U.S.

Department of Justice
Executive Office for Immigration Review
Board qf Immigration Appeals
Office of the Clerk
5 /07 Leesb11rg Pike, Suite 2000
Falls Ch11rch, Virginia 2204 I

OHS/ICE Office of Chief Counsel - DAL

125 E. John Carpenter Fwy, Ste. 500
Irving, TX 75062-2324

Date of this notice: 10/12/2016

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

DOYUtL C

t:uVt.)

Donna Carr
Chief Clerk
Enclosure

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

Userteam: Docket

For more unpublished BIA decisions, visit

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Cite as: J-A-L-, AXXX XXX 205 (BIA Oct. 12, 2016)

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TEICH, STANLEY JOEL

LAW OFFICE OF STANLEY J. TEICH
14 SOUTH MAIN STREET I SUITE 3
NEW CITY, NY 10956

.
U.S. Department of Justice

Executive Office foi; Immigration Review

Decision of the Board of Immigration Appeals

Falls Chlll"Ch, Virginia 22041

File: 205 - Dallas, TX

Date:

OCT 1 2 2016

In re: J-AIIII a.k.a.

APPEAL
ON BEHALF OF RESPONDENT: Stanley J. Teich, Esquire
CHARGE:
Notice: Sec.

212(a)(6)( A)(i), l&N Act [8 U.S.C. l 182(a)(6)(A)(i)] Present without being admitted or paroled

APPLICATION: Reopening
The respondent appeals the Immigration Judge's April 15, 2016, decision denying her motion
to reopen removal proceedings. The Department of Homeland Security ("OHS") has not filed a
brief in opposition to the respondent's appeal, which will be sustained. 1
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. I003.l(d)(3)(ii).
The respondent seeks reopening to pursue adjustment of status as she is the beneficiary of an
approved Form 1-360 as a Special Immigrant Juvenile. Considering the totality of the
circumstances present in this case, we conclude that the respondent has demonstrated that sua
sponte reopening of her removal proceedings is warranted. See 8 C.F.R. 1003.2(a); Matter of
G-D-, 22 l&N Dec. 1132 (BIA 1999); Matter of J-J-, 21 I&N Dec. 976 (BIA 1997). Therefore,
we conclude that it is appropriate to reopen proceedings and remand the record to the
Immigration Judge for further proceedings. On remand, the Immigration Judge may consider in
the first instance any applications for relief, including the respondent's motion to terminate. As
there is no opposition to a change of venue, venue will be changed from Dallas, Texas, to
New York, New York.
Accordingly, the following orders will be entered.

We note that before the Immigration Judge, the OHS did not affirmatively oppose the
respondent's motion.

Cite as: J-A-L-, AXXX XXX 205 (BIA Oct. 12, 2016)

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IN REMOVAL PROCEEDINGS

,.

205
ORDER: The respondent's appeal is sustained and 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.

2
Cite as: J-A-L-, AXXX XXX 205 (BIA Oct. 12, 2016)

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FURTHER ORDER: Venue in these proceedings is changed from Dallas, Texas, to New
York, New York.

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UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
1100 COMMERCE ST., SUITE 1060
DALLAS, TX 75242

IN THE MATTER OF

AIIII

FILE A-205

NABLE TO FORWARD - NO ADDRESS PROVIDED

DATE: Apr 28, 2016

TTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE. THIS DECISION

S FINAL UNLESS AN APPEAL IS FILED WITH THE BOARD OF IMMIGRATION APPEALS
WITHIN 30 CALENDAR DAYS OF THE DATE 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
BOARD OF IMMIGRATION APPEALS
MUST BE MAILED TO:
OFFICE OF THE CLERK
5107 Leesburg Pike, Suite 2000
FALLS CHURCH, VA 22041

ATTACHED IS A COPY OF THE DECISION OF 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) OF 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:

OTHER:

IMMIGRATION COURT
1100 COMMERCE ST., SUITE i060
DALLAS, TX 75242

CC: PEGGY PRICE

125 E. HWY 114, STE 500
IRVING, TX, 75062

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LAW OFFICE OF STANLEY J TEICH

TEICH, STANLEY JOEL
14 SOUTH MAIN STREET
SUITE #3
NEW CITY, NY 10956

--

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
DALLAS, TEXAS
IN THE MATTER OF:

RESPONDENT

IN REMOVAL PROCEEDINGS
A-205

CHARGE:

Section 212(a)(6)(A)(i) of the Immigration and Nationality Act

(INA or Act), as amended, 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.

APPLICATIONS:

Motion to Reopen; Motion to Substitute Counsel; and Motion to

Change Venue
ON BEHALF OF THE DEPARTMENT
OF HOMELAND SECURITY:
Peggy Price
125 E. John Carpenter Freeway, Suite 500
Irving, TX 75062

ON BEHALF OF RESPONDENT:
Stanley J. Teich
1400 South Main Street
New City, NY 10956

WRITTEN DECISION OF THE IMMIGRATION JUDGE

I.

Factual and Procedural History

The Respondent is a native and a citizen of El Salvador. Ex. 1. She arrived in the U.S. at

or near Laredo, Texas on or about May 8, 2010. Id. At the time of her arrival, she was not
admitted or paroled by an immigration officer. Id. On May 9, 2010, the Department of Homeland
Security (OHS or Government) personally served Respondent with a Notice to Appear (NTA)
charging her with removability pursuant to INA 212(a)(6)(A)(i). Id.
On March 24, 2011, Respondent, with counsel, appeared before the Court, and admitted
the allegations in the NTA and concede the removability charge. Based upon Respondent's
admissions and concessions, the Court found removability established as charged. Respondent,

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)
)
)
)
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through counsel, did not seek relief and elected to take a removal order. The Court ordered
Respondent removed from the U.S. to her native country of El Salvador.
On January 22, 2016, Respondent, through new counsel, filed the instant motion to

a response. The primary thrust of Respondent's motion to reopen is that she is eligible to apply
for adjustment of status based on an approved I-360 granting her Special Immigrant Juvenile
Status (SUS). Respondent also, inexplicably, seeks to reopen on the basis that she received
ineffective assistance of counsel when her previous attorney told her not to appear at the March
24, 2011 hearing. The Court will deny Respondent's motion to reopen and as such will not
address her remaining motions.
II.

Applicable Law & Analysis

A. Motion to Reopen to Apply for New Relief

A party is limited to one motion to reopen and that motion must be filed no later than 90
days after the date in which the final administrative decision was rendered in the proceedings
sought to be reopened. 8 C.F.R. 1003.23(b)(l ). In addition, the court has "broad discretion" to
grant or deny a motion to reopen. See INS v. Doherty, 502 U.S. 314, 323 (1992). The motion
may not be granted unless the moving party demonstrates that the evidence sought to be offered
is material, was previously unavailable, and could not have been discovered or presented at the
original hearing. 8 C.F.R. 1003.23(b)(3).
Applied here, the Court finds that although Respondent has new relief potentially
available, her motion to reopen is time barred as it was filed almost five years after her previous
hearing; well beyond the 90 day deadline. See 8 C.F.R. 1003.23(b)(l). The Court finds no

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reopen, motion to substitute counsel, and motion to change venue. The Government has not filed

applicable exceptions to the filing deadline such as a joint motion with the Government. See Id
I003.23(b)(4)(iv). Thus, Respondent's motion to reopen will be denied as time barred.
Furthermore, the Court will deny Respondent's motion to reopen as a matter of

Pilgrim, told Respondent that she should not go to the Immigration Court on March 24, 2011
because Ms. Pilgrim was going to file papers to transfer the case. See Resp't Mot. to Reopen, at
5. Respondent has argued that this was ineffective assistance of counsel that entitles her to
reopening. However, the record shows that Respondent actually appeared in court with Ms.
Pilgrim and took a removal order. This is a clear misrepresentation to the Court and one that also
attempts to generate a false claim of ineffective assistance of counsel as an alternate basis to
reopen proceedings. Respondent also misrepresented these same facts to the State Bar of Texas
in filing a complaint against Ms. Pilgrim.
Moreover, the Court is also concerned that Respondent may have misrepresented her
relationship to her father in obtaining a State court order for SIJS. Ms. Pilgrim previously filed a
motion to change venue which stated that Respondent wished to transfer her case to New York,
New York because she had no family members in Dallas, and that Respondent's father and other
siblings were in New York. See Resp't Mot. To Reopen, at 13-14. In contrast, the Rockland
County Family Court special findings order states that Respondent's father resides in El
Salvador, that he had abandoned her, and that she has never seen her father. See id at 20-22.
While the Court is not privy to the full extent of Respondent's background, it appears there are
inconsistencies in the record and she may have misrepresented these facts before State court.
Although, the Court has no authority to overturn the grant of the 1-360, these series of
misrepresentations and possible fraud are important considerations for the Court's discretionary

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discretion. Respondent's affidavit in support of her motion states that her previous attorney, Ms.

determination. Thus, in the alternative, the Court will deny Respondent's motion to reopen as a
matter of discretion.
B. Ineffective Assistance of Counsel

assistance of counsel claim. See Matter ofLozada, 19 I&N Dec. 637, 639 (BIA 1988).
First, the Court finds that Respondent's motion to reopen under Lozada is time barred
because it was filed January 22, 2016, well beyond 1 80 days after the entry of the March 24,
201 I removal order. See INA 240(b)(5)(C)(i); 8 C.F.R. I003.23(b)(4)(iii). Matter ofA-A-, 22
I&N Dec. 140 (BIA 1 998) (a claim of ineffective assistance of counsel does not constitute an
exception to the 1 80-day time limit); Matter ofLei, 22 l&N Dec. 11 3 (BIA 1 998).
Further, the Court finds that Respondent has not actually alleged any ineffective
assistance by her previous attorney as her claim is based on a false depiction of the record. For
example, Respondent claims that Ms. Pilgrim told her not to appear in Court despite the fact that
both Respondent and Ms. Pilgrim actually appeared in court. Additionally, Respondent raises
concerns with the previous motion to change venue drafted by Ms. Pilgrim because it was
rejected by the Court as improperly filed. This issue was moot, however, because Respondent
took a removal order. Further, Respondent claims Ms. Pilgrim's motion to substitute counsel was
also ineffective because it was rejected and she did not send a notice to Respondent's first
attorney. This issue was also moot because the Court allowed Ms. Pilgrim to proceed as the
attorney of record at the March 24, 201 1 hearing.
The Court notes that Respondent could have had a potential ineffective assistance of
counsel claim if Ms. Pilgrim had never advised Respondent about SIJS. Arguably, if
Respondent's father had actually abandoned her, Ms. Pilgrim would have been ineffective in

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As addressed above, Respondent has stylized her motion, in part, as an ineffective

either failing to investigate this claim, or in failing to request administrative closure in order to
pursue SIJS. This claim is not before this Court. Instead, Respondent misrepresented the facts in
this case despite the clear record in an effort to provide another ground for reopening.

C. Sua Sponte
Finally, the Court declines to exercise its sua sponte authority to reopen as this case is not
a truly exceptional situation. See Matter of G-D-, 22 I&N Dec. 1 1 32, 1 1 33-34 (BIA 1 999). ''[l]t
is not meant to be used as a general cure for filing defects or to otherwise circumvent regulations,
where enforcing them might result in hardship." Matter ofJ-J-, 2 1 I&N Dec. at 984 (BIA 1997).
A possible fraudulently obtained SIJS and serious misrepresentations to this Court and other
judicial and administrative bodies does not warrant this extraordinary remedy.
D. Motion to Substitute Counsel and Motion to Change Venue
As the Court has denied Respondent's motion to reopen, it need not address
Respondent's motion to substitute counsel and motion to change venue. Thus, these motions will
be denied as moot.
Accordingly, the following orders will be entered:
ORDER
IT IS HEREBY ORDERED that Respondent's Motion to Reopen is DENIED.
IT IS FURTHER ORDERED that Respondent's Motion to Substitute Counsel is
DENIED.
IT IS FINALLY ORDERED that Respondent's Motion to Change Ve

Date: 12.th day of April, 2016

Dallas, Texas

Immigration Judge
5

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Accordingly, her motion to reopen on this basis will be denied.