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In this unpublished decision, the Board of Immigration Appeals (BIA), following a remand from the Eleventh Circuit, reopened proceedings upon finding the respondent satisfied the requirements of Matter of Lozada, 19 I&N Dec. 637 (BIA 1998), in demonstrating that his prior attorney provided ineffective assistance of counsel, and showed sufficient due diligence to warrant equitable tolling of the time and numerical limitations on motions to reopen. The decision was issued by Member David Holmes.
Looking for IRAC’s Index of Unpublished BIA Decisions? Visit www.irac.net/unpublished/index
In this unpublished decision, the Board of Immigration Appeals (BIA), following a remand from the Eleventh Circuit, reopened proceedings upon finding the respondent satisfied the requirements of Matter of Lozada, 19 I&N Dec. 637 (BIA 1998), in demonstrating that his prior attorney provided ineffective assistance of counsel, and showed sufficient due diligence to warrant equitable tolling of the time and numerical limitations on motions to reopen. The decision was issued by Member David Holmes.
Looking for IRAC’s Index of Unpublished BIA Decisions? Visit www.irac.net/unpublished/index
In this unpublished decision, the Board of Immigration Appeals (BIA), following a remand from the Eleventh Circuit, reopened proceedings upon finding the respondent satisfied the requirements of Matter of Lozada, 19 I&N Dec. 637 (BIA 1998), in demonstrating that his prior attorney provided ineffective assistance of counsel, and showed sufficient due diligence to warrant equitable tolling of the time and numerical limitations on motions to reopen. The decision was issued by Member David Holmes.
Looking for IRAC’s Index of Unpublished BIA Decisions? Visit www.irac.net/unpublished/index
2050 Coral Way, Suite 404 Miami, FL 33145 U.S. Department of Justice Executive Offce fr Immigration Review Board of Immigration Appeals Ofce of the Clerk 5107 Leesburg Pike, Suite 2000 Fals Church, Virginia 20530 OHS/ICE Ofice of Chief Counsel - MIA 333 South Miami Ave., Suite 200 Miami, FL 33130 Name: ZMBRANO, CARLOS ALBERTO A 088-741-973 Date of this notice: 9/5/2014 Enclosed is a copy of the Board's decision and order in the above-refrenced case. Enclosure Panel Members: Holmes, David B. Sincerely, Dc c a Donna Carr Chief Clerk Usertea m: Docket For more unpublished BIA decisions, visit www.irac.net/unpublished I m m i g r a n t
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w w w . i r a c . n e t Cite as: Carlos Alberto Zambrano, A088 741 973 (BIA Sept. 5, 2014) U.S. Department of Justce Executive Ofce fr Imigation Review Decision of te Board of Imigraton Appeals Falls Cuch Virgia 20530 File: A088 741 973 -Miami, FL I re: CAOS ALBERTO ZARO I REMOVAL PROCEEDIGS MOTION Date: ON BEHALF OF RSPONENT: Jua M. Saboro, Esquire ON BEHALF OF DHS: Shaa Belyeu Assistat Chef Counsel APPLCATION: Reconsideration SEP052014 This case is befre te Boad pursuat_ to a December 4, 2013, order of te United States Cour of Appeals fr te Eleventh Circuit. The paes jointly moved fr remad to te Boad to allow us to revisit our May 3, 2013, decision. The Elevent Circuit vacated our May 3, 2013, decision. The Deament of Homelad Securty opposes gating fher relief to te respondent. The record will be remaded. I our October 17, 2012, decision we dismissed the respondent's appeal fom te Immigaton Judge's decision which fund h removable ad deed his applicaton fr adjustent of status. We denied his timely moton to reopen proceedings in a decision dated Febray 13, 2013. I our now vacated May 3, 2013, deision we denied te respondent's tmely motion to reconsider, ad also denied hs untimely ad nuber baed consted motion to reopen. I Avila-Santoyo v. US. Atty Gen., 713 F.3d 1357, 1359 (11th Cir. 2013), the Elevet Circuit held tat the 90-day deadline to fle a moton to reopen is a non-juisdictional clam processing rle subject to equitable tolling. For puoses of our decision today, we will assume that the "one-moton rle" is also a non-jusdictional claim processing rule subject to equitable tolling. See Ruiz-Turcios v. US. Aty Gen., 717 F.3d 847, 850 (11th Cir. 2013) (tang te view that te one-motion rule is also subject to equitable tolling, but leaving it to te Boad in te frst instace to addess the issue). The respondent ha aleged inefective assistace of frer counsel (Jua Blaco). The respondent meets te requirements i Mater of Lozada, 19 I&N Dec. 637 (IA 1988), to allege inefective asistace of M. Blaco. The respondent presents hs afdavit, his leter to M. Blaco, ad a copy of te complat fled aganst M. Blaco. On Jauar 17, 2014, the respondent submitted a copy of the approval notice fr te visa petition fled on his behalf by his U.S. citizen spouse. The approval notice was not previously in te record of proceeding. I te respondent's brief fled on June 9, 2014, he discusses fcts regadng his dving without a license whch were not preseted to the Imigation Judge, ad which may have affected te Imigation Judge's discretionay fndings. The respondent also I m m i g r a n t
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w w w . i r a c . n e t Cite as: Carlos Alberto Zambrano, A088 741 973 (BIA Sept. 5, 2014) A088 741 973 presented new ta rets ad fnacial docuents to support the Affdavit of Support (For 1- 864) with hs moton to reopen fled in December of 2012. Upon reconsideration, we conclude that the resondet shows prejudice regading M. Blaco's reresentaton befre the Imigation Judge. See Dakne v. US. Att' Gen., 399 F.3d 1269, 1274-75 (11t Cir. 2005) (rejudice exists when te perfrace of counsel is so inadequate that tere is a reaonable probaility tat but fr te attorey's eror, te outcome of te proceedings would have been diferent). The respondent shows due diligence. See Ruiz-Turcios v. US. Atty Gen., supra, at 851 (equitable tolling generally requires a alien to show tat he or she ha been pusuing his or her rigts diligently, ad tat some extaordinay circumstace stood in his or her way). The respondent's fst motion to reopen was timely fled. His motion to reconsider wa timely fled [even thoug when constued as a motion to reopen it was untimely ad nuber bar ed]. He timely fled a petiton fr review wit the Eleventh Circuit. I su ay, te respondent meets the requirements in Matter of Lozada, supra, shows prejudice, ad shows due diligence. Equitable tolling of te time ad numercal limitatons on fling a moton to reopen is waated. Accordingly, te fllowing orders will be entered. ORER: The motion to reconsider is grated. FURTHR ORER: Upon reconsideraton, the motion to reopen 1s gated, ad proceedings ae reopened. ORDER: Te record is remaded to te Imigation Judge fr fer proceedings m accordace with the fregoig opinon. FOR T BOA 2 I m m i g r a n t
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w w w . i r a c . n e t Cite as: Carlos Alberto Zambrano, A088 741 973 (BIA Sept. 5, 2014)