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- ' . ~ .D ~ p a r t m e n tof Justice

Executive Office for Immigration Review

Falls Church, Virginia 22041

Decision of the Board ofImmigration Appeals

File: ~ e w Y o r k , N Y Date: SEP 1 1 2008In re:

IN REMOVAL PROCEEDINGS

MOTION

ON BEHALF OF RESPONDENT: Noerili E. Masliah, Esquire

ON BEHALF OF DRS:

ORDER:

Adam P. Feller

Assistant Chief Counsel

PE R CURIAM. This case was last before us on July 17, 2001, when we denied the respondent'smotion to reconsider ou r previous March 30, 2001, decision affirming the Immigration Judge'sFebruary 1, 2000, denial o f his motion to reopen the respondent's December 7, 1998, in absentiaorder. The respondent has now filed an untimely motion to reopen on May 19, 2008. TheDepartment of Homeland Security (DHS) opposes the motion, which will be granted pursuant to oursua sponte authority pursuant to 8 C.F.R. 1003.2(a). See Matter o f J-J-, 21 I&N Dec. 976 (BIA1997).

In his current motion, as in his original motion to reconsider which we denied on March 30, 2001, Ithe respondent argues that an in absentia order should not have been issued against him because heappeared at the hearing 45 minutes late due to circumstances beyond his control. He elaborates, ashe did in his original motion to reopen before the Immigration Judge, that his subway train wasdelayed and that once he arrived at the courthouse, he was misdirected to the courtroom. Morever,for the first time, his current motion asserts that he received ineffective assistance o f counsel at thishearing from two prior attorneys, who failed to properly fIle a timely motion to reopen his in absentiahearing, and he was thereby precluded from presenting his applications for withholding of removaland voluntary departure. For its part, the DHS argues that the respondent's description of theprocedures at the courthouse are inaccurate, and that the respondent failed to submit any evidencein support of his claim that his subway train was late. The DHS does not address the respondent'sclaim regarding the effectiveness o f his prior counsels.

As an initial matter, we a g r e ~that the respondent received ineffective assistance of counsel fromhis former counselors. Subsequent to the in absentia order issued by the Immigration J u d g e , _

_Esqu i re , informed the respondent that she would file a motion to reopen before the

1 The respondent's motion to reconsider, which we denied on July 17, 2001, merely argued that we"rubber-stamped" the Immigration Judge's December 7, 1998, in our March 30, 2001, decision. I tdoes not directly address the underlying in absentia decision, but in effect requests that the Boardreconsider the basis of the Immigration Judge's in absentia removal order.

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Immigration Judge, but such motion was ultimately filed late and denied by the Immigration Judge .on February 1, 2000. Inasmuch as M ~ m o t i o nwas late and deficient on its face, we can

presume thatt h e l e s ~ o n d e n t

was prejudiced thereby. See generally Matter of Lozada, 19 I&N Dec.637 (BIA 1988). Moreover, we find that the respondent's second attorney,Esquir.e, failed to properly file an ineffective assistance of counsel claim against his former counsel,and the lack o f such a motion further prevented the respondent from presenting his requests for relieffrom removal. Id In support o f the respondent's allegations, the respondent has submitted, interalia, a copy ofa motion prepared byMr._outlining the ineffective nature o f his priorcounsel, and his accompanying a f f i d a v i t , ~ tthis motion was improperly filed with theNew York ICE office but never with the Immigration Court. 2 The respondent has filed disciplinarycomplaints against M r . _ n d Mr_and has substantially met the guidelines setforth in Matter o f L o z a ~

The United States Court o f Appeals for the Second Circuit has stated that "[i]n a situation whereineffective assistance o f counsel prevents an alien from having the opportunity to present his case forrelief, the filing deadline for motions to reopen will be equitably tolled until the ineffective assistanceis, or should have been, discovered by a reasonable person in the situation." See Cekic v. INS, 435F.3d 167, 171 (2d Cir. 2006); citingIavorski v. INS, 232 F.3d 124, 134 (2d Cir. 2000); see also Zhaov. INS, 452 F.3d 154, 157 (2d Cir. 2006). In this case, we find that the respondent has adequatelyexplained that his prior counsels prevented him from presenting his applications for relief, and indelaying his ability to file an ineffective assistance o f counsel alleging this fact. The respondent,through current counsel, effectively sets forth this ineffective assistance of counsel claim with duediligence, inasmuch as it attempts to remedy Mr and Ms. _ e r r o r s . See Cekicv. INS, supra, at 170 ("no matter how egregiously ineffective counsel's aSSistance may have been,an alien will not be entitled to equitable tolling unless he can affirmatively demonstrate that heexercised reasonable due diligence during the time period sought to be tolled"). Specifically, therespondent has explained that his delay in the current motion resulted from the misleading assuranceshe received from Ms. ~ n dthe inadequate representation provided by her and by ~. .

Lastly, we note that the Immigration Judge, in his February 1,2000, denial of the respondent'sinitial motion to reopen his in absentia hearing, held that even were the motion timely, he would stilldeny it because the respondent's late train does not constitute "exceptional circumstances" to excusehis absence at the hearing (2000 1.1. Dec. at 3). However, were it not for M s ~ n dMr .

_sinability to appear at the hearing at the proper time, and their failure to properly guide the

~ n tthrough the process once he arrived at the Immigration Court, he may have avoided anin absentia removal order. In this vein, we note that recent case law out of United States Court ofAppeals for the Second Circuit has held that such short delays may not be considered a "failure toappear" for purposes o f in absentia hearings. See Abu Hasirah v. DHS, 478 F.3d 474 (2d Cir. 2007).

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2 We note, incidentally, that the motion posits the same claims present in the pending motion toreopen.

" e s p o n d e n t has indicated that M s . i s now deceased. M r _ E s q u i r e , assisted Ms.

_inher representation o f the respondent.

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In short, given the circumstances, we find that the motions deadline should be excused under our sua .sponte authority. See Matter o f J-J-, supra. Accordingly, the record is remanded in order to affordthe respondent an opportunity to pursue his application for withholding of removal before theImmigration Judge, as well as his more recent request to apply for adjustment ostatus based on anapproved Form 1-130 visa petition.

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