Reeker, Daniel S.

4832 S 24th Street, Ste 200

Omaha, NE 68107
U.S. Department of Justice
Executive Offce fr Immigration Review
Board of Immigration Appeals
Ofce of the Clerk
5 /07 Leesburg Pike. Suite 2000
Fals Church, Virginia 20530
OHS/ICE Ofce of Chief Counsel - OMA
1717 Avenue H
Omaha, NE 68110
Name: REYES-HERRERA, JOSE ATILO A 200-586-985
Date of this notice:
8
/29/201
4
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosure
Panel Members:
Grant, Edward R.
Sincerely,
Donna Carr
Chief Clerk
Userteam: Docket
For more unpublished BIA decisions, visit www.irac.net/unpublished
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Cite as: Jose Atilo Reyes-Herrera, A200 586 985 (BIA Aug. 29, 2014)
' '
U.S. Dpaent of Jutice
Exet Oc for Imgton Re
Deison of te Bod o I igon Ap
FalChu Vi 20530
File: A00 586 985 - Omaa, N Date:
I r: JOSE ATO RYES-Ha.k.a. Domingo Castenea
I REMOVA PROCEDIGS
APEA
ON BEHLF OF RESPONET: Daiel S. Reke, Esqu
ON BEHLF OF DHS:
APPLICATION: Reopeing
Mathew Morrissey
Assistant Chief Counsel
AUG 2
9 2014
The respondent, a naive and citizen of Gatemala, ha fled a timely appel of the
Immgtion Judge's decision date Febra 22, 2013, deying his motion to repen. Te
Depaent of Homelad Security ("DHS") h fled a reponse brief opposing te appeal. The
record wll be remande.
O appel, the responden poins t eidenc which was overlooked or mischaterze by
te Immgtion Judge. In pacula, he ages that his letter to the Nebraska Supreme Cour
Counsel of Discipline did constitute the f ste of a state ba cmplaint, ad t he did see a
copy on hs prior cusel. The Imgation Judge may have overlooke the response fom
Attorey Eckeson de Jauay 24, 2013, which w atache t the Respondet's Emergecy
Moton to Stay Removal fled with the Immgtion Cour on Febra 5, 2013. I ts response,
fre counsel idicates ta his client wa time-bar e fom applyng fr asylum, but does not
indicte whethe the relief of witholding of removal was discusse. This should be considered
by the Immigaton Judge in the fs instace. Due to our limited fc-fnding auhorty, we fnd
t a remd is wa ted.
Morever, the moton to repe was fled just I wek beyond te 90-day fling dedline fr
motions, ad within the 120-day voluntay depare period which had been gated by the
Immigation Judge on Octobr 11, 2012. Therefre, this is not a c in whch a reponden
clely failed to eercise due diligence in pursing his clams. See, e.g, Ka v. Gnas,
406 F.3d 1087, 1090 (8t Cir. 2005).
Finaly, te respondent atached a comleted aylu application (or I-589) to hs motion
to reopen. The Immigation Judge considered the clams wten on te applicaion ad
detened that the respondent is not prma fcie eligible fr aslum but there is no indicaion
whete ts isse was addresse at the te of his heg. See geral Mat of EF-H-L-,
26 I&N Dec. 319 (I 2014). Upon repenng, the Imigation Judge should consider all fors
of relief fr which te respondent appes eligible at that time.
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Cite as: Jose Atilo Reyes-Herrera, A200 586 985 (BIA Aug. 29, 2014)
A00 586 985
Accordingly, te following orde will be etere.
ORE: The reord is remaded to the Imigaion Judge for fhe procedings and the
e of a new decision cnsisten with the fregoin opinion.
FOR
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Cite as: Jose Atilo Reyes-Herrera, A200 586 985 (BIA Aug. 29, 2014)
...

..
j
LEE, ESTHER, ESQ.
...
/.*
UITED STATES DEPARTMENT OF JJCE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRTION COURT
1717 AVENUE H SUITE 100
OMAHA, N 68110
4832 S. 24TH STREET, SUITE 200
OMA, N 68107
--
IN THE MTTER OF
REYES-HERRERA, JOSE ATILO
FILE A 200-586-985 DATE: Feb 25, 2013
UALE TO FORWARD - NO ADRESS PROVIDED
'ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRTION JUGE. THIS DECISION
IS FINA ULESS A APPEA IS FILED WITH THE BOAD OF IMMIGRTION APPEALS
WITHIN 30 CALENDAR DAYS OF THE DATE OF THE MAILING OF THIS WRITTEN DECISION.
SEE THE ENCLOSED FORMS A INSTRUCTIONS FOR PROPERLY PREPAING YOUR APPEAL.
YOU NOTICE OF APPEAL, ATTACHED DOCUMENTS, A FEE OR FEE WAIVER REQUEST
MUST BE MAILED TO: BOARD OF IMIGRTION APPEALS
OFFICE OF THE CLERK
P.O. BOX 8530
FALS CHUCH, VA 22041
ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRTION JGE AS THE RESULT
OF YOU FAILURE TO APPEAR AT YOU SCHEDULED DEPORTATION OR REMOVAL HEARING.
THIS DECISION IS FINAL ULESS A MOTION TO REOPEN IS FILED IN ACCORDACE
WITH SECTION 242B(c) (3) OF THE IMMIGRTION A 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 REMOVA PROCEEDINGS. IF YOU FILE A MOTION
TO REOPEN, YOUR MOTION MUST BE FILED WITH THIS COURT:
OTHER:
IMMIGRATION COUT
1717 AVNUE H SUITE 100
OMA, N 68110
CC: OFFICE OF CHIEF COUSEL, DHS
1717 AVNE H, SUITE 174
OMAHA, NE 68110
FF
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UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMIGRTION RVIEW
IMMIGRATION COURT
OMAHA, NEBRASKA
File#: A200-586-985
In the Matter of:
Jose REYES Herrera,
Respondent.
)
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Date: February 22, 2013
IN REMOVAL
PROCEEDINGS
CHARGE: Immigation and Nationality Act ("INA" or "the Act") section
212(a)(6)(A)(i)-Alien present in the United States without being
admited or paoled.
APPLICATION: Motion to Reopen
ON BEHALF OF RESPONDENT:
Esther Lee, Esq.
Kaleeq Law Firm, LLC
4832 South 24th Street, Suite 200
Omaa, NE 68107
ON BEHALF OF THE GOVERMENT:
Paul R. Stultz, Deputy Chief Counsel
U.S. Deparent of Homeland Security
Immigration and Customs Enfrcement
1717 Avenue H, Suite 174
Omaha, NE 68110
DECISION OF THE IMMIGRTION JUDGE
I. Background and Procedural Histor
Respondent is a native and citizen of Guatemala who entered the United States without
inspection on or about an unnown date at or nea Nogales, Arizona. Exh. 1. On October 11,
2012, Respondent was granted voluntary deparure in lieu of removal. See Order of the
Immigration Judge. Respondent filed to depart on or befre February 8, 2013 as specifed by
the Cou fr his depaure. Id. As a consequence, te alterate order of removal entered by te
Court in the writen decision is fnal. See 8 C.F.R. 1241.l(f.
On Janua 18, 2013, Respondent submitted a Motion to Reopen, claiming tat his pror
counsel was inefective and erroneously advised him to voluntaily depat rather than fle a claim
fr asylu relief. See Motion to Reopen; Respondent's afdavit. The goverent opposes
Respondent's Motion to Reopen. See OHS Opposition to Respondent's Motion to Reopen.
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II. Legal Standard
A respondent may fle one motion to reopen proceedings. IA 240( c )(7)(A); 8 C.F.R.
1003.23(b)(l). The motion must be fled within ninety days of the date of ent of the fnal
administrative order of removal. IA 240(c)(7)(C)(i); 8 C.F.R. 1003. 23()(l). A respondent
may fle a motion to reopen predicated upon inefective assistance of counsel. See Rafyev v.
Muksey, 536 F.3d 853, 860 (8th Cir. 2008). A respondent alleging that the inefectiveness of
his or her prior counsel resulted in a due process violation must "demonstrate both a fdamental
procedural error and that the error resulted in prejudice." Bracic v. Holder, 603 F.3d 1027, 1032
(8th Cir. 2010) (quoting Lopez v. Heinauer, 332 F.3d 507, 512 (8th Cir. 2003)) (interal
quotations omitted). To establish prejudice, the respondent must show "that the outcome of the
proceeding may well have been diferent had there not been any procedural irregularities." Id.
(quoting Tun v. Gonzales, 485 F.3d 1014, 1026 (8th Cir.2007)) (interal quottions omitted).
A motion to reopen based on inefective assistance of coWsel does not require te
production of new evidence as required by the regulations fr other types of motions to reopen.
However, such a motion must comply with the standard established by the BIA in Matter of
Lozada. See Hernandez-Moran v. Gonzales, 408 F.3d 496, 499 (8th Cir. 2005); Matter of
Lozada, 19 I&N Dec. 637, 638 (BIA 1988). The procedural requirements include: (I) that the
motion be supported by an afdavit of the respondent attesting to the relevant fcts, (2) tat
fner counsel be infrmed of the allegations leveled against him or her and be given an
opporunity to respond, and (3) that the motion refect whether a complaint has been fled wit
appropriate disciplinary authorities with respect to any violation of frmer coWsel's ethcal or
legal responsibilities, and if not, why not. Id., at 639.
III. Analysis and Findings
Respondent's motion to reopen is untimely. See INA 240(c)(7)(C)(i); 8 C.F.R.
1003.23(b)(l). Wen a respondent fles a post decision motion to reopen during te period
allowed fr voluntary departure, the grant of voluntary deparure is terinated automatically, and
the alterate order will take efect immediately. 8 C.F.R. 1240.26(b)(l)(iii), (iv).
To the extent that the respondent is asserting that prior counsel was inefective i
advising him of all frms of relief, 1 the motion to reopen is govered by the standads set frt in
Matter of Lozada, 19 I&N Dec. 63 7 (BIA 1988). Wile the curent motion to reopen contains an
afdavit fom the respondent, it does not contain notice to the prior atorey alleging inefective
assistance of counsel or a response. See Matter of Lozada, 19 I&N Dec. at 639. Further, it does
not contain a copy of a complaint to a state bar, or an explanation fr why such complaint is not
included. See id. Accordingly, the Court fnds that it would not be proper to reopen the case
based on alleged inefective assistance of counsel.
Respondent also alleged that prior counsel advised him to voluntarily depar and would
"always be very short with words." See Motion to Reopen. Respondent fled a For 1-589
application fr asylum and withholding Relief with his motion to reopen. See Motion to Reopen,
Form I-589. In his application, Respondent stated that Guatemala "was recently subjected to
See Affdavit of Jose Reyes.
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horrible problems fom a hurrcane," and that "there was always a lot of gang violence." See id.
The Cour fnds that the allegations in Respondent's application and the accompaying
document, taken as true, do not demonstate prima facie eligibilit fr asylum to wa ant
reopening of proceedings. See 8 C.F.R. 1003.2(c)(l); INS v. Abudu, 485 U.S. 94 (1988).
General civil unrest, crme, or societal violence, do not constitute persecution on account of a
protected gound within the meaing of the Act. See Garcia-Colindres v. Holder, 700 F.3d.
1153, 1157-58 (8th Cir. 2012); Ngre v. Ashcrof, 367 F.3d 975, 990 (8th Cir.2004) (fnding that
evidence of isolated violence generally does not compel a fnding of persecution).
Accordingly, the fllowing order will be entered:
IT IS ORDERED that Respondent's Motion to Reopen is DENIED

R
Immigration Judge
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