Uy, Lien, Esq. 436 14th Stteet #1106 oakland, CA 94612

Name: LEI, DENG YI

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals Office of the Clerk

5107 leesburg Pike, Suite 2000 Falls Church, Virginia 20530

OHS/ICE Office of Chief Counsel - SFR P.O. Box 26449 San Francisco, CA 94126-6449

A 04 7-597-940

Date of this notice: 8/27/2014

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

Enclosure

Panel Members: Miller, Neil P.

Sincerely,

Donna Carr Chief Clerk

srt1wJrzA Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished

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Cite as: Den Yi Lei, A047 597 940 (BIA Aug. 27, 2014)

U.S. Department of Justice Executive Office for Immigration Review

Falls Church, Virginia 20530

File: A047 597 940 - San Francisco, CA

In re: DENG YI LEI a.k.a. Dengyi Lei

IN REMOVAL PROCEEDINGS

CERTIFICATION1

ON BEHALF OF RESPONDENT: Lien Uy, Esquire

ON BEHALF OF DHS:

APPLICATION: Reopening

Juliette C. Gonsalves Assistant Chief Counsel

Decision of the Board of Immigration Appeals

Date: AUG 2 7 2014

The respondent moves the Board pursuant to 8 C.F.R. § 1003.2 to reopen his removal proceedings to allow him to apply to the U.S. Citizenship and hnmigration Services ("USCIS") for a hardship waiver under section 216(c)(4)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1186a(c)(4)(A) [extreme hardship waiver]. In our March 18, 2014, decision we dismissed his appeal from the hnmigration Judge's March 29, 2012, decision which found him

removable and determined upon review that there was no good reason to disturb the USCIS's denial of his application for a hardship waiver under section 216( c )( 4)(B) of the Act [good faith marriage waiver]. The Department of Homeland Security ("DHS") opposes the motion. The motion will be denied.

The Board does not have any authority to reopen proceedings to allow the respondent to apply for a hardship waiver under section 216(c)(4)(A) of the Act. We issued a final administrative decision on March 18, 2014. The regulation at 8 C.F.R. § 1216.5(a)(2) provides, in pertinent part, that a conditional resident who is in removal proceedings may apply for the [hardship] waiver only until such time as there is a final [administrative] removal order. It is well established that regulations promulgated by the Attorney General are binding on the Board and Immigration Judges. Matter of Akram, 25 I&N Dec. 874, 880 (BIA 2012). There is thus no basis for us to grant reopening.

The respondent, however, alleges ineffective assistance of (present) counsel. In Matter of Compean, Bangaly,& J-E-C-, 25 I&N Dec. 1 (A.G. 2009), vacating 24 I&N Dec. 710 (A.G. 2009), the Attorney General directed the Board to continue to apply the previously established standards for reviewing motions to reopen based on claims of ineffective assistance of counsel pending the outcome of a rulemaking process.

1 In order to avoid any question concerning our jurisdiction over the respondent's motion, we take jurisdiction over this matter by certification pursuant to 8 C.F .R. § 1003 .1 ( c ).

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Cite as: Den Yi Lei, A047 597 940 (BIA Aug. 27, 2014)

A047 597 940 •

In Matter of Lozada, 19 I&N Dec. 637, 639-40 (BIA 1988), we set forth the procedural requirements for a claim of ineffective assistance of counsel. The United States Court of Appeals for the Ninth Circuit stated in Reyes v. Ashcroft, 358 F.3d 592, 597 (9th Cir. 2004) that the court presumes, as a general rule, that the Board does not abuse its discretion when it obligates aliens to satisfy the literal requirements of Matter of Lozada, supra.

The respondent does not show substantial compliance with the requirements in Matter of Lozada, supra. The respondent does not present his sworn affidavit or declaration made under penalty of perjury, and thus does not meet the first requirement in Matter of Lozada, supra. Compliance with the second requirement is excused because counsel obviously !mows about the respondent's allegations of ineffective assistance of counsel, as they are made against him.

The respondent does not meet the third requirement in that he did not file a complaint against counsel with the State Bar of California, and does not offer a satisfactory explanation of why no complaint was made. Counsel states in her June 17, 2014, declaration (Motion Exh. B) that she did not lmow that even while the renewal of the good faith marriage waiver was before the hnmigration Judge, she could have filed on the respondent's behalf another Petition to Remove Conditions on Residence (Form I-751) with the USCIS based on extreme hardship. While counsel states that she takes responsibility for the oversight, she does not indicate that she self­reported her alleged ineffective representation to the State Bar of California. See generally California Business and Professions Code section 6068(0) (duties of attorney).

When an alien retains prior counsel to pursue an argument of inadequacy of that same attorney, the reporting requirements of Matter of Lozada, supra, are likely more meaningful. It is not for the attorney to decide the issues regarding her own prior conduct. The self-reporting requirement does not equate to an obvious need for discipline. The self-reporting requirement lets a state bar decide and puts the state bar on notice if there are further problems. We conclude that the respondent does not show substantial compliance with the requirements in Matter of Lozada, supra, to allege ineffective assistance of (present) counsel. Cf Rojas-Garcia v. Ashcroft, 339 F.3d 814, 825 (9th Cir. 2003) (the failure to file a bar complaint is not fatal to the alien's ineffective assistance claim where former counsel submitted a letter of self-report to the state bar; this self-reporting shows that the alien's former counsel regarded his delinquency as a serious breach of services promised to his client).

Accordingly, the following order will be entered.

ORDER: The motion to reopen is denied.2

FOR THE BOARD

2 Any request for the exercise of prosecutorial discretion must be addressed to the DHS.

2

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Cite as: Den Yi Lei, A047 597 940 (BIA Aug. 27, 2014)