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Juan Martinez-Alvarez, A200 759 323 (BIA May 29, 2014)

Juan Martinez-Alvarez, A200 759 323 (BIA May 29, 2014)

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In this unpublished decision, the Board of Immigration Appeals (BIA) held that reopening sua sponte was warranted to permit the respondent to have his application for adjustment of status heard on the merits. The Board noted that the law firm the respondent retained neglected to file a motion to substitute counsel after the attorney handling the respondent’s case left the firm, and that the firm did not advise the respondent of the court-imposed deadline to submit his adjustment application. The decision was written by Member John Guendelsberger and joined by Vice-Chairman Charles Adkins-Blanch and Member Elise Manuel.
In this unpublished decision, the Board of Immigration Appeals (BIA) held that reopening sua sponte was warranted to permit the respondent to have his application for adjustment of status heard on the merits. The Board noted that the law firm the respondent retained neglected to file a motion to substitute counsel after the attorney handling the respondent’s case left the firm, and that the firm did not advise the respondent of the court-imposed deadline to submit his adjustment application. The decision was written by Member John Guendelsberger and joined by Vice-Chairman Charles Adkins-Blanch and Member Elise Manuel.

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Published by: Immigrant & Refugee Appellate Center, LLC on Jul 10, 2014
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Cruz, Frances M.

, Esquire
Colindres & Cruz, Atts at Law
2508 Thomas Avenue, #227
Dallas, TX 75201
Name: MARTINEZ ALVAREZ, JUAN
U.S. Department of Justice
Executive Ofce fr Imigration Review
Board of Immigration Appeals
Ofce of the Clerk
5107 Leeburg Pike, Suite 2000
Fall Church. Vrginia 20530
OHS/ICE Ofice of Chief Counsel - DAL
125 E. John Carpenter Fwy, Ste. 500
Irving, TX 75062-2324
A 200-759-323
Date of this notice: 5/29/2014
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosure
Panel Members:
Guendelsberger, John
Adkins-Blanch, Charles K.
Manuel, Elise
Sincerely,
DO c t
Donna Car
Chief Clerk
Trane
Userteam: Docket
For more unpublished BIA decisions, visit www.irac.net/unpublished
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Cite as: Juan Martinez-Alvarez, A200 759 323 (BIA May 29, 2014)
U.S. Department of Justice
Executive Ofce fr Immigration Review
Decision of the Board of Immigration Appeals
Falls Church, Virginia 20530
File: A200 759 323 - Dallas, T
In re: JUAN MARTINEZ-ALVAREZ
IN REMOVAL PROCEEDINGS
APPEAL
Date:
ON BEHALF OF RESPONDENT: Fraces M. Crz, Esquire
APPLICATION: Reopening
MAY 2 9 2014
The respondent, a native and citizen of Mexico, appeals fom the Immigration Judge's
June 28, 2012, decision denying his motion to reopen proceedings. The Depaent of
Homeland Security (DHS) has not fled an appeal brief. The appeal will be sustained, and the
record will be remanded fr frther proceedings.
We review the fndings of fct, including determinations of credibility, made by the
Immigration Judge under te "clearly eroneous" standard. 8 C.F.R. § 1003.l(d)(3)(i). We
review all other issues, including whether or not the parties have met the relevant burden of
proof, and issues of discretion, under a de novo standard. 8 C.F .R. § 1003 .1 ( d)(3 )(ii).
On February 6, 2012, the Immigration Judge denied as abandoned the respondent's
application fr adjustment of status because the application was not fed by the court-imposed
deadline of February 1, 2012. By separate order, also dated February 6, 2012, te Immigration
Judge denied a motion to withdraw as counsel and a request fr add
i
tional time to fle
applications, which was fled on February 3, 2012. On April 20, 2012, the respondent fled a
motion to reopen sua sponte pursuant to 8 C.F.R. § 1003.23, which the Immigration Judge
denied on May 14, 2012, fr filure to pay the fling fe fr motions. A subsequent motion to
reopen was fled on June 20, 2012, which the Immigration Judge denied on June 28, 2012,
concluding that the motion was untimely and number-bared, and deterining that there was an
insufcient basis fr sua sponte reopening. Te respondent argues on appeal that the
Immigation Judge erred in denying his request fr sua sponte reopening.
"A Immigration Judge may upon his or her motion at any time . . . reopen or reconsider
any case in which he or she has made a decision. See 8 C.F.R. § 1003.23(b). The power to
reopen or reconsider is limited to exceptional situations. See Matter of J-J-, 21 I&N Dec. 976
(BIA 1997).
We fnd that sua sponte reopening is appropriate in tis cae. Although te respondent
did not flly comply with the evidentiary requirements fr asserting a claim of inefective
assistance of counsel outlined in Matter of Lozada, 19 I&N Dec. 637, 639 (BIA 1988), 1 we note
1 Under Matter of Lozada, supra, a motion based upon a claim of inefective asistance of
counsel should be suppored by an affdavit, refect whether a complaint had been fled with the
appropriate disciplinary authorities, and include a response to the allegations by frer counsel
or report counsel's filure or refsal to respond. Matter of Lozada, supra, at 639.
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Cite as: Juan Martinez-Alvarez, A200 759 323 (BIA May 29, 2014)
A200 759 323
that he did submit a affdavit outlining the circumstances surrounding his representation by the
Mathur Law Ofces in this case, as well as his atorey fee ageement with the Matur Law
Ofces, invoices and case notations fom the frm, ad atorey email correspondence.
The motion to withdraw refects tat the respondent hired te Mathur Law Ofces, ad
was assigned Cristobal Colindres as his attorey. The motion fher states tat Mr. Colindres
ended his employment at the Mathur Law Ofces on September 19, 2011, ad tat afer his
departure, he notifed the frm that motions to substitute as counsel should be fled in all of his
pending cases, including the respondent's case, ad that if pending fling deadlines were not met,
his clients could have their claims denied as abandoned. In requesting to withdraw fom the case
and in seeking additional time fr the respondent to fle his application, Mr. Colindres noted that
he received inforation fom a court clerk on February 3, 2012, that te Matu Law Offces had
fled motions to substitute as counsel in all of his pending cases except the respondent's case.
Email correspondence between Mr. Colindres and representatives at the Mathu Law Ofces,
fled with the motion to witdraw and with the motion to reopen, confrms tat in January 2012,
befre the fling deadline, Mr. Colindres inquired about the status of the motions to substitute
and was told, incorrectly, that they had been fled in all of his pending cases. The respondent
states in his affdavit that he last met with Attorey Mathur at the Mathur Law Offces on
November 18, 2011, and that while he was infred that Mr. Colindres no longer worked fr the
frm, he was not infrmed about the need to fle his applications with the court by February 1,
2012.
The evidence in the record therefre refects tat the respondent's legal representation
with the Mathur Law Ofces was in tasition shortly befre te fling deadline, and that the
Matur Law Ofces did not fle a motion to substitute counsel afer Mr. Colindres lef te frm
or submit the respondent's application by the Febray 1, 2012, deadline. Based on the
particular circumstances of this case, we thus conclude that sua sponte reopening is appropriate
so that the respondent may have his application fr adjustment of status considered on the merits.
See Matter of J-J-, supra. Accordingly, the appeal will be sustained, and the record will be
remanded fr fher proceedings. 1
ORDER: The appeal is sustained.
FURTHER ORDER: The record is remanded fr frther proceedings consistent with the
fregoing opinion.
1 We note that on June 15, 2012, the Secretary of the Department of Homeland Security (DHS)
anounced that certain young people, who are low law enorcement priorities, will be eligible fr
deferred action. The respondent may be eligible fr defred action. Inforation regading DHS'
Consideration of Defred Action fr Childhood arivals may be obtained on-line
(ww.uscis.gov or w  .ice.gov) or by phone on USCIS hotline at 1-800-3755283 or ICE
hotline at 1-8 8 8-3 51-4024.
2
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Cite as: Juan Martinez-Alvarez, A200 759 323 (BIA May 29, 2014)
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UNITED STATES DEPATMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMIGRTION COURT
1100 COMMERCE ST., ROOM 404
DALLS, TX 75242
2508 THOMS AV, STE 227
DALLAS, TX 75201
IN THE MATTER OF
MARTINEZ AVAREZ, JA
FILE A 200-759-323
UNALE TO FO�WARD - NO ADRESS PROVIDED
DATE: Jul 2, 2012
ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JGE. THIS DECISION
IS FINAL ULESS A APPEAL IS FILED WITH THE BOARD OF IMMIGRTION APPEALS
WITHIN 30 CALENDA DAYS OF THE DATE OF THE MAILING OF THIS WRITTEN DECISION.
SEE THE ENCLOSED FORMS A INSTRUCTIOlS FO�, PROJER:; .. �R�PAING YOUR APPEA.
YOUR NOTICE OF APPEA, ATTACHED DOCUENTS, AD FE�. 'R FEE WAIVER REQUEST
MUST BE �ILED TO: BOAD OF IMIGRATIO: APPEALS.
OFFICE OF THE CLERK
P.O. BOX 8530
FALLS CHURCH, VA 22041
ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRTION JUDGE A THE RESULT
OF YOUR FAILUE TO APPEAR AT YOUR SCHEDULED DEPORTATION OR REMOVAL HEARING.
THIS DECISION IS FINAL ULESS A MOTION TO REOPEN IS FILED IN ACCORDACE
WITH SECTION 242B(c) (3) OF THE IMIGRTION A NATIONALITY ACT, 8 U.S.C.
SECTION 1252B(c) (3) IN DEPORTATION PROCEEDINGS OR SECTION 240{c) (6),
8 U.S.C. SECTION l229a(c) (6) IN REMOVAL PROCEEDINGS. IF YOU FILE A MOTION�
TO REOPEN, YOU MOTION MUST BE FI�ED WITH THIS COURT:
X OTHER:
IMIGRATION COURT
1100 COMMERCE ST., ROOM 404
DALLAS, TX 75242
JGE'S DECISION - MOTION TO REOPE (D�rE)
COURT CLERK
 • · a
CC: GONZALEZ, ROSLY
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º.
125 E. HY 114, STE 500
IRVING, TX, 75062
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!
(
I
United States Department of Justice
Executive Ofce of Immigation Review
United States Immigration Court
Dallas, Texas
In Re: Juan Marinez Case No. A200-759-323
ORDER
Tis matter is once again befre the Court pursuant to a Motion to Re-Open. For
te reaons set frth below, the motion will be DENIED.
Te Respondent last fled a Motion to Re-Open on April 20, 2012. That Motion to
Re-Open was denied by witten order on May 14, 2012.
The most recent Motion to Re-Open was fled June 20, 2012.
The June 20, 2012 Motion to Re-Open is nuber bared. A Respondent may only
fle one Motion to Re-Open. 8 C.F.R. 1003.23(b)(l).
The June 20, 2012 Motion to Re-Open is temporally barred. The Cour issued a
witten order of removal on February 6, 2012. Te curent Motion to Re-Open is fled
more than 90 days beyond the date of the fnal order and is therefre barred. 8 C.F.R.
I 003.23(b )(1 ).
To the extent that Respondent asks this Court to bypass the multiple madator
bars in this matter ad use its sua sponte authorty to re-open proceedings by alleging
inefective assistance of counsel on his prior atorney, the Court will decline to do so.
Tere has been no efort whatsoever to comply with Matter Of Lozada, 19 I&N Dec. 637
(BIA 1988).
The June 20, 2012 Motion to Re-Open is DENIED.
This 28
t
day of Jue, 2012.
United States Immigration Judge
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