Stephany Miranda DETAINED Assislant Chief Counsal Depamnen! of Homeland Security 11541 Montana Ave., Suite 0 E1 Peso. Texas 79936 615) 8564316 UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW BOARD OF IMMIGRATION APPEALS In the Matter of: GUTIERRH SOTO, Emilia SOTO, Oscar File No; - In nmovul proceedings . DEPARTMENT OF HOMELAND SECURITY OPPOSITION T0 MOTION TO REOPEN BASED ON ER 0F LOMDA UNITED STATES DEPARTMENT OF JUSTICE BOARD OF IMMIGRATION APPEALS In the Matter of: GUTEERREZ SOTO, Emilio GUTIERREZ SOTO. Oscar El Pam, Texas OPPOSITION TO MOTION TO REOPEN BASED ON MAYTER 0F The Department of Homeland Security (DHS) received the respondents" motion to reopen based on Mailer ofLazada and hereby files in Insupport ofits opposition, the Department states the following: The respondents are natives and citizens nfMexico. On July 19, 2017, afiera hearing an the merits of their asylum, withholding and deferral underthe Convention Ayinst Torture claim an Immigration Judge denied the Iespondenls claim byway of written decision. On August 21, 2017, the respondents, through counsel, filed an appeal withthe Board of Immigration Appeals (Board) which was subsequently dismissedl. On November 17, 2017 the Immigration Judge denied the respondents motion to reopen and any of removal. Subsequently, the respondents filed, with the Board, this motion to reopen based on Matter afLwadar In Matter ofLozuda, the Rom established a set of procedural criteria that an "allegedly aggrieved mpmdeu must satisfy before bringing a "motion based upon a claim of ineffective The Bond dismilsed the lppeal for being filed unlimely Ind refined the record to the Judge Without fimller Infinite 2 assistance of counsel.? See Matter of Lozada, l9 Dec. 637, 639 (BIA 1988). Procedurally, a motion to reopen removal proceedings because of ineffective assistance of counsel must be accompanied by (1) an af?davit by the alien setting forth the relevant facts, including the agreement with counsel regarding the alien's representation; (2) evidence that counsel was informed of the allegations and allowed to respond, including any response; and (3) an indication that a complaint has been lodged with the relevant disciplinary authorities, or an adequate explanation for the failure to ?le such a complaint. Lara v. Trominski, 216 F.3d 487, 496 (5:11 Cir. 2000) (citing Lozada, 19 Dee. at 639. 'Ihesep'rocedural requirements have not been satis?ed in the instant case. The Board has previously acknowledged these requirements set a ?high standard,? but concluded it was ?necessary if we are to have a basis for assessing the substantial number of claims of ineffective assistance of counsel that come before the Board.? Lozada at 639. ?Where essential information is lacking,? the Board continued, ?it is impossible to evaluate the substance of such claim.? Id. Here, the respondent and counsel have both submitted af?davits. See Respondent ?s Motion to Reopen Exh. A. However, the af?davits differ in their understanding as to the terms of the representation and are not detailed enough as to the agreement between attorney-client. In the respondent?s af?davit he states that respondent counsel, Linda Rivas, agreed to take on the appeal of his case. On the other hand, counsel?s af?davit, lines 19-20, she states that she "began to look for other counsel to take on the respondent?s appeal, yet was unsuccessful. Id. The af?davits lack in detailing the agreement they had in this attorney-client relationship. Furthermore, although a complaint on the basis of ethical violations is not required, the motion must state the reasons for not ?ling. Lozada at 639. Respondent?s motion to reopen states that the respondent suf?ciently explained why a complaint was not ?led to disciplinary authorities. See Respondent ?s Motion to Reopen: at .4. Thegresponden?t? sf?af?davitdoe?sfnot offer? an: adetluate explanation for the failure to ?le such 'a centplaint; besides- ?human. error?; In. Hernandez-Ortiz; the Fifth Circuit ?held" that. an argtunent; .thatstfi'Ct compliance with?theLazadd'requirements- is not necessary, is Hek?andezAOr?zi Holder, .741 iF,3d,?644, 6146 (5?h Cir; 20.1.4.) (af?nning' the Board?s decision to dismiss-zthe petitioner?s. appeal because hefailed' to-f?perfect his in effective assiStance of "counsel, 'ejliaim under Lozada. Therefore, not procedural requirements in this case, the Board should deny the motibn to reopen based on Matter ofLozada. Respondent? scounsel states that she has missed the ?ling-deadline for the?appeal. Even if the. procedural prerequisites have not. been met, a moti?n to reopen. basedon-sineffeotiVe. assistance of counsel may'then "be granted wherertherespondent demonstrates that the cenduct?. of his prier counsel prejudiced the presentation. Of'hi's -.case. Lozada'at "6387 (holding that ineffective assistance may constitute. due. process Violation Only. where conduct was so ?andamentally unfair that the alien was prevented. from. his case). In this case, the respondentshave. not presented any evidence. that they are prime facie. eligible for any relief before the Board. Furthennore, the respondents were bene?ciaries. of a fair and complete hearing. on" the merits of their'case, 1n the El. Paso. Immigration Court; Inasmuch as the D'epartmenthas-Opposed the: motion to-reopen, for the reasons. outlined ?above, the'Department also opposes theresponden?s request fora "stay of removal'Z. ReSpeet?illy Submitted, MUN staphalny Miranda. Assistant Chief "Counsel 2 OnDe'c'e'mber 7, 201:7 the B'oard-gxantedthe? respondent's-stay of removal pending-the motion to reopen. CERTIFICATE-0F SERVICE I certify ?iatV-onDecember: 153-, 201' 7,1 semed'airuefandicorrect copy of OH'th'e counsel, Box97106j51 E1 po'Stage AssistahtChief Counsel Stephauy Miranda DETAINED Assistant Chief Counsel U.SI Department ofHameland Swunty US. Irmnigrafion and Customs Enfomement 1154] Montana Ave. Suite 0 P350, Tums 79936 (915)856-2316 UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW BOARD OF IMMIGRATION APPEALS In the Mann of: GUTIERREZ SOTO, Emilio File No.: GUTIERRFZ SOTO, Oscar In removal proceedings --) DEPARTMENT OF HOMELAND - . MOTION TO ACCEPT LATE FILING (r UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW BOARD OF IMMIGRATION APPEALS In the Matter of: SOTO, Emilio GUTIERREZ SOTO, Oscar File Nor: In removal proceedings _e DEPARTMENT OF HOMELAND MOTION TO ACCEPT LATE FILING The Department ofI-Iomeland Security ("Depamnem") hereby requesls the Board of Immigration Appeals (Board) accept the Department's late-filed motion opposing the respondent's mnfion to reopen based on Matter of Lazada. The Department received the respondent's motion to reopen on November 21, 2017 and is filing their response on December I 3, 20 I7. Respectfully Submitted, Stephany Mirand Assislam Chief Counsel