U.S.

Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals
Office of the Clerk
5107 Leesburg Pike, S11i1e 2000
Falls Church, Virginia 2204 I

Name: HERNANDEZ-HERNANDEZ, MIG ...

A 202-137-893

Date of this notice: 2/22/2016

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

Oc,n.n.a._,

Ca/vi.J

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Grant, Edward R.
Adkins-Blanch, Charles K.
Guendelsberger, John

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/

Cite as: Miguel Hernandez-Hernandez, A202 137 893 (BIA Feb. 22, 2016)

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OHS/ICE Office of Chief Counsel - HLG

1717 Zoy Street
Harlingen, TX 78552

U.S. Department of Justice

Decision of the Board of Immigration Appeals

E-1'utive Office for Immigration Review

Falls Church, Virginia 22041

File: A202 137 893 - Harlingen, TX

Date:

FEB 2 2 2016

In re: MIGUEL HERNANDEZ-HERNANDEZ

APPEAL
ON BEHALF OF RESPONDENT: Pro se
APPLICATION: Reopening
The respondent, a native and citizen of Mexico, appeals the decision of the Immigration
Judge, dated September 23, 2015, denying his motion to reopen. The Department of Homeland
Security has not replied to the respondent's appeal.
We review Immigration Judges' findings of fact for clear error, but questions of law,
discretion, and judgment, and all other issues in appeals, de novo. 8 C.F.R. 1003.l(d)(3)(i},
(ii).
Considering the totality of the circumstances presented in this case, we conclude that
reopened removal proceedings are warranted in order to provide the respondent with a renewed
opportunity to appear before an Immigration Judge to show why he should not be removed from
the United States. See 8 C.F.R. 1003.23(b)(l). At the present time, we express no opinion
regarding the ultimate outcome of these proceedings. Accordingly, the following order is
entered.
ORDER: The respondent's appeal is sustained, the order of removal, entered in absentia on
August 19, 2015, is vacated, the proceedings are reopened, and the record is remanded to the
Immigration Court for further proceedings and the entry of a ,ew decision.

Cite as: Miguel Hernandez-Hernandez, A202 137 893 (BIA Feb. 22, 2016)

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IN REMOVAL PROCEEDINGS

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
2009 W. JEFFERSON AVE, STE 300
HARLINGEN, TX 78550

IN THE MATTER OF
HERNANDEZ-HERNANDEZ, MIGUEL

FILE A 202-137-893

DATE: Sep 24, 2015

UNABLE TO FORWARD - NO ADDRESS PROVIDED

ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE. THIS DECISION
IS FINAL UNLESS AN APPEAL IS FILED WITH THE BOARD OF IMMIGRATION APPEALS
WITHIN 30 CALENDAR DAYS OF THE DATE OF THE MAILING OF THIS WRITTEN DECISION.
SEE THE ENCLOSED FORMS AND INSTRUCTIONS FOR PROPERLY PREPARING YOUR APPEAL.
YOUR NOTICE OF APPEAL, ATTACHED DOCUMENTS, AND FEE OR FEE WAIVER REQUEST
BOARD OF IMMIGRATION APPEALS
MUST BE MAILED TO:
OFFICE OF THE CLERK
5107 Leesburg Pike, Suite 2000
FALLS CHURCH, VA 22041
ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE AS THE RESULT
OF YOUR FAILURE TO APPEAR AT YOUR SCHEDULED DEPORTATION OR REMOVAL HEARING.
THIS DECISION IS FINAL UNLESS A MOTION TO REOPEN IS FILED IN ACCORDANCE
WITH SECTION 242B(c) (3) OF THE IMMIGRATION AND 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 REMOVAL PROCEEDINGS. IF YOU FILE A MOTION
TO REOPEN, YOUR MOTION MUST BE FILED WITH THIS COURT:
IMMIGRATION COURT
2009 W. JEFFERSON AVE, STE 300
HARLINGEN, TX 78550
OTHER:

CC: ASSISTANT CHIEF COUNSEL

1717 ZOY ST.
HARLINGEN, TX, 785520000

IMMIGRATION COURT

FF

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Law Office of Monica M. Moreno

Moreno, Monica Marie
2002 N. Conway Ave Ste. K
Mission, TX 78572

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
HARLINGEN IMMIGRATION COURT
HARLINGEN, TEXAS

MIGUEL HERNANDEZ HERNANDEZ

RESPONDENT
APPLICATION:

)
)
)
)
)
)

Septemb2015
File Number: A 202 137 893
In Removal Proceedings

Motion to Reopen

ON BEHALF OF THE RESPONDENT

Monica M. Moreno
2002 North Conway Ave., Ste. K
Mission, TX 78572

ON BEHALF OF THE GOVERNMENT

Assistant Chief Counsel
U.S. Department of Homeland Security
1717 Zoy Street
Harlingen, TX 78552

DECISION OF THE IMMIGRATION JUDGE

On August 19, 2015, the Court ordered Respondent removed to Mexico in absentia pursuant
to section 240(b)(5)(A) of the Immigration and Nationality Act (INA or Act). On August 31, 2015,
Respondent, through counsel, filed a motion to reopen. Respondent's motion to reopen will be
denied.
The motion claims that Respondent was never personally provided with notice of his hearing.
The record reflects that Responednt was personally served with a Notice to Appear on November 10,
2014. Exh. #1. Monica Moreno entered her appearance as Respondent's counsel of record on
November 14, 2014. After Respondent was released on bond, the Court served a hearing notice for
Respondent's August 19, 2015, removal hearing in Harlingen, Texas, on Ms. Moreno. See 8 C.F.R.
1003.13, 1292.5(a) (stating that whenever an alien is required to be given notice, such notice shall
be given to the attorney of record); Matter of Barocio, 19 l&N Dec. 255, 259 (BIA 1985)
(recognizing that notice to the attorney of record constitutes notice to the alien). However, on the
date of Respondent's hearing, neither Respondent nor Ms. Moreno were present, so the Court
proceeded in absentia and ordered Respondent removed.
Respondent argues that he never received notice of his hearing because Respondent's counsel
failed to communicate to him the time and place of the removal hearing. It does appear, on the basis
of the affidavit of Respondent's counsel, Ms. Moreno, that Ms. Moreno was the person most directly
responsible for the issuance of an order of removal against Respondent for failing to relay the hearing
information to Respondent. However, the Court finds that lack of communication between counsel
and Respondent, or mere "administrative confusion in Respondent's attorney's office," is an
insufficient excuse for failing to appear for the hearing. See Matter of Jean, 17 l&N Dec. I 00, 104

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IN THE MATTER OF

Finally, although the motion to reopen did not specifically request reopening under the
regulations, the Court has considered the case under its sua sponte authority and finds that reopening
is not warranted. 8 C.F.R. 1003.23(b)(l); see Matter ofJ-J, 21 I&N Dec. 976 (BIA 1997).
Accordingly, the following order.will be entered:
ORDER: The respondent's motion to reopen is he

D.

David Ayala
United States Immigration Judge

1 Matter ofLozada, 19 I&N Dec. 637,639 (BIA 1988), requires a successful ineffective assistance of counsel claim
be accompanied by: ( 1) an affidavit setting forth in detail the agreement with former counsel concerning what action
would be taken and what counsel did or did not represent in this regard; (2) proof that the alien notified former
counsel of the allegations of ineffective assistance and allowed counsel an opportunity to respond; and (3) if a
violation of ethical or legal responsibilities is claimed, a statement as to whether the alien filed a complaint with any
disciplinary authority regarding counsel's conduct and, if a complaint was not filed, an explanation for not doing so.

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(BIA 1979). Moreover, if Respondent is claiming ineffective assistance of counsel, Respondent must
demonstrate that he has complied with the three procedural requirements set forth in Matter of
Lozada 1 , 19 I&N Dec. 637, 639 (BIA 1988). See Rodriguez-Manzano v. Holder, 666 F.3d 948, 953
(5th Cir. 2012). The Court finds that Respondent has not demonstrated compliance with any of these
three requirements. Consequently, the Court will not reopen these removal proceedings based upon
exceptional circumstances.

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CERTIFICATE OF SERVICE
THIS DOCUMENT WAS SERVED BY: MAIL (M) PERSONAL SERVICE (P)
TO: ( ) ALIE ( LIEN C/0 CUSTODIAN LIEN'S A Y
HS
DATE:
BY: couRT stAFF ______,jl-&-...,l!......4,....J,.Sd-ATTA
E S: () EOIR-33 () EOIR-28 () LEGA RV CES LIST OTHER