U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals Office ofthe Clerk

5107 Leesburg Pike. S11i1e 1000 Falls C/111rch, Virgi11ia :!104/

Rosas, Xavier., Esq Law Offices of Jessica Dominguez 3771 Cahuenga Blvd Studio City, CA 91604

OHS/ICE Office of Chief Counsel - LOS 606 S. Olive Street, 8th Floor Los Angeles, CA 90014

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Name: OCHOA-ALCANTAR, MARIE GU ...

A 076-610-961

Date of this notice: 4/30/2013

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

[)OrutL ct1/lA)
Donna Carr Chief Clerk

Enclosure
Panel Members: Guendelsberger, John Hoffman, Sharon Adkins-Blanch, Charles K.

williame
Userteam: Docket

Cite as: Maria Guadalupe Ochoa-Alcantar, A076 610 961 (BIA Apr. 30, 2013)

U.S. Department of Justice

Executive Office for Immigration Review Falls Church, Virginia 22041

Decision of the Board of Immigration Appeals

File:

A076 610 961 -Los Angeles, CA

Date:

APR 3 0 2013

In re: MARIA GUADALUPE OCHOA-ALCANTAR

IN REMOVAL PROCEEDINGS APPEAL ON BEHALF OF RESPONDENT: Xavier Rosas, Esquire

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APPLICATION: Reopening The respondent, a native and citizen of Mexico, was ordered removed in absentia on February 22, 2001. On December 16, 2011, the respondent filed a motion to reopen proceedings, which the Immigration Judge denied on March 2, 2012. The respondent filed a timely appeal of that decision. The appeal will be sustained, proceedings will be reopened and the record will be remanded. The Immigration Judge denied the respondent's motion to reopen finding that her motion was untimely and did not warrant sua sponte reopening. We have held that -ineffective assistance of counsel can constitute an "exceptional circumstance" for purposes of rescission of an in absentia order where the alien establishes that the failure to appear was the result of ineffective assistance of counsel and_ where the criteria set forth in

Matter of Lozada,

19 I&N Dec. 637 (BIA1988),

affd, 857 F.2d 10 (1st Cir.

1988), are satisfied.

In light of the unique circumstances presented in this case, including evidence reflecting that the respondent's former counsel provided ineffective assistance which resulted in the in absentia removal order because of his direction to the respondent not to appear at her February 22, 2001, hearing, an exceptional situation is present to warrant sua sponte reopening of these proceedings. In reaching this conclusion, we note that the respondent's ability to demonstrate due diligence has been extremely hindered by the ongoing extensive and serious health issues of her lawful permanent resident husband, and we also note that that the respondent appears eligible for cancellation of removal. Accordingly, the following order will be entered. ORDER: The appeal is sustained, proceedings are reopened and the record is remanded to the Immigration Judge for further proceedings.

Cite as: Maria Guadalupe Ochoa-Alcantar, A076 610 961 (BIA Apr. 30, 2013)

...

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UNITED STATES DEPARTMENT IMMIGRATION 606 SOUTH LOS ANGELES, COURT CA

OF

JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW OLIVE ST. 90014

LAW OFFICES OF ELSA MARTINEZ, XAVIER ROSAS, STUDIO CITY, ESQ. 3771 CAHUENGA BLVD.

PLC

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CA

91604 FILE A 076-610-961 MARIE GUADALUPE DATE: Mar 2, 2012

IN THE MATTER OF OCHOA-ALCANTAR,

UNABLE TO FORWARD

NO ADDRESS PROVIDED THIS DECISION

ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE. IS FINAL UNLESS AN APPEAL WITHIN 30 CALENDAR

IS FILED WITH THE BOARD OF IMMIGRATION APPEALS PROPERLY PREPARING YOUR APPEAL.

DAYS OF THE DATE OF THE MAILING OF THIS WRITTEN DECISION. ATTACHED DOCUMENTS, OFFICE OF THE CLERK P.O. BOX 8530 VA 22041 FALLS CHURCH,

SEE THE ENCLOSED FORMS AND INSTRUCTIONS FOR YOUR NOTICE OF APPEAL, MUST BE MAILED TO:

AND FEE OR FEE WAIVER REQUEST

BOARD OF IMMIGRATION APPEALS

ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE AS THE RESULT OF YOUR FAILURE TO APPEAR WITH SECTION 242B(c)(3) 8 U.S.C. AT YOUR SCHEDULED DEPORTATION OR REMOVAL HEARING. FILED IN ACCORDANCE ACT, 8 U.S.C. NATIONALITY THIS DECISION IS FINAL UNLESS A MOTION TO REOPEN IS OF THE IMMIGRATION AND

SECTION 1252B(c)(3) IN DEPORTATION PROCEEDINGS OR SECTION 240(c)(6), SECTION 1229a(c)(6) YOUR MOTION IN REMOVAL PROCEEDINGS. IF YOU FILE A MOTION TO REOPEN, MUST BE FILED WITH THIS COURT: IMMIGRATION COURT

"/::.

606

SOUTH OLIVE ST. CA 90014

OTHER '

3 & .ch- 9 U:
KUSKY, 606 ELENA, ESQ. BTH FLOOR 900140000 CA, S. OLIVE ST.,

LOS ANGELES,

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IMMIGRATION COURT CC:

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LOS ANGELES,

UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT LOS ANGELES, CALIFORNIA

MAR -2 l012

File No.: In the Matter of:

A 076 610 961

) ) )
) IN REMOVAL PROCEEDINGS

OCHOA ALCANTAR, Maria Guadalupe

Respondent.
CHARGE:

) ) ) )

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Section 212(a)(6)(A)(i) of the Immigration and Nationality Act (INA) -Alien present in the United States without being admitted or paroled Motion to Reopen
ON BEHALF OF THE GOVERNMENT:

APPLICATION:

ON BEHALF OF RESPONDENT:

Xavier Rosas, Esquire Law Offices of Jessica Dominguez 3 771 Cahuenga Boulevard Studio City, California 91604

Assistant Chief Counsel Department of Homeland Security 606 South Olive Street, Eighth Floor Los Angeles, California 90014

DECISION AND ORDER OF THE IMMIGRATION JUDGE I. Procedural History

Maria Guadalupe Ochoa Alcantar (Respondent) is a native and citizen of Mexico. On May 11, 1999, the Government personally served upon her a Notice to Appear (NTA), alleging therein that Respondent is not a citizen or national of the United States and that Respondent is a native and citizen of Mexico. The Government further leged that on or about July 17, 1986, at or near San Ysidro, California, Respondent entered the United States without inspection by an immigration officer. Based on these factual allegations, the Government charged Respondent with removability pursuant to INA 212(a)(6)(A)(i) for being present in the United States without being admitted or paroled. Jurisdiction vested and proceedings commenced when the Government filed the NTA with the Court on May 19, 1999. See 8 C.F.R. 3.14(a) (1999). Respondent appeared in Court with former counsel, Mr. Steven W. Blalock, at a hearing on July 8, 1999. Respondent, through counsel, admitted the factual allegations in the NTA and conceded the charge ofremovability. Respondent indicated that she would be seeking reliefin the form of cancellation of removal, and in the alternative, voluntary departure. The Court reset the matter to July 28, 1999, to allow Respondent to submit her application to the Court. The Court personally served Respondent with a written Notice of Hearing (NOH) and provided

Respondent, through an interpreter, with oral notice of her next hearing, scheduled for July 28, 1999, and the consequences of failing to appear. Respondent's proceedings were continued several times between July 28, 1999, and August 10, 1999, to allow counsel to prepare and correct her application for relief. Respondent appeared at each of these continued hearings. At each hearing, the Court provided Respondent with written and oral notice of her next hearing and the consequences of failing to appear. On August 10, 1999, Respondent was present with Mr. Blalock. The Spanish language interpreter was not present. Mr. Blalock waived the presence of the interpreter. The Court reset the matter to February 22, 2001, to allow for Respondent's witnesses to be present. The Court personally served Respondent with a NOH and provided Mr. Blalock with oral notice of Respondent's next hearing, scheduled for February 22, 200 l, and the consequences of failing to appear. Mr. Blalock assured the Court that he would provide oral notice to Respondent of her next hearing since he had waived the presence of the interpreter. On February 22, 2001, Respondent and Mr. Blalock failed to appear for Respondent's scheduled hearing. The Court proceeded in absentia and, based on her prior admissions and concession, ordered Respondent removed to Mexico. On December 15, 2011, Respondent filed the pending motion to reopen based on lack of notice and ineffective assistance of counsel. For the following reasons, the Court denies Respondent's motion to reopen.
II. Law and Analysis
1.

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Notice

An in absentia removal order may be rescinded by the Court upon a motion to reopen filed at any time if the respondent demonstrates that she did not receive notice in accordance with INA 239(a). INA 240(b)(5)(C)(ii). The INA provides that written notice must be provided in person to the respondent or, if personal service is not practicable, through service by mail to the respondent or to the respondent's counsel of record, if any. INA 239(a)(I). Such notice must include the time and place at which the proceedings will be held and the consequences of failing to appear. Id. Notice to counsel constitutes notice to the applicant. See 8 C.F.R. 1003.26(c)(2); see also Garcia v. INS, 222 F.3d 1208 (9th Cir. 2000). "Due process is satisfied if notice is served in a manner 'reasonably calculated' to ensure that it reaches the alien." Id. at 1209 (citing Farhoud v. INS, 122 F.3d 794, 796 (9th Cir. 1997)).

In the present matter, Respondent claims that she did not have notice of her hearing and that she relied solely on Mr. Blalock, who told her that she did not have to attend her hearing on February 22, 2001, because it was cancelled. However, Respondent's claim is belied by the record, which establishes that the written NOH was personally served on Respondent on August 10, 1999. Exh. 2. Additionally, the tape recording of proceedings indicates that Respondent was present in Court on August 10, 1999.. Although the Spanish language interpreter was not present

at this hearing, Mr. Blalock waived the presence of the interpreter, and the Court provided oral notice to Mr. Blalock of the date and time of the next scheduled hearing and the consequences of failing to appear. Therefore, the Court finds that Respondent was served with proper notice of her hearing and will not grant her motion on that basis. See INA 239(a)(l); Garcia, 222 F.3d at 1209.
2.

Ineffective Assistance of Counsel

The Court may rescind an in absentia order of deportation upon a motion filed 180 days after the date of the order if the respondent demonstrates that she failed to appear because of exceptional circumstances beyond her control. 8 C.F.R. 1003.23(b)(4)(iii). Ineffective assistance of counsel may constitute an exceptional circumstance. See Matter of Grijalva. Barrera, 21 I&N Dec. 472, 474 (BIA 1996), Matter of Lozada, 19 I&N Dec. 63 7 (BIA 1988). Furthermore, the time limitation for motions to reopen may be equitably tolled in cases where the alien has been defrauded by an attorney or a non-attorney purporting to be an attorney. See Lopez v. INS, 184 F.3d 1097, 1100 (9th Cir. 1999). In the instant case, the Court entered a final order of removal against Respondent on February 22, 2001. Respondent filed her motion to reopen on December 15, 2011. As Respondent filed her motion to reopen over ten years after the Court ordered her removed in absentia, her motion is untimely. 8 C.F.R. 1003.23(b)(4)(ii). Respondent asserts that Mr. Blalock rendered ineffective assistance by telling Respondent that her February 22, 2001 hearing had been cancelled. Respondent alleges that Mr. Blalock told her not to go to the Immigration Court and later told her that she had been granted lawful permanent resident status. Respondent claims that she relied solely on the information given to her by Mr. Blalock, and, as a consequence, was ordered removed in absentia. A successful claim of ineffective assistance of counsel is made when the respondent substantially complies with the Lozada requirements, shows that she has suffered prejudice or harm due to counsel's ineffective performance, and demonstrates that she acted with due diligence in discovering the harm. See Maravilla Maravilla v. Ashcroft, 381 F.3d 855, 858 (9th Cir. 2004); Iturribarria v. INS, 321 F.3d 889, 897 (9th Cir. 2003); Lozada, 19 I&N Dec. 637. For the following reasons, the Court finds that Respondent's claim of ineffective assistance is insufficient due to a failure to meet the Lozada requirements and a lack of due diligence. a. Lozada Requirements
In order to establish ineffective assistance, a respondent must comply with the three evidentiary requirements first articulated in Matter of Lozada. 19 l&N Dec. 637; see also 8 C.F.R. 1208.4(a)(5)(iii). The respondent is required to: 1) submit an affidavit explaining the agreement with former counsel regarding legal representation; 2) present evidence that prior counsel has been informed of the allegations against him and given an opportunity to respond; and 3) either show that a complaint against prior counsel was filed with the proper disciplinary authorities or explain why no such complaint was filed. 8 C.F.R. 1208.4(a)(5)(iii)(A)-(C); Lozada, 19 I&N Dec. at 639. The Lozada requirements are intended to ensure that an ineffective

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assistance claim is legitimate and substantial and that an adequate factual basis exists in the record to assess the claim. See Castillo-Perez v. INS, 212 F.3d 518, 526 (9th Cir. 2000). While these requirements are not rigidly applied, particularly when the record shows a "clear and obvious case of ineffective assistance," the respondent must still show substantial compliance with the rule. Castillo-Perez, 212 F.3d at 526; Rodriguez-Lariz v. INS, 282 F.3d 1218, 1227 (9th Cir. 2002). Respondent has satisfied two of the three Lozada requirements. First, in her affidavit, Respondent states that she hired Mr. Blalock to represent her in her immigration proceedings. Resp. Aff'd., 1. Respondent has also submitted a retainer agreement between her and Mr. Blalock showing that Mr. Blalock was to represent Respondent "in suspension of deportation." Exh. C. Therefore, Respondent has satisfied the first Loazada requirement. Second, although Respondent has not filed a complaint with the proper disciplinary authorities, she has demonstrated that Mr. Blalock was suspended from practicing law in California and that Mr. Blalock has since resigned. Exh. G. However, while Respondent has complied with two of the three Lozada requirements, Respondent has failed to present evidence that Mr. Blalock has been informed of the allegations against him or given an opportunity to respond. Further, Respondent has failed to provide any explanation as to why she has not contacted Mr. Blalock regarding these allegations. The Court finds Respondent's failure to contact Mr. Blalock significant because she has neither filed a complaint against Mr. Blalock nor provided Mr. Blalock an opportunity to be informed of these allegations and respond. Thus, Respondent has failed to sufficiently comply with the requirements of Lozada. b. Due Diligence

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Moreover, the Court finds that Respondent has not demonstrated the requisite due diligence in discovering the alleged error of former counsel to toll the filing deadline for her motion to reopen. The Ninth Circuit only recognizes "equitable tolling of deadlines and numerical limits on motions to reopen or reconsider during periods when a petitioner is prevented from filing because of deception, fraud, or error, as long as the petitioner acts with due diligence in discovering the deception, fraud or error." Iturribarria, 321 F.3d at 897 (emphasis added); see also Lopez, 184 F.3d 1097. When the filing deadline is tolled, it is only tolled until the date the error was discovered or, with due diligence, should have been discovered. Socop-Gonzalez v. INS, 272 F.3d 1176, 1194-97 (9th Cir. 2001). Here, more than ten years have passed since former counsel's alleged error. Even assuming Respondent was prejudiced by the ineffective representation of prior counsel, there is not sufficient evidence that Respondent has taken any substantial action in the intervening years to discover or rectify this error. Respondent asserts that from 2001 to 2003, she was in contact with Mr. Blalock, and he was providing her with false information regarding her case. In 2004, after being unable to contact Mr. Blalock, Respondent consulted with notarios who informed Respondent that she was not a permanent resident. Resp. Aff'd., 4. Nevertheless, Res ondent waited almost five years, until 2008, to hire Ronzio & Associates to research her case.

Id.

Although Respondent's supporting evidence indicates that she did not meet with Ronzio & Associates until

October 2009, Respondent asserts that she first contacted them in 2008. The Court must accept Respondent's

Respondent asserts that she met with several notarios during this time to discuss her case, and each of them told her that they could not help her. The Court questions why Respondent repeatedly decided to seek the assistance of notarios during this period instead of licensed attorneys who would be able to provide her with proper legal advice. Respondent has not provided any evidence, aside from her own declaration, demonstrating that she was actively pursuing her case for the almost five years between the date she allegedly discovered that she had not been granted relief and the date she first met with an attorney. She has thus not demonstrated that she acted with due diligence in addressing her claim. Moreover, Respondent asserts that she was informed that she had been ordered removed and did not have lawful permanent resident status in 2004, and she discovered that Mr. Blalock had been disciplined by the California State Bar as early as 2005. The Court is thus not convinced that Respondent did not conclusively learn of the ineffective assistance of counsel until meeting with current counsel in 2011, and Respondent's motion remains untimely with respect to her ineffective assistance claim. See 8 C.F.R. 1003.23(b)(4)(ii); Albillo-De Leon v. Gonzales, 410 F.3d 1090, 1100 (9th Cir. 2005). In sum, Respondent has not exercised due diligence to take action regarding former counsel's alleged error. She also has failed to sufficiently comply with the Lozada requirements. Therefore, the Court will not grant Respondent's motion based on ineffective assistance of counsel.
3.

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Sua Sponte Respondent also requests that the Court reopen her proceedings sua

sponte.

An

Immigration Judge may upon his own motion at any time, or upon motion of the Government or alien, reopen or reconsider any case in which he has made a decision. 8 C.F.R. 1003.23(b)( l ). The decision to grant or deny a motion to reopen is within the discretion of the Immigration Judge. 8 C.F.R. 1003. 23(b)(l)(iv). The Board has stated that "the power to reopen on our own motion is not meant to be used as a general cure for filing defects or to otherwise circumvent the regulations, where enforcing them might result in hardship." Matter of J-J-, 21 l&N Dec. 976, 984 (BIA 1997). Proceedings should be reopened sua sponte only under "exceptional" circumstances. Id. at 984. Moreover, the Board has indicated that where finality is a key objective, the threshold for sua Dec. 871 (BIA 1989). The Court acknowledges the positive equities in Respondent's case, including her two United States citizen children, who were born prior to the commencement of her proceedings, and the fact that she is the sole caregiver to her ailing husband. Additionally, Respondent has been present in the United States for over twenty years. However, the Court declines to reopen these proceedings because Respondent has failed to demonstrate exceptional circumstances sufficient to warrant sua sponte reopening. The Court finds that Respondent's failure to appear at her February 2001 hearing was not beyond her control. Respondent was personally served with a written notice of the time and place of her hearing and was provided with multiple warnings of the consequences of failing to appear. The waiver of a Spanish language interpreter
assertions as true unless they are inherently unbelievable. See Celis-Castellano v. Ashcroft, 298 F.3d 888, 892 (9th Cir. 2002).

sponte reopening is extremely high.

See Matter of 0-, 19 I&N

at one hearing or on one occasion did not affect Respondent's understanding of her obligations to the Court. Respondent concedes in her affidavit that she was aware of her scheduled hearing date and merely alleges that Mr. Blalock told her not to go because it was cancelled. Moreover, Respondent has not demonstrated diligence in filing the present motion to reopen. Despite the fact that she allegedly discovered that she had not been granted relief in 2004, she remained in the United States unlawfully for over seven years before filing a motion with the Court. Respondent's positive equities do not outweigh her lack of diligence in pursuing her immigration case and disrespect for the immigration laws of the United States. Therefore, the Court finds that Respondent cannot demonstrate that her case warrants sua sponte reopening.

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Accordingly, the following order shall be entered:

ORDER IT I S ORDERED

that Respondent's motion to reopen is DENIED.

DATE:

MAR

2 2012

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