanded the record where the respondent’s attorney admitted to having failed to file an adjustment application by the court-imposed deadline, making ineffective assistance of counsel plain on the face of the record. The decision was written by Member Edward Grant and joined by Vice Chairman Charles Adkins-Blanch and Member John Guendelsberger.

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Published by: Immigrant & Refugee Appellate Center, LLC on Nov 21, 2013
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Williams, David W.

, Esq
Law Offices of David W. Williams
1702 N. Main Street., Suite 201
Santa Ana, CA 92706-0000
U.S. Department of Justice
Executive Ofce fr Immigration Review
Board of Immigration Appeals
Of fice of the Clerk
Jl0¯Leesburg Pike. Suite J000
Fals Ch11rch. Vrginia J0JJ0
OHS/ICE Ofice of Chief Counsel - SND
880 Front St., Room 1234
San Diego, CA 92101-8834
Name: CISNEROS-SANCHEZ, HILIARIO A 079-791-113
Date of this notice: 11 /13/2013
Enclosed is a copy of the Board's decision and order in the above-referenced case.
Enclosure
Panel Members:
Adkins-Blanch, Charles K.
Grant, Edward R.
Guendelsberger, John
Sincerely,
Do c t
Donna Carr
Chief Clerk
Userteam: Docket
For more unpublished BIA decisions, visit www.irac.net/unpublished
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Cite as: Hiliario Cisneros-Sanchez, A079 791 113 (BIA Nov. 13, 2013)
U.S. Department of Justice
Exe�utive Ofce fr Immigation Review
Decision of te Boad of Immigation Appeals
Falls Church, Virginia 22041 .
File: A079 791 113 - San Diego, CA
I re: HILIARIO CISNEROS-SANCHEZ
IN REMOVAL PROCEEDIGS
APPEAL
Date:
ON BEHALF OF RESPONDENT: David W. Williams, Esquire
ON BEHALF OF DHS: Ted Y. Yamada
Deputy Chief Counsel
APPLICATION: Adjustent of stats
NOY 13 2013
The respondent appeals fom the Immigration Judge's July 18, 2012, decision denying
the respondent's motion to reopen. The Deparment of Homelad Secuit (DHS) opposes the
appeal. The appeal will be sustained, ad the record will be remanded.
The respondent faled to timely fle applications fr relief by May 2, 2012, the deadline
set by the Immigation Judge on October 19, 2011. In a decision dated May 9, 2012, te
Immigration Judge deemed the applications abadoned ad granted volutary depae to te
respondent. On June 8, 2012, te respondent fled a motion to reopen, which included a swor
statement fom te respondent's counsel, David Willias. In tat statement, M. Willias
avered that his employer retired fom practice in Febrary 2012, resulting in M. Williams
taing over the employer's caseload. Mr. Williams then admitted that due to administative
chages, he failed to properly calenda the May 2, 2012, fling deadline. By order dated July 18,
2012, the Imigration Judge denied the motion, fnding that te respondent had filed to comply
with Mater of Lozada, 19 I&N Dec. 63 7 (BIA 1988).
The U.S. Court of Appeals fr the Ninth Circuit, in whose jurisdiction this case lies, has
held that stict compliance with Matter of Lozada, supra, is not required when the inefectiveness
of counsel wa plain on its fce. Tamang V. Holder, 598 F.3d 1083, 1090 (9
t
Cir. 2010);
Castillo-Perez V· INS, 212 F.3d 518, 526 (9th Cir. 2000) (inefectiveness was plain on its fce
where petitioner's frer counsel misrepresented to petitioner that his application had been fled
and petitioner later fled a declaration complying with Lozada); Lo V. Ashcroft, 341 F.3d 934,
938 (9th Cir. 2003) (inefectiveness was plain on its fce where frer counsel mis-calendaed
the removal hearing, petitioner failed to appea at te hearng, and declaations were fled that
complied with the frst two prongs of Lozada); Rojas-Garcia V. Ashcrof, 339 F.3d 814, 824-25
(9t Cir. 2003) (inefectiveness was plain on its face where frmer counsel frgot to fle the brief
because he was tansitioning to a new job and talng over a frmer colleague's caseload, and
declarations were fled satisfing te frst prong of Lozada ).
Here, M. Willias has admited tat the failue to tmely fle the applications was due to
his eror, not the respondent's. Consequently, we fnd that inefectiveness of counsel is plain on
the fce of the record. See Lin V. Ashcrof, 377 F.3d 1014, 1027 (9th Cir. 2004) (holding that the
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Cite as: Hiliario Cisneros-Sanchez, A079 791 113 (BIA Nov. 13, 2013)
A079 791 113
court "must consider the underlying merits of the case to come to a tentative conclusion Û to
whether [a petitioner's] claim, if properly presented, would be viable," notwithstading the
alleged inefective assistance of counsel).
ORDER: The appeal is sustained.
FURTHER ORDER: The I  igration Judge's decisions of July 18, 2012, ad May 9,
2012, are vacated and the proceedings ae reopened.
FURTHER ORDER: The record is remanded to the Imigration Judge fr fher
proceedings consistent wit the fregoing opion ad fr the entry of a new decision.
2
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Cite as: Hiliario Cisneros-Sanchez, A079 791 113 (BIA Nov. 13, 2013)
< '
u
UITED STATES DEPARTENT OF JUSTICE
EXECUTIV OFFICE FOR IMMIGRTION REVIEW
IMMIGRTION COURT
401 WEST A STREET, SUITE #800
SA DIEGO, CA 92101
LAW OFFICE OF JAES G. ROCHE
WILLIAS, DAVID, ESQ.
1702 N. MAIN ST., STE #201
SATA AA, CA 92706
Date: Jul 19, 2012
File A079-791-113
In the Matter of:
CISNEROS-SACHEZ, HILIAIO
_  Attached is a copy of the written decision of the Immigration Judge.
This decision is final unless an appeal is taken to the Board of
Immigration Appeals. The enclosed copies of FORM EOIR 26,
Notice of Appeal, and FORM EOIR 27, Notice of Entry as AttorneY or
Representative, properly executed, must be filed with the Board of
Immigration Appeals on or before
The appeal must be accompanied by proof of paid fee {$110.00).
Enclosed is a copy of the oral decision.
Enclosed is a transcript of the testimony of record.
You are granted until to submit a brief
to this office in support of your appeal.
Opposing counsel is granted until
brief in opposition to the appeal.
to submit a
Enclosed is a copy of the order/decision of the Immigration Judge.
All papers filed with the Court shall be accompanied by proof
of service upon opposing counsel.
Immi ration Court Clerk
cc: YAA, TED, DEPUTY CHIEF COUSEL
880 FRONT STREET, ROOM #2246
SA DIEGO, CA 921018834
Î
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U ITED ST ATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
SAN DIEGO, CALIFORNIA
In the Matter of: A079 791 113 Hilario Cisneros-Sanchez
ORDER
Upon consideration of DHS's MOTION FOR 30-DA Y EXTENSION TO FILE
RESPONSE TO �P9 DENT'S MOTION TO REOPEN", it is HEREBY ORDERED
that the motion be  �NTED D DENIED because:
D DHS does not oppose the motion.
D Respondent does not oppose the motion.
W response to the motion has not been fled with the court.
Bood cause has been established fr the motion.
D The court agrees with the reasons stated in the opposition to the motion.
D The motion is untimely  
0 Other:
Deadlines:
D The applications(s) fr relief must be fled by
0 The respondent must comply with DHS biometrics b
r-1 F ¯ z , ^
Date
I
Certifcate of Serice
f DHS
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lNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRTION COURT
401 West A Street, Suite 800
San Diego, Califrnia 92101
File No.: 079-791-113
)
Date: July 18, 2012
)
I te Mater of
Hillario Cisneros Sanchez,
Respondent
ON BEHALF OF RSPONDENT:
David W. Willias, Esquire
APPLICATION: Motion to Reopen.
)
) IN RMOVAL PROCEEDINGS
)
)
)
ON BEHALF OF DEPARTMENT OF
HOMELAND SECURITY:
Ted Y. Yamada, Esquire
DECISION AND ORER OF THE IMMIGRATION JUDGE
The Cour agees with the opposition fled by the Government. The respondent has not properly
·
fled a claim of inefective assistance of counsel pursuant to Matter of Lozada, 19 I&N Dec. 637
(BIA 1988), and has not shown that he is exempt fom doing so.
As respondents are ofen reminded in Court, when it comes to appeal, tey have only 30 days to fle
with the Board of Immigration Appeals, ad if tey ae even one day late, the Board may simply
dismiss teir appeal as not having been timely fled. The appeal may be dismissed as untimely
without any prior communication fom the Board to te respondent. In contast, here at the Master
Calendar heaing held on October 19, 2011, the respondent was personally infred by te Court,
bot orally ad in writing, of the deadlines fr fling and the consequences of failing to properly ad
timely fle. See "Record of Master Calendar Pre-Trial Appearance and Order" frm fr October 19,
2011, (signed by bot the respondent and the respondent's counsel
)
.1 Moreover, the Cour gave the
respondent more tha six months to meet the fling deadline. Id. The respondent has failed to show
that he is not personally responsible fr the filure to meet the fling requirements in this case. 8
C.F.R. § 1003.3 l(c); see also "Decision and Order of the Immigration Judge," dated May 9, 2012.
A transcript of te proceedings is available upon order of te Boad of Immigration
Appeals. Alteratively, review of the Digital Audio Record of the proceedings is available to the
Boad of Immigation Appeals and to the parties by appointment with the Cou.
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ORDERS
ORDER: The motion to reopen is denied.
FURTHER ORDER: APPEAL RGHTS: Both parties have the rigt to appeal te
decision. Any appeal must be received by the Board of Immigration Appeals on or befre 30
calendar days fom the date of serice of this decision.
cc: M. Willias fr the Respondent.
M. Yamada fr te DHS.
079-791-113 2 July 18, 2012
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