In re N-K-, Interim Decision No. 3312.

• Decision Date: 13 March 1997
• Docket Number: Interim Decision No. 3312.
• Court: U.S. DOJ Board of Immigration Appeals
• Parties: In re N-K- & V-S-, Applicants.

21 I&N Dec. 879

In re N-K- & V-S-, Applicants.

Interim Decision No. 3312.

Board of Immigration Appeals.

Decided March 13, 1997.

A claim of ineffective assistance of counsel can, if the applicant meets the requirements set forth in Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), form the basis of a successful motion to reopen exclusion proceedings where the applicant was ordered excluded in an in absentia hearing.

FOR THE APPLICANT: Robert B. Jobe, Esquire, San Francisco, California.

FOR THE IMMIGRATION AND NATURALIZATION SERVICE: James S. Stolley, Jr., Assistant District Counsel.

BEFORE: Board Panel: SCHMIDT, Chairman; HURWITZ, ROSENBERG, Board Members.

ROSENBERG, Board Member:

In separate decisions dated March 14, 1991, entered following individual hearings held in absentia, the Immigration Judge found the applicants excludable, determined that they had failed to establish eligibility for any form of discretionary relief, and ordered them excluded from the United States. No appeal was taken.

I. PROCEDURAL BACKGROUND

On June 10, 1991, the applicants, through newly-retained counsel, moved to reopen their exclusion proceedings in order to explain their absence at the prior proceeding, which they claimed to have had no notice of, and to request a change of venue from Los Angeles to San Francisco. In a decision dated June 28, 1991, the Immigration Judge denied the motion, deciding that the notice of hearing served on their "attorney of record" was legally adequate notice to the applicants.

The applicants appealed the Immigration Judge's denial of their motion to reopen and moved for a change of venue. On appeal, they explained that their prior counsel has been retained for the limited purpose of arranging their release from Immigration and Naturalization Service custody, and that there was no agreement that he would represent them at any future proceeding. They were unaware that the attorney had been given notice of the March 14th hearing, that such a hearing took place, and that he had appeared on their behalf at that proceeding.

By decision dated September 13, 1994, we dismissed the appeal and denied the motion to change venue. We decided that the applicants' stated reason for their failure to appear, that their attorney had not notified them of the date of hearing, was not a reasonable explanation for their failure to attend the hearing.

We noted that to the extent the applicants were claiming that they received ineffective assistance of counsel from their prior attorney, they had not followed the procedures for supporting such a claim as set forth in Matter of Lozada, 19 I&N Dec. 637 (BIA 1988). As the Immigration Judge noted in his decision, notice to an attorney of record constitutes notice to the alien. See 8 C.F.R. § 292.5(a) (1991). We pointed out that there is no "limited" appearance of counsel in immigration proceedings, and that because the attorney never withdrew from the case, he remained the applicants' attorney of record. See Matter of Velasquez, 19 I&N Dec. 377 (BIA 1986). Furthermore, we found the applicants' contention that they were only represented by former counsel through the time of release from Service custody "unpersuasive, if not incredible," noting that the attorney actually appeared at the hearing claiming to be the applicants' representative.

II. MOTION TO REOPEN BASED ON INEFFECTIVE ASSISTANCE OF COUNSEL

By motion dated September 10, 1996, and received on September 25, 1996, the applicants moved the Board to reopen their exclusion proceedings and to stay deportation pending our decision on their motion to reopen. When the basis for a motion to reopen is that the Immigration Judge erroneously held an in absentia hearing, the alien must establish reasonable cause for his or her absence from the proceedings. Section 242(b) of the Immigration and Nationality Act, 8 U.S.C. § 1252(b) (1994); Matter of Haim, 19 I&N Dec. 641 (BIA 1988); Matter of Nafi, 19 I&N Dec. 430 (BIA 1987). If the alien shows reasonable cause for his failure to appear, the motion will be granted; if he does not, the motion will be denied. Matter of Ruiz, 20 I&N Dec. 91 (BIA 1989).

The applicants' motion to reopen before the Board is based on an allegation of ineffective assistance of counsel. "Ineffective assistance of counsel in a deportation proceeding is a denial of due process only if the proceeding was so fundamentally unfair that the alien was prevented from reasonably presenting his case. One must show, moreover, that he was prejudiced by his representative's performance." Matter of Lozada, supra, at 638 (citations omitted); see also Matter of Grijalva, 21 I&N Dec. 472 (BIA 1996) (noting that ineffective assistance of counsel can amount to "exceptional circumstances" within the meaning of section 242B(f)(2) of the Act, 8 U.S.C. § 1252b(f)(2) (1994)); cf. Matter of Rivera, 21 I&N Dec. 599 (BIA 1996) (finding that the alien had failed to show exceptional circumstances where she did not meet all of the Lozada requirements).

In Lozada, we laid out the requirements an applicant must meet in order to support a claim of ineffective assistance of counsel. First, the motion should be supported by an...