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    C-P-O-, AXXX XXX 486 (BIA Nov. 2, 2015)

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    Immigrant & Refugee Appellate Center, LLC
    C-P-O-, AXXX XXX 486 (BIA Nov. 2, 2015) (reopens proceedings due to ineffective assistance where prior appeal was summarily dismissed due to the failure to file a brief and the respondent’s prior attorney misrepresented the basis for the dismissal) (Greer, Neal, O’Herron)

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    C-P-O-, AXXX XXX 486 (BIA Nov. 2, 2015)

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    C-P-O-, AXXX XXX 486 (BIA Nov. 2, 2015) (reopens proceedings due to ineffective assistance where prior appeal was summarily dismissed due to the failure to file a brief and the respondent’s prior attorney misrepresented the basis for the dismissal) (Greer, Neal, O’Herron)

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    C-P-O-, AXXX XXX 486 (BIA Nov. 2, 2015) (reopens proceedings due to ineffective assistance where prior appeal was summarily dismissed due to the failure to file a brief and the respondent’s prior attorney misrepresented the basis for the dismissal) (Greer, Neal, O’Herron)

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    825 views3 pages

    C-P-O-, AXXX XXX 486 (BIA Nov. 2, 2015)

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    Immigrant & Refugee Appellate Center, LLC
    C-P-O-, AXXX XXX 486 (BIA Nov. 2, 2015) (reopens proceedings due to ineffective assistance where prior appeal was summarily dismissed due to the failure to file a brief and the respondent’s prior attorney misrepresented the basis for the dismissal) (Greer, Neal, O’Herron)

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    U.S.

    Department of Justice

    Executive Otlice for Immigration Review

    Board of Immigration Appeals


    Office of the Clerk

    5/()J Leesburg Pik.e, Suite 2000


    Falls Church. V1rgm1a 22041

    Immigrant & Refugee Appellate Center, LLC | www.irac.net


    Johnson, Bryan S., Esq. DHSIICE Office of Chief Counsel - SNA
    Amoachi and Johnson, PLLC 8940 Fourwinds Drive, 5th Floor
    1918 Union Boulevard San Antonio, TX 78239
    Bay Shore, NY 11706

    Name: P -O ,C . .. A -486

    Date of this notice: 111212015

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

    Sincerely,

    DonrtL C tVv't)

    Donna Carr
    Chief Clerk

    Enclosure

    Panel Members:
    Neal, David L
    Greer, Anne J.
    O'Herron, Margaret M

    Userteam: Docket

    For more unpublished decisions, visit


    www.irac.net/unpublished/index

    Cite as: C-P-O-, AXXX XXX 486 (BIA Nov. 2, 2015)


    ..
    U.S. Department of Justice Decision of the Board oflmmigration Appeals
    faecutive Office for Immigration Review

    Falls Church. Virginia 22041

    File: 486- San Antonio, TX Date:


    NOV - 2 2015
    In re: C P -O

    Immigrant & Refugee Appellate Center, LLC | www.irac.net


    IN REMOVAL PROCEEDINGS

    MOTION

    ON BEHALF OF RESPONDENT: Bryan S. Johnson, Esquire

    ON BEHALF OF OHS: Warren R. Kaufman


    Assistant Chief Counsel

    APPLICATION: Reopening

    This matter was last before the Board on May J l, 2015, when we summarily dismissed the
    respondent's appeal. The respondent, a native and citizen of Honduras, has filed a timely motion
    to reopen, alleging ineffective assistance of prior counsel. 1 The Department of Homeland
    Security opposes the granting of the motion to reopen. The respondent has also filed a motion to
    consolidate proceedings. 2 The motion to consolidate will be denied. The motion to reopen will
    be granted.

    The respondent seeks reopening based on alleged ineffective assistance of prior counsel. The
    respondent contends that prior counsel failed to file an appellate brief after indicating that a brief
    would be filed and also failed to meaningfully apprise the Board of the reasons underlying the
    respondent's appeal in the Notice of Appeal (Motion at 12). The respondent further contends
    that when his mother (''the applicant") followed up with her attorney to check on the status of the
    appeal, her attorney misrepresented the basis for the Board's denial (Motion at 18-19).
    Specifically, the respondent contends that although the appeal was summarily dismissed due to
    failure to provide a Notice of Appeal with sufficient facts and arguments to apprise the Board of
    the basis for his appeal and for failure to submit a brief, his attorney told the applicant that the

    1
    Although the motion indicates that the respondent has been removed from the United States
    and is currently residing in Honduras, we note that the post-departure limitations on motions to
    reopen do not apply to statutory motions to reopen. See Garcia-Carias v. Holder, 697 F .3d 257,
    264 (5th Cir. 2012) and Lari v. Holder, 697 F.3d 273 (5th Cir. 2012).
    2
    The respondent is a 4-year-old child. His mother,
    is an applicant in withholding proceedings. She filed a motion seeking to consolidate her
    proceedings with her son. Given the circumstances, the Immigration Judge agreed to consider
    these cases concurrently, although he issued two separate decisions (Tr. at 4-5, 17-18). See
    generally 8 C.F.R. § 1240.1 (a)(iv). As the proceedings are distinct, the motion to consolidate
    proceedings is denied. However, like the Immigration Judge, we will consider the cases
    concurrently and issue two separate decisions.

    Cite as: C-P-O-, AXXX XXX 486 (BIA Nov. 2, 2015)


    486

    appeal had been dismissed because the Board did not agree with his arguments on appeal
    (Motion at 13-14). In support of his claims, the respondent has submitted copies of emails sent
    between the applicant and former counsel to corroborate that these statements were made (see
    Motion attachments at 21-24).

    The respondent has complied with the procedural requirements for ineffective assistance of

    Immigrant & Refugee Appellate Center, LLC | www.irac.net


    counsel claims before the Board (see Motion attachments at 1-14, I 5-20, 25). See Matter of
    Lozada, 19 I&N Dec. 637, 639 (BIA 1988). Moreover, we agree with the respondent that his
    proceedings were rendered fundan1entally unfair by his attorney's conduct, because his failure to
    apprise the Board of the reasons for the appeal and his misrepresentation to the applicant that he
    had done so ,1re manifestly prejudicial. See Matter of Assaad, 23 I&N Dec. 553 (BIA 2003);
    Matter of B-B-, 22 l&N Dec. 309, 311 (BIA 1998) (requiring ineffective assistance to be so
    egregious as to render tile hearing unfair); Matter of Lozada, supra, at 640; see also Ogbemudia
    v. INS, 988 F.2d 595, 598 (Stll Cir. I 993) (requiring an alien to demonstrate "substantial
    prejudice" in order to establish that a hearing is fundamentally unfair). Moreover, in light of
    evolving case law pertaining to the respondent's asylum claim, counsel's failure to argue that the
    facts and evidence in tile respondent's case could fom1 the basis of a particular social group in
    light ofAfatter ofA-R-C-G-, 26 I&N Dec. 388 (BIA 2014) is also prejudicial.

    In view of prior counsel's ineffective assistance and the resulting prejudice, we will reopen
    proceedings and remand the record to the Immigration Judge for further consideration of the
    respondent's eligibility for relief. We express no opinion as to the respondent's ultimate
    eligibility for relief. In light of our disposition of tllis case, we need not reach the respondent's
    remaining arguments in his motion to reopen, many of which pertain to issues over which we do
    not have jurisdiction (Motion at 2-3).

    ORDER: The motion to reopen proceedings is granted.

    FURTHER ORDER: The motion to consolidate is denied.

    FURTHER ORDER: The record is remanded to the Immigration Judge for further
    proceedings consistent with tile foregoing opinion and entry of a new decision.

    Cite as: C-P-O-, AXXX XXX 486 (BIA Nov. 2, 2015)

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