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Motion to reopen grant Lilian

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On November 2, 2015, the Board of Immigration Appeals (BIA) granted the motions to reopen for Lilian and her 4 year old son, proving that ICE lied when it told the Huffington Post that she had exhausted "all of her legal appeals before ICE, the Executive Office of Immigration Review and the Board of Immigration Appeals."

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Motion to reopen grant Lilian

  1. 1. U. S. Department of. Iusticc Executive Office for Immigration Review Board of Immigration . »'1/2/Jealx (), [/ice Q/1/16 C/ (ark 5/0-7 l. eashz; I'g / ’T/ re . 'mTc 2‘/ H}(IW / "ally ( "III: /‘rlz. I'IrgmIu 2304/ Johnson, Bryan 3., Esq. DHSIICE Office of Chief Counsel - SNA Amoachi and Johnson, PLLC 8940 Fourwinds Drive, 5th Floor 1918 Union Boulevard San Antonio, TX 78239 Bay Shore, NY 11706 Name: I Date of this notice: 11/2/2015 Enclosed is a copy ofthe Board's decision and order in the above-rct‘crcnced case. Sincerely. Dcrruuz. C2/vu Donna Carr Chief Clerk Enclosure Panel Members: Neal, David L Greer, Anne J. O'Herron, Margaret M Userteam: Docket
  2. 2. US. Department of Justice Decision ofthe Board oflmmigration Appeals Executive Office for Immigration Review ‘”I'- Vim“ _, _ _ Files: ’— San Antonio, 'l'X Date: _ 2 In re: '1 IN ASYLUM AND/ OR WITHHOLDING PROCEEDINGS MOTION ON BEHALF OF APPLICANT: Bryan S. Johnson, Esquire ON BEHALF OF DHS: Warren R. Kaufman Assistant Chief Counsel , ... - APPLICATION: Reopening This matter was last before the Board on May 11, 2015, when we summarily dismissed the applicant’s appeal. The applicant, a native and citizen of Honduras, has filed a timely motion to reopen, alleging ineffective assistance of prior counsel. ‘ The Department of Homeland Security opposes the granting of the motion to reopen. The applicant has also filed a motion to consolidate proceedings.2 The motion to consolidate will be denied. The motion to reopen will be granted. The applicant seeks reopening based on alleged ineffective assistance of prior counsel. The applicant contends that prior counsel failed to file an appellate brief after indicating that a brief would be filed and also failed to meaningfully apprise the Board of the reasons underlying the applicant’s appeal in the Notice of Appeal (Motion at 12). The applicant further contends that when she followed up with her attomey to check on the status of her appeal, her attorney misrepresented the basis for the Board’s denial (Motion at 18-19). Specifically. she contends that although the appeal was summarily dismissed due to failure to provide a Notice of Appeal with sufficient facts and arguments to apprise the Board of the basis for her appeal and for failure to submit a brief, her attorney told her that the appeal had been dismissed because the Board did I Although the motion indicates that the applicant has been removed from the United States and is currently residing in Honduras, we note that the post-departure limitations on motions to reopen do not apply to statutory motions to reopen. See Garcia-Carias v. Holder, 697 F.3d 257, 264 (5th Cir. 2012) and Lari v. Holder, 697 F.3d 273 (5th Cir. 2012). 2 The applicant, who is in withholding proceedings, seeks to consolidate proceedings with her 4-year-old son, who is in removal proceedings. Given the circumstances, the Immigration Judge agreed to consider these cases concurrently, although he issued two separate decisions (Tr. at 4-5, 17-18). See generally 8 C. F.R. § 1240.1 (a)(iv). As the proceedings are distinct, the motion to consolidate proceedings is denied. However, like the Itnmigration Judge, we will consider the cases concurrently and issue two separate decisions.
  3. 3. A206 769 267 not agree with his argument on appeal (Motion at 13-14). In support of her claims, the applicant has submitted copies of emails sent between her and her former attomey to corroborate that these statements were made (see Motion attachments at 21-24). Additionally, the applicant argues that fonner counsel’s failure to adequately prepare her case constitutes ineffective assistance of counsel (Motion at 16, 20-21). In support of her claim that she merits relief, the applicant states that she is a member of the particular social group of Honduran women unable to leave a domestic relationship, and cites Matter of A-R—C—G—, 26 I&N Dec. 388 (BIA 2014) (Motion at 22-29). The applicant has complied with the procedural requirements for ineffective assistance of counsel claims before the Board (see Motion attachments at 1-14, 15-20, 25). See Matter of Lozada, 19 I&N Dec. 637, 639 (BIA 1988). Moreover, we agree with the applicant that her proceedings were rendered fundamentally unfair by her attorney’s conduct, because his failure to apprise the Board of the reasons for her appeal and his misrepresentation to her that he had done so are manifestly prejudicial. See Matter of Assaad, 23 I&N Dec. 553 (BIA 2003); Matter of B-B-, 22 I&N Dec. 309, 31 1 (BIA 1998) (requiring ineffective assistance to be so egregious as to render the hearing unfair); Matter of Lozada, supra, at 640; see also Ogbemudia v. INS, 988 F.2d 595, 598 (5th Cir. 1993) (requiring an alien to demonstrate "substantial prejudice" in order to establish that a hearing is fundamentally unfair). Moreover, in light of evolving case law pertaining to the applicant’s asylum claim, counsel’s failure to argue that the facts and evidence in the applicant’s case could form the basis of a particular social group in light of Matter of A—R- C-G—, is also prejudicial. See Matter of A-R-C-G—, supra (“married women in Guatemala who are unable to leave their relationship” can constitute a cognizable particular social group that forms the basis of a claim for asylum or withholding of removal). In view of prior counsel’s ineffective assistance and the resulting prejudice, we will reopen proceedings and remand the record to the Immigration Judge for further consideration of the applicant’s eligibility for relief.3 We express no opinion as to the applicant’s ultimate eligibility for relief. In light of our disposition of this case, we need not reach the applicant’s remaining arguments in her motion to reopen, many of which pertain to issues over which we do not have jurisdiction (Motion at 2-3). ORDER: The motion to reopen proceedings is granted. FURTHER ORDER: The motion to consolidate is denied. FURTHER ORDER: The record is remanded to the Immigration Judge for further proceedings consistent with the foregoing opinion and entry of a new decision. FOR T O 3 We note that while the applicant’s suicide attempt may raise issues relating to competency, no competency concerns were raised in the applicant’s motion. Any potential concems relating to competency may be raised before the Immigration Judge on remand. See generally Matter of M-A—M-, 25 I&N Dec. 474 (BIA 2011). Ix)
  4. 4. U. S. Department ofJusticc Executive Office for Immigration Review Board Q/ iltmnigration , =1 ppea/ .5‘ ()flice 0,/ "the Clerk / T/l: /‘A/ rit’L‘. /IItl‘_g' I‘; /te Xmtu blltltl / Vu/ ls ('IIm‘l I1 1'/ t', i;IrI1rt _‘_’/ /'-H Johnson, Bryan S. , Esq. DHSIICE Office of Chief Counsel - SNA Amoachi and Johnson, PLLC 8940 Fourwinds Drive, 5th Floor 1918 Union Boulevard San Antonio, TX 78239 Bay Shore, NY 11706 Name: .I __ ; t_. .. A. Date of this notice: 11/2/2015 linclosed is a copy ofthc Board's decision and order in the above-referenced case. Sincerely. ’ DCM/ M. 62/vu Donna Carr Chief Clerk Enclosure Panel Members: Neal, David L Greer, Anne J. O'Herron, Margaret M Userteam: Docket
  5. 5. , U. S. Department of Justice Decision ofthe Board oflmmigration Appeals Executive Office for Immigration Review Falls Church, Virginia 22041 fl_ 1.. ..” — _. ,.. ,., _.. , . File: A1 — San Antonio, TX Date: NOV ‘ 2 2015 In re: IN REMOVAL PROCEEDINGS MOTION ON BEHALF OF RESPONDENT: Bryan S. Johnson, Esquire ON BEHALF OF DHS: Warren R. Kaufman Assistant Chief Counsel APPLICATION: Reopening This matter was last before the Board on May 1 1, 2015, when we summarily dismissed the rcspondent’s appeal. The respondent, a native and citizen of Honduras, has filed a timely motion to reopen, alleging ineffective assistance of prior counsel. 1 The Department of Homeland Security opposes the granting of the motion to reopen. The respondent has also filed a motion to consolidate proceedings? The motion to consolidate will be denied. The motion to reopen will be granted. The respondent seeks reopening based on alleged ineffective assistance of prior counsel. The respondent contends that prior counsel failed to file an appellate brief after indicating that a brief would be filed and also failed to meaningfully apprise the Board of the reasons underlying the respondent’s appeal in the Notice of Appeal (Motion at 12). The respondent further contends that when his mother (“the applicant") followed up with her attorney to check on the status ofthe appeal, her attorney misrepresented the basis for the Board’s denial (Motion at 18-19). Specifically, the respondent contends that although the appeal was summarily dismissed due to failure to provide a Notice of Appeal with sufficient facts and arguments to apprise the Board of the basis for his appeal and for failure to submit a brief, his attorney told the applicant that the ' Although the motion indicates that the respondent has been removed from the United States and is currently residing in Honduras, we note that the post-departure limitations on motions to reopen do not apply to statutory motions to reopen. See Garcia-Carias v. Holder, 697 F.3d 257, 264 (5th Cir. 2012) and Lori v. Holder, 697 F.3d 273 (5th Cir. 2012). The respondent is a 4-year-old child. i , __ 267) is an applicant in withholding proceedings. She filed a motion seeking to consolidate her proceedings with her son. Given the circumstances, the Immigration Judge agreed to consider these cases concurrently, although he issued two separate decisions (Tr. at 4-5, 17-18). See generally 8 C. F.R. § 1240.] (a_)(iv). As the proceedings are distinct, the motion to consolidate proceedings is denied. However, like the Immigration Judge, we will consider the cases concurrently and issue two separate decisions.
  6. 6. A202 127 486 appeal had been dismissed because the Board did not agree with his arguments on appeal (Motion at 13-14). In support of his claims. the respondent has submitted copies of emails sent between the applicant and former counsel to corroborate that these statements were made (see Motion attachments at 2l-24). The respondent has complied with the procedural requirements for ineffective assistance of counsel claims before the Board (see Motion attachments at 1-14, 15-20, 25). See Matter of Lozada, 19 I&N Dec. 637, 639 (BIA 1988). Moreover, we agree with the respondent that his proceedings were rendered fundamentally unfair by his attomey’s conduct, because his failure to apprise the Board of the reasons for the appeal and his misrepresentation to the applicant that he had done so are manifestly prejudicial. See Matter of Assaad, 23 I&N Dec. 553 (BIA 2003); Matter of B-B—, 22 I&N Dec. 309, 31] (BIA 1998) (requiring ineffective assistance to be so egregious as to render the hearing unfair); Matter of Lozada, supra, at 640; see also Ogbemudia v. INS, 988 F.2d 595, 598 (5th Cir. 1993) (requiring an alien to demonstrate “substantial prejudice” in order to establish that a hearing is fundamentally unfair). Moreover, in light of evolving case law pertaining to the respondent’s asylum claim, counsel’s failure to argue that the facts and evidence in the respondent’s case could form the basis of a particular social group in light ofMatter ofA-R-C-G-, 26 I&N Dec. 388 (BIA 2014) is also prejudicial. In view of prior counsel’s ineffective assistance and the resulting prejudice, we will reopen proceedings and remand the record to the Immigration Judge for further consideration of the respondent’s eligibility for relief. We express no opinion as to the respondent’s ultimate eligibility for relief. In light of our disposition of this case, we need not reach the respondent’s remaining arguments in his motion to reopen, many of which pertain to issues over which we do not have jurisdiction (Motion at 2-3). ORDER: The motion to reopen proceedings is granted. FURTHER ORDER: The motion to consolidate is denied. FURTHER ORDER: The record is remanded to the Immigration Judge for further proceedings consistent with the foregoing opinion and entry of a new decision. FO FIE OARD l)

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