Mann, George P.

Law Ofices of George P. Mann & Assoc.

33505 W. 14 Mile Road, Ste. 20
Farmington Hills, Ml 48331
Name: VASQUEZ, TATIANA
U.S. Deparent of Justice
Executive Ofce fr Immigration Review
Board of Immigration Appeals
Ofce of the Clerk
5107 leesburg Pik, Suite 2000
Fals Church, Virginia 220./
OHS/ICE Ofice of Chief Counsel - DET
333 Mt. Elliott St., Rm. 204
Detroit, Ml 48207
A098-079-947
Date of this notice: 3/31/2011
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosure
Panel Members:
Grat, Edward R.
Liebowitz, Ellen C
Malphrus, Garry D.
Sincerely,
Donna Carr
Chief Clerk
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Cite as: Tatiana Vasquez, A098 079 947 (BIA March 31, 2011)
F
U.S. Department of Justice
Executive Ofce fr Imigration Review
Decision of the Board oflmigation Appeals
Falls Church, Virginia 22041
File: A098 079 947 - Detroit, Ml
I re: TA TIANA V ASOUEZ
I REMOVAL PROCEEDINGS
APPEAL
Date:
ON BEHALF OF RESPONDENT: George P. Mann, Esquire
ON BEHALF OF DHS:
APPLICATION: Reopen
Jeremy Santoro
Assistant Chief Counsel
MA II 2011
This matter was last befre the Board on September 5, 2008. We remanded the record to the
Immigation Judge to reevaluate the respondent's motion to reopen, which was fled fllowing an
in absentia order of removal. On October 1 , 2009, the Immigration Judge denied the motion, and
the respondent fled this appeal. The appeal will be sustained, and te record will be remanded.
We review the fndings of fct, including te determination of credibility, made by the
Immigration Judge under a "clearly erroneous" standard, and review all other issues, including
whether the parties have met their burden of proof, and issues of discretion, under a de novo
standard. 8 C.F.R. 1003.l (d)(3)(i), (ii). Matter of A-S-B-, 24 I&N Dec. 493 (BIA 2008).
In our remand order, we agreed with the respondent's assertion tat prior counsel's filure to fle
an enty of appearance, and filure to notif the court of a change of address on behalf of the
respondent, are fcts that if established, would lead to a fnding that the respondent was a victim of
inefective assistance of counsel. We pointed out that the record is replete with evidence of
malfasance by the attorey in question, which could contribute to the respondent's credibilit. We
remanded the record fr the Immigration Judge to assess whether inefective assistance of counsel
prevented the respondent fom receiving notice of her hearing.
On remand, the Immigration Judge concluded that the respondent did not prove that counsel in
question was actually retained as her attorey fr these removal proceedings or that she in fct did
not receive her Notice to Appear and Notice of Hearing. The respondent argues on appeal that the
Immigration Judge committed clear error in her fctual fndings.
As acknowledged by the Immigation Judge, the respondent complied with the procedural
requirements of Matter of Lozada, 19 I&N Dec. 637 (BIA 1 988), to support her claim of inefective
assistance of counsel. There is also an abundance of evidence that the counsel in question
misrepresented his clients in various immigration matters. The outstanding issue is whether in fct
te respondent had retained this counsel to represent her in removal proceedings. We fnd that the
evidence of record supports the respondent's contention that this was the situation; the Immigation
Judge's fnding otherise is clearly eroneous. The respondent submitted a detailed statement
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Cite as: Tatiana Vasquez, A098 079 947 (BIA March 31, 2011)
A098 079 947
explaining her relationship with frer counsel, payment receipts and other documentation, and an
abundance of evidence regarding the attorey's malfeasace in other cases. Further, the prior
attorey filed to respond to the respondent's allegations against him, and did not appear in court
pursuant to the subpoena issued fr him by the Immigration Judge (see Tr.at 13, 20-21). Under the
totality of these circumstances, we fnd the Immigration Judge's conclusion that the respondent did
not establish that she had engaged frmer counsel to represent her in removal proceedings to be
clearly erroneous.
The respondent has otherwise met her burden to show inefective assistace of counsel which
resulted in prior counsel's filure to register any address changes with the Imigration Court. The
respondent can therefre not be charged with receiving proper notice of her hearing. We will
accordingly vacate the in absentia order and remand the record fr frther proceedings.
ORDER: The appeal is sustained.
FURTHER ORDER: The in absentia order ofremoval is vacated, the removal proceedings are
reopened, and the record is remanded to the Immigration Court fr fer proceedings consistent
with the fregoing opinion and the entry of a new decision .
+
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Cite as: Tatiana Vasquez, A098 079 947 (BIA March 31, 2011)
UNITED STATES DEPARTMENT OF JUSTICE
EXCUTIVE OFFICE FOR IMMIGRATION RVIEW
IMMIGRATION COURT
DETROIT, MICHIGAN
File No.: A 098-079-947
In the Matter of:
VASQUEZ, Tatiana
Respondent
)
)
)
)
)
)
In Removal Proceedings
Charge: Section 237(a)( l )(B) of the Immigration and Nationality Act
("INA"), as amended, in that afer admission as a nonimmigant
under Section IOI(a)( l 5) of the Act remained in the United States
fr a time longer than peritted.
Application: Motion to reopen under INA 240(b)(5)(C)(ii).
ON BEHALF OF RESPONDENT
Albert Valk
George P. Mann and Associates, P.C.
Pineview Ofce Park
3305 W. 14 Mile Rd, Suite 20
Farington Hills, MI 48331
ONBEHALF OF THE GOVERMENT
Michael Dobson
333 Mt. Elliot
Detroit, MI
48207
DECISION AND ORDER OF THE IMMIGRATION JUDGE
I. BACKGROUND
Respondent is a native and citizen of Russia. She frst entered the United States on
June 22, 1998 on a B-2 Visitor Visa. Respondent overstayed her visa, fled fr several
administrative frs of relief and was denied. The Goverent initiated proceedings
with this Court by fling a Notice to Appear ("NT A") on October 19, 2006. A hearing
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was held on April 25, 2007 and respondent was not present. She was then ordered
removed in absentia. Respondent obtained a new attorey and fled a motion to reopen
on February 27, 2008. On March 31 , 2008 respondent's motion to reopen was denied.
Respondent appealed the denial to the Board of Immigration Appeals ("BIA"). The BIA
remanded the case fr determination of a fctual matter, did inefective assistance of
counsel prevent the respondent fom receiving the hearing notice.
II. EVIDENCE
The evidence on record includes an NT A, issued April 1 2, 2006, and a notice of
hearing dated October 1 9, 2006. See exhibits I and 2. The NTA and the hearing notice
were never retured to the court. Other evidence includes the decision to remove
respondent in absentia dated April 25, 2007. See exhibit 4. This decision was mailed to
respondent and retured to the court as undeliverable by the United States Postal Service.
The NT A, hearing notice and the decision were both mailed to the same address in
Hamtramck, Michigan.
Other evidence relates to respondent's effrts to prove that her alleged frmer
attorey, Mr. Azzam was her attorey. Mr. Azzam fled a G-28 with the goverent
agreeing to represent respondent administratively, but he never entered an appearance in
this case befre the Court. See exhibit C. Respondent submitted copies of receipts fom
checks she wrote Mr. Azzam, supposedly fr legal services he provided. See supplement
A. The record includes respondent's afdavit describing the agreement fr
representation entered into with Mr. Azzam. See exhibit B. Respondent also submitted a
letter sent fom her current attorey to Mr. Azzam infrming Mr. Azzam of the charges
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against him. See exhibit H. There is also proof that a complaint was fled with the
appropriate authorities in Massachusetts. See exhibits I.
III. LEGAL STANDARDS
IA 240 (b)(5)(A) states that an alien shall be ordered removed in absentia if the
goverent establishes by clear, unequivocal, and convincing evidence that a writen
notice was provided to the alien or to the alien's counsel of record, and that the alien is
removable. Such writen notice shall be given to, or served upon, the attorey of record
or the person himself if unrepresented. 8 C.F.R. 1292.5. The BIA held that where an
alien has actually received the NT A infrming him of the statutory address obligations
associated with removal proceedings, he is treated as having such knowledge and filure
to comply with removal proceedings may result in an in absentia removal order. See
Matter ofG-Y-R, 23 I&N Dec. 181, 186 (BIA 2001). An in absentia order may be
rescinded by the Cou fr three reasons, including, upon a motion to reopen, fled within
180 days afer the date of the order of removal, if the alien demonstrates that the filure to
appear was because of exceptional circumstances. Additionally, the Court can rescind
an in absentia order upon a motion to reopen, fled at any time, if the alien demonstrates
that the alien did not receive notice of the hearing, and lastly the in absentia can be
rescinded ifthe alien was in Federal or State custody and the failure to appear was
through no fult of the alien. See INA 240 (b)(5)(C)(i); INA 240 (b)(5)(C)(ii).
In order to make a claim that an NT A was never received due to inefective counsel
the respondent must prove that her counsel was in fct inefective. In order to prove
inefective assistance of counsel, an alien must do three things, "submit an afdavit
describing the agreement fr representation entered into with frmer counsel, infrm
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frmer counsel of the charge fr the purpose of allowing him to respond to te
complaints being made against him, and report whether a complaint has been fled with
the appropriate disciplinary authorities." See Matter of Lozada, 19 I&N Dec. 637 (BIA
I 988), see also Hamid v Ashcroft, 336 F.3d 465 (6th Cir. 2003). In addition, respondent
must demonstrate that she was prejudiced by the inefective assistance of counsel. Matter
of Lozada, 19 l&N Dec. at 640; see also Huicochea-Gomez v INS, 237 F.3d 696 (6th Cir.
2001).
IV. ANALYSIS
The question befre the court is whether inefective assistance of counsel led to the
respondent not getting the hearing notice, and if she is therefre eligible to fle a motion
to reopen in order fr the Court to rescind her in absentia removal order. Respondent has
not proven that the counsel, Mr. Azzam, was in fct her counsel. She has provided the
cour with little objective evidence of her claimed relationship or reason she filed to
appear. While she has done the three things that Maller of Lozada mandates her to do,
see exhibits B, Hand I, she has not proven that Mr. Azzam was ever her attorey in this
matter. Respondent submitted check receipts she supposedly wrote Mr. Azzam fr legal
services, but she did not prove that the checks were fr services rendered in fherance
of these proceedings. There is no retainer agreement between respondent and Mr.
Azzam, and most importantly, Mr. Azzam never fled an appearance in this case.
Additionally, it does not make sense that the NTA and the hearing notice were not
reted to this Court as undeliverable, while the removal order was retured. This leads
to the conclusion that respondent was in fct notifed of the hearing and filed to appear.
Mr. Azzam's disciplinar proceedings have nothing to do with the issue befre the Cour
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and while there is no doubt Mr. Azzam acted inappropriately, there is no proof that he
acted inappropriately with respondent. Respondent has filed to establish that te
inefective assistance of counsel in any proceedings befre the DHS prejudiced her in the
case befre the Court. Mr. Azzam only represented respondent administratively, befre
the DHS and due to the absence of a retainer agreement and the fct that M. Aza
made no appearance, respondent has filed to prove he represented her befre the Court.
Inefective assistance of counsel did not lead to the respondent missing her hearing,
therefre she is not eligible to fle a motion to reopen.
V. ORDER
IT IS HERBY ORDERED that the respondent's motion to reopen is DENIED.
-
Elizabeth A. Hacker
Immigration Judge
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