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 2204/

Alvarez- De Bennett, Paola 300 N. Walker Avenue Oklahoma city, OK 73102

OHS/ICE Office of Chief Counsel - OKC 4400 SW 44th Street, Suite A Oklahoma City, OK 73119-2800

Immigrant & Refugee Appellate Center | www.irac.net

Name: PANDO URIBE, OSCAR ANTONIO

A 044-355-610

Date of this notice: 4/30/2013

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

DO>VtL CaAAJ
Donna Carr Chief Clerk Enclosure
Panel Members: Adkins-Blanch, Charles K. Hoffman, Sharon Guendelsberger, John

Lulseges
Userteam: Docket

Cite as: Oscar Antonio Pando Uribe, A044 355 610 (BIA Apr. 30, 2013)

U.S. Department of Justice

Decision of the Board of Immigration Appeals

Executive Office for Immigration Review

Falls Church, Virginia 22041

File: In re:
IN

A044 355 610- Oklahoma City, OK OSCAR ANTONIO PANDO URIBE

Date:

APR 3 0 2013

REMOVAL PROCEEDINGS

Immigrant & Refugee Appellate Center | www.irac.net

APPEAL ON BEHALF OF RESPONDENT: ON BEHALF OF DHS: Paola M. Alvarez de Bennett, Esquire

Margaret M. Price Assistant Chief Counsel

APPLICATION: Reopening

The respondent, a native and citizen of Mexico, was ordered removed in absentia on October 24, 2011. On January 3, 2012, the respondent filed a motion to reopen proceedings, which an Immigration Judge denied on April 11, 2012. The respondent filed a second motion to reopen alleging ineffective assistance by his former counsel on July 12, 2012. The Immigration Judge denied that motion on July 31, 2012. The respondent filed timely appeal of that decision. The appeal will be sustained, the in absentia order will be vacated, the proceedings will be reopened, and the record will be remanded. The Immigration Judge found that the respondent's motion to reopen proceedings was number-barred. However, he did not address the respondent's arguments with respect to equitable tolling and ineffective assistance by his former counsel. Upon review, we find that the respondent has adequately established that equitable tolling of the numerical limit is warranted based upon his compliance with the requirements of our holding in Matter ofLozada, 19 I&N Dec. 637 (BIA 1988), aff'd, 857 F.2d 10 (1st Cir. 1988), including that his former counsel has conceded that her performance with respect to the respondent's proceedings was deficient. See Respondent's Brief on Appeal Exh. 1. The respondent has shown that his former counsel provided ineffective assistance with respect to failing to appear for his October 24, 2011, hearing in a timely manner such that the in absentia order had been entered prior to her arrival. The respondent appeared on time but was misdirected by Court personnel to the wrong waiting area, a circumstance which would have been avoided had former counsel appeared on time. Former counsel further conceded that she provided deficient representation for failing to ensure that the respondent's biometric paperwork was completed as directed by the Court and failing to pay the requisite filing fee for the motion to reopen proceedings. The respondent has shown that he missed the hearing as the result of his former counsel's ineffective assistance and has established exceptional circumstances to excuse his failure to appear. In view of these circumstances, we will

Cite as: Oscar Antonio Pando Uribe, A044 355 610 (BIA Apr. 30, 2013)

A044 355 610 reopen proceedings sustaining the respondent's appeal of the Immigration Judge's denial of the motion and allow the respondent another opportunity to appear for a hearing. ORDER: The appeal is sustained, the in absentia order is vacated, the proceedings are reopened, and the record is remanded for further proceedings consistent with the above opinion.

Immigrant & Refugee Appellate Center | www.irac.net

Cite as: Oscar Antonio Pando Uribe, A044 355 610 (BIA Apr. 30, 2013)

/ '. /"
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UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT 1100 COMMERCE ST., ROOM 404 DAL LAS , TX 75242

HOPFER, DEBORAH HOOVER 300 N WALKER AVENUE OKLAHOMA CITY, OK 73102

Immigrant & Refugee Appellate Center | www.irac.net

IN THE MATTER OF PANDO URIBE, OSCAR ANTONIO

FILE A 044-355-610

DATE:

Aug 1,

2012

UNABLE TO FORWARD - NO ADDRESS PROVIDED

ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE. THIS DECISION IS FINAL UNLESS AN APPEAL IS FILED WITH THE BOARD OF IMMIGRATION APPEALS WITHIN 30 CALENDAR 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, AND FEE OR FEE WAIVER REQUEST BOARD OF IMMIGRATION APPEALS MUST BE MAILED TO: OFFICE OF THE CLERK P.O. BOX 8530 FALLS CHURCH, VA 22041 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., DALLAS, TX 75242 OTHER:

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ROOM 404

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CC: ALLEN-MCCOY, MICHELLE 125 E. HWY 114, STE 500 75062 IRVING, TX,
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COURT CLERK c IMMIGRATION COURT

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United States Department of Justice Executive Office of Immigration Review United States Immigration Court Oklahoma City, Oklahoma

In Re: Oscar Pando Uribe

Case No. 044-355-610

Immigrant & Refugee Appellate Center | www.irac.net

ORDER

This matter is before the Court pursuant to the Respondent's July 12, 2012 Motion to Re-Open. For the reasons set forth below, the Motion will be DENIED. The Court entered a final order of removal on October 24, 2011. The Respondent, through counsel, then filed a Motion to Re-Open on January 3, 2012. That motion was denied by written order on April 11, 2012. The Respondent, through counsel, then filed another Motion to Re-Open on July 12, 2012. A Respondent may only file one Motion to Re-Open. 8 C.F.R. 1003.23{b). Therefore, the Respondent's July 12, 2012 motion is numerically barred. The request for a stay of removal is DENIED. The Motion to Re-Open is DENIED. This 31st day of July, 2012.

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United States Immigration Judge