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U.S.

Department of Justice
Executive Office for Immigration Review

Board ofImmigration Appeals


Office of the Clerk
5107 Leesburg Pike, Suite 2000
Falls Church. Virginia 20530

Salas,Omar,Esq.

OHS/ICE Office of Chief Counsel - DAL

Name:ARREDONDO,ESTELLAIBONNE

125 E. John Carpenter Fwy,Ste. 500


Irving,TX 75062-2324

A 200-760-314

Date of this notice: 2/9/2015

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

D Ca.AAJ
Donna Carr
Chief Clerk

Enclosure

Panel Members:
Cole, Patricia A.
Pauley, Roger
Wendtland, Linda S.

Userteam: Docket

For our Index of Unpublished BIA Decisions


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Cite as: Estella Ibonne Arrendono, A200 760 314 (BIA Feb. 9, 2015)

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Chavez & Valko,LLP


10830 N. Central Expressway Ste. 400
Dallas,TX 75231

.u.s. Department of Justice

Decision of the Board of Immigration Appeals

Executive Office for Immigration Review


Falls Church, Virginia 20530

File: A200 760 314- Dallas, TX

Date:

FEB

9 2015

In re: ESTELA IBONNE ARREDONDO

APPEAL
ON BEHALF OF RESPONDENT:

Omar Salas, Esquire

CHARGE:

212(a)(6)(A)(i), I&N Act [8 U.S.C. 1182(a)(6)(A)(i)] Present without being admitted or paroled (withdrawn)

Notice:

Sec.

Sec.

Lodged:

Sec.

212(a)(2)(A)(i)(I), I&N Act [8 U.S.C. l182(a)(2)(A)(i)(l)]


Crime involving moral turpitude (withdrawn)
237(a)(l)(B), I&N Act [8 U.S.C. 1227(a)(l)(B)] In the United States in violation of law (conceded)

APPLICATION: Reopening; stay

The respondent, a native and citizen of Mexico, appeals from the Immigration
1
December 20, 2012, decision denying her timely motion to reopen. The respondent's motion
was filed on December 6, 2012, after the Immigration Judge granted her pre-conclusion
voluntary departure pursuant to section 240B(a) of the Immigration and Nationality Act (Act),
8 U.S.C. 1229c(a), in a decision dated September 7, 2012. See 8 C.F.R. 1003.23(b)
(generally setting a 90-day deadline for filing motions to reopen). The respondent then filed this
timely appeal. The respondent's request for oral argument is denied. See 8 C.F.R.
I 003. I (e)(7). Her appeal will be sustained, proceedings will be reopened, and the record will
be remanded to the Immigration Judge for further proceedings consistent with this decision.
We review findings of fact, including credibility findings, for clear error. See 8 C.F.R.
1003.
l(d)(3)(i); see also Matter of J-Y-C-, 24 I&N Dec. 260 (BIA 2007); Matter of S-H-,

23 l&N Dec. 462 (BIA 2002). We review questions of law, discretion, or judgment, and all
other issues de novo. See 8 C.F.R. I 003.1 (d)(3)(ii).
The following facts and procedural history are not in dispute. The respondent entered the
United States on March 26, 1985, as a non-immigrant visitor but remained longer than
Because the Immigration Judge served his decision on the parties by mail on
December 28, 2012, the respondent's January 25, 2013, Notice of Appeal is timely. See 8 C.F.R.
I 003.38(c) (setting a 30-day deadline for filing a Notice of Appeal beginning from the date that
the Immigration Judge's decision is served by mail).

Cite as: Estella Ibonne Arrendono, A200 760 314 (BIA Feb. 9, 2015)

Immigrant & Refugee Appellate Center | www.irac.net

IN REMOVAL PROCEEDINGS

. A200 760 314

At her final hearing, scheduled before the Immigration Judge on September 7, 2012, the
3
respondent was advised that her adjustment application would be denied (l.J. at 1). Thereafter,
she consulted with her then-counsel off the record before withdrawing her applications for
adjustment and a 2l2(h) waiver and accepting pre-conclusion voluntary departure pursuant to
section 240B(a) of the Act (I.J. at 1 ).
On December 6, 2012, the respondent filed a motion to reopen through new counsel in which
she maintains that her previous attorney provided ineffective assistance (Resp. Motion to
Reopen at 3-7; Tabs E, 1-J). Specifically, she maintains that her prior attorney performed
deficiently because he did not advise her that she needed to obtain an updated medical
examination prior to her final hearing (Resp. Motion to Reopen at 6; Tab E). See 8 C.F.R.
1003.102(0), (q), (r) (requiring a practitioner to provide competent representation, to act with
reasonable promptness and diligence in representing the respondent before the Immigration
Court, and to maintain appropriate communication with the respondent during the course of such
2 Some of the facts recited in this order were not formal1y found by the Immigration Judge but
may be administratively noticed based on the record evidence. See 8 C.F.R. 1003. l(d)(3)(iv)
(limiting our appellate fact-finding authority to "taking administrative notice of commonly
known facts such as the contents of official documents"); Matter ofS-H-, supra, at 465-66.
3 Specifically, the Department of Homeland Security (OHS) moved to pretermit the
respondent's adjustment application due to a purportedly out-of-date medical examination, at
which point the respondent's former counsel agreed to discuss pre-conclusion voluntary
departure with the respondent (l.J. at 1). We need not ultimately address whether the medical
exam was expired, thus forming a valid basis for pretennitting the respondent's adjustment
application. However, we note that 8 C.F.R. 245.5 and 1245.5 indicate that the exam must be
completed no more than a year prior to the filing of the adjustment application, and the relevant
statute and regulations do not further define whether the medical expires during the pendency of
an adjustment application if the application remains under review for a period of more than a
year from the date that the examination was completed. However, at the time that the
Immigration Judge found the respondent statutorily ineligible to adjust her status due to the
expiration of her medical examination USCIS maintained a policy in which the agency
considered a medical examination to remain unexpired during the pendency of such application
in the absence of any noted Class A or B medical condition. See, e.g., Policy Memorandum,
Extension of Validity of Medical Certifications on Form 1-693 (December 29, 2011) (valid until
January I, 2013).

2
Cite as: Estella Ibonne Arrendono, A200 760 314 (BIA Feb. 9, 2015)

Immigrant & Refugee Appellate Center | www.irac.net

authorized (Exhs. lA, 4:1). On June 14, 2001, she pied guilty to and was convicted of injury to a
child, a third degree felony (Exh. 3). She is the beneficiary of an approved Alien Relative
Petition (Form I-130) filed on her behalf by her United States citizen son and approved by
United States Citizenship and Immigration Services (USCIS) on June 1, 2011 (Exh. 4:3). In
light of the respondent's conviction and her approved visa petition as an immediate relative, she
sought adjustment of status under section 245(a) of the Act, 8 U.S.C. 1255(a), in conjunction
with a waiver of inadmissibility under section 212(h) of the Act, 8 U.S.C. 1l82(h), before the
2
Immigration Judge (Exh. 4).

A200 760 314

On December 20, 2012, the Immigration Judge denied the respondent's motion to reopen,
finding the record does not contain sufficient evidence establishing that the respondent's former
attorney performed deficiently when counseling the respondent with respect to her options in
these proceedings (l.J. at 1). Specifically, he concluded that the respondent's decision to accept
voluntary departure was knowing and voluntary because ( 1) her counsel confirmed on the record
that he spoke with the respondent regarding her options, (2) the Immigration Judge confirmed
this in questioning the respondent on the record, and (3) the respondent signed the Immigration
Judge's order granting pre-conclusion voluntary departure and advising the respondent of her
rights and responsibilities thereunder (I.J. at 1). In addition, the Immigration Judge concluded
that, notwithstanding any deficiencies in prior counsel's performance, the respondent did not
establish that she would have prevailed on her adjustment and waiver applications if she had a
hearing on the merits (l.J. at 1-2).
At the outset, we note that the Immigration Judge did not conclude that the respondent's
motion to reopen does not comply with the procedural requirements for motions based on
ineffective assistance as outlined in Matter of Lozada, 19 I&N Dec. 637 (BIA 1988)
(Resp. Motion to Reopen at Tabs E, I-J). See id. at 639 (explaining that generally a motion to
reopen based on ineffective assistance should generally be supported by (1) an affidavit from the
aggrieved party, (2) evidence that the former attorney has been advised of the allegations against
him and given an opportunity to respond, along with any response offered, and (3) evidence that
appropriate disciplinary authorities have been notified or, if not, the reason such notification is
not being pursued); see also Hernandez-Ortez v. Holder, 741 F.3d 644, 647 (5th Cir. 2014)
(confirming the applicability of these procedural requirements within the jurisdiction of the
United States Court of Appeals for the Fifth Circuit, wherein this case arises).
Although the Immigration Judge concluded that the record contains insufficient evidence of
misconduct by the respondent's former attorney, in part, because the Immigration Judge spoke to
the respondent on the record and confirmed her willingness to withdraw her applications for
relief and accept voluntary departure, we note that the Immigration Judge's decision does not
3
Cite as: Estella Ibonne Arrendono, A200 760 314 (BIA Feb. 9, 2015)

Immigrant & Refugee Appellate Center | www.irac.net

representation). In addition, the respondent maintains that when issues regarding the medical
examination were raised at her final hearing, her former attorney did not advise her about the
problem but instead told her that the Immigration Judge was denying her applications because of
her criminal conviction (Resp. Motion to Reopen at 3, 6; Tab E).
See 8 C.F.R.
1003.102(r)(l )-(2) (requiring counsel to promptly inform the respondent about any decision
or circumstance requiring the respondent's informed consent, consult with the respondent
regarding such consent, and consult with the respondent about the means by which the
respondent's objectives may be accomplished). The respondent also maintains that her attorney
performed deficiently because he did not request a continuance in allowing her to remedy the
alleged defect in her application (Resp. Motion to Reopen at 6; Tab E). Instead, she asserts that
her attorney misled her when advising her about her options by telling her the Immigration Judge
could immediately arrest her if she did not agree to withdraw her applications for relief and
accept voluntary departure and indicating to her that she did not have other options
(Resp. Motion to Reopen at 3, 7; Tab E). See 8 C.F.R. 1003.102(p) (requiring the practitioner
to abide by the respondent's decisions concerning the respondent's objectives after reasonably
consulting with the respondent in advising her of such options); 8 C.F.R. 1003.102(r)(2).

A200 760 314

Here, we conclude that such egregious circumstances have been demonstrated where the
respondent claims in her unrebutted affidavit that her attorney (1) did not tell her an updated
medical was required, (2) did not advise her at her hearing that her adjustment application was
incomplete, and thus subject to denial, based on the date of the medical examination, (3) did not
request a continuance to obtain an updated medical examination, (4) did not advise the
respondent that she could appeal any adverse decision issued by the Immigration Judge, and
(5) advised the respondent that her only option was to accept voluntary departure because her
failure to do so would result in her arrest by the Immigration Judge (Resp. Motion to
Reopen at 3, 6, Tabs E, I-J; Resp. Brief at 3-10).
Moreover, we agree with the respondent that her proceedings were rendered fundamentally
unfair by her attorney's conduct, as his failure to advise her of the need for an updated medical
examination and failure to request a continuance to remedy the defect led directly to a
determination that she could not prevail on the adjustment application at her final hearing before
the Immigration Judge (Resp. Brief at 9-10; l.J. at 1). See Matter of Assaad, 23 l&N Dec. 553
(BIA 2003); Matter of B-B-, 22 I&N Dec. 309, 3 I 1 (BIA 1998) (requiring ineffective assistant to
be so egregious as to render the hearing unfair); Matter of Lozada, supra, at 640; see also
Ogbemudia v. INS, 988 F.2d 595, 598 (5th Cir. I 993) (requiring an alien to demonstrate
''substantial prejudice" in order to establish that a hearing is fundamentally unfair). While we
express no opinion as to the respondent's ultimate statutory and discretionary eligibility for
adjustment of status with a waiver of inadmissibility, we conclude that the record does not
contain sufficient evidence to establish that the respondent knowingly and voluntarily withdrew
her applications for relief and we have identified no apparent, statutory impediments to her
ability to proceed with these previously filed applications. See Anwar v. INS, 116 F .3d 140, 144
(5th Cir. 1997); Miranda-Lores v. INS, 17 F.3d 84, 85 (5th Cir. 1994) (requiring an alien to
establish prima facie eligibility for relief from removal to prevail on a claim of ineffective
assistance of counsel).
Accordingly, in light of the respondent's timely motion, supported by her unrebutted
affidavit asserting that her prior attorney performed deficiently and deceptively in securing her
consent to withdraw her applications for relief and to accept pre-conclusion voluntary departure,
we conclude that reopening of this matter is appropriate. Therefore, the respondent's motion to
reopen will be granted and the record will be remanded to the Immigration Judge to allow the
respondent to pursue her previously withdrawn applications.
4

Immigrant & Refugee Appellate Center | www.irac.net

consider all of the allegations of misconduct made by the respondent (I.J. at 1; Resp.
Motion toReopen at 3, 6, Tabs E, 1-J; Resp. Brief at 3-10). Specifically, the respondent
maintains that her attorney told her that (1) she did not have any other options, including an
opportunity to appeal; and (2) the Immigration Judge could immediately arrest her if she
declined to accept voluntary departure, such that she did not knowingly and voluntarily accept
this grant of relief (Resp. Motion to Reopen at 3, 6, Tabs E, 1-J; Resp. Brief at 3-4 ). While we
agree with the Immigration Judge that we will generally bind a respondent to the tactical
decisions she makes with her counsel, she is not bound by these decisions to the extent she
makes a showing of egregious circumstances (l.J. at 1) . See Matter ofGawaran, 20 I&N
Dec. 938, 942 (BIA 1995); Matter of Velasquez, 19 I&N Dec. 377, 382 (BIA 1986); see also Mai
v. Gonzales, 473 F.3d 162, 166-67 (5th Cir. 2006).

A200 760 314

In light of our disposition of this matter, we decline to address the respondent's motion for a
stay as moot. Upon remand, the parties will have an opportunity to supplement the record with
any documentation or testimony they may choose to present regarding the respondent's statutory
and discretionary eligibility for adjustment of status sought in conjunction with her waiver of
inadmissibility.

ORDER: The respondent's appeal is sustained and her motion to reopen, granted.
FURTHER ORDER: The respondent's motion for a stay is denied as moot.
FURTHER ORDER: The record is remanded for further proceedings consistent with this
opinion, including, but not limited to, proceedings allowing the respondent to pursue her
applications for adjustment of status under section 245(a) of the Act and a waiver of
inadmissibility under section 2 l 2(h) of the Act.

Immigrant & Refugee Appellate Center | www.irac.net

Accordingly, the following orders are entered.

,.

i.

UNITED STATES DEPARTMENT OF JUSTICE


EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
1100 COMMERCE ST.,
DALLAS,

& VALKO,

LLP

MARY E.

10830 N.
DALLAS,

CENTRAL EXPRESSWAY,
TX

STE 400

75231
FILE A 200-760-314

IN THE MATTER OF
ARREDONDO,

DATE:

Dec 28,

2012

ESTELLA IBONNE

UNABLE TO FORWARD

ROOM 404

75242

NO ADDRESS PROVIDED

TACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE.

THIS DECISION

IS FINAL UNLESS AN APPEAL IS FILED WITH THE BOARD OF IMMIGRATION APPEALS

WITHIN 30 CALENDAR DAYS OF THE DATE OF THE MAILING OF THIS WRITTEN DECISION.
SEE THE ENCLOSED FORMS AND INSTRUCTIONS FOR PROPERLY
YOUR NOTICE OF APPEAL,
MUST BE MAILED TO:

ATTACHED DOCUMENTS,

PREPARING YOUR APPEAL.

ANP FEE OR FEE WAIVER.REQUEST

BOARD OF IMMIGRATION APPEALS


OFFICE OF THE CLERK
P.O.

BOX 8530

FALLS CHURCH,

VA

22041

ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE AS THE RESULT


OF YOUR FAILURE TO APPEAR AT YOUR SCHEDULED DEPORTATION OR REMOVAL HEARING.
THIS DECISION rs FINAL UNLESS A MOTION TO REOPEN IS
WITH SECTION 242B(c) (3)
SECTION 1252B(c) (3)
8 U.S.C.

SECTION

TO REOPEN,

FILED

IN ACCORDANCE

OF THE IMMIGRATION AND NATIONALITY ACT,

IN DEPORTATION PROCEEDINGS OR SECTION 240(c)

1229a(c)

(6)

IN REMOVAL PROCEEDINGS.

8 U.S.C.

(6),

IF YOU FILE A MOTION

YOUR MOTION MUST BE FILED WITH THIS COURT:


IMMIGRATION COURT
1100 COMMERCE ST.,
DALLAS,

TX

ROOM 404

75242

OTHER:

FF
CC:

ALLUMS,
125 E.
IRVING,

JOHN L.
HWY 114,
TX,

STE 500

75062

.a

z,

.c&SW&u

Immigrant & Refugee Appellate Center | www.irac.net

CHAVEZ
DURBIN,

TX

UNITED STATES DEPARTMENT OF JUSTICE


EXECUTIVE OFFICE OF IMMIGRATION REVIEW
DALLAS IMMIGRATION COURT

In Re: Estella Ibonne Arredondo

Case No. 200-760-314

This matter is before the Court pursuant to the Respondent's December 6, 2012,
Motion to Reopen. For the reasons set for the below, it will be DENIED.
The Respondent consented to receiving pre-conclusion voluntary departure at her
last hearing before the Court, yet she now wants another chance to seek relief. On
September 7, 2012, the Respondent appeared with counsel for her merits hearing. It
came to the Court's attention that the Respondent's medical exam was expired therefore
she was statutorily ineligible to seek adjustment of status. The Government offered the
Respondent voluntary departure for 120 days, even though she was ineligible for it since
more than 30 days had passed since her initial master hearing. The Respondent and her
attorney spoke privately about the Government's offer. The attorney told the Court that
the Respondent wanted to withdraw her adjustment of status and I-601 waiver
applications and instead seek voluntary departure. On the record, this Court individually
spoke to the Respondent and verified for itself that this was the path the Respondent
wanted to pursue. The record reflects, and the Respondent herself concedes, that she said
"yes" to withdrawing her application for adjustment and instead taking voluntary
departure. See Respondent's Motion to Reopen, p. 4. Then, the Court had the
Respondent and her attorney signed the voluntary departure advisals.
The Respondent now complains that her attorney misled her. Even if this was
true, the record does not support a finding that the Respondent was, in fact, misled about
her decision to take voluntary departure. The Court took the following undisputed steps:
(1) relied upon the statements of the Respondent's chosen attorney, with whom she
appeared for three hearings; (2) personally spoke to her to confirm her concurrence and
she stated on the record that she concurred; and (3) had the Respondent sign the
voluntary departure order. The Respondent cannot consent to her chosen path, take the
relief given to her by the Court, and then change her mind and complain.
Alternatively, the Court will address and deny the Respondent's Matter of
Lozada, 191. & N. Dec. 637, 638 (B.l.A. 1988) claim. As part of the ineffective
assistance of counsel claim, the Respondent must show that but for the poor actions of
her attorney, the result would have been different. Here, the Respondent does not address
the merits of her adjustment application and assumes a grant of her application if she
proved statutory eligibility by complying with the medical examination requirement.
But, a grant of her application is far from clear. Exhibit 3 shows that the
Respondent was convicted of the Felony Offense of Injury to a Child after pleading guilty

Page 1 of2

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ORDER

to kicking

a minor child in the head.

She received a ten year sentence

for this crime. The

Respondent has failed to show that but for the actions of her previous attorney she would
prevail in seeking a discretionary form of relief-especially considering the seriousness
of her crime for which she seeks a waiver.
There is no basis upon which to grant the Respondent's Motion to Reopen.
Further, she did not meet her burden under Matter

ofLozada to show ineffective

On this

JV'

day of December,

2012.

United States Immigration Judge

Copy to:
Chief Counsel, DHS/ICE

Immigrant & Refugee Appellate Center | www.irac.net

assistance of counsel at her prior hearing.

Page 2 of2

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==

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