In this unpublished decision, the Board of Immigration Appeals (BIA) remanded the record for further consideration of the respondent’s motion to reopen because the immigration judge overlooked evidence regarding ineffective assistance of counsel. The Board also noted that the motion was filed just one week after the 90-day deadline and was accompanied by a completed asylum application, Form I-589. The decision was issued by Member Edward Grant.
Looking for IRAC’s Index of Unpublished BIA Decisions? Visit www.irac.net/unpublished/index
In this unpublished decision, the Board of Immigration Appeals (BIA) remanded the record for further consideration of the respondent’s motion to reopen because the immigration judge overlooked evidence regarding ineffective assistance of counsel. The Board also noted that the motion was filed just one week after the 90-day deadline and was accompanied by a completed asylum application, Form I-589. The decision was issued by Member Edward Grant.
Looking for IRAC’s Index of Unpublished BIA Decisions? Visit www.irac.net/unpublished/index
In this unpublished decision, the Board of Immigration Appeals (BIA) remanded the record for further consideration of the respondent’s motion to reopen because the immigration judge overlooked evidence regarding ineffective assistance of counsel. The Board also noted that the motion was filed just one week after the 90-day deadline and was accompanied by a completed asylum application, Form I-589. The decision was issued by Member Edward Grant.
Looking for IRAC’s Index of Unpublished BIA Decisions? Visit www.irac.net/unpublished/index
Omaha, NE 68107 U.S. Department of Justice Executive Offce fr Immigration Review Board of Immigration Appeals Ofce of the Clerk 5 /07 Leesburg Pike. Suite 2000 Fals Church, Virginia 20530 OHS/ICE Ofce of Chief Counsel - OMA 1717 Avenue H Omaha, NE 68110 Name: REYES-HERRERA, JOSE ATILO A 200-586-985 Date of this notice: 8 /29/201 4 Enclosed is a copy of the Board's decision and order in the above-refrenced case. Enclosure Panel Members: Grant, Edward R. Sincerely, Donna Carr Chief Clerk Userteam: Docket For more unpublished BIA decisions, visit www.irac.net/unpublished I m m i g r a n t
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w w w . i r a c . n e t Cite as: Jose Atilo Reyes-Herrera, A200 586 985 (BIA Aug. 29, 2014) ' ' U.S. Dpaent of Jutice Exet Oc for Imgton Re Deison of te Bod o I igon Ap FalChu Vi 20530 File: A00 586 985 - Omaa, N Date: I r: JOSE ATO RYES-Ha.k.a. Domingo Castenea I REMOVA PROCEDIGS APEA ON BEHLF OF RESPONET: Daiel S. Reke, Esqu ON BEHLF OF DHS: APPLICATION: Reopeing Mathew Morrissey Assistant Chief Counsel AUG 2 9 2014 The respondent, a naive and citizen of Gatemala, ha fled a timely appel of the Immgtion Judge's decision date Febra 22, 2013, deying his motion to repen. Te Depaent of Homelad Security ("DHS") h fled a reponse brief opposing te appeal. The record wll be remande. O appel, the responden poins t eidenc which was overlooked or mischaterze by te Immgtion Judge. In pacula, he ages that his letter to the Nebraska Supreme Cour Counsel of Discipline did constitute the f ste of a state ba cmplaint, ad t he did see a copy on hs prior cusel. The Imgation Judge may have overlooke the response fom Attorey Eckeson de Jauay 24, 2013, which w atache t the Respondet's Emergecy Moton to Stay Removal fled with the Immgtion Cour on Febra 5, 2013. I ts response, fre counsel idicates ta his client wa time-bar e fom applyng fr asylum, but does not indicte whethe the relief of witholding of removal was discusse. This should be considered by the Immigaton Judge in the fs instace. Due to our limited fc-fnding auhorty, we fnd t a remd is wa ted. Morever, the moton to repe was fled just I wek beyond te 90-day fling dedline fr motions, ad within the 120-day voluntay depare period which had been gated by the Immigation Judge on Octobr 11, 2012. Therefre, this is not a c in whch a reponden clely failed to eercise due diligence in pursing his clams. See, e.g, Ka v. Gnas, 406 F.3d 1087, 1090 (8t Cir. 2005). Finaly, te respondent atached a comleted aylu application (or I-589) to hs motion to reopen. The Immigation Judge considered the clams wten on te applicaion ad detened that the respondent is not prma fcie eligible fr aslum but there is no indicaion whete ts isse was addresse at the te of his heg. See geral Mat of EF-H-L-, 26 I&N Dec. 319 (I 2014). Upon repenng, the Imigation Judge should consider all fors of relief fr which te respondent appes eligible at that time. I m m i g r a n t
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w w w . i r a c . n e t Cite as: Jose Atilo Reyes-Herrera, A200 586 985 (BIA Aug. 29, 2014) A00 586 985 Accordingly, te following orde will be etere. ORE: The reord is remaded to the Imigaion Judge for fhe procedings and the e of a new decision cnsisten with the fregoin opinion. FOR 2 I m m i g r a n t
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w w w . i r a c . n e t Cite as: Jose Atilo Reyes-Herrera, A200 586 985 (BIA Aug. 29, 2014) ...
.. j LEE, ESTHER, ESQ. ... /.* UITED STATES DEPARTMENT OF JJCE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRTION COURT 1717 AVENUE H SUITE 100 OMAHA, N 68110 4832 S. 24TH STREET, SUITE 200 OMA, N 68107 -- IN THE MTTER OF REYES-HERRERA, JOSE ATILO FILE A 200-586-985 DATE: Feb 25, 2013 UALE TO FORWARD - NO ADRESS PROVIDED 'ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRTION JUGE. THIS DECISION IS FINA ULESS A APPEA IS FILED WITH THE BOAD OF IMMIGRTION APPEALS WITHIN 30 CALENDAR DAYS OF THE DATE OF THE MAILING OF THIS WRITTEN DECISION. SEE THE ENCLOSED FORMS A INSTRUCTIONS FOR PROPERLY PREPAING YOUR APPEAL. YOU NOTICE OF APPEAL, ATTACHED DOCUMENTS, A FEE OR FEE WAIVER REQUEST MUST BE MAILED TO: BOARD OF IMIGRTION APPEALS OFFICE OF THE CLERK P.O. BOX 8530 FALS CHUCH, VA 22041 ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRTION JGE AS THE RESULT OF YOU FAILURE TO APPEAR AT YOU 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 IMMIGRTION A 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: IMMIGRATION COUT 1717 AVNUE H SUITE 100 OMA, N 68110 CC: OFFICE OF CHIEF COUSEL, DHS 1717 AVNE H, SUITE 174 OMAHA, NE 68110 FF I m m i g r a n t
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w w w . i r a c . n e t UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMIGRTION RVIEW IMMIGRATION COURT OMAHA, NEBRASKA File#: A200-586-985 In the Matter of: Jose REYES Herrera, Respondent. ) ) ) ) ) ) Date: February 22, 2013 IN REMOVAL PROCEEDINGS CHARGE: Immigation and Nationality Act ("INA" or "the Act") section 212(a)(6)(A)(i)-Alien present in the United States without being admited or paoled. APPLICATION: Motion to Reopen ON BEHALF OF RESPONDENT: Esther Lee, Esq. Kaleeq Law Firm, LLC 4832 South 24th Street, Suite 200 Omaa, NE 68107 ON BEHALF OF THE GOVERMENT: Paul R. Stultz, Deputy Chief Counsel U.S. Deparent of Homeland Security Immigration and Customs Enfrcement 1717 Avenue H, Suite 174 Omaha, NE 68110 DECISION OF THE IMMIGRTION JUDGE I. Background and Procedural Histor Respondent is a native and citizen of Guatemala who entered the United States without inspection on or about an unnown date at or nea Nogales, Arizona. Exh. 1. On October 11, 2012, Respondent was granted voluntary deparure in lieu of removal. See Order of the Immigration Judge. Respondent filed to depart on or befre February 8, 2013 as specifed by the Cou fr his depaure. Id. As a consequence, te alterate order of removal entered by te Court in the writen decision is fnal. See 8 C.F.R. 1241.l(f. On Janua 18, 2013, Respondent submitted a Motion to Reopen, claiming tat his pror counsel was inefective and erroneously advised him to voluntaily depat rather than fle a claim fr asylu relief. See Motion to Reopen; Respondent's afdavit. The goverent opposes Respondent's Motion to Reopen. See OHS Opposition to Respondent's Motion to Reopen. 1 I m m i g r a n t
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w w w . i r a c . n e t II. Legal Standard A respondent may fle one motion to reopen proceedings. IA 240( c )(7)(A); 8 C.F.R. 1003.23(b)(l). The motion must be fled within ninety days of the date of ent of the fnal administrative order of removal. IA 240(c)(7)(C)(i); 8 C.F.R. 1003. 23()(l). A respondent may fle a motion to reopen predicated upon inefective assistance of counsel. See Rafyev v. Muksey, 536 F.3d 853, 860 (8th Cir. 2008). A respondent alleging that the inefectiveness of his or her prior counsel resulted in a due process violation must "demonstrate both a fdamental procedural error and that the error resulted in prejudice." Bracic v. Holder, 603 F.3d 1027, 1032 (8th Cir. 2010) (quoting Lopez v. Heinauer, 332 F.3d 507, 512 (8th Cir. 2003)) (interal quotations omitted). To establish prejudice, the respondent must show "that the outcome of the proceeding may well have been diferent had there not been any procedural irregularities." Id. (quoting Tun v. Gonzales, 485 F.3d 1014, 1026 (8th Cir.2007)) (interal quottions omitted). A motion to reopen based on inefective assistance of coWsel does not require te production of new evidence as required by the regulations fr other types of motions to reopen. However, such a motion must comply with the standard established by the BIA in Matter of Lozada. See Hernandez-Moran v. Gonzales, 408 F.3d 496, 499 (8th Cir. 2005); Matter of Lozada, 19 I&N Dec. 637, 638 (BIA 1988). The procedural requirements include: (I) that the motion be supported by an afdavit of the respondent attesting to the relevant fcts, (2) tat fner counsel be infrmed of the allegations leveled against him or her and be given an opporunity to respond, and (3) that the motion refect whether a complaint has been fled wit appropriate disciplinary authorities with respect to any violation of frmer coWsel's ethcal or legal responsibilities, and if not, why not. Id., at 639. III. Analysis and Findings Respondent's motion to reopen is untimely. See INA 240(c)(7)(C)(i); 8 C.F.R. 1003.23(b)(l). Wen a respondent fles a post decision motion to reopen during te period allowed fr voluntary departure, the grant of voluntary deparure is terinated automatically, and the alterate order will take efect immediately. 8 C.F.R. 1240.26(b)(l)(iii), (iv). To the extent that the respondent is asserting that prior counsel was inefective i advising him of all frms of relief, 1 the motion to reopen is govered by the standads set frt in Matter of Lozada, 19 I&N Dec. 63 7 (BIA 1988). Wile the curent motion to reopen contains an afdavit fom the respondent, it does not contain notice to the prior atorey alleging inefective assistance of counsel or a response. See Matter of Lozada, 19 I&N Dec. at 639. Further, it does not contain a copy of a complaint to a state bar, or an explanation fr why such complaint is not included. See id. Accordingly, the Court fnds that it would not be proper to reopen the case based on alleged inefective assistance of counsel. Respondent also alleged that prior counsel advised him to voluntarily depar and would "always be very short with words." See Motion to Reopen. Respondent fled a For 1-589 application fr asylum and withholding Relief with his motion to reopen. See Motion to Reopen, Form I-589. In his application, Respondent stated that Guatemala "was recently subjected to See Affdavit of Jose Reyes. 2 I m m i g r a n t
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w w w . i r a c . n e t > \ horrible problems fom a hurrcane," and that "there was always a lot of gang violence." See id. The Cour fnds that the allegations in Respondent's application and the accompaying document, taken as true, do not demonstate prima facie eligibilit fr asylum to wa ant reopening of proceedings. See 8 C.F.R. 1003.2(c)(l); INS v. Abudu, 485 U.S. 94 (1988). General civil unrest, crme, or societal violence, do not constitute persecution on account of a protected gound within the meaing of the Act. See Garcia-Colindres v. Holder, 700 F.3d. 1153, 1157-58 (8th Cir. 2012); Ngre v. Ashcrof, 367 F.3d 975, 990 (8th Cir.2004) (fnding that evidence of isolated violence generally does not compel a fnding of persecution). Accordingly, the fllowing order will be entered: IT IS ORDERED that Respondent's Motion to Reopen is DENIED