U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals
Office of the Clerk
5107 Leesburg Pike, Suite 2000
Falls Church, Virginia 22041

DHS/ICE Office of Chief Counsel - CHL

5701 Executive Ctr Dr., Ste 300
Charlotte, NC 28212

Name: GUILLEN-ACOSTA, WILDIN DAV...

A 206-799-049
Date of this notice: 7/15/2016

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

DorutL C

t1/VL)

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Kendall-Clark! Molly
Greer, Anne J.
O'Herron1 Margaret M

Use rteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/
Cite as: Wildin David Guillen-Acosta, A206 799 049 (BIA July 15, 2016)

Immigrant & Refugee Appellate Center, LLC | www.irac.net

Smallwood, Evelyn Rose Griggs

Velasquez and Associates
107 N. Church St, Ste. 200
Durham, NC 27701

U.S. Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals
Office ofthe Clerk
5107 leesburg Pike, Suite 2000
Falls Church, Virginia 22041

DHS/ICE Office of Chief Counsel - CHL

5701 Executive Ctr Dr., Ste 300
Charlotte, NC 28212

Name: GUILLEN-ACOSTA, WILDIN DAV...

A 206-799-049
Date of this notice: 7/15/2016

Enclosed is a copy of the Board's decision in the above-referenced case. This copy is being
provided to you as a courtesy. Your attorney or representative has been served with this
decision pursuant to 8 C.F.R. 1292.S(a). If the attached decision orders that you be
removed from the United States or affirms an Immigration Judge's decision ordering that you
be removed, any petition for review of the attached decision must be filed with and received
by the appropriate court of appeals within 30 days of the date of the decision.
Sincerely,

DoYUtL C

f1/VL)

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Kendall-Clark, Molly
Greer, Anne J.
O'Herron, Margaret M

Userteam: L,

' (:

Cite as: Wildin David Guillen-Acosta, A206 799 049 (BIA July 15, 2016)

Immigrant & Refugee Appellate Center, LLC | www.irac.net

GUILLEN-ACOSTA, WILDIN DAVID

A206-799-049
STEWART DETENTION CENTER
146 CCA ROAD, P.O. BOX 248
LUMPKIN, GA 31815

U.S. Department of Justice

Decision of the Board of Immigration Appeals

' ' Eecutive Office for Immigration Review

Falls Church, Virginia 22041

File: A206 799 049 - Charlotte, NC

Date:

JUL 1 5 2016

In re: WILDIN DAVID GUILLEN-ACOSTA

APPEAL
ON BEHALF OF RESPONDENT: Evelyn R.G. Smallwood, Esquire
ON BEHALF OF OHS:

Scott D. Criss
Assistant Chief Counsel

APPLICATION: Reopening
The respondent has appealed the Immigration Judge's denials of his motion to reopen on
February 29, 2016, and on March 18, 2016. As these appeals present nearly identical issues of
fact and law, these appeals will be consolidated. 1 The Department of Homeland Security
opposes reopening. The appeal will be sustained and the record remanded for further
proceedings.
Upon our de novo review, we conclude the respondent met his burden of establishing that
reopening was warranted. 8 C.F.R. 1003. l(d)(3)(i), (ii). The respondent has submitted
evidence that his prior counsel's conduct was deficient in failing to inform the respondent of the
possibility of applying for asylum (Respondent's Submission of Feb. 19, 2016, Tabs E, G).
Matter of Lozada, 19 l&N Dec. 637 (BIA 1988). Given the particular evidence and arguments
presented in this case, we conclude that reopening is warranted to provide the respondent with an
opportunity to submit applications for relief.
ORDER: The respondent's consolidated appeal is sustained.
FURTHER ORDER: The respondent's motion to reopen is granted.
FURTHER ORDER: The record is remanded to the Immigration Judge for further
proceedings consistent with the foregoing opinion and for the entry of a new decision.

We acknowledge the respondent's concerns that the record is confusing. However, in this
particular case issuing one decision to address these issues will ultimately prove less confusing
than issuing two separate decisions. In considering this appeal, we have considered all of the
respondent's arguments and evidence across both appeal filings.

Cite as: Wildin David Guillen-Acosta, A206 799 049 (BIA July 15, 2016)

Immigrant & Refugee Appellate Center, LLC | www.irac.net

IN REMOVAL PROCEEDINGS

.f .......

. .'

''.

UNITED STATES DEPARTMENT OF JUS.ICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
5701 EXECUTIVE CENTER DR. #400
CHARLOTTE, NC 28212

Date: Mar 21, 2016

File A206-799-049
In the Matter of:
GUILLEN-ACOSTA, WILDIN DAVID
Attached is a copy of the written decision of the Inunigration Judge.
This decision is final unless an appeal is taken to the Board of
Inunigration Appeals. The enclosed copies of FORM EOIR 26,
Notice of Appeal, and FORM EOIR 27, Notice of Entry as Attorney or
Representative, properly executed, must be filed with the Board of
Immigration Appeals on or before
The appeal must be accompanied by proof of paid fee ($110.00).
Enclosed is a copy of the oral decision.
Ericlosed is a transcript of the testimony of record.
You are granted until
to submit a brief
to this office in support of your appeal.
Opposing counsel is granted until
to submit a
brief in opposition to the appeal.

--JL_ Enclosed is a copy of the or_der / decision of the Irnmigration Judge.

All papers filed with the Court shall be accompanied by proof
of service upon opposing counsel.
Sincerely,
Inunigration
cc: SUSAN T. LECKER., ESQ
5701 EXECUTIVE CENTER DR., 300
CHARLOTTE, NC 28212

UL

Immigrant & Refugee Appellate Center, LLC | www.irac.net

Velasquez and Associates

Smallwood, Evelyn Rose Griggs
107 N. Church St. Ste. 200
Durham, NC 27701

...

..

. . ,,

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATlON COURT
CHARLOTTE, NORTH CAROLINA

WILDIN DAVID GUILLEN-ACOSTA,

Respondent.

)
)

)
)

)
)

IN REMOVAL PROCEEDINGS
File No. A 206-799-049
MINUTE ORDER
March 18, 2016

NOW COMES the Court, upon review and consideration of Respondent's Response
to the Department of Homeland Security's (DHS) opposition filed on March 3, 2016; second
Motion to Rescind In Absentia Removal Order and Reopen an Automatic Stay of Removal
filed March 9, 2016; Respondent's Supplemental Documentation in Support filed on March
16, 2016; Respondent's two Requests for Stay of Removal filed on March 16 and 17, 2016;
the DHS' two Oppositions to Respondent's Motions to Reconsider and Stay Removal filed
on March 18, 2016; Respondent's Emergency Motion to Stay Removal filed on March 18,
2016; and the record of proceedings. 1 The Court finds the following:
1.
That the Court's minute order of February 29, 2016 is adopted and incorporated
herein by reference.
2.
That Respondent's counsel purportedly faxed a complaint against Ms. Yesenia
Polanco-Galdamez to the North Carolina Bar on March 9, 2016. Motion to Rescind In
Absentia Removal Order and Reopen an Automatic Stay of Removal of March 9, 2016, tab
EE at 123-25.
3.
That the same complaint was apparently mailed, return receipt requested, to the North
Carolina Bar on March 9, 2016. Id at 126. Respondent has not provided the return receipt
indicating the complaint was actually received by the North Carolina Bar in the interim nine
days of this order.
4.
That a Form 1-589 application for asylum and withholding of removal signed by
Respondent on February 18, 2016 was mailed by his counsel to the United States Citizenship
and Inunigration Services (USCIS) on March 17, 2016. Respondent's Emergency Motion to
Stay Removal of March 18, 2016, tab C at 5.
"Motions to reopen are disfavored because every delay works to the advantage of the
deportable alien who wishes merely to remain in the United States." Barry v. Gonzales, 445
F.3d 741, 744-45 (4th Cir. 2006) (citing Stewart v. Immigration & Naturalization Serv., 181
F.3d 587, 596 (4th Cir.1999)) (internal citations omitted). In order to sustain his burden on a
1

The Court observes that counsel for Respondent have filed numerous duplicative documents in the piecemeal
litigation of this case.

Immigrant & Refugee Appellate Center, LLC | www.irac.net

IN THE MATTER OF

..

motion to reopen, the respondent must establish that the ultimate relief he seeks would be
merited as a matter of discretion. See Matter ofColeho, 20 I & N Dec. 464 (BIA 1992).

The respondent's evidence suggests his complaint against Ms. Polanco-Galdamez has
been faxed and mailed to the North Carolina Bar. However, the Court does not find his
evidence establishes his complaint was actually received by and therefore pending before the
North Carolina Bar. Matter ofLozada, 19 I&N Dec. 637,639 (BIA 1988) (reinstated by
Matter ofCompean, et. al., 25 l&N Dec. 1 (A.G. 2009)). Therefore, the Court finds there is
no meaningful change to the status quo ante underlying the respondent's Lozada claim
denied by its order of February 29, 2016.
Assuming that the respondent's complaint can be considered pending before the
North Carolina Bar, the Court finds that his Lozada claim of ineffective assistance of counsel
lacks merit given the underlying legal basis for his asylum application mailed to the USCIS
yesterday. Respondent's Emergency Motion to Stay Removal of March 18, 2016, tab C at
11. The respondent's claim of persecution and fear of future harm is based upon his past
efforts to proselytize and encourage other young people to reject criminal gang efforts to
recruit them,apparently as an expression of his Christian faith. Id
The Court finds the respondent's claim for asylum is not prima facie approvable
under controlling and persuasive case law. Zelaya v. Holder, 668 F.3d 159, 166 (4th Cir.
2012); Lizama v. Holder, 629 F.3d 440, 447 (4th Cir. 2011); Matter ofM-E-V-G-, 26 I&N
Dec. 227 (BIA 2014); Matter ofA-M-E- & J-G-U-, 24 I&N Dec. 69, 74 (BIA 2007); Matter
o.fT-M-B-, 21 I&N Dec. 775 (BIA 1997); Bueso-Avila v. Holder, 663 F.3d 934, 936 (7th Cir.
2011) (finding no nexus where a Honduran gang was intimidating an alien because of his
attempts to convert gang members to the Christian church, and not because the alien was
Christian). Under these circumstances, reopening this case for the respondent to pursue
asylum through the USCIS appears to be "a dilatory tactic to forestall the conclusion of
removal proceedings." Matter ofSanchez-Sosa, 25 I&N Dec. 807, 815 (BIA 2012).
The Court finds that the respondent has failed to meet his burden to show any error of
fact or law in its previous decision to deny his motion to reopen. 8 C.F .R. 1003.23(b)(2).
The Court has reevaluated its previous decision and finds no basis to now grant the
respondent's motion to reopen. Matter o.fCerna, 20 l&N Dec. 399,401 (BIA 1991).
Accordingly,the Court enters the following:
2 The respondent's reliance on 8 C.F.R. 1003.23(b )(v) to support his motion for an ''emergency'' stay of
removal is misplaced as the plain text of the regulation states it does not apply "in cases involving in absentia
orders." See Respondent's Emergency Motion to Stay Removal of March 18, 2016, at 1.

Immigrant & Refugee Appellate Center, LLC | www.irac.net

As a predicate matter, the Court finds that the respondent's motion to stay his
removal is numerically barred. 2 INA 240(b)(5)(C); 8 C.F.R. 1003.23(b)(4)(ii) ("The
filing of a motion [to reopen an order entered in absentia or removal proceedings] shall stay
the removal of the alien pending disposition of the motion by the Immigration Judge. An
alien may file only one motion pursuant to this paragraph.'')

ORDERS
IT IS HEREBY ORDERED that Respondent's motion for an automatic stay of removal is
DENIED.

L_
V. STUART COUCH
United States Immigration Judge
Charlotte, North Carolina

Date

Immigrant & Refugee Appellate Center, LLC | www.irac.net

IT IS FURTHER ORDERED that Respondent's motion for reconsideration is DENIED.