U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals
Office ofthe Clerk
5107 Leesburg Pike, Suite 2000
Falls Church, Virginia 22041

DHS/ICE Office of Chief Counsel - OKC

4400 SW 44th Street, Suite A
Oklahoma City, OK 73119-2800

Name: EMAMIAN RASEKH, SHAHIN

A 098-336-382

Date of this notice: 9/16/2015

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

DOWtL

ca.AA)

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Holmes, David B.

Userteam: Docket

For more unpublished BIA decisions, visit

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Cite as: Shahin Emamian Rasekh, A098 336 382 (BIA Sept. 16, 2015)

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Alvarez de Bennett, Paola Marie

Alvarez de Bennett Law
3508 NW 50th Street
Oklahoma City, OK 73112

Decision of the Board of Immigration Appeals

tJ.S. Department of Justice

Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A098 336 382 - Oklahoma City, OK

In re: SHAHIN EMAMIAN RASEKH

Date:

SEP 1 6 2015

APPEAL
ON BEHALF OF RESPONDENT:

Paola M. Alvarez de Bennett, Esquire

APPLICATION: Reopening

The respondent, a native and citizen of Iran, has appealed from the Immigration Judge's
decision dated May 7, 2014, denying his motion to reopen. The record will be remanded to the
Immigration Court as discussed below.
We review the findings of fact made by the Immigration Judge, including the questions of
credibility, under a "clearly erroneous" standard. 8 C.F.R. 1003.l(d)(3)(i). We review
questions of law, discretion, and judgment under a de novo standard. 8 C.F .R. 1003.1(d)(3)(ii).
The Immigration Judge denied the respondent's motion to reopen, submitted on May 1, 2014,
finding that the motion alleges the same grounds of ineffective assistance of counsel as asserted
in the respondent's first motion to reopen filed on or about February 27, 2014. The Immigration
Judge also found that the respondent's motion was number-barred because it was a second
motion to reopen filed in this case. Finally, the Immigration Judge declined to sua sponte reopen
the respondent's proceedings. 8 C.F.R. 1003.23(b)(l).
In the motion to reopen, the respondent argued that the motion to reopen time and number
limitations should be equitably tolled in his case (May 7, 2014, I.J. Motion, at 12-14). However,
the Immigration Judge's decision did not address these arguments. The respondent again argues
on appeal that the motion to reopen time and number limitations should be equitably tolled and
that he has diligently pursued his claims (Resp. App. Brief, at 7-12). Furthermore, while the
respondent's second motion to reopen repeats essentially the same ineffective assistance of
counsel claim against his first counsel, it also included evidence of the respondent's compliance
with Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), as well as an ineffective assistance of
counsel claim against his second counsel in failing to make an adequate ineffective assistance of
counsel claim in the respondent's first motion to reopen. The Immigration Judge's decision did
not sufficiently address these arguments. Therefore, before we can perform a meaningful
appellate review, we find it appropriate to remand the record to the Immigration Judge to address
the respondent's arguments presented in the motion, including his arguments regarding equitable
tolling of the motion to reopen time and number limitations in light of applicable legal principles.
See Mahamat v. Gonzales, 430 F.3d 1281, 1283 (10th Cir. 2005); Galvez Pineda v. Gonzales,
127 F.3d 833, 838-39 (10th Cir. 2005); lnfanzon v. Ashcroft, 386 F.3d 1359, 1362-63

Cite as: Shahin Emamian Rasekh, A098 336 382 (BIA Sept. 16, 2015)

Immigrant & Refugee Appellate Center, LLC | www.irac.net

IN REMOVAL PROCEEDINGS

A098 336 382

(10th Cir. 2004); Riley v. INS, 310 F.3d 1253, 1257-58 ( 10th Cir. 2002). Accordingly, the
following order shall be issued.
ORDER: The record is remanded to the Immigration Court for further proceedings
consistent with this order, and for the entry of a new decision.

Immigrant & Refugee Appellate Center, LLC | www.irac.net

FOR THE BOARD

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Cite as: Shahin Emamian Rasekh, A098 336 382 (BIA Sept. 16, 2015)
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United States Department of Justice

Executive Office of Immigration Review
United States Immigration Court
Oklahoma City, Oklahoma

ORDER
This matter is before the Court pursuant to the Respondent's May 1, 2014 Motion
to Re-Open. For the reasons set forth below, the motion is denied.
The Court entered a final order of removal on December 1 7, 20 I 3.
Respondent, through counsel, filed a Motion to Re-Open on January 29, 2014.
That motion was denied by written order on February 27, 2014.
Respondent, through counsel, has filed yet another Motion to Re-Open on May 1,
2014 alleging the same grounds of ineffective assistance of counsel as asserted in the first
motion.
A Respondent is limited to the filing of only one Motion to Re-Open. 8 C.F.R.
1003.23(b). Therefore the Respondent's most recent motion is numerically barred and
will not be considered.
For the reasons set forth above, the May I, 2014 Motion to Re-Open is DENIED.
The Motion for Stay of Removal is DENIED.
There is no basis upon which the Court would use its sua sponte authority to re
open these proceedings.
This 7th day of May, 2014.

United States Immigration Judge

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Case No. A098-336-382

In Re: Shanin Amamian Rasekh