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 22041

Gonzalez, Raed Olivieri Gonzalez Olivieri, LLC 2200 Southwest Frwy., Ste. 550 Houston, TX 77098

DHS/ICE Office of Chief Counsel - HLG 1717 Zoy Street Harlingen, TX 78552

Name:

Date of this notice: 9/17/2015

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

DCnttL. C

a/v't)

Donna Carr Chief Clerk

Enclosure Panel Members: Helmes, David 8.

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u.s. Department of Justice

Decision of the Board of Immigration Appeals

Executive Office for Immigration Review Falls -Church, Virginia 22041

File:

- Harlingen, TX

Date:

In re:

SEP 17 2015

IN REMOVAL PROCEEDINGS MOTION ON BEHALF OF RESPONDENT: Raed Gonzalez, Esquire APPLICATION: Reopening

This case is before the Board pursuant to a July 28, 2015, order of the United States Court of Appeals for the Fifth Circuit, which granted the motion to remand this matter to the Board to consider what effect, if any, the Supreme Court's intervening decision in Mata v. Lynch, 135 S. Ct. 2150 (2015), has on its treatment of the respondent's motion to reopen alleging ineffective assistance of counsel as a request for sua sponte reopening. It is not clear that the decision in Mata v. Lynch has any direct applicability to our treatment of the respondent's motion to reopen, since its holding dealt solely with whether the Fifth Circuit properly found it lacked jurisdiction to review the Board's denial of a motion to reopen. Nevertheless, to the extent that the Supreme Court indicated in Mata that it might be improper to treat untimely or number-barred motions solely as requests to reopen sua sponte, we will reexamine the respondent's claims on remand, as argued both in the Motion to Remand filed while his appeal was pending before the Board and as argued in a Motion to Reopen he filed on January 14,2015.

In both motions, the respondent urged that the attorney who filed his first motion to reopen filed a patently deficient motion to reopen based on a claim of lack of notice, which led to its denial by the Immigration Judge and prejudiced him. In particular, he contends that counsel did . not properly explain the basis of the motion and did not submit evidence in support of the motion that was adequate to establish the respondent' s claim that he did not receive notice of the scheduled hearing below that resulted in an in absentia order of removal being entered by the Immigration Judge on February 1,2002. Although there is no time limit on motions to reopen claiming a lack of notice, such motions are not specifically exempted from the number limit on motions to reopen. Sections 240(c)(7)(A) and (C) (iii) of the Immigration and Nationality Act, 8 U.S.C. §§ 1229a(c)(7)(A), (C)(iii). To the extent that equitable tolling of the time and/or number limits may be found to apply to claims of ineffective assistance of counsel, we have found that prejudice must be shown. See, e.g., Matter of Assaad, 23 I&N Dec. 553 (BIA 2003). The respondent urges that he was prejudiced by the deficiencies in the first motion, and that his motion would have been granted if the proper arguments were set forth in the motion and if additional evidence had been submitted to support his claim that he did not receive notice of his hearing. Upon review of the all of the evidence presented, including the respondent's updated affidavit of non-receipt, the cousin's affidavit of non-receipt, and evidence showing the respondent's potential eligibility for relief at

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the time he was placed in proceedings in 2001 (Motion to Reopen filed Jan. 14,2015, tabs B, C, H, K), it appears likely that the outcome would have been different if this evidence had been presented at the time the initial motion was filed. In other words, it appears likely that if this evidence had been initially presented, the motion would have been granted based upon a consideration of the factors set forth in Matter of M-R-A-, 24 I&N Dec. 665, 674 (BIA 2008), (or determining whether the movant has overcome the lesser presumption of delivery that applies when a notice is sent by regular mail. Under the circumstances, we fmd that the respondent has shown he was prejudiced such that equitable tolling would be warranted. Moreover, he has presented sufficient evidence that he did not receive notice of the scheduled hearing such that reopening and rescission of the in absentia order is warranted. Matter ofM-R -A -, supra. 1 Accordingly, upon remand from the Fifth Circuit, we will grant the respondent's motion to reopen these removal proceedings and rescind the in absentia order of removal. ORDER: The motion to reopen is granted, and the Immigration Judge's in absentia order entered on February 1,2002, is rescinded. The record is remanded to the Immigration Court for further FURTHER ORDER: proceedings consistent with the foregoing and for the entry of a new decision.

FOR THE BOARD

1 Even

if the Fifth Circuit would not apply equitable tolling, we would find, considering the totality of the evidence presented by the respondent in this case, th'\-t an exceptional situation exists warranting sua sponte reopening in our discretion. 8 C.F.R. § 1003.2(a); Matter of J-J-, 21 I&N Dec. 976 (BIA 1997).

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