U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals
Office ofthe Clerk
5/07 leesburg Pike, Suite 2000
Falls Church, Virginia 22041

DHS/ICE Office of Chief Counsel - DAL

125 E. John Carpenter Fwy, Ste. 500
Irving, TX 75062-2324

Name: LOPEZ, GUILLERMO

A 096-616-343

Date of this notice: 1/29/2016

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

DcrutL

t1JVL)

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Pauley, Roger
Cole, Patricia A.
Wendtland, Linda S.

Userteam: Docket

For more unpublished BIA decisions, visit

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Cite as: Guillermo Lopez, A096 616 343 (BIA Jan. 29, 2016)

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Dobbs, Jered
Verdin Law Firm
900 Jackson St, Ste. 535
Dallas, TX 75202

U.S. Department of Justice

Executive Office for Immigration Review

Decision of the Board oflmmigration Appeals

Falls Church, Virginia 22041

File: A096 616 343 - Dallas, TX

Date:

In re: GUILLERMO LOPEZ a.k.a. Guillermo Lopez Sanchez a.k.a. Memo Lopez

APPEAL
ON BEHALF OF RESPONDENT: Jered Dobbs, Esquire
APPLICATION: Reopening
In a decision rendered March 9, 2015, the Immigration Judge denied a joint motion to reopen
and terminate proceedings without prejudice filed by the respondent and the Department of
Homeland Security (the DHS) on August 8, 2014. The respondent timely appealed that decision.
The appeal will be sustained and the parties' joint motion to terminate will be granted.
We review findings of fact, including credibility findings, under the "clearly erroneous"
standard. See 8 C.F.R. 1003.l(d)(3)(i); see also Matter of J-Y-C-, 24 l&N Dec. 260
(BIA 2007); Matter of S-H-, 23 I&N Dec. 462 (BIA 2002). We review questions of law,
discretion, or judgement, and all other issues de n?? ee 8 C.F.R. 1003.l(d)(3)(ii).
The respondent, a native and citizen of Mexico, entered the United States as a nonimmigrant
visitor in 2001 (I.J. at 1; Exh. 1). The respondent married a United States citizen and adjusted
his status to that of a conditional permanent resident in 2005 (I.J. at 1; Exh. 1). The respondent
did not timely apply to remove the conditions on his residency; his joint petition to remove the
conditions was filed approximately two years after the relevant deadline (I.J. at 1; Exh. 1;
Joint Motion, Tab C). United States Citizenship and Immigration Services (USCIS) denied the
petition because it determined that there was not good cause for the late filing, and the DHS
commenced these removal proceedings through issuance of a Notice to Appear, charging the
respondent as removable because his conditional permanent resident status had been terminated
(Exh. 1). Before an Immigration Judge, the respondent conceded his removability and sought to
renew his joint petition to remove the conditions on his residency (I.J. at 2). The Immigration
Judge set a date for the respondent to file the petition with the Immigration Court, accompanied
by proof that the requisite filing fee had been paid (I.J. at 2). He did not file the petition; on
February 15, 2012, the Immigration Judge ordered the respondent removed (I.J. at 2;
Joint Motion, Tab F).
In August 2014, the respondent and the DHS filed a joint motion to reopen and terminate
proceedings before the Immigration Court, so the respondent could pursue adjustment of status
under section 245 of the Act, 8 U.S.C. 1255, b8ft>re'USCIS (I.J. at 2). Along with the motion,
the respondent submitted:
(1) evidence that his wife, through whom he originally obtained his
conditional resident status, had filed a new visa petition on his behalf; (2) voluminous
documentation of their eight year marriage; (3) a note from his former lawyer suggesting the
prior attorney was responsible for the failure to file the petition to remove conditions before the
Immi gration Judge; and (4) his statement (Joint Motion, Tabs A, G, I, J).
Cite as: Guillermo Lopez, A096 616 343 (BIA Jan. 29, 2016)

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IN REMOVAL PROCEEDINGS

A096 616 343

. }t.

',.,

We disagree with the Immigration Judge's conclusion that reopening and termination without
prejudice is not warranted in this case (I.J. at 3-4). Notably, an agreement between the
respondent and the DHS on an issue regarding the proper course of action "should, in most
instances, be determinative." See Matter ofYewondwosen, 21 I&N Dec. 1025, 1026 (BIA 1997).
Here, the Immigration Judge concluded that the joint motion of the parties could not overcome
the respondent's failure to demonstrate prima facie adjustment eligibility because he did not have
an approved visa petition (I.J. at 4 n.1). However, the standard for reopening is met when "the
evidence reveals a reasonable likelihood that the statutory requirements for relief have been
satisfied. . . . We have not required a conclusive showing that eligibility for relief has been
established." Matter of S-V-, 22 l&N Dec. 1306 (BIA 2000) (citing Matter of L-0-G-,
21 l&N Dec. 413, 419 (BIA 1996) (emphasis added). In addition, contrary to the Immigration
Judge's assertion that an approved visa petition is a necessary prerequisite for reopening, we
have specifically found reopening to be appropriate where a pending visa petition is supported by
evidence establishing a sufficient likelihood that the visa petition will be approved.
See, e.g., Matter of Velarde, 23 l&N Dec. 253, 256 (BIA 2002). In this case, there is a
reasonable likelihood of the visa petition being approved, given the respondent remains married
to the same spouse through whom he obtained his conditional permanent residence nearly
10 years ago. Matter ofS-V-, supra.
Therefore, given the joint motion and the respqiident's evidence that the visa petition is likely
to be granted, we will reopen these proceedings and terminate them without prejudice pursuant
to the parties' request. Accordingly, the following orders will be entered.
ORDER: The respondent's appeal is sustained.
FURTHER ORDER: The parties' joint motion to reopen is granted, and the instant
proceedings are reopened and terminated without prejudice t the joint request of the parties.

Cite as: Guillermo Lopez, A096 616 343 (BIA Jan. 29, 2016)

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The Immigration Judge, observing the motion was not time or number barred because it was
jointly filed, denied the motion because the respondent had not submitted proof that the visa
petition had been approved, and thus the Immigration Judge concluded that the respondent could
not establish prima facie eligibility for adjustment of status under section 245 of the Act
(I.J. at 3-4). See 8 C.F.R. 1003.23(b)(4)(iv). To the extent that the respondent's former lawyer
was at fault, the Immigration Judge found the respondent had not complied with the procedural
requirements set forth in Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), in making a formal
claim of ineffective assistance of counsel (I.J. at 4).

'4'

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UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
1100 COMMERCE ST., SUITE 1060
DALLAS, TX 75242

IN THE MATTER OF
LOPEZ, GUILLERMO

FILE A 096-616-343

DATE: Mar 09, 2015

UNABLE TO FORWARD - NO ADDRESS PROVIDED

ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE. THI,S DECISION
IS FINAL UNLESS AN APPEAL IS FILED WITH THE BOARD OF IMMIGRATION/APPEALS
WITHIN 30 CALENDAR DAYS OF THE DATE OF THE MJULING OF THIS WRITTEN DECISION.
SEE THE ENCLOSED FORMS AND INSTRUCTIONS FOR PROPERLY PREPARING YOUR APPEAL.
YOUR NOTICE OF APPEAL, ATTACHED DOCUMENTS, AND FEE OR FEE WAIVER REQUEST
BOARD OF IMMIGRATION APPEALS
MUST BE MAILED TO:
OFFICE OF THE CLERK
5107 Leesburg Pike, Suite 2000
FALLS CHURCH, VA 20530
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 IS FINAL UNLESS A MOTION TO REOPEN IS FILED IN ACCORDANCE
WITH SECTION 242B(c) (3) OF THE IMMIGRATION AND NATIONALITY ACT, 8 U.S.C.
SECTION 1252B(c) (3) IN DEPORTATION PROCEEDINGS OR SECTION 240{c) (6),
8 u.s.c. SECTION 1229a(c) (6} IN REMOVAL PROCEEDINGS. IF YOU FILE A MOTION
TO REOPEN, YOUR MOTION MUST BE FILED WITH THIS COURT:
IMMIGRATION COURT
1100 COMMERCE ST., SUITE 1060
DALLAS, TX 75242
XX OTHER: COPY OF THE WRITTEN DECISION OF THE IMMIGRATION JUDGE IS ENCLOSED.

CC: HUNKER, PAUL

25 E. HWY 114, STE 500
I:,RVING, TX, 7 5062

IMMIGRATION COURT

FF

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

Verdin Law Firm

Dobbs, Jered
900 Jackson St, Ste. 535
Dallas, TX 75202

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
DALLAS, TEXAS
)
)

LOPEZ, Guillermo

)
)

RESPONDENT

IN REMOVAL PROCEEDINGS
A 096-616-343

CHARGE:

Section 237(a)(l)(D)(i) of the Immigration and Nationality Act

(Act), as amended, in that after admission or adjustment as an alien
lawfully admitted for permanent residence on a condition basis
under section 216 or 216A of the Act your status was terminated
under such respective section.

APPLICATION:

Joint Motion to Reopen and Terminate Without Prejudice

ON BEHALF OF THE RESPONDENT:

Jered Dobbs, Esq.
Verdin Law Firm, LLC
900 Jackson St., Ste. 535
Dallas, Texas 75202

ON BEHALF OF THE DEPARTMENT

OF HOMELAND SECURITY:
Paul B. Hunker III, Esq.
Chief Counsel- OHS/ICE
125 E. John Carpenter Freeway, Ste. 500
Irving, TX 75062

WRITTEN DECISION OF THE IMMIGRATION JUDGE

I.

Factual & Procedural History

The Respondent is a male, native, and citizen of Mexico. Exhibit I. On or about July 18,

2001, he was admitted to the United States as a nonimmigrant B2, visitor. Id. His status was
adjusted to that of a conditional permanent resident on November 17, 2005, based on his
marriage to a United States citizen. See id. On July 7, 2009, the Respondent submitted a
Petition to Remove Conditions on Residence (Form I- 751 ). However, that petition was denied
on December 30, 2009, due to his failure to file within the required time, resulting in the
termination of his conditional permanent resident status. Exhibit 1; Joint Motion, Tab C.
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IN THE MATTER OF:

Consequently, on October 26, 2010, the Department of Homeland Security (DHS or

Government) served the Respondent with a Notice to Appear (NTA) charging him with
removability pursuant to section 237(a)(l )(D)(i) of the Immigration and Nationality Act (INA or

On April 25, 2011, the Respondent appeared before the Court with counsel, Mr. Alberto
Posada. The Respondent's counsel requested a continuance for attorney preparation.

The

continuance was granted and a new hearing was set for October 3, 2011. At that second hearing,
the Respondent's counsel admitted all factual allegations and conceded the charge of
removability contained in the NTA. Based on those admissions and concessions on behalf of the
Respondent, the Court found removability established as charged by clear and convincing
evidence. The Respondent designated Mexico as his country of removal.
During the hearing, the Respondent's counsel requested that the Court review de novo the
Respondent's 1-751 application. The Court agreed to reconsider and set a filing deadline of
January 31, 2012, to receive the 1-751 and fee receipt.

The Court also warned both the

Respondent and his counsel that if the Respondent failed to file the required documents, the
Court would find that the Respondent abandoned all forms of relief and would order him
deported to Mexico. A merits hearing was scheduled for May 7, 2013.
The Respondent, however, failed to file the required documents within the filing
deadline. As a result, the Court, on February 15, 2012, issued a decision pretermitting the
Respondent's I-751 application and ordered the Respondent removed to Mexico. Joint Motion,
Tab F.
On August 8, 2014, the Respondent filed this present Motion to Reopen and Terminate
Without Prejudice. The DHS has joined the motion.
Page 2 of 5

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Act). Exhibit 1.

II.

Jurisdiction

Generally, a motion to reopen must be accompanied with the appropriate filing fee and
fee receipt. 8 C.F.R. 1003.23(b)(l)(ii), 1003.24(b). However, as this present motion is jointly
8 C.F.R. I 003.24(b)(2)(vii).

Therefore, this Court has

jurisdiction over this motion.

III.

Time Requirements

Generally, an alien may file only one motion to reopen and that motion must be filed
within 90 days of the entry of a final administrative order of removal. 8 C.F.R. 1003.23(b)(l).
The Government, however, has joined in the motion. Thus, these time limitations are not
applicable here. See 8 C.F.R. 1003.23(b)(4)(iv).
IV.

Applicable Law & Analysis

A motion to reopen must state the new facts to be proved and must be supported by
affidavits or other evidentiary material. 8 C.F.R. 1003.23(b)(3). The evidence sought to be
offered must be material, previously unavailable, and could not have been discovered or
presented at the original hearing. Id. Any motion to reopen for the purpose of acting on an
application for relief must be accompanied by the appropriate application for relief and all
supporting documents. Id. Additionally, the court will not grant a motion to reopen unless the
alien establishes a prima facie case of eligibility for the underlying relief sought. Matter of S-V-,
22 I&N Dec. 1306, 1307 (BIA 2000) (citing INS v. Abudu, 485 U.S. 94 (1988)). The court has
broad discretion to deny a motion to reopen. See INS v. Doherty, 502 U.S. 314, 323 (1992). It
may do so even if the alien has made out a prima facie case of eligibility for relief, where the
relief would not be granted in the exercise of discretion. Id.; 8 C.F.R. 1003.23(b)(3).

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filed, no filing fee is required.

The Respondent seeks reopening and termination of proceedings to apply for adjustment
of status with the United States Citizenship and Immigration Services (USCIS).

See Joint

Motion. In support of his motion to reopen, the Respondent provided, among other things, bank

However, he did not provide a copy of an approved Petition for Alien Relative (Form I- 1 30).
Absent an approved visa petition, the Respondent has not demonstrated prima facie eligibility for
adj ustment of status. 1 See Matter ofS-V-, 22 I. & N. Dec. at 1 307.
The Court recognizes that it may sua sponte reopen proceedings where reopening would
serve the interests of justice. In his motion, the Respondent contends that the failure to timely
submit the I-75 1 and fee receipt on January 3 1 , 20 1 2, was his former attorney' s fault. However,
the Court finds that former counsel ' s mistake does not rise to the level of a "truly exceptional
situation," warranting reopening of the case. 2 See Matter of G-D-, 22 I&N 1 1 32, 1 1 3 5-3 6 (BIA
1 999) ( citing examples of when it is appropriate for the Court to exercise its sua sponte
authority). During the October 3 , 20 1 1 , hearing, the Court advised both the Respondent and
counsel of the consequences for failing to submit the required documents by the January 3 1 ,
20 1 2, deadline. Their inability to comply with the deadline does not convince the Court that sua

sponte reopening is appropriate in this case.

1

The Court acknowledges that the present motion was fi led jointly with the Government. In Matter of
Yewondwosen, the Board noted that "the parties have an important role to play in these administrative proceedings,
and . . . their agreement on an issue or proper course of action should, in most instances, be determinative." 2 1 I&N
Dec. ) 025, 1 026 (BIA ) 997). In that case, the BIA held that an alien's motion to reopen, which failed to meet the
procedural requirement that an application for relief be concurrently filed with the motion, may still be granted in
the discretion of the court upon the Government affirmatively joining the motion. Id. at J 027. However, the Board
did not indicate that joint filing would excuse the failure to abide by the substantive requirements of a motion to
reopen. Here, the Respondent requests reopening of tennination of these proceedings to seek adjustment of status.
Yet, he fails to establish that he is prima facie eligible for this relief. The Respondent and Government have not
cited, nor does the Court know of, any other precedential authority, which would excuse the Respondent's failure to
demonstrate a substantive requirement for relief simply through the filing of a joint motion.
2
If it is the Respondent's intention to make an ineffective assistance of counsel claim, the Respondent has failed to
meet the requirements for such a claim as articulated in Matter of Lozada, 1 9 l&N Dec. 63 7, 639 (BIA J 988). The
Respondent has not submitted any evidence that a complaint has been filed with the requisite disciplinary
authorities, nor has he explained his failure to submit such a complaint. See id.

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statements and family photographs to demonstrate that his marriage is bona fide. See id., Tab J.

V.

Conclusion

Based on the foregoing, the Court will deny the Respondent's Motion to Reopen.
Consequently, the Respondent's Motion to Terminate Without Prejudice is now moot.

ORDER
IT IS HEREBY ORDERED that the Respondent's
Terminate Without Prejudice is DENIED.
Date: / I
Dallas, Texas

l S:-

Deitrich H. Sim ----

Immigration Judge

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Accordingly, the following order shall be entered: