Maldonado, Jonathan Randolph

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals Office of the Clerk

5/07 leesburg Pike, S11ile 2000 falls Church, Virginia 22041

Law Offices of Jonathan R. Maldonado 7136 Pacific Blvd., Suite 260 Huntington Park, CA 90255

OHS/ICE Office of Chief Counsel - CHL 5701 Executive Ctr Dr., Ste 300 Charlotte, NC 28212

Date of this notice: 5/6/2016

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

Enclosure

Panel Members: Greer, Anne J. O'Herron, Margaret M Kendall-Clark, Molly

Sincerely,

DOW1L c t1AA)

Donna Carr Chief Clerk

Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished/index/

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Cite as: Y-B-S-H-, AXXX XXX 187 (BIA May 6, 2016)

S_H_Y_B A 187 STEWART DETENTION CENTER 146 CCA ROAD, P.O. BOX 248 LUMPKIN, GA 31815

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals Office of the Clerk

5107 Leesburg Pike, S11i1e 2000 Falls Church, Virginia 2204 /

OHS/ICE Office of Chief Counsel - CHL 5701 Executive Ctr Dr., Ste 300 Charlotte, NC 28212

Name: SORTO-HERNANDEZ, YEFRI BE ...

Date of this notice: 5/6/2016

Enclosed is a copy of the Board's decision in the above-referenced case. This copy is being provided to you as a courtesy. Your attorney 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 from the United States or affirms an Immigration Judge's decision ordering that you be removed, any petition for review of the attached decision must be filed with and received by the appropriate court of appeals within 30 days of the date of the decision.

Enclosure

Panel Members: Greer, Anne J. O'Herron, Margaret M Kendall-Clark, Molly

Sincerely,

DonrtL c Q/\A)

Donna Carr Chief Clerk

Userteam:

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Cite as: Y-B-S-H-, AXXX XXX 187 (BIA May 6, 2016)

.

U.S. Department of Justice Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 22041

File: Aall 187 - Charlotte, NC

In re: Yall!IB-­

IN REMOVAL PROCEEDINGS

APPEAL

Date:

ON BEHALF OF RESPONDENT: Jonathan R. Maldonado, Esquire

ON BEHALF OF DHS: Lisa P. Durant Assistant Chief Counsel

CHARGE:

MAY - 6 2016

Notice: Sec. 212(a)(6)(A)(i), I&N Act [8 U.S.C. § 1182(a)(6)(A)(i)] -Present without being admitted or paroled

APPLICATION: Reopening

The respondent, a native and citizen of El Salvador, appeals the Immigration Judge's February 2, 2016, decision denying the respondent's motion to reopen removal proceedings. The appeal will be sustained and the record will be remanded.

We review for clear error the findings of fact, including the determination of credibility, made by the Immigration Judge. 8 C.F.R. § 1003.l(d)(3)(i). We review de novo all other issues, including whether the parties have met the relevant burden of proof, and issues of discretion. 8 C.F.R. § 1003.l(d)(3)(ii).

On January 16, 2015, the Immigration Judge ordered the respondent removed and the respondent waived appeal. On February 1, 2016, the respondent, through new counsel, filed a motion to reopen, requesting sua sponte reopening of proceedings to allow the respondent to apply for asylum, withholding of removal and protection under the Conv_ention Against Torture ("CAT") (Respondent's Motion to Reopen at 2-3). The respondent also stated that he may raise a claim of ineffective assistance of former counsel, after obtaining additional information (Respondent's Motion to Reopen at 4, fn 3). The Department of Homeland Security ("DHS") opposed reopening, arguing that the respondent did not assert exceptional circumstances to justify sua sponte reopening (DHS Opposition to Motion at 4). The DHS further asserted that, to the extent that the respondent was asserting ineffective assistance of counsel, the respondent's motion should be denied for failure to comply with the requirements of Matter of Lozada, 19 I&N Dec. 637 (BIA 1988) (DHS Opposition to Motion at 5-6).

On February 2, 2016, the Immigration Judge denied the respondent's motion, finding that the respondent did not comply with the requirements in Matter of Lozada, supra. The respondent appeals this determination ..

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Cite as: Y-B-S-H-, AXXX XXX 187 (BIA May 6, 2016)

,•

�187 '

In his motion to reopen and on appeal, the respondent claims that previous counsel rendered ineffective assistance. Along with his brief on appeal, the respondent has filed new evidence that he claims supports his assertion that his former attorney provided ineffective assistance of counsel and that his actions prejudiced the respondent (see Respondent's Brief at 7-9, see also attachments A-D). Among these documents is a letter written by the respondent's prior counsel stating that although the respondent articulated a fear of return to El Salvador, no asylum application was pursued before the Immigration Court or the United States Citizenship and Immigration Services ("USCIS") (see attachment D).

The respondent has shown ineffective assistance of counsel, which justifies a remand. Based on the totality of the circumstances, we determine it appropriate to remand the record to the Immigration Judge to allow the respondent to pursue an application for asylum and related relief. 1 The Immigration Judge should also consider whether, in accordance with section 235(d)(7)(B) of the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 ("TVPRA"), Pub. L. No. 110-457, 122 Stat. 5044 (codified at 8 U.S.C. § 1158(b)(3)(C)), the USCIS has initial jurisdiction over any application for asylum and withholding of removal.

On remand, the parties should be given the opportunity to present additional evidence and arguments. Accordingly, the following orders will be entered.

ORDER: The appeal is sustained.

FURTHER ORDER: The removal proceedings are reopened.

FURTHER ORDER: The record is remanded to the Immigration Judge for further proceedings consistent with the foregoing opinion and entry of a new decision.

1 We emphasize that the Immigration Judge did not err in denying the respondent's motion to reopen given the evidence before him at the time of his decision.

2

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Cite as: Y-B-S-H-, AXXX XXX 187 (BIA May 6, 2016)

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UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

IMMIGRATION COURT 5701 EXECUTIVE CENTER DR. 11400

CHARLOTTE, NC 28212

Law Offices of Jonathan R. Maldonado Maldonado, Jonathan Randolph 7136 Pacific Blvd. Suite #260 Huntington Park, CA 90255

IN THE MATTER OF slllll-H

FILE A �187 Y-B-

UNABLE TO FORWARD - NO ADDRESS PROVIDED

DATE: Feb 3, 2016

ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE. THIS DECISION IS FINAL UNLESS AN APPEAL IS FTT,F.D WITH THE BOARD OF IMMIGRATION APPEALS WITHIN 30 CALENDAR DAYS OF THE Dl\TE OF THE MAILING OF THIS WRITTEN DECISION. SEE THE ENCLOSED FORMS AND INSTRUCTIONS FOR PROPERLY PREPARING YOUR APPEAL. YOUR NOTICE OF APPEAL, ATTACHED DOCUMENTS, AND FEE OR FEE WAIVER REQUEST MUST BE MAILED TO: BOARD OF IMMIGRATION APPEALS

OFFICE OF THE CLERK 5107 Leesburg Pike, Suite 2000 FALLS CHURCH, VA 22041

ATTACHED IS A COPY OF THE: DECISION OE' THE IMMIGRATION JUDGE AS THE RESULT OF YOUR FAILURE: TO APPEAR AT YOUR SCHEDULED DEPORTATION OR REMOVAL HEARING. THIS DECISION IS FINAL UNLESS A MOTION TO REOPEN IS FILED IN ACCORDANCE WITH SECTION 242B(c) (3) OE' THE IMMIGRATION AND 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 REMOVAL PROCEEDINGS. IF YOU FILE A MOTION TO REOPEN, YOUR MOTION MUST BE FILED WITH THIS COURT:

£orHER:

IMMIGRATION COURT 5701 EXECUTIVE CENTER DR. #400 CHARLOTTE, NC 28212

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COURT CLERI<.8)9

IMMIGRATION COURT CC: SUSAN T. LECKER., ESQ

5701 EXECUTIVE CENTER DR., 300 CHARLOTTE, NC, 28212

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,,

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

U.S. IMMIGRATION COURT

5701 Executive Center Drive, Suite 400 Charlotte, North Carolina 28212

IN THE MATTER OF: S-H Y-B-CASE NO. A-187

ALIEN ATTORNEY: .JONATHAN R. MALDONADO, ESQ

DECISION ON A MOTION. IN

[ ] DEPORTATION [ ] EXCLUSfON [ X] REMOVAL PROCEEDINGS [ ] AOC ASYLUM ONLY

A MOTION TO RE-OPEN has been filed in the above captioned case. The Motion has been duly considered and it appears to the Cou1t that:

[ ] The · quest is timely and reasonable. Therefore, IT IS HEREBY ORDERED that the Motior e GRANTED.

[ The Motion has been duly considered and it appears to the Court that no substantial grounds have been advanced to warrant its grant. Therefore, IT IS HEREBY ORDERED that the Motion be and the same is hereby DENIED. 5� ft�� . [ ] Adjourn to individual / master calendar hearing on ______ at ___ am/pm.

This document was served to: rbf' District Counsel �Counsel for Respondent/ Applicant [ ] Respondent / Applicant

Mailed out: ,2. 3. /{.e By El/--

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Respondent's motion to reopen is denied for the reasons set forth in DHS's opposition.

A motion to reopen must be filed within 90 days of the final administrative order. See 8 C.F.R. § 1003.23(b). Respondent was ordered removed on January 16, 20 I 5, and waived appeal. As such a motion to reopen was due on or about April 16, 20 I 5. Respondent, however, did not file his motion to reopen until February 1, 2016, more than nine months out of time. Respondent's motion to reopen is therefore untimely.

Respondent seeks reopening based upon a claim of ineffective assistance against his prior counsel Theodore Maloney and Joseph Baker. A motion to reopen based upon a claim of ineffective assistance of counsel requires ( l) that the motion be supported by an affidavit of the allegedly aggrieved respondent setting forth in detail the agreement that was entered into with counsel with respect to the actions to be taken and what representations counsel did or did not make to the respondent in this regard, (2) that counsel whose integrity or competence is being impugned be informed of the allegations leveled against him and be given an opportunity to respond, and (3) that the motion reflect whether a complaint has been filed with appropriate disciplinary authorities with respect to any violation of counsel's ethical or legal responsibilities, and if not, why not. Matter of Lozada, 19 I&N Dec. 63 7 (BIA 1988).

Respondent claims he received defective representation from his prior attomies because he was not advised of his right to apply for asylum. Respondent has failed to comply with the procedural requirements set forth in Lozada. Most significantly, respondent has provided no evidence that he filed a complaint against his prior counsel with respect to any violation of counsel's ethical or legal responsibilities. As such, respondent has not complied with the Lozada requirements.

Finally, respondent argues he has the right to apply for asylum before USCIS as he was an unaccompanied child at the time he entered the United States . The respondent's application for asylum before USCIS is separate and apart from his removal proceedings. Respondent may pursue said application even if he is under a final order of removal. Accordingly, there is no basis for reopening the removal proceedings. Should it become necessary, a request for a stay of removal pending consideration of an application before USCIS can be addressed to DHS. See 8 C.F.R. § § 241.6(a) and 1241.6(a).

For the above stated reasons, respondents motion to reopen is DENIED.

PA, QM (JW%ii&

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