U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals
Q[fice of the Clerk
5107 Leesburg Pike. Suite 2000
Falls Church. Virgima 22041

DHS/ICE Office of Chief Counsel - ATL

180 Ted Turner Dr., SW, Ste 332
Atlanta, GA 30303

Name:EUCEDA-RUEDA,OSCAR

A 077-479-978
Date of this notice: 11/10/2016

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

DOnttL C

Q./v'L)

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Adkins-Blanch, Charles K.
Mann. Ana
O'Connor, Blair

Userteam: Docket

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Cite as: Oscar Euceda-Rueda, A077 479 978 (BIA Nov. 10, 2016)

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Rodriguez Bell, Jessica

Rodriguez Bell & Difranco Law Office
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U.S. Department of Justice

Decision of the Board of Immigration Appeals

Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A077 479 978 - Atlanta, GA

Date:

In re: OSCAR EUCEDA-RUEDA

IN REMOVAL PROCEEDINGS
APPEAL
ON BEHALF OF RESPONDENT: Jessica Rodriguez-Bell, Esquire
ON BEHALF OF DHS: Morris I. Onyewuchi
Assistant Chief Counsel
APPLICATION: Reopening
The respondent appeals from an Immigration Judge's decision dated May 12, 2015, denying
the respondent's motion to reopen his removal proceedings. The Department of Homeland
Security (DHS) asks that the decision below be summarily affirmed. The appeal will be
sustained.
We have considered the totality of the circumstances presented in this case, and find that
reopening is warranted to allow the respondent an opportunity to apply for relief from removal.
See 8 C.F.R. I003.23(b)(l); Matter ofJ-J-, 21 I&N Dec. 976 (BIA 1997). We agree with the
Immigration Judge that the respondent was properly served. Further, the respondent's failure to
name the attorney accused of ineffective assistance of counsel made it impossible for the
Immigration Judge to evaluate the substance of his ineffective assistance of counsel claim (Dec.
at 2-4). See section 240(b)(5)(C) of the Immigration and Nationality Act, 8 U.S.C.
1229a(b)(5)(C).
However, we note that the respondent was granted Temporary Protected Status (TPS) under
section 244 of the Act, 8 U.S.C. 1254a and appears to have renewed that status regularly before
DHS. Thus, reopening is appropriate. Upon remand, the respondent shall have the opportunity
to seek administrative closure or any other relief for which he may be eligible.
Accordingly, the following order will be entered.
ORDER: The appeal is sustained, the proceedings are reopened, and the record is remanded
to the Immigration Court for
r roceedings.
FOR THE BOARD

Cite as: Oscar Euceda-Rueda, A077 479 978 (BIA Nov. 10, 2016)

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NOV 1 0 2016

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
ATLANTA, GEORGIA

EUCEDA-RUEDA, Oscar
Respondent
APPLICATION:

)
)
)
)
)

In Removal Proceedings
File No. A# 077-479-978

Respondent's Motion to Reopen

APPEARANCES

ON BEHALF OF THE RESPONDENT:

ON BEHALF OF THE GOVERNMENT:

Jessica Rodriguez Bell, Esq.

Bell Law Office, LLC
6797 N. High Street, Suite 236
Worthington, Ohio 43085

Assistant Chief Counsel

Department of Homeland Security
180 Spring Street SW, Suite 332
Atlanta, Georgia 30303

DECISION AND ORDER OF THE IMMIGRATION JUDGE

I.

PROCEDURAL AND FACTUAL HISTORY

The Respondent, Oscar Euceda-Rueda, is a native and citizen of Honduras. The

Respondent arrived in the United States at or near Douglas, Arizona, on or about August 10,
1997, and had not then been admitted or paroled after inspection by an Immigration Officer.
On February 17, 1999, the Department of Homeland Security ("Department") placed
Respondent into removal proceedings through the issuance of a Notice to Appear (''NTA"),
charging him as removable under Section 212(a)(6)(A)(i) of the Immigration and Nationality Act
("INA" or "Act"), as amended, in that the Respondent is an alien present in the United States
without being admitted or paroled, who arrived in the United States at any time or place other
than as designated by the Attorney General. The Respondent received his Notice to Appear in
person. The notice set his hearing for July 27, 1999, at 9:00 a.m.
On July 27, 1999, the Respondent failed to appear for his hearing and was removed in
absentia to Honduras.
On June 2, 2014, the Respondent filed a Motion to Reopen, arguing that his case should
be reopened because he failed to receive notice of his hearing and because his attorney told him
not to appear due to a TPS application that was pending at the time.
1

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IN THE MATTER OF:

The Department of Homeland Security has not filed an opposition to the Respondent's
motion.

II.

APPLICABLE LAW

Generally, motions to reopen for purposes of rescinding an in absentia removal order

must be filed within 180 days after the date of the removal order if the alien demonstrates that
the failure to appear was because of exceptional circumstances. See INA 240(b)(5)(C)(i); 8
C.F.R. I003.23(b)(4)(ii). "Exceptional circumstances" are only those "beyond the control of
the alien" such as serious illness, death of a family member, or extreme cruelty towards the alien.
INA 240(e)(l). Only one such motion may be filed by the alien. 8 C.F.R. I003.23(b)(4)(ii).
In Matter of G-D-, the Board explained that "motions rules respond directly to the
legislative interest in setting meaningful and effective limits on motions and ultimately in
achieving finality in immigration case adjudications." 22 I&N Dec. 1132, 1134 (BIA 1999). As
with all motions to reopen, the applicant must state new facts that will be proven at a hearing if
the motion is granted, and it must be supported by affidavits and other evidentiary material. 8
C.F.R. I003.23(b)(3); see also INS v. Abudu, 485 U.S. 94 (1988). Any motion to reopen for
the purpose of acting on an application for relief must be accompanied by the appropriate
application for relief and supporting documentation. Id. Finally, if the ultimate relief is
discretionary, the Immigration Judge may deny a motion to reopen even if the moving party
demonstrates primafacie eligibility for relief. Id.; see also Abudu, 485 U.S. 94.
Ill.

DISCUSSION

The Respondent makes two claims in his Motion: 1. He never received a hearing notice
indicating that he was required to appear before the immigration court or any correspondence
from the court or his lawyer that he was scheduled for a hearing, and 2. His lawyer informed him
that he did not have to go to the immigration court because he had a pending TPS application.
An examination of the record reveals that the Notice to Appear was personally served on
the Respondent on February 17, 1999. The Notice to Appear set forth a hearing date of July 27,
1999, at 9:00 a.m. Further, the Certificate of Service on the Notice to Appear indicates that the
Respondent was provided oral notice, in the Spanish language, of the consequences of a failure
to appear, and the notice bears the Respondent's signature. Consequently, the Court finds that the
Respondent received personal service of the Notice to Appear, which included the scheduled
hearing date, and thus, his claim that he never received notice of the hearing is without merit.
The Respondent also claims that he failed to appear because his attorney told him that he
did not have to go. Specifically, both in his motion and in an affidavit attached to this motion, the
Respondent alleges that his failure to appear was also because an attorney that he hired told him
2

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The Court has carefully reviewed the arguments and the entire record before it. All
evidence has been considered, even if not specifically discussed further in this decision. For the
reasons set forth below, the Court will deny Respondent's Motion to Reopen.

that he "did not have to go . . . because he had a pending TPS application." See Respt's' Mot. to
Reopen, at 3; Respt's' Affidavit, at ,r 7. Inasmuch as the Respondent is making a claim of
ineffective assistance of counsel, the Court finds that the Respondent has failed to comply with
the requirements necessary to reopen on that basis.

Here, the Respondent has not substantially complied with the Lozada requirements.
Respondent does comply with the first requirement because the motion is supported by an
affidavit from the Respondent himself. The Respondent does not, however, provide the name of
an attorney and does not attach any documentation that would show an agreement for
representation that he had with an attorney at that time. Regarding the second Lozada
requirement, the Respondent offers no evidence that the unnamed attorney was informed of the
allegations leveled against him/her and given an opportunity to respond. The Court notes that the
Respondent never states that he notified the attorney of his allegations in any form. As the Board
noted in Lozada, "the potential for abuse is apparent where no mechanism exists for allowing
former counsel, whose integrity or competence is being impugned, to present his version of the
events if he so chooses, thereby discouraging baseless accusations." 19 I&N Dec. at 639. To
comply with the third Lozada requirement, the Respondent's motion must 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. Here, there is no evidence that the
Respondent has ever filed a complaint against the attorney and has not given any explanation for
why a complaint has not been filed.
In sum, the Court does not find substantial compliance with Lozada due to the fact that
the Court has no evidence that the attorney was notified of the allegations against him/her and
given an opportunity to respond. Further, there is no indication that the Respondent has filed a
complaint and he has not explained why he has not complied with this requirement.
Consequently, the Court lacks an adequate basis for evaluating an ineffective assistance of
counsel claim. See Matter of Lozada, 19 I&N Dec. at 639 ("The high standard announced here is
necessary if we are to have a basis for assessing the substantial number of claims of ineffective
assistance of counsel that come before the Board. Where essential information is lacking, it is
impossible to evaluate the substance of such a claim."). The Court need not reach prejudice
because the Respondent has not satisfied the threshold requirements.
3

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In a motion to reopen based upon ineffective assistance of counsel, Respondent must

substantially comply with the procedural requirements set forth in Matter of Lozada, I9 l&N
Dec. 637 (BIA 1988). The Lozada requirements are: (1) 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 Respondent in this regard; (2) that counsel whose integrity or competence
is being impugned be informed of the allegations leveled against him/her 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. 19 I&N Dec. at 637. Further, Respondent must demonstrate
prejudice, which exists when the performance of counsel is so inadequate that there is a
reasonable probability that, but for the attorney's error, the outcome of the proceedings would
have been different. Dakane v. U.S. Att'y Gen., 399 F.3d 1269, 1274 (11th Cir. 2005).

Here, the Court is not convinced that exceptional circumstances have been established
and, therefore, finds no justification for sua sponte reopening the case. The Respondent's
claimed reasons for his failure to appear do not conform with the acceptable "exceptional
circumstances" recognized or accepted by this Court.
In light of the foregoing, the Court will enter the following order:
ORDER OF THE IMMIGRATION JUDGE
It is ordered that:

5/1l/t5

Date

The Respondent's Motion to Reo n

i:rD.

\_,
William A. Cassidy
United States Immigration Judge
-----Atlanta, Georgia

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Lastly, the Court may sua sponte reopen a case over which it has jurisdiction at any time.
8 C.F.R. I003.23(b)(l); see also Matter of J-J-, 21 l&N Dec. 976 (BIA 1997). However, such
power should only be exercised in cases of "exceptional situations." Matter of J-J-, 21 I&N Dec.
at 984. The respondent has the burden to show that an exceptional situation exists. Matter of
Beckford, 22 I&N Dec. 1216, 1218-19 (BIA 2000). Moreover, the power to reopen a case sua
sponte "is not meant to be used as a general cure for filing defects or to otherwise circumvent the
regulations, where enforcing may result in hardship." Matter of J-J-, 21 I&N Dec. at 984. As a
general matter, the Court "invokes [its] sua sponte authority sparingly, treating it not as a general
remedy for any hardships created by enforcement of the time and number limits in the motions
regulations, but as an extraordinary remedy reserved for truly exceptional situations." Matter of
G-D-, 22 l&N Dec. 1132, 1133-34 (BIA 1999) (citing Matter of J-J-, supra). The Eleventh
Circuit has held that the discretion to reopen proceedings sua sponte is exceptionally broad and
not subject to judicial review. Lenis v. U.S. Att'y Gen., 525 F.3d 1291, 1293 (11th Cir. 2008).