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 22041

lgbanugo, Herbert A., Esq. lgbanugo Partners lnt'l Law Firm, PLLC 250 Marquette Avenue, Suite 1075 Minneapolis, MN 55401

DHS/ICE Office of Chief Counsel - BLM 2901 Metro Drive, Suite 100 Bloomington, MN 55425

Immigrant & Refugee Appellate Center | www.irac.net

Name: AFUNWA, ANTHONY

A 096-129-725

Date of this notice: 12/4/2012

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

Donna Carr Chief Clerk

Enclosure
Panel Members: Miller, Neil P.

lucasd Userteam: Docket

Cite as: Anthony Afunwa, A096 129 725 (BIA Dec. 4, 2012)

U.S. Department of Justice

Executive Office for Immigration Review Falls Church, Virginia 22041

Decision of the Board oflmmigration Appeals

File: A096 129 725- Bloomington, MN In re: ANTHONY AFUNWA

Date:

DEC -4 2012

Immigrant & Refugee Appellate Center | www.irac.net

IN REMOVAL PROCEEDINGS MOTION ON BEHALF OF RESPONDENT: Herbert A. Igbanugo, Esquire ON BEHALF OF DHS: Thomas S. Madison Assistant Chief Counsel

This case was last before us on July 16, 2012, at which time we dismissed the respondent's appeal from the Immigration Judge's decision to deny his petition to remove the conditional nature of his residence in the United States under section 216(c)(3)(D) of the Act. The respondent has now filed a timely motion to reopen proceedings on October 15, 2012. The Department of Homeland Security (DHS) opposes the motion, which will be denied. A motion to reopen shall not be granted unless it appears that the evidence sought to be offered "was not available and could not have been discovered or presented at the former hearing." See 8 C.F.R. 1003.2(c)(1). Further, this Board has held that a party who seeks to reopen proceedings to pursue a discretionary grant of relief from removal bears a "heavy burden" of demonstrating that if his motion to reopen were granted, the new evidence presented would likely change the result in the case. Matter ofCoelho, 20 I&N Dec. 464 (BIA 1992). With his motion, the respondent has submitted over 30 affidavits from friends and acquaintances as support for his claim that he and his wife entered into a marriage in good faith. We find these statements and affidavits insufficient to bear the respondent's heavy burden to show that such evidence would likely change the result in his case. Id. The various statements are from witnesses not subject to cross-examination; moreover, as the DHS argues in its opposition, such evidence was previously available during the respondent's hearing. While the respondent states that his attorney should have told him to obtain such statements, he has not prepared an ineffective assistance of counsel claim in accordance with Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), a.ff'd, 857 F.2d 10 (1st Cir. 1988), nor has he otherwise demonstrated how his attorney's advice, or lack thereof, excepts him from this regulatory requirement. See Fongwo v. Gonzales, 430 F.3d 944 (8th Cir. 2005)(attorney's alleged advice to forego presentation of documents does not mean they were unavailable ). 1

The respondent's attempt to distinguish himself from Fongwo due to the fact that his affidavits were not yet prepared is an immaterial distinction.
Cite as: Anthony Afunwa, A096 129 725 (BIA Dec. 4, 2012)

A096129 725

Lastly, we do not find that the respondent's evidence presents an exceptional circumstance which would warrant reopening in our sua sponte authority. See Matter of J-J-, 21 I&N Dec. 976~ 984 (BIA 1997)(stating that "[t]he power to reopen on our own motion is not meant to be used as a general cure for filing defects or to otherwise circumvent the regulations, where enforcing them might result in hardship"). As we noted in our previous decision, even without the respondent's adverse credibility fmding, the DHS proved by a preponderance of the evidence that the respondent did not enter the marriage in good faith (Bd. Dec. at 2; LJ. at 6). Accordingly, the following order will be entered.

Immigrant & Refugee Appellate Center | www.irac.net

ORDER: The motion is denied.

...
FOR THE BOARD

2 Cite as: Anthony Afunwa, A096 129 725 (BIA Dec. 4, 2012)