Gonzalez-Rucci, Rosaura

P.O. Box 6363, Loiza Street Station

Santurce, PR 00914
Name: CORDERO-PEREZ, ROBINSON
U.S. Department of Justice
Executive Ofce fr Imigration Review
Board of Immigration Appeals
Ofce of the Clerk
5107 leesb11rg Pike, S11ite 2000
F"ll s C/111rch, Vrginia 22041
OHS/ICE Ofice of Chief Counsel - SAJ
GPO Box 365068
San Juan, PR 00936-5068
A079-739-416
Date of this notice: 1/31/2012
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosure
Panel Members:
Hofman, Sharon
Sincerely,
Donna Carr
Chief Clerk
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Cite as: Robinson Cordero Perez, A079 739 416 (BIA Jan. 31, 2012)
For more unpublished BIA decisions, visit www.irac.net/unpublished
,,.--
U.S. Deparent of Justice
Executive Ofce fr Imigation Review
Decision of the Board of Imigation Appeals
Falls Church, Virginia 22041
File: A079 739 416 - Guaynabo, PR
In re: ROBINSON CORDERO PEREZ
IN REMOVAL PROCEEDINGS
APPEAL
Date:
ON BEHALF OF RSPONDENT: Rosaura Gonzalez Rucci, Esquire
ON BEHALF OF OHS: Magdalena Ramos Romey
Assistant Chief Counsel
APPLICATION: Reopening
JAN
312012
The respondent, a native and citizen of the Dominican Republic, has appealed fom the
Immigration Judge's decision dated June 3, 2010. The appeal will be sustained and the record will
be reted to the Immigation Court fr frther proceedings.
The Board reviews an Immigration Judge's fndings of fct, including fndings as to the
credibility of testimony, under a clearly erroneous standard. See 8 C.F.R. I 003. l (d) (3) (i); Matter
of R-S-H-, 23 I&N Dec. 629, 637 (BIA 2003); Matter of S-H-, 23 I&N Dec. 462 (BIA 2002). The
Board reviews questions of law, discretion, and judgment, and all other issues raised in an
Immigation Judge's decision de novo. See 8 C.F.R. 1003. l (d) (3) (ii).
The record refects that the Immigration Judge instructed the respondent to fle his application
fr relief fom removal in the frm of adjustment of status by April 29, 2010. The respondent filed
to comply with the fling deadline and he moved, through counsel, fr a continuance and an
extension of the fling deadline. Counsel indicated that she had been waiting fr the respondent to
supply a sponsorship affdavit in suppor of the application and simply "overlooked" the fling
deadline. The Immigration Judge, in a decision date May 4, 2010, denied the motion indicating that
insufcient reasons fr filure to comply with the fling deadline were presented and declared the
application fr adjustment abandoned. The respondent fled a motion to reopen together with
supporing documentation and a statement fom counsel attributing the filure to fle the application
to her defcient perfrmance. On May 17, 20 l 0, the Immigration Judge denied reopening citing the
respondent's filure to submit an adjustment application with the motion, and incorporating the
rationale of her May 4, 2010, decision. The Immigation Judge did not address counsel's admission
of inefective assistance.
Upon our de novo review, we will reverse the decision of the Immigration Judge. We agee with
the Immigation Judge that the respondent did not demonstrate sufcient reason fr filing to fle
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Cite as: Robinson Cordero Perez, A079 739 416 (BIA Jan. 31, 2012)
A079 739 416
the respondent's adjustment application. However, the respondent has also presented a plain
instance of inefective assistance of counsel that resulted in substantial prejudice, and we fnd that
reopening is waranted on that basis. See Matter of Assaad, 23 I&N Dec. 553 (BIA 2003). Inasmuch
a counsel conceded responsibility fr missing the fling deadline, we do not fnd that stict
compliance with the procedural requirements fr claims of inefective assistance set frth in our
decision in Matter of Lozada, 19 I&N Dec. 63 7 (BIA 1988), is necessary. Compare Matter of B-B-,
22 I&N Dec. 309, 311 (BIA 1998) (declining to consider a claim of inefective assistance in the
absence of Lozada compliance when there was no showing of egregious conduct on the part of
counsel). The record will be reted to the Immigration Court to provide the respondent with a
fher opportunity to seek relief fom removal.
Accordingly, the fllowing order will be entered.
ORER: The appeal is sustained and the record is remanded to the Immigration Court fr
frther proceedings consistent with the fregoing opinion.
2
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Cite as: Robinson Cordero Perez, A079 739 416 (BIA Jan. 31, 2012)
UNITED STATES DEPARTMENT OF JUSTICE
U.S. Immigration Court
San Patricio Ofce Building #7 Tabonuco St. Room #01
Guaynabo, PR 00968-605
DOCKT: SAN JUAN, PUERTO RICO
IN THE MTER OF:
CORDERO-PEREZ, ROBINSON
RESPONDENT/APPLICANT
CASE NO A 79 739 416
IN REMOVAL _PROCEEDINGS
KREN SACALLY RVR, ESQ.
ATORNEY/ALIEN
DECISION ON A MOTION
VV REYES, ESQ.
CHIEF COUNSEL
A Motion RECONSIDER has been fled in the above captioned case. The Motion has been duly
considered and it appears to the Court that:
( X) The Motion has been duly considered and it appears to the Court that no substantial
grounds have been advanced to warrant that it beganted. Therefore, IT IS HEREBY
ORDERED that the Motion be and the same is hereby DENIED.
. T ;:,u: a.
On Ma 4, 2010, the court entered a removal order in this case upon fnding the relief of
adustment of status abandoned because the respondent failed to fle the application by
April 29, 2010, as ordered See 8CFR 1003.31(c) and 1003.47(c). On that date the
court denied the respondent's request for extension of the call up date and denied a
continuance of the merits hearing as not relief remained pending before the court. The
reasons for said denials are contained in the order entered by this court on May 4, 2010.
On May 11, 2010, the respondent fled a motion to reopen and reconsider stating
basically the same reasons for his failure to fle the application timely. A motion to
reopen based on eligibilit for relief must be accompanied by a copy of the application
for that relief and all supporting documents. See 8 CFR.1003.23()(3). No such fling
accompanied respondent's motion. In addition, the motion is opposed by DHS. See
court's decision of May 17, 2010.
On Ma 20, 2010, the respondent fled the instant motion to reconsider. A motion to
reconsider either identies an error in law or fact in the Immigation Judge's prior
decision or identies a change in law that afects an Immigration Judge's prior decision
and ask the Immigration Judge to reexamine his or her ruling. A motion to reconsider is
based on the existing record and does not seek to introduce new facts or evidence. The
respondent requests DHS to join in the motion. DHS has fled a response opposing to the
motion to reconsider. See Matter of Yewondwosen. 21 I&N Dec. 1025 (BIA 1997).
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Cite as: Robinson Cordero Perez, A079 739 416 (BIA Jan. 31, 2012)
2
Upon review of the present motion, the court fnds that the motion does not identi any
error in law or fact in this court's prior decision and seek to introduce the respondent's
application for relief that has been considered abandoned by the court.
CC: CHIEF COUNSEL
COUNSEL FOR REPONDENT/APPLICNT
REPONDENT/APPLICNT
CERTIFICATE OF SERV
THIS DOCUMENT WAS SERVED BY: MAJ. 7 P ERONAL (P)
T: () 1L ()ALIEN co custodial ofcer IEN"S A1IREP S
DATE: ' BY: COURT iF f
ATACHMEN : ( EOIR-33 () EOIR-28 ()LEGAL SERVCE LIST ()OTHER
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KREN SCALLEY, ESQ.
PO BOX 191706
SA JUA, PR 00919
=
(_/
. UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
#7 TABONUCO STREET, ROOM 401
GUAYNABO, PR 00968
IN THE MATTER OF
CORDERO-PEREZ, ROBINSON
FILE A 079-739-416 DATE: Jun 4, 2010
UNABLE TO FORWARD - NO ADDRESS PROVIDED
ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE. THIS DECISION
IS FINAL UNLESS A APPEAL IS FILED WITH THE BOARD OF IMMIGRATION APPEALS
WITHIN 30 CALENDA DAYS OF THE DATE OF THE MAILING OF THIS WRITTEN DECISION.
SEE THE ENCLOSED FORMS AND INSTRUCTIONS FOR PROPERLY PREPARING YOUR APPEAL.
YOUR NOTICE OF APPEAL, ATTACHED DOCUMENTS, A FEE OR FEE WAIVR REQUEST
MUST BE MAILED TO: BOARD OF IMMIGRTION APPEALS
OFFICE OF THE CLERK
P.O. BOX 8530
FALLS CHURCH, VA 22041
`
ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE A THE RESULT
OF YOUR FAILURE TO APPEAR AT YOUR SCHEDULED DEPORTATION OR REMOVA HEARING.
THIS DECISION IS FINAL UNLESS A MOTION TO REOPEN IS FILED IN ACCORDACE
WITH SECTION 242B(c) (3) OF THE IMIGRATION AD 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:
OTHER:
IMMIGRATION COURT
#7 TABONUCO STREET, ROOM 401
GUAYNABO, PR 00968
&&=

CC: VIVIAN REYES,DISTRICT COUSEL/OHS/BICE LITIGATION
#7 TABONUCO ST. ROOM 313
GUAYABO, PR, 009680000
FF
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.
In the Matter of:
(
U.S. DEPARTMENT OF JUSTICE
!XECUTl V OFFICE FOR IMMIGRATION REVIEW
IMMIGRTION COURT
#7 TABONCO STREET, ROOM 401
GUAYNABO, PR 00968
Case No.: A079-739-416
CORDERO-PEREZ, ROBINSO
Docket: SAN JUAN, PUERTO RICO
RESPONENT
IN REMOVAL PROCEEDINGS
ORDER OF THE IMMIGRATION JUDGE
Upon consideraL.ion or 1rnsPONDENT
MoLio Lo Rcco;sidcr an Immigration Judge's decision
Motion Lo Reopen proceedings
filed in the abcve e;L:ea matter, it is hereby ordered that the motion
filed in the above entitled matter, it is HEREBY ORDERED that the motion be
denied for the reasons indicated in the attached decision.
( Be Granted
1 l Be De< c<i "" """'o" n rnd i cat ed in the attached
Appeal: NO JP?EA: ..
Appeal Due By: u
(A/ :/Bl
3, 2010
CERTIFICATE OF SERVICE
decision
/f
THIS DOCUMEN': i/S SE:V!<) BY: MIL (M) PERSONAL SERVICE ( P)
TO: [ J AL\:;N : ; A. :EN c/o Custodial Officer liens ATT/REP
DATE:
_ ( \Q BY: COURT STAFF ---- _ _
Attachment.: ; EOJ-33 [ ) EOIR-28 [ J Legal Services List
Form EOIR 2 - 2T
r NHs
l I Other
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