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Fernando Reyes Chavez, A205 911 040 (BIA Feb. 25, 2014)

Fernando Reyes Chavez, A205 911 040 (BIA Feb. 25, 2014)

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In this unpublished decision, the Board of Immigration Appeals (BIA) granted the respondent’s motion to reopen in light of the totality of the circumstances, including the lack of a response from the DHS, claims of ineffective assistance of counsel, and the respondent’s potential eligibility for relief from removal. The decision was written by Member Elise Manuel and joined by Member John Guendelsberger and Member Sharon Hoffman.

Looking for IRAC’s Index of Unpublished BIA Decisions? Visit www.irac.net/unpublished/index
In this unpublished decision, the Board of Immigration Appeals (BIA) granted the respondent’s motion to reopen in light of the totality of the circumstances, including the lack of a response from the DHS, claims of ineffective assistance of counsel, and the respondent’s potential eligibility for relief from removal. The decision was written by Member Elise Manuel and joined by Member John Guendelsberger and Member Sharon Hoffman.

Looking for IRAC’s Index of Unpublished BIA Decisions? Visit www.irac.net/unpublished/index

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Published by: Immigrant & Refugee Appellate Center, LLC on Mar 06, 2014
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05/02/2014

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Autrey, Lara

3601 Navigation Blvd.
Houston, TX 77003
. .
U.S. Department of Justice
Executive Ofce fr Imigration Review
Board of Immigration Appeals
Ofce of the Clerk
510 7 Leeburg Pike. Suite 2000
Falls Church, Vrginia 20530
OHS/ICE Ofice of Chief Counsel - HOU
126 Norhpoint Drive, Suite 2020
Houston, TX 77060
Name: REYES CHAVEZ, FERNANDO A 205-911-040
Date of this notice: 2/25/2014
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosure
Panel Members:
Guendelsberger, John
Hofman, Sharon
Manuel, Elise
Sincerely,
Do  Ct 
Donna Carr
Chief Clerk
williame
Userteam: Docket
For more unpublished BIA decisions, visit www.irac.net/unpublished
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Cite as: Fernando Reyes Chavez, A205 911 040 (BIA Feb. 25, 2014)
REYES CHAVEZ, FERNANDO
A205-911-040
CCA
15850 EXPORT PLAZA DRIVE
HOUSTON, TX 77032
U.S. Department of Justice
Executive Ofce fr Immigration Review
Board of Immigation Appeals
Ofce of the Clerk
5107 Leeburg Pike, Suite 2000
Fall Church, Vrginia 20530
OHS/ICE Ofice of Chief Counsel • HOU
126 Norhpoint Drive, Suite 2020
Houston, TX 77060
Name: REYES CHAVEZ, FERNANDO A 205-911-040
Date of this notice: 2/25/2014
Enclosed is a copy of the Board's decision in the above-refrenced case. This copy is being
provided to you as a courtesy. Your attorey or representative has been served with this
decision pursuant to 8 C.F.R. § 1292.S(a). If the attached decision orders that you be
removed fom the United States or afrms an Immigration Judge's decision ordering that you
be removed, any petition fr review of the attached decision must be fled with and received
by the approprate court of appeals within 30 days of the date of the decision.
Enclosure
Panel Members:
Guendelsberger, John
Hofman, Sharon
Manuel, Elise
Sincerely,
Do c t
Donna Carr
Chief Clerk
williame
Userteam: Docket
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Cite as: Fernando Reyes Chavez, A205 911 040 (BIA Feb. 25, 2014)
U.S. Department of Justice
Executive Ofce fr Imigation Review
Fa Church, Virginia 20530
File: A205 911 040 - Houston, TX
Decision of te Board of I  igration Appeals
Date: FEB 2 5 2014
In re: FERNANDO REYES CHAVEZ a.k.a. Feando Chavez Reyes a.k.a. Feando Reyes
I REMOVAL PROCEEDINGS
APPEAL
ON BEHALF OF RESPONDENT: Lara Autey, Esquire
APPLICATION: Repening
Te respondent, a native ad citzen of Mexico, appeals te decision of the Imigation
Judge, dated Octobe 30, 2013, denying his motion to reopen.
Considerng the totality of te circumstances, including te lack of a response fom the
Deaent of Homelad Securit, the respondent's claims of improprieties during the coue of
his reoval proceedings ad inefective assistanc of counsel, and te potential to be gated
relief fom reoval, we conclude that tese removal prceedings should be reopened. See
section 240(c)(7)(C) of the Immigation ad Nationality Act, 8 U.S.C. § 122a(c)(7)(C). Wile
the respondent does not dispute tat he is subject to remova fom te United States because he is
an alie who is present in ts country without being admited or paroled by a immigration
ofcer or who a ved at any time or place other tha as desigated by the Attorey Geera, we
conclude tat, upon remad, te respondent should be provided with a additional opporty to
establish that he warats relief fom removal. See section 240(c)(4)(A) of te Act, 8 U.S.C.
§ 1229a(c)(4)(A). Accordingly, the fllowing order is enteed.
ORDER: Te respondent's appeal is sustained, the Immigration Judge's decision denyig
his motion to reopen is revese, these removal proceeings ae reopened, ad the recrd is
remaded to the Imigation Cou fr frher proceeings consistent with the fregoing opinion
ad fr te enty of a new decsion.
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Cite as: Fernando Reyes Chavez, A205 911 040 (BIA Feb. 25, 2014)
�·i��·
¥´ 
AUTREY, LARA
3601 NAVIGATION
HOUSTON, TX 77075
IN THE MATTER OF
REYES CHAVZ, FERNADO
UITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
5520 GREENS ROAD
HOUSTON, TX 77032
FILE A 205-911-040 DATE: Oct 30, 2013
� ABLE TO FORWARD - NO ADRESS PROVIDED
  ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE. THIS DECISION
IS FINAL ULESS A APPEAL rs FILED WITH THE BOARD OF IMMIGRATION APPEALS
WITHIN 30 CALENDAR DAYS OF THE DATE OF THE MAILING OF THIS WRITTEN DECISION.
SEE THE ENCLOSED FORMS A INSTRUCTIONS FOR PROPERLY PREPARING YOUR APPEAL.
YOUR NOTICE OF APPEAL, ATTACHED DOCUMENTS, AD FEE OR FEE WAIVER REQUEST
MUST BE MILED TO: BOARD OF IMMIGRATION APPEALS
OFFICE OF THE CLERK
5107 Leesburg Pike, Suite 2000
FALLS CHU�CH, VA 20530
ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE AS THE RESULT
OF YOUR FAILURE TO APPEA AT YOU SCHEDULED DEPORTATION OR REMOVAL HEARING.
THIS DECISION IS FINAL UNLESS A MOTION TO REOPEN IS FILED IN ACCORDACE
WITH SECTION 242B(c) (3) OF THE IMMIGRATION AD NATIONALITY ACT, 8 U.S.C.
SECTION 1252B(c) (3) IN DEPORTATION PROCEEDINGS OR SECTION 240(c) (6),
8 U .. S.C. SECTION 1229a(c) (6) IN REMOVA PROCEEDINGS. IF YOU FILE A MOTION
TO REOPEN, YOUR MOTION MUST BE FILED WITH THIS COURT:
OTHER:
IMMIGRTION COURT
5520 GREENS ROAD
HOUSTON, TX 77032
CC: CHLOTTE LAG, A.D.C.
126 NORTHPOINT DR., ROOM 2020
HOUSTON, TX, 770600000
FF
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UITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
HOUSTON, TEXAS
I THE MA TIER OF:
)
)
FERNANDO RYES CHAVEZ,
)
)
RSPONDENT
)
FILE NO. A205-91 I-040
ORDER DENYING RESPONDENT'S MOTION TO ROPEN
Came on fr consideration the Respondents Motion to Reopen fled on October 24, 2013.
The Cour, afer considering te Motiong  enters this order DENYIG the motion.
Respondent contends that he hired a attorey to represent him at a heaing at te Houston
Detention Center on August 27, 2013 ad that [the] atorey did not appear as expected." The
motion states that "Therefre, Mr. Reyes's rights to apply fr relief were not flly explained to him
and he did not have the proper opporunity to apply fr relief at an earlier stage in the proceeding- "
Respondent now claims to be eligible fr cancellation of removal fr a non-permanent resident
(42B) and pursuant to a 1-130 fled by his wif "since August 27, 2013."
1
The Cour rejects Respondents agument that the filue of the attorney to appea means that
Respondents rights were not explained to him and that he did not have a proper opporunity to apply
fr relief. The Cou explained to Respondent in a group setting his legal rights, including
infrmation about both cancellation of removal and adjustment of status as frms of relief. The
Cour then separately asked Respondent whether he understood the advisals provided by the Cou,
1 Te Court notes that the 1-130 itself was not signed by the Petitioner until October 18,
2013, so to the extent Respondent is claiming to have submitted the I-130 on August 27, 2013,
this is either incorect or means the frm was submited without the required Respondent s
signature=  The Cour believes that Respondent means to use the word "afer" instead of "since."
Wª  d  W 
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and Respondent replied affnatively.
The Cour additionally notes that the filure of the attorney to appear did not compel
Respondent to accept deporation, and Respondent was aware (based on the advisals) that he could
seek a continuance in order to investigate both why his atorey filed to appear and what relief he
might have available. Respondent's decision not to tae advantage of te postponement was a
kowing and intentional choice. That said, if Respondent disagreed and thought that his atorney's
actions are misfasance which is responsible in some way fr his incorrect decision, he might have
a successfl basis fr reopening ifhe pursued a related Lozada action, see Mater of Lozada, 19 I&N
Dec. 637 (BIA), affd, Lozada v. IS, 857 F.3d IO (l5t Cir. 1988), but there is no evidence of that
being done wt regad to this Respondent.
With regard to the applications fr relief, Respondent fils to present evidence which was
unavailable at the time of the August 27, 2013 hearing. In a motion to reopen befre a immigration
judge, te applicant must show that the evidence: 1) is material; 2) was unavailable at the time of
the original hearing; and 3) could not have been discovered or presented at the original hearing. 8
C.F.R. §1003.2(c)( l ); Gebremaria v. Ashcrof, 378 F.3d 734, 737-39 (8th Cir.2004)(BIA correctly
denied motion to reopen asylum case where applicant's HIV status was known to her at the time of
the hearing befre the Imigation Judge). The material fcts refected in the 1-130 petition and the
material fcts refected in te 42B application appear to also have existed on August 27, 2013.
Moreover, Respondent fils to show that the application and petition could not have been presented
at the August 27, 2013 hearing.
Having filed to provide a valid basis fr granting his Motion to Reopen, it is ORDERD
that Respondent's Motion to Reopen is DENIED.
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.
cc: all paies
Imigration Judge
Chis A. Brisack
Date: October 29, 2013
-3-
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