U.S.

Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
Office of !he Clerk
5107 Leesburg Pike, Suite 2000
Falls Church, Virginia 22041

DHS/ICE Office of Chief Counsel - DAL

125 E. John Carpenter Fwy, Ste. 500
Irving, TX 75062-2324

Name: ALVARENGA, JUAN ANTONIO

A 206-233-826
Date of this notice: 3/15/2016

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

DoYutL

cVu

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Guendelsberger, John
Adkins-Blanch, Charles K.
O'Leary, Brian M.

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/
Cite as: Juan Antonio Alvarenga, A206 233 826 (BIA March 15, 2016)

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ALVARENGA, JUAN ANTONIO

714 FRANDALE AVENUE
LA PUENTE, CA 91744

. . U.S. Department of Justice

Decision of the Board of Immigration Appeals

Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A206 233 826 - Dallas, TX

Date:

MAR l 5 206

In re: JUAN ANTONIO ALVARENGA

ON APPEAL
ON BEHALF OF RESPONDENT: Pro se
APPLICATION: Reopening

The respondent has appealed the Immigration Judge's decision dated October 16, 2014,
denying his motion to reopen. An Immigration Judge had previously ordered the respondent
removed in absentia for his failure to appear at the hearing on September 3, 2014. We review an
Immigration Judge's 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. 1003.1(d)(3)(i), (ii). We note
that the Department of Homeland Security did not file an opposition in this matter, either before
the Immigration Judge or on appeal. Upon our de novo review, in light of the totality of the
circumstances presented in this matter, we will sustain the appeal and reopen the proceedings to
allow the respondent another opportunity to appear for a hearing. Accordingly, the following
order will be entered.
ORDER: The respondent's appeal is sustained, the proceedings are reopened, the in absentia
removal order is rescinded, and the record is remanded to the Immigration Court for further
proceedings consistent with the foregoing opinion and the entry of a new decision.

Cite as: Juan Antonio Alvarenga, A206 233 826 (BIA March 15, 2016)

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IN REMOVAL PROCEEDINGS

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
1100 COMMERCE ST., SUITE 1060
DALLAS, TX 75242

IN THE MATTER OF
ALVARENGA, JUAN ANTONIO

FILE A 206-233-826

DATE: Oct 16, 2014

UNABLE TO FORWARD - NO ADDRESS PROVIDED

X

AT.TACHED 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
MUST BE MAILED TO:
BOARD OF IMMIGRATION APPEALS
OFFICE OF THE CLERK
5107 Leesburg Pike, Suite 2000
FALLS CHURCH, VA 20530
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
1100 COMMERCE ST., SUITE 1060
DALLAS, TX 75242
OTHER:
BB -COURT CLERK
CC: GRAHAM, HEIDI
125 E. HWY 114, STE 500
IRVING, TX, 75062

IMMIGRATION COURT

FF

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ALVARENGA, JUAN ANTONIO

4118 PECK RD. #D
EL MONTE, CA 91732

,/

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE OF IMMIGRATION REVIEW
DALLAS IMMIGRATION COURT

File:

A 206-233-826

Immigration Deportation Proceedings in the Matter of: Juan Antonio Alvarenga,

Respondent
Charge: Section 212(a)(7)(A)(i)(I), INA
Applications: Motion to Reopen
On Behalf of the Respondent: Juan Antonio Alvarenga, Pro Se, 4118 Peck Road, Apt. D, El
Monte, California 91732
On Behalf of Department of Homeland Security/Immigration and Customs Enforcement:
Heidi Graham, Assistant Chief Counsel, 125 E. John Carpenter Freeway, Suite 500, Irving,
Texas 75062
WRITTEN DECISION AND ORDER OF THE IMMIGRATION JUDGE
I. PROCEDURAL IDSTORY
The Respondent is a male, native and citizen of El Salvador. Exhibit 1. On November
12, 2013, the Government charged the Respondent with being subject to removal from the
United States. Id.
The Respondent failed to appear for his removal hearing on September 3, 2014 and was
ordered removed in absentia based on the following allegations and charge.
Allegations:
(1) He is not a citizen or national of the United States;
(2) He is a native and citizen of El Salvador;
(3) He arrived at or near Hidalgo, Texas port of entry on or about September 19, 2013;
(4) He did not then possess or present a valid immigrant visa, reentry permit, border crossing
identification card, or other valid entry document; and
(5) He was not then admitted or paroled by an Immigration Officer.
Charge: The Government charged the Respondent as subject to removal pursuant to Section
212(a)(7)(A)(i)(I), INA, in that he is an immigrant who at the time of application for admission,
is not in possession of a valid unexpired immigrant visa, reentry permit, border crossing card, or
other valid entry document required by the Act, or who is not in possession of a valid unexpired

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Date: October 16, 2014

passport, or other suitable document, or identity and nationality document if such document is
required by regulations issued by the Attorney General pursuant to Section 21 l(a) of the Act.

II.MOTION
On October 6, 2014, the Respondent filed a Motion to Reopen requesting that the Court
reopen the proceedings based on exceptional circumstances. The Respondent contends that a
representative at El Rescate Legal Services informed him that his Motion to Change Venue
would be granted and that he did not need to appear for this September 3, 2014 hearing. The
Government has not filed a brief in response.

III. STATEMENT OF THE LAW AND ANALYSIS

An in absentia order may be rescinded upon the filing of a motion to reopen filed at any
time if an alien has not received adequate notice of the hearing. INA 240(b)(5)(C)(ii); 8 C.F.R.
1003.23(b)(4)(ii). An in absentia order may also be rescinded upon a motion to reopen filed
180 days after an administratively final order of removal is entered if the Respondent shows
"exceptional circumstances " leading to his absence from the hearing. INA 240(b)(5)(C)(i); 8
C.F .R. 1003 .23(b)(4)(iii). "Exceptional circumstances " include circumstances beyond the
control of the alien, including "battery or extreme cruelty to the alien or any child or parent of
the alien, serious illness of the alien, or serious illness or death of the spouse, child, or parent of
the alien, but not including less compelling circumstances." INA 240(e)(l).
An alien alleging ineffective assistance of counsel, who satisfies the requirements set out
by the Board in Matter ofLozada, 19 I&N Dec. 63 7 (BIA 1988) has established "exceptional
circumstances " for purposes of rescinding an in absentia order. See A,fatter of Grijalva-Barrera,
21 I&N Dec. 472 (BIA 1996). According to Matter ofLozada, a motion to reopen based upon a
claim of ineffective assistance of counsel requires:
(1) that the motion be supported by an affidavit of the allegedly aggrieved
respondent setting forth in detail the agreement that was entered into with counsel
with respect to the actions to be taken and what representations counsel did or did
not make to the respondent in this regard,
(2) that counsel whose integrity or competence is being impugned be informed of
the allegations leveled against him and be given the opportunity to respond, and
(3) that the motion reflect whether a complaint has been filed with appropriate
disciplinary authorities with respect to-any violation of counsel's ethical or legal
responsibilities, and if not, why not.
Id. at 639.

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Sustaining of the Charge: Based upon the clear, unequivocal, and convincing evidence presented
by the Government, the Immigration Judge sustained the allegations and charge of removal,
specifically finding the Respondent subject to removal from the United States to his native
country of El Salvador.

The Court may also exercise its sua sponte authority to reopen in "truly exceptional
situations, " where the interests of justice would be served.See Matter of G-D-, 22 I&N Dec.
1132, 1133 (BIA 1999); see Matter of J-J-, 21 I&N Dec. 976 (BIA 1997).
Court's Findings: The Respondent asserts that his absence from the September 3, 2014 hearing
was attributable to the ill-advice of a representative from El Rescate Legal Services. The
Respondent contends that representatives from El Rescate Legal Services assisted him in filing a
Motion to Change Venue requesting that venue be changed to California. This motion was filed
July 14, 2014. The Respondent states that a representative informed him that his motion would
be granted and that there was no need for him to appear at his September 3, 2014 hearing. Acting
on that advice, the Respondent failed to appear for his hearing. The Respondent argues that these
events constitute "exceptional circumstances " warranting reopening of his removal proceeding.
The Court disagrees for the following reasons.
While ineffective assistance of counsel may constitute "exceptional circumstances, " the
Respondent has failed to comply with the requirements set forth in Matter ofLozada. Although
the Respondent filed an affidavit in support of his motion to reopen, he did not sufficiently detail
the relevant facts. See Matter ofRivera-Claros, 21 I&N Dec. 599, 604 ("When adjudicating an
ineffective assistance of counsel claim, [a court] relies to a great extent on the documents
submitted in support of that claim, such as affidavits and declarations."). There is no indication
in the Respondent's motion whether an attorney or accredited representative at El Rescate Legal
Services agreed to represent him. The Respondent has only included a receipt for payment for
the service "Change of Venue." See Motion to Reopen, Tab B. The Court notes that no attorney
or accredited representative has entered an appearance in the Respondent's case. The Respondent
has not indicated who within El Rescate Legal Services advised him not to appear for his
hearing. Furthermore, the Respondent has included no corroborating evidence from a
representative at El Rescate Legal Services regarding the described interactions. The motion
simply does not include sufficient facts from which to evaluate whether it was reasonable for the
Respondent to rely on the advice of the El Rescate Legal Services staff member.
If the Respondent was represented by an attorney or accredited representative at El
Rescate Legal Services, the Respondent failed to provide any evidence that this person has been
notified that he or she has been accused of negligence. Therefore, the Respondent has not
provided an opportunity for this individual to either confirm or dispute the allegations. There is

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Ineffective assistance of counsel may only constitute grounds for the reopening of
removal proceedings where the proceedings were so fundamentally unfair that the alien was
prevented from reasonably presenting his case. Id. at 638; Goonsuwan v. Ashcroft, 252 F.3d
383, 385 n.2 (5th Cir. 2001) (citing Zadvydas v. Underdown, 185 F.3d 279, 395 (5th Cir. 1999)).
A determination of whether an alien's hearing was fundamentally fair must be made on a case
by-case basis. Barthold v. INS, 517 F.2d 689, 691 (5th Cir. 1975). In order to make a successful
case for ineffective assistance of counsel, the alien must demonstrate that he was substantially
prejudiced by counsel's incompetent representation. Goonsuwan, 252 F.3d at 385 n.2 (citing
Ogbemudia v. JNS, 988 F.2d 595, 598 (5th Cir. 1993)); see Miranda-Lores v. INS, 17 F.3d 84, 85
(5th Cir. 1994). In so doing, the alien must make a prima facie case of eligibility for the
requested relief. Miranda-LoresJ 17 F Jd at 85.

. . .

also no indication that a disciplinary complaint was filed to allow the presumed attorney or
accredited representative to be made aware of the allegations. As the Respondent has failed to
comply with any of the requirements of Matter of Lozada, the Court finds that his decision to
rely upon the alleged instructions to not attend his hearing is not an exceptional circumstance.

IV. ORDER
IT IS ORDERED THAT, the Respondent's Motion to Reopen be and is DENIED.
Date: October 16, 2014

@4-&
Rbard Randall Ozmun
Immigration Judge

USDOJ/EOIR
Copy to:
Chief Counsel, DHS/ICE

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Accordingly, the following Order shall be entered: