Immig Bia Ca2 In Absentia

-'.~. D~partment

of Justice

Decision of the Board ofImmigration Appeals

Executive Office for Immigration Review

Falls Church, Virginia 22041

File: ~ewYork,NY

Date:

SEP 1 1 2008

In re:

IN REMOVAL PROCEEDINGS MOTION ON BEHALF OF RESPONDENT: ON BEHALF OF DRS:

Noerili E. Masliah, Esquire

Adam P. Feller Assistant Chief Counsel

ORDER: PER CURIAM. This case was last before us on July 17, 2001, when we denied the respondent's motion to reconsider our previous March 30, 2001, decision affirming the Immigration Judge's February 1, 2000, denial of his motion to reopen the respondent's December 7, 1998, in absentia order. The respondent has now filed an untimely motion to reopen on May 19, 2008. The Department ofHomeland Security (DHS) opposes the motion, which will be granted pursuant to our sua sponte authority pursuant to 8 C.F.R. § 1003.2(a). See Matter ofJ-J-, 21 I&N Dec. 976 (BIA 1997).

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In his current motion, as in his original motion to reconsider which we denied on March 30, 2001, I the respondent argues that an in absentia order should not have been issued against him because he appeared at the hearing 45 minutes late due to circumstances beyond his control. He elaborates, as he did in his original motion to reopen before the Immigration Judge, that his subway train was delayed and that once he arrived at the courthouse, he was misdirected to the courtroom. Morever, for the first time, his current motion asserts that he received ineffective assistance of counsel at this hearing from two prior attorneys, who failed to properly fIle a timely motion to reopen his in absentia hearing, and he was thereby precluded from presenting his applications for withholding of removal and voluntary departure. For its part, the DHS argues that the respondent's description of the procedures at the courthouse are inaccurate, and that the respondent failed to submit any evidence in support of his claim that his subway train was late. The DHS does not address the respondent's· claim regarding the effectiveness of his prior counsels.

As an initial matter, we agre~ that the respondent received ineffective assistance of counsel from his former counselors. Subsequent to the in absentia order issued by the Immigration Judge,_ _Esquire, informed the respondent that she would file a motion to reopen before the

The respondent's motion to reconsider, which we denied on July 17, 2001, merely argued that we "rubber-stamped" the Immigration Judge's December 7, 1998, in our March 30, 2001, decision. It does not directly address the underlying in absentia decision, but in effect requests that the Board reconsider the basis of the Immigration Judge's in absentia removal order. 1

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Immigration Judge, but such motion was ultimately filed late and denied by the Immigration Judge . on February 1, 2000. Inasmuch as M~motion was late and deficient on its face, we can presume that theles~ondent was prejudiced thereby. See generally Matter ofLozada, 19 I&N Dec. 637 (BIA 1988). Moreover, we find that the respondent's second attorney, Esquir.e, failed to properly file an ineffective assistance of counsel claim against his former counsel, and the lack ofsuch a motion further prevented the respondent from presenting his requests for relief from removal. Id In support of the respondent's allegations, the respondent has submitted, inter alia, a copy ofa motion prepared by outlining the ineffective nature of his prior counsel, and his accompanying affidavit,~t this motion was improperly filed with the New York ICE office but never with the Immigration Court. 2 The respondent has filed disciplinary complaints against M r . _ n d and has substantially met the guidelines set forth in Matter of Loza~

Mr._ Mr_

The United States Court of Appeals for the Second Circuit has stated that "[i]n a situation where ineffective assistance ofcounsel prevents an alien from having the opportunity to present his case for relief, the filing deadline for motions to reopen will be equitably tolled until the ineffective assistance is, or should have been, discovered by a reasonable person in the situation." See Cekic v. INS, 435 F.3d 167, 171 (2d Cir. 2006); citing Iavorski v. INS, 232 F.3d 124, 134 (2d Cir. 2000); see also Zhao v. INS, 452 F.3d 154, 157 (2d Cir. 2006). In this case, we find that the respondent has adequately explained that his prior counsels prevented him from presenting his applications for relief, and in delaying his ability to file an ineffective assistance of counsel alleging this fact. The respondent, through current counsel, effectively sets forth this ineffective assistance of counsel claim with due and Ms. _errors. See Cekic diligence, inasmuch as it attempts to remedy Mr v. INS, supra, at 170 ("no matter how egregiously ineffective counsel's aSSistance may have been, an alien will not be entitled to equitable tolling unless he can affirmatively demonstrate that he exercised reasonable due diligence during the time period sought to be tolled"). Specifically, the respondent has explained that his delay in the current motion resulted from the misleading assurances he received from Ms. ~nd the inadequate representation provided by her and by ~

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Lastly, we note that the Immigration Judge, in his February 1,2000, denial of the respondent's initial motion to reopen his in absentia hearing, held that even were the motion timely, he would still deny it because the respondent's late train does not constitute "exceptional circumstances" to excuse his absence at the hearing (2000 1.1. Dec. at 3). However, were it not for Ms~nd Mr. inability to appear at the hearing at the proper time, and their failure to properly guide the ~nt through the process once he arrived at the Immigration Court, he may have avoided an in absentia removal order. In this vein, we note that recent case law out of United States Court of Appeals for the Second Circuit has held that such short delays may not be considered a "failure to appear" for purposes ofin absentia hearings. See Abu Hasirah v. DHS, 478 F.3d 474 (2d Cir. 2007).

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We note, incidentally, that the motion posits the same claims present in the pending motion to reopen.

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_in

"espondent has indicated that M s . i s now deceased. Mr_Esquire, assisted Ms. her representation of the respondent. 2

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In short, given the circumstances, we find that the motions deadline should be excused under our sua . sponte authority. See Matter of J-J-, supra. Accordingly, the record is remanded in order to afford the respondent an opportunity to pursue his application for withholding of removal before the Immigration Judge, as well as his more recent request to apply for adjustment o¢status based on an approved Form 1-130 visa petition.

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