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Angela Reyes Rodriguez de Jesus, A087 321 551 (BIA Mar. 20, 2014)

Angela Reyes Rodriguez de Jesus, A087 321 551 (BIA Mar. 20, 2014)

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In this unpublished decision, the Board of Immigration Appeals (BIA) remanded the record for further consideration of the respondent's motion to reopen based upon ineffective assistance of counsel. The Immigration Judge had faulted the respondent for filing a complaint against her former attorney with the Supreme Court of the Virgin Islands rather than the Virgin Islands Bar Association, but the Board stated that the requirements of Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), “need not be rigidly enforced where their purpose is fully served by other means.” The decision was written by Member Elise Manuel.

Looking for IRAC’s Index of Unpublished BIA Decisions? Visit www.irac.net/unpublished/index
In this unpublished decision, the Board of Immigration Appeals (BIA) remanded the record for further consideration of the respondent's motion to reopen based upon ineffective assistance of counsel. The Immigration Judge had faulted the respondent for filing a complaint against her former attorney with the Supreme Court of the Virgin Islands rather than the Virgin Islands Bar Association, but the Board stated that the requirements of Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), “need not be rigidly enforced where their purpose is fully served by other means.” The decision was written by Member Elise Manuel.

Looking for IRAC’s Index of Unpublished BIA Decisions? Visit www.irac.net/unpublished/index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 27, 2014
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Gonzalez-Rucci, Rosaura

Lie Rosaura Gonzalez-Rucci
P.O. Box 6363
San Juan, PR 00914
U.S. Department of Justice
Executive Offce fr Imigration Review
Board of Immigation Appeals
Ofce of the Clerk
5107 Leesburg Pik, Suite 2000
Fals Church, Vrginia 20530
OHS/ICE Ofice of Chief Counsel - SAJ
7 Tabonuco St., Suite 300 (Rm 313)
Guaynabo, PR 00968
Name: RODRIGUEZ DE JESUS, ANGEL ... A 087-3
2
1-551
Date of this notice: 3/2
0/2
01
4
Enclosed is a copy of the Board's decision and order in the above-referenced case.
Enclosure
Panel Members:
Manuel, Elise
W W¾
Sincerely,
DO Ct 
Donna Carr
Chief Clerk
yungc
Usertea m: Docket
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For more unpublished BIA decisions, visit www.irac.net/unpublished
Cite as: Angela Reyes Rodriguez de Jesus, A087 321 551 (BIA Mar. 20, 2014)
U.S. Deparent of Justice Decision of te Boad of I igration Appeals
· Executive Ofc fr Imigration Revew
Falls Church, Virgina 20530
File: A087 321 551 - St. Toma, VI
In re: ANGELA REYES RODRIGUEZ DE JESUS
IN REMOVAL PROCEEDIGS
APPEAL
Date:
ON BEHALF OF RESPONDENT: Rosaura Gonzalez Rucci, Esquire
ON BEHALF OF DHS: Jose Rvea
Assistt Chef Counsel
APPLICATION: Reconsideration
MAR 2 0 2014
Te resondet, a native of te Dominica Republic ad a citize of te Neterlads
Atilles, appeas te decision of the I igaton Judge, mailed Juy 20, 2012, denying her
motion to reonsider. The Deaet of Homeland Security is oppose to te respondet's
appea. Te record will readed.
On Mach 7, 2012, te respondent appeared befre the Immigation Judge ad was gated
the privilege of volutaly depaing te United States on or befre July 5, · 201 2. See
section 240B of the Immigation ad Nationaity Act, 8 U.S.C. § 1229c. On April 9, 2012, te
respondent fled a timely motion to reopen claiming inefective assistace of counsel with regad
to the processing of a immigat visa petition her husbad had fled on her behalf.
1
Te
Immigation Judge denie te motion to reopen in a decision maled on April 24, 2012. On
May 22, 2012, the respondent moved fr reconsideration. The Imigaton Judge's decision to
deny te respondent's motion to reconsider is te subject of te present appea.
A motion to reconside is a alien's opportunity to specif the erors of law or fc i the
previous order ad not a oppority to present new evidece, nor a opportunity to reiterate or
expand upon aguments that have been previously raised and considered. See Matter of 0-S-G-,
24 I&N Dec. 56 (I 2006); Matter of Cer, 20 I&N Dec. 399 (I 1991). Wle te Act,
vis-a-vis a motion to reopen, allows a alien who is subject to a order of remova to preet new
evidence, te respondent used her single opportuit to present new evidece when she fled her
inital motion to reope on April 9, 2012. See section 240(c)(7)(A) of te Act, 8 U.S.C.
§ 1229a(c)(7)(A). A such, to te extent tat the respondent atache evidence to her motion to
reconsider ad has presented evidence to tis Boad on appea, we conclude tat te presentaton
of said evidece subsequent to te fling of te respondent's motion to reopen is number-bar ed.
See Matter of Oparah, 23 I&N Dec. 1 (BIA 2000).
1 By fling he motion to repe within te volunta depare peiod, te gat of volutay
deare terminated automatically ad te Imigation Judge's aterate order of reoval to te
Netelands Antilles or te Dominican Reublic took efect immediately. See 8 C.F.R.
§§ 1240.26(b)(l)(iii}, (e)(
l
).
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Cite as: Angela Reyes Rodriguez de Jesus, A087 321 551 (BIA Mar. 20, 2014)
. ..
A087 321 551
'
While te presentaton of additional evidence is number-bared, we conclude that it is
appropriate to read te record to te Imigation Judge in order to fher consider the merts
of the respondet's motion to reconsider. In denying te respondent's motion to reconsider, the
Imigation Judge fund no legal or fctal eror in her prior conclusion tat te respondent had
not complied wit te evidetiay stadads set frt in Matter of Lozada, 19 I&N Dec. 63 7
(BIA 1988). Under Matter of Lozada, a motion to reopen based upon a claim of inefectve
asistance of cousel requires (1) tat te motion be supported by a afdavit of te allegedly
aggrieved respondent setting fr in detail the ageement tat was entee into with counsel wit
respect to te actions to be tae ad what representations cousel did or did not mae to the
respondent in tis regad, (2) tat counsel whose integity or competence is being impuged be
infored of te allegatons leveled against him and be gven an opportnity to respond, ad (3)
tat te moton refect whether a complant has been fled wit appropriate discplinay
autorites wit resect to ay violaton of cousel's etca or lega resonsibilities, ad if not,
why not.
Hee, in support of repeng, the respondent preented a personal afdavit, a cpy of a
cmplat lete adressed to te Supree Cou of te Virg Islads, ad, throug cunsel,
indicated that te cmplaint lete had be fled and he frer counsel had be infore of
the complant being fled. In he moton to reconside, te respondent identife evidece tat
she had previously ofeed in support of reopening and agued tat her motion to repen
substatialy cmplied wit Lozada's evidentiary requireets. Te Immigaton Judge, in
denying the respondet's motion to reconsider, fulted her fr not presentng evidece tat te
complant leter had been actually fled ad questioned whete it was proper to fle a letter wit
te Supree Cou of te Virgin Islads (a oppose Virgin Islads Bar Associaton) (I.J. at 1 ).
Te Lozada requirements ae meant to sere as a theshold ad a screening mechanism to
help Immigation Judges ad tis Boad assess the substatia nube of inefective asistance
claims that they receive, but need not be rigdly enfrced where teir purose is flly seed by
other meas. Fadiga v. US. Att ' Gen., 488 F.3d 1 42, 1 56 (3d Cir. 2007). "[O]nly in rare
circumstaces have cou refsed to reopen immigation proceedings solely because [an alien]
faled to fle a ba complant." Xu Yong Lu v. Ashcrof, 259 F.3d 1 27, 1 34 (3rd Cir. 2001 ).
However, in te preset case, the Immigation Judge appeas to have concluded tat te
respondet was require to stctly comply with Lozada in order to have her clams consideed.
As te respondet need only establish that the evidentay requirements set frt in Lozda have
been flly sered by othe means, we will remand te record fr the Immigation Judge to fher
consider te issue of wheter the respondent has sufciently complied wit the teshold
evidentiay requirements set fr in Matter of Lozada such tat te underlying merits of her
inefectve assistance of cunsel clams should be considered.
In.her decision deying te respondent's motion to reopen, te Immigation Judge aso held
that the respondent had not establishe that the result in tis case would have been diferent if te
erors had not occur e. See Fadiga v. US. Att' Gen., supra, at 1 59 (holding tat a alien
claming inefective assistance of counsel in removal prceedings must show that there wa a
"reasonable likelihood tat te result would have been diferent if the clamed eror had not
occur e"); Matter of Lozada, supra, at 638 ("One must show, moreove, that he was preudiced
by his rereentative's perforance."). However, te Imigation Judge did not address tis
pror holding in her decision to deny te respondent's motion to reconsider. We obsere tat, in
support of her claim that she was prejudiced by her frer counsel, te respondent agued in her
2
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Cite as: Angela Reyes Rodriguez de Jesus, A087 321 551 (BIA Mar. 20, 2014)
A087 321 551
motion to reconside tat her motion to reope contained approximately 70 pages of evidece
concerng te bona tdes of her marage ad said evidence was not consideed by te
Imigaton Judge in her decision deyg the motion to reope. As such, upon remad, the
Imigaton Judge should, aong oter tings, fer deterine wheter te resondet
deonstated legal or fctu eror in he prior holding tat te respondet was not prejudiced by
her frer cousel.
For the reasons set fr above, te fllowing order is entered.
ORER: The record is readed to te Immigaton Judge fr fhe consideraton of te
respondet's motion to reconsider.
2
FOR T BOARD
2
Te respondet reans subject to reova fom te United States pursuat to te Imgation
Judge's aterate order of removal, etered on Mach 7, 2012, to the Neerands Atilles or te
Domica Reublic.
3
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Cite as: Angela Reyes Rodriguez de Jesus, A087 321 551 (BIA Mar. 20, 2014)
I
� �
UNITED STATES DEPARTMENT OF .!UST/CE
US. Immig,.ation Court
San Patricio Ofce Building #7 Tabonuco St Room #01
Guaynabo, PR 00968-4605
DOCKET: ST THOMAS, USVI
JN THE MATTER OF:
REYES-RODRIGUEZ DE JESUS, ANGELA
RESPONDENT/APPLICANT
JN REMOVAL PROCEEDINGS
ROSAUR GONZALEZ-RUCCI, ESQ.
ALIEN ATTORNEY
CASE NO. A 087-321-551
DECISION ON A MOTION TO RECONSIDER
VIVIAN REYES, ESQ.
CHIEF COUNSEL
On March 7, 2012, the respondent was granted voluntary departure. On April 9, 2012,
the respondent, through new counsel, fe a motion to reopen, claiming inefective assistace of
counsel. On April 23, 2012, the Cour denied the respondent's motion to reopen fr filure to
comply with Lozada procedure. See Matter of Lozada, 19 l&N Dec. 63 7 (BIA 1988).
Specifcally, the respondent did not submit any evidence that the attorey against whom she
alleged inefective assistance had been infred of such allegations and given an opportunity
respond, or that a complaint had been fled with the appropriate disciplinary authorities.
O May 22, 2012, the respondent timely fled a motion to reconsider.
A motion to reconsider shall state the reasons fr the motion by specifing the erors of
fct or law in the cout's prior decision ad shall be suppored by pertinent authority. 8 C.F.R. §
1003.23(b )(2). I is a request that the Court reexamine its decision in ligt of additiona legal
agents, a change oflaw, or an aspect of the case which was overlooked. In re 0-S-G, 24
I&N Dec. 56, 57 (BIA 2006) and cases cited therein.
I the respondent's motion to reconsider, she now submits evidence that she fled a
fral disciplinay complaint against frer counsel. Tat evidence consists of a letter dated
April 18, 2012 fom the US Virgin Islands Bar Association confring the respondent's
gevace. The respondent's attempt to use a motion to reconsider to include evidence that could
have been included wit her motion to reopen, and that could perhaps
1
have brougt her motion
in compliace with Lozada, is unavailing. A motion to reconsider contests the corectness of the
original decision based on the "previous fctual record." Id. The previous fctual record in this
case did not include any evidence that a complaint had been fled; it contained only a complaint
letter, ·dated April 3, 2012, signed by te respondent and directed to the Virgn Islads Supreme
Cour (with no mailing address), with no evidence that such letter had been maled. Moreover,
even had that letter been mailed, it seems unlikely that the Virgin Islands Supreme Court was the
appropriate disciplinary authority, as the Aprl 18, 2012 confration letter cre fom the Virgn
Islads Ba Association, not te Supreme Court. In essence, the respondent improperly attempts
In the respondent's motion to reopen, the respondent also filed to show evidence that prior counsel had been
alerted of the allegations and given a opportnity to respond.
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to use ·te instant motion to reconsider to supplement the prior fctual record, with evidence such
as the complaint letter and afdavits attesting to the bona tdes of her mariage, when this
purose is not one fr which a motion to reconsider may be used. The party fling a motion to
reconsider must specify the fctual and legal issues that were decided in eror or overlooked in
the initial decision. Id. at 58. Quite simply, there was no legal error in denying the respondent's
motion to reopen when such was procedurally defcient. Cf Matter of Medrano, 20 l&N Dec.
2 I 6, 2 I 9 (BIA 1990, I 991) ("Arguments fr consideration on appeal should all be submitted at
one time, rather than in piecemeal fshion.'')
Finally, the respondent is reminded that she was ganted until July 5, 2012 to depart, ad
that the fling of a motion to reopen or reconsider prior to the expiration of the period allowed fr
voluntary departure has the efect of automatically tenninating the grant of voluntary depaure,
and accordingly does not toll, stay, or extend the period allowed fr voluntary departure. 8
C.F.R. § 1240.26(e)(l).
In light of the fregoing analysis, the fllowing order shall be entered:
IT IS ORDERED that Respondent's motion to reconsider is hereby DENIED.
CHIEF COUNSEL
COUNSEL FOR RESPONDENT/APPLICANT
RPONDENT/APPLICNT
CERTIFICATE OF SERJCE
2
1
Immigrati n Judge
Date signed
:
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