U.1).

uepanmenr 01 JUSIIee

Executive Office for Immigration Review

Board ofImmigration Appeals

Office ofthe Clerk

5107 Leesburg Pike, Suite 2000

Falls Church, Virginia 22041

Thaker, Ruchi U.S. DHS/HAR

225 Broadway, Suite 3001 450 Main St, Room 483
New York, NY 10007-0000 Hartford, CT 06103·3060

Name:

Date of this notice: 4/21/2008

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

Sincerely,

Donna Carr
Chief Clerk

Enclosure

Panel Members:
PAULEY, ROGER

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U.S. Department of Justice Decision of the Board of Immigration Appeals
Executive Office for Immigration Review

Falls Church, Virginia 22041

File: - Hartford, CT Date: APR 2 1 2008

In re:

IN REMOVAL PROCEEDINGS

APPEAL AND MOTION

ON BEHALF OF RESPONDENT: Ruchi Thaker, Esquire

CHARGE:

Notice: Sec. 237(a)(I)(A), I&N Act [8 U.S.C. § 1227(a)(I)(A)] -

Inadmissible at time of entry or adjustment of status under section
212(a)(7)(A)(i)(I), I&N Act [8 U.S.C. § I I82(a)(7)(A)(i)(I)] -
Immigrant - no valid immigrant visa or entry document

APPLICAnON: Remand, Asylum, Adjustment of Status, Section 212(i) waiver

On September 7, 2006, an Immigration Judge denied the respondent's applications for asylum,
withholding of removal, adjustment of status and a waiver of inadmissibility under section 212(i)
ofthe Immigration and Nationality Act, 8 U.S.C. ss I I82(i). The respondent has appealed from this
decision. In addition, the respondent has filed a motion to remand in which he claims that he was
the victim of ineffective assistance of counsel. The respondent's motion to remand will be granted,
and the record will be remanded to the Immigration Judge for further proceedings consistent with
this order.

To obtain reopening or remand due to ineffective assistance of counsel, an alien first must meet
the procedural requirements set forth in Matter ofLozada, 19 I&N Dec. 637 (BrA 1998). See Malter
ofAssaad, 23 I&N Dec. 553 (BrA 2003); see also Esposito v. INS, 987 F.2d 108, 110-111 (2d Cir.
1993). In addition, the alien must present sufficient evidence to allow us to infer that competent
counsel would have acted differently in his case and to establish that he or she has been prejudiced
by his or her attorney's misconduct. See Esposito v. INS, supra; Matter ofLozada, supra;

In this case, the respondent has satisfied the procedural requirements of Matter ofLozada, supra.
In addition, the respondent has presented sufficient evidence to allow us to infer that competent
counsel would have acted differently in his case. Specifically, the respondent has shown that his
former attorneys were unprepared for his hearings, failed to fully explore the issue of extreme
hardship in connection with his application fora section 212(i) waiver, and failed to address the
extreme hardship issue adequately during the respondent's hearing. I The respondent also has shown

lOne of the respondent's former attorneys, Mr. : " has replied to the respondent's
allegations against him and has claimed that the failure to Present evidence regarding extreme
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that he was prejudiced by his attorneys' misconduct With his motion to remand, the respondent has
submitted evidence documenting his wife's medical and psychological problems and evidence
regarding the situation she could face in Bangladesh. The respondent's former attorneys did not
offer this type of material and highly relevant documentation, and the evidence could affect the
outcome of the respondent's case. We therefore find that the respondent is entitled to a remand to
have his eligibility for a section 212(i) waiver reevaluated?

In addition, because it is not clear whether the ineffectiveness of the respondent's former
attorneys affected the Immigration Judge's ruling on the respondent's application for asylum and
because the respondent has presented evidence to indicate that the government in Bangladesh has
changed since his earlier hearing, the Irnmigration Judge should reconsider whether the respondent
has a well-founded fear offacing persecution in Bangladesh ifhe is forced to return3 • In doing so,

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hardship is the respondent's fault. The record, however, supports the respondent's assertions that
- \ failed to advise him adequately on the issue and failed to explore the issue fully. For
instance, during the direct examination of the respondent's United States citizen wife, Mr.
asked no questions about her health (Tr. at 67-71). It was only on cross-examination that her cancer
treatment was mentioned (Tr. at 77-78). And Mr. l did not follow up on this issue during
redirect (Tr. at 79-83). Mr. ] claims that the respondent's wife never mentioned her cancer to
him, but it was his job as the respondent's attorney to ask the respondent's qualifYing relatives about
their health and to delve into the important issues relating to hardship. Moreover, Mr.
appeared unfamiliar with the evidence in the respondent's case on at least one occasion (Tr. at 153-
54, 176-179) and failed to insure that the Immigration Judge and the government attorney received
all of the respondent's evidence (Tr. at 57-61, 176-179).

2 In reaching this conclusion, we note that, in his decision, the Immigration Judge expressed some
concern regarding the respondent's overall credibility and truthfulness (U. at 10, 17). We find no
clear error in the Immigration Judge's conclusion that the respondent improperly represented aliens
in citizenship hearings before the U.S. Citizenship and Immigration Service (USCIS). See Exhibit
R-15 (Memos from USCIS officers and copy of 0-28 submitted by respondent). The Immigration
Judge, however, should clarifY his conclusions regarding the respondent's use ofa false passport (U.
at 10). The use of a false passport to flee persecution does not necessarily reflect adversely on an
alien. See, e.g, Matter oIG-D-, 21 I&N Dec. 1079, 1081 (BIA 1998). And the respondent was
forthright in admitting that he had used a fraudulent passport to enter the United States (Tr. at 111-
12). The respondent also testified that his attorney had not told him that he needed to bring the
passport to his hearing (Tr. at 151) and that he had given a copy of the passport to his attorney at
some point during the representation (Tr. at 153). The respondent then produced the passport at his
last hearing (Tr. at 200-202). The passport, however, seemed to contain a British visa issued after
the respondent had entered the United States and the passport also seemed to have been renewed (Tr.
at 206-213). These facts could reflect negatively on the respondent but it is not clear that the
Immigration Judge was referring to these facts in his decision.

3 The 2006 Country Report for Bangladesh, which the respondent included in his motion, indicates
that Prime Minister Zia stepped down on October 27, 2006 when her term ended and transferred
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the Immigration Judge should consider all of the documents the respondent previously submitted
together with any additional proof.

ORDER: The respondent's motion to remand is granted, and the record is remanded to the
Immigration Judge for further proceedings and for the entry of a new decision.

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power to a caretaker government to oversee new elections. See Bureau of Democracy, Human
Rights and Labor, U.S. Dep't ofState, Bangladesh Country Reports on Human Rights Practices 2006
(March 2007), available at http://www.state.gov.g.drl/rlslhrrpt/200678869.htm.

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