U.S.

Department of Justice
Executive Office for Immigration Review
Board ofImmigration Appeals
Office ofthe Clerk
5/07 leesburg Pike, S11ile 2000
falls Church, Virginia 22041

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.
Sincerely,

DOW1L c

t1AA)

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Greer, Anne J.
O'Herron, Margaret M
Kendall-Clark, Molly

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/
Cite as: Y-B-S-H-, AXXX XXX 187 (BIA May 6, 2016)

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

Maldonado, Jonathan Randolph

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

U.S. Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office of the Clerk
5107 Leesburg Pike, S11i1e 2000
Falls Church, Virginia 2204 /

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.
Sincerely,

DonrtL c

Q/\A)

Donna Carr
Chief Clerk
Enclosure

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

Userteam:

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

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

OHS/ICE Office of Chief Counsel - CHL

5701 Executive Ctr Dr., Ste 300
Charlotte, NC 28212

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

U.S. Department of Justice

Decision of the Board of Immigration Appeals

Executive Office for Immigration Review

Falls Church, Virginia 22041

File:

Aall 187 - Charlotte, NC

Date:

MAY - 6 2016

In re: Yall!IB-

APPEAL
ON BEHALF OF RESPONDENT:
ON BEHALF OF DHS:

Jonathan R. Maldonado, Esquire

Lisa P. Durant
Assistant Chief Counsel

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

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

IN REMOVAL PROCEEDINGS

187 '

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

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

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).

,,

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
5701 EXECUTIVE CENTER DR. 11400
CHARLOTTE, NC 28212

FILE A 187
IN THE MATTER OF
Y-Bslllll-H

DATE: Feb 3, 2016

UNABLE TO FORWARD - NO ADDRESS PROVIDED

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:

z::f

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

'

rf

'

t<J c/(!_.

'd
9

CC: SUSAN T. LECKER., ESQ

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

COURT CLERI<.8)
IMMIGRATION COURT

FF

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

Law Offices of Jonathan R. Maldonado

Maldonado, Jonathan Randolph
7136 Pacific Blvd.
Suite #260
Huntington Park, CA 90255

. '
"II

,,

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
U.S. IMMIGRATION COURT

Y-B-

IN THE MATTER OF: S-H

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:

District Counsel
Counsel for Respondent/ Applicant
[ ] Respondent / Applicant

rbf'

Mailed out:

,2. 3. /{.e

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

5701 Executive Center Drive, Suite 400

Charlotte, North Carolina 28212

r,.

By El/--

. '

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

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 ofLozada, 19 I&N Dec. 637
(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).

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

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.

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

PA,

QM

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