Uy, Lien, Esq.

436 14th Stteet #1106

oakland, CA 94612
Name: LEI, DENG YI
U.S. Department of Justice
Executive Offce fr Immigration Review
Board of Immigration Appeals
Ofce of the Clerk
5107 leesburg Pike, Suite 2000
Fals Church, Vrginia 20530
OHS/ICE Ofice 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For more unpublished BIA decisions, visit www.irac.net/unpublished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 Justce
E
xecutive Ofce fr Iigration Review
Fa Cuch Virga 20530
File: A047 597 940 - Sa Fracisco, CA
I re: DENG YI LEI a.k.a. Dengyi Lei
I REMOVAL PROCEEDIGS
CERTIICATION
1
ON BEHALF OF RESPONDEN: Lien Uy, Esquire
ON BEHALF OF DHS:
APPLICATION: Reopenng
Julette C. Gonsalves
Assistat Chief Counsel
Decision of te Board of Imgaton Appeals
Date:
AUG 2 7 2014
The respondent moves the Boad pursuat to 8 C.F.R. 1003.2 to reopen his removal
proceedings to alow him to apply to te U.S. Citienship ad higration Services ("USCIS")
fr a hadship waiver uder section 216(c)(4)(A) of te Imigation ad Nationality Act,
8 U.S.C. 1186a(c)(4)(A) [exteme hadship waiver]. I our Mach 18, 2014, decision we
dismissed his appeal fom the hgation Judge's Mach 29, 2012, decision whch fud h
removable ad deterined upon review tat there was no good reason to disturb te USCIS's
denial of his application fr a hadship waver under section 216( c )( 4)(B) of te Act [good faith
maiage waiver]. The Depatment of Homelad Security ("DHS") opposes the motion. The
motion will be dened.
The Boad does not have ay autorty to reopen proceedigs to allow te respondent to
apply fr a hadship waver under section 216(c)(4)(A) of the Act. We issued a fnal
administative decision on Mach 18, 2014. The regulation at 8 C.F.R. 1216.5(a)(2) provides,
in pertinent par, that a conditiona resident who is in removal proceedings may apply fr te
[hadship] waiver only until such time as there is a fnal [administative] removal order. I is
well established that regulations promulgated by te Attorey Genera are binding on te Boad
ad Immigration Judges. Matter of Akam, 25 I&N Dec. 874, 880 (BIA 2012). There is thus no
basis fr us to gat reopening.
The respondent, however, alleges inefective assistace of (resent) counsel. I 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 Attorey General directed the Boad to continue to apply the previously established
stadads fr reviewing motions to reopen based on claims of inefectve assistace of counsel
pending the outcome of a rlemaking process.
1 I order to avoid ay question concerg our jurisdiction over the respondent's motion, we
take jusdiction over tis mater by certifcation pursuat 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

I Matter of Lozada, 19 I&N Dec. 637, 639-40 (BIA 1988), we set frth the procedural
requirements fr a clam of inefective assistance of cousel. The United States Court of
Appeals fr the Ninth Circuit stated in Rees v. Ashcrof, 358 F.3d 592, 597 (9 Cir. 2004) that
te cou presumes, a a general rule, tat te Boad does not abuse its discretion when it
obligates aliens to satsf te literal requireents of Matter of Lozada, supra.
Te respondent does not show substatial compliace with the requirements in Matter of
Lozada, supra. The respondent does not present hs swor affdavit or declaation made under
penalty of perur, ad thus does not meet te frst requireent in Matter of Lozada, supra.
Compliace with the second requirement is excused because counsel obviously !ows about te
respondent's allegations of inefective assistace of counsel, as tey ae made aganst h.
The respondent does not meet te tird requirement in tat he did not fle a complant aganst
counsel wit the State Ba of Caifra, ad does not ofer a satisfctory explaaton of why no
complant was made. Counsel states in her June 17, 2014, declaation (otion Ex. B) tat she
did not low that even while the renewal of the good faith mar iage waver was befre the
hmigration Judge, she could have fled on te respondent's behalf aother Petiton to Remove
Conditions on Residence (For I-751) wit the USCIS based on exteme hadship. While
cousel states tat she taes responsibility fr te oversigt, she does not idcate that she self
reported her alleged inefective representation to te State Ba of Califra. See generaly
Califra Business ad Professions Code section 6068(0) (duties of attorey).
When a alien retans pror counsel to pusue a agument of inadequacy of tat sae
attorey, te reorting requirements of Matter of Lozada, supra, ae likely more meangl. I
is not fr te attorey to decide the issues regarding her own prior conduct. The self-reortng
requirement does not equate to a obvious need fr discipline. The self-reorting requireent
lets a state ba decide ad puts the state ba on notice if tere ae fer problems. We conclude
tat the resondent does not show substatial complace with the requirements in Matter of
Lozada, supra, to allege inefectve assistace of (present) counsel. Cf Rojas-Garcia v. Ashcrof,
339 F.3d 814, 825 (9th Cir. 2003) (the falure to fle a ba complait is not ftal to the alien's
inefective assistace claim where frer cousel submitted a letter of self-reort to te state ba;
ts self-reportng shows that te alien's frer cousel regarded hs delinquency as a serious
breach of services promised to his client).
Accordingly, te fllowing order will be entered.
ORDER: The motion to reopen is denied.
2
FOR THE BOAR
2
Ay request fr te exercise of prosecutorial discreton must be addressed to te DHS.
2
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Cite as: Den Yi Lei, A047 597 940 (BIA Aug. 27, 2014)