U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office ofthe Clerk

5107 Leesburg Pike, Suite 2000

Falls Church, Vtrgm1a 22041

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Pouncey, William Brett OHS/ICE Office of Chief Counsel - MEM
W. Brett Pouncey 80 Monroe Ave., Ste 502
Attorney at Law Memphis, TN 38102
513 Richard Arrington Jr Blvd N
Birmingham, AL 35203

Name: TELLEZ-JIMINEZ, VIANNEY A 089-782-319

Date of this notice: 3/1/2018

Enclosed is a copy of the Board's decision and order in the above-referenced case.

Sincerely,

Donna Carr
Chief Clerk

Enclosure

Panel Members:
Greer, Anne J.
Cole, Patricia A
Wendtland, Linda S.

Userteam: Docket

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Cite as: Vianney Tellez Jiminez, A089 782 319 (BIA March 1, 2018)
t.

U.S. Department of Justice Decision of the Board oflmmigration Appeals

Executive Office for Immigration Review

Falls Church, Virginia 2204 l

File: A089 782 319 - Memphis, TN Date:

MAR - l 2019
In re: Vianney TELLEZ JIMINEZ

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IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: William Brett Pouncey, Esquire

APPLICATION: Reopening

The respondent has appealed the Immigration Judge's decision dated July 20, 2017, denying
his motion to reopen. The respondent had previously been ordered removed in absentia for his
failure to appear for his hearing on June 6, 2017. The appeal will be sustained, proceedings will
be reopened, and the record will be remanded.

We review the findings of fact, including the determination of credibility, made by the .
Immigration Judge under the "clearly erroneous" standard. 8 C.F.R. § 1003.1 (d)(3)(i). We review
all other issues, including issues of law, discretion, or judgment, under a de novo standard. 8 C.F.R.
§ 1003.1(d)(3)(ii).

On appeal, the respondent contends that the Immigration Judge erred in determining that the
respondent failed to establish exceptional circumstances for his failure to appear. The respondent
asserts that his failure to appear for the hearing was completely beyond his control, because the
law firm representing him did not notify him of the scheduled hearing due to an office error.

An order issued following proceedings conducted in absentia pursuant to section 240(b)(5)(A)

of the Immigration and Nationality Act, 8 U.S.C. § 1229a(b)(5)(A), may be rescinded only
upon a motion to reopen which demonstrates that the alien failed to appear because of
exceptional circumstances, because he did not receive proper notice of the hearing, or because
he was in Federal or State custody and failed to appear through no fault of his own. Section
240(b)(S)(C), 8 U.S.C. § 1229a(b)(S)(C). The term "exceptional circumstances" refers to
exceptional circumstances beyond. the control of the alien, such as serious illness of the alien or
death of an immediate relative, but not including less compelling circumstances. Section 240(e)(1),
8 U.S.C. § 1229a(e)(l).

We have held that ineffective assistance of counsel can constitute an "exceptional circumstance"
for purposes of rescission of an in absentia order where the alien establishes that the failure to
appear was the result of ineffective assistance of counsel and where the criteria set forth in Matter
ofLozada, 19 I&N Dec. 637 (BIA 1988), are satisfied. See Matter ofGrijalva, 21 I&N Dec. 472
(BIA 1996); see also Matter of Rivera, 21 I&N Dec. 599 (BIA 1996). The respondent claims in
his motion to reopen that he was not provided with notice of the June 6, 2017, hearing; however,
a copy of the hearing notice was sent to his counsel's office. The respondent's counsel in essence
admits in the motion to reopen that his law firm received notice of the June 6, 2017, hearing, but

Cite as: Vianney Tellez Jiminez, A089 782 319 (BIA March 1, 2018)
A089 782 319

failed to notify the respondent of the hearing date. The respondent's counsel reveals in the motion
to reopen that the hearing date was not set on his calendar because of an error caused by a recent
computer system upgrade at his office. See Matter of Barocio, 19 I&N Dec. 255 (BIA 1985)
(holding that notice to an alien's counsel constitutes notice to the alien); 8 C.F.R. § 1292.5(a). The
respondent's counsel indicates that the respondent was not notified of the scheduled hearing

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because of the error, and that his failure to appear was solely the fault of the law firm.

Based on the evidence of record, and because the respondent had an incentive to appear for the
hearing based on the various applications that he has prepared for relief for removal, we find
exceptional circumstances warranting rescission of respondent's in absentia order.

Accordingly, the following order will be entered.

ORDER: The appeal is sustained, the in absentia order of removal is rescinded, the
proceedings are reopened, and the record is remanded for further proceedings consistent with the
foregoing opinion.

Cite as: Vianney Tellez Jiminez, A089 782 319 (BIA March 1, 2018)
•

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
MEMPHIS, TENNESSEE

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IN THE MATTER OF ) IN REMOVAL PROCEEDINGS
)
TELLEZ-JIMINEZ, Vianney ) FILE NO.: A089-782-319
)
Respondent )
������� > DATE: July W, 2017

CHARGE: Section 212(a)(6)(A)(i) of the Act, in that you are an alien present
in the United States without being admitted or paroled, or who
arrived in the United States at any time or place other than as
designated by the Attorney General

APPLICATION: Motion to Reopen In Absentia Removal Order

ON BEHALF OF RESPONDENT ON BEHALF OF DHS

W. Brett Pouncey, Esq. 80 Monroe Ave., Suite 502
513 Richard Arrington Jr. Blvd. N, Ste. 200 Memphis, Tennessee 38103
Birmingham, AL 35203

DECISION OF THE IMMIGRATION JUDGE

I. PROCEDURAL HISTORY

On December 23, 2016, the Department of Homeland Security ("the Department")

personally served Vianney Tellez-Jiminez ("Respondent") with a Notice to Appear ("NTA"),
alleging that he is inadmissible to the United States pursuant to § 212(a)(6)(A)(i) of the
Immigration and Nationality Act ("INA" or "the Act"). Exh. 1. The Department initiated the
present removal proceedings against Respondent on January 24, 2017, through the filing of his
NTA with the Oakdale, Louisiana Immigration Court. Id.

On December 28, 2016, Respondent was taken into the Department's custody. Respondent
and Attorney Pouncey appeared at Respondent's February 2, 2017 Master Calendar hearing, and
requested additional time for attorney preparation. Respondent was released from custody on a
$7,500 bond on February 6, 2017, and listed his new address as "1208 13th Street SW, Sheffield,
AL 35660." The Department filed a Motion to Change Venue on February 8, 2017, requesting
venue in Respondent's case be transferred to the Memphis, Tennessee Immigration Court. Exh.
2. The Oakdale Immigration Court granted the Department's Motion to Change Venue on
February 22, 2017, and venue in Respondent's case was transferred to this Court. Exh. 3.

1
 This Court mailed Respondent's attorney a Notice of Hearing, notifying him of
Respondent's June 6, 2017 Master Calendar hearing on March 7, 2017. Exh. 4. Respondent and
his counsel failed to appear for Respondent's June 6, 2017 hearing, and the Court ordered
Respondent removed in absentia.

On July 3, 2017, Respondent filed a Motion to Reopen In Absentia Removal Order. As of

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the date of this decision, the Department has not filed a response to Respondent's Motion. The
Court now issues its decision.

II. DISCUSSION

According to the INA, as well as federal regulations, an order of removal entered in

absentia pursuant to INA§ 240(b)(5)(A) may be rescinded upon a motion to reopen filed in only
one of the following ways: (i) within 180 days after the date of the order of removal if the alien
shows that the failure to appear was due to exceptional circumstances, or (ii) at any time if the
alien demonstrates that he or she did not receive notice in accordance with INA§ 239(a)( l ) or
(a)(2). INA§ 240(b)(5)(C); 8 C.F.R. § 1003.23(b)(4)(ii) (2017). Furthermore, the filing of said
motion shall stay the removal of the alien pending disposition of the motion by the Immigration
Judge. INA§ 240(b)(5)(C); 8 C.F.R.§ 1003.23(b)(4)(ii). An alien may file only one such motion
to reopen. 8 C.F.R. § 1003.23(b)(4)(ii).

Respondent's counsel argues that "[a]s a result of Counsel's oversight and through no fault
of the Respondent, the Respondent was never notified of his June 6 hearing." Motion to Reopen
at� 7. Specifically, "the Notice of Hearing was not set on Counsel's calendar, through either
Counsel's administrative error or by through [sic] error caused [by] Counsel's computer system
upgrade." Id. As Respondent is arguing ineffective assistance of counsel, the Motion must comply
with the procedural requirements described in Matter ofLozada, 19 I&N Dec. 637 (BIA 1988).

In Matter ofLozada, the BIA mandated that, in addition to establishing prejudice, the alien
must also comply with certain procedural factors when proving ineffective assistance of counsel.
Matter ofLozada, 19 l&N Dec. 637, 639 (BIA 1988). "A motion [to reopen] based upon a claim
of ineffective assistance of counsel should be supported by an affidavit of the allegedly aggrieved
respondent attesting to the relevant facts" and ... "[the] affidavit should include a statement that
sets forth in detail the agreement that was entered into with former counsel. . . " Lozada, 19 I&N
Dec. at 639. Moreover, "before allegations of ineffective assistance of former counsel are
presented to the Board, former counsel must be informed of the allegations and allowed the
opportunity to respond." Id Any response or report of a failure or refusal to respond "should be
submitted with the motion." Id. Finally, if it is asserted that former counsel's handling of the case
involved a violation of ethical or legal responsibilities, "the motion should reflect whether a
complaint has been filed with appropriate disciplinary authorities regarding such representation,
and if not, why not." Id. An alien who fails to comply with the Lozada requirements forfeits his
ineffective assistance of counsel claim. See Hamid v. Ashcroft, 336 F.3d 465, 469 (6th Cir. 2003);
but see Sswajje v. Ashcroft, 350 F.3d 528 (6th Cir. 2003) (observing that it might be permissible
to bypass the first two Lozada requirements in that case because the attorney had admitted his

2
•

ineffectiveness, but then finding that the alien had failed to present the third requirement before
the Board and that the Court, therefore, lacked jurisdiction to review the claim).

Respondent's Motion to Reopen failed to comply with any of the procedural requirements
for sustaining an ineffective assistance of counsel claim. Respondent's counsel did not provide an
affidavit by Respondent detailing the agreement he entered into with Attorney Pouncey.

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Respondent's counsel also failed to provide any evidence that a complaint was filed with the
appropriate disciplinary authorities against Attorney Pouncey, despite the fact that Attorney
Pouncey asserts Respondent's absence was "a result of Counsel's oversight and through no fault
of the Respondent." Motion to Reopen at� 7. The Motion also fails to address why a complaint
should not be filed with appropriate disciplinary authorities. As Respondent's Motion to Reopen
does not meet any of the Lozada procedural requirements, the Motion must be denied. The Court
no�es that Respond.ent's current counsel, Attorney Pouncey, breached his professional
responsibilities when not notifying Respondent of his Master Calendar hearing, and did not meet
his pro°fessional obligations a second time when preparing Respondent's Motion to Reopen
without complying with Matter ofLozada.

Additionally, the Court also notes that Respondent failed to submit sufficient evidence with
his Motion. It is clearly stated in 8 C.F.R. § 1003.23(b)(3) that "[a] motion to reopen proceedings
... shall be supported by affidavits and other evidentiary material." Counsel's statements in a brief
or motion are not evidence and thus are not entitled to any evidentiary weight. INS v. Phinpathya,
464 U.S. 183, 188 n.6 (1984); Matter of Ramirez-Sanchez, 17 I&N Dec. 503, 506 (BIA 1980).
Without an affidavit from Respondent or his counsel, the Court cannot determine the veracity of
Respondent's claim contained in his Motion.

A party seeking reopening bears a "heavy burden," as motions to reopen are disfavored.
Alizoti v. Gonzales, 477 F.3d 448, 451 (6th Cir. 2007) (quoting Doherty v. INS, 502 U.S. 314, 323
(1992)). Respondent has not met this burden as his Motion failed to comply with any of the Lozada
procedural requirements necessary to sustain an ineffective assis�ce of counsel claim. Thus,
Respondent's Motion to Reopen In Absentia Removal Order must be denied.

III. CONCLUSION

For the foregoing reasons, the following ORDER is HEREBY ENTERED:

It is HEREBY ORDERED that Respondent's Motion to Reopen In Absentia Removal

Order be DENIED.

"'l ...:. �
DATED this the ru day of July 2017.

Honorable Charles if.P�

Immigration Judge