T 7

U.S. Department of Justice

Executive Ofce fr Immigration Review
Board of Immigration Appeals
Ofce of the Clerk
5107 Leesburg Pike, Suite 2000
Fals Church, Vrginia 12041
Pittman, Laz L.
1556 South First Avenue, Ste.R
Iowa City, IA 52240
OHS/ICE Ofice of Chief Counsel OMA
1717 Avenue H
Omaha, NE 6811 o
Name: GUTIERREZ-MELENDEZ, MIGUEL ANGEL A076-882990
Date of this notice: 2/11/2011
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosure
Panel Members:
Holmes, David B .
Sincerely,
Donna Carr
Chief Clerk
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Cite as: Miguel Angel Gutierrez-Melendez, A076 882 990 (BIA Feb. 11, 2011)
For more unpublished BIA decisions, visit www.irac.net/unpublished
u:s. Deparment of Justice
Executive Ofce fr Immigration Review
Decision of the Board of Immigation Appeals
Falls ChurGh, Virginia 22041
File: A076 882 990 - Omaha, NE
In re: MIGUEL ANGEL GUTIERREZ-MELENDEZ
IN REMOVAL PROCEEDINGS
MOTION
Date:
ON BEHALF OF RESPONDENT: Laz Pittman, Esquire
ON BEHALF OF DHS:
APPLICATION: Reopening
Christopher L. Feretti
Assistant Chief Counsel
FEB 11 2011
In a decision dated July 30, 2010, we dismissed the respondent's appeal of the Immigation
Judge's decisi9n denying his motion to reopen seeking to rescind his removal order that was entered
on an in absentia basis. Through newly-retained counsel, the respondent has fled this motion to
reopen, which the Department of Homeland Security opposes. Although this motion is untimely,
we have been persuaded to reopen the respondent's proceedings sua sponte pursuant to 8 C.F.R.
1003.2(a).
The respondent presents numerous allegations of inefective assistance provided by multiple
attoreys (as well as a non-attorey whom he believed to be an attorey) in connection with his
filure to appear at his hearing, his subsequently-fled motion to reopen befre the Immigation
Judge, ad his ensuing Board appeal. See Motion to Reopen fled December 13, 2010, as
supplemented by two flings on Januar 6, 2011 ("frst supplement" and "second supplement"), and
one on Januar 21, 2011 ("third supplement").
This case presents an unusual arrangement of legal representation. An attorey and a paralegal
(located in Illinois) refered the case of the respondent (who lived in East Moline, Illinois) to an out
of-state frm (located in Cleveland, Ohio) to provide representation in connection with his removal
hearing scheduled to be conducted in Omaha, Nebraska. Yet, the respondent never met the
atoreys in Ohio, and the paralegal and attorey in Illinois continued to provide assistance and
dispense legal advice directly to him. Afer considering the evidence now presented, and the vaious
inefective assistance claims advanced vis-a-vis the attorey ad paralegal in Illinois (with whom
the respondent directly dealt), and the attoreys in Ohio, we conclude that a sufcient showing has
been made to account fr the respondent's filure to appear at his hearing, and to war at that a new
hearing be conducted in his case.
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Cite as: Miguel Angel Gutierrez-Melendez, A076 882 990 (BIA Feb. 11, 2011)
A076 882 990
The record now establishes that attorey Michele Norton (who was associated with the Ohio frm
of Svetlana Schreiber & Associates Co., LPA) was actually the respondent's attorey of record
befre the Immigration Court.' See second supplement at 14. She fled a change of venue motion,
which apparently was not adjudicated in advance of the scheduled removal hearing. There is no
indication that Ms. Noron ever met, or had any direct communication with, the respondent. Instead,
she claims to have kept the paralegal in Illinois2 abreast of developments in his case. It is said that
in t, the paralegal communicated such developments to the respondent.
Tis ar gement concering legal matters create the potential fr miscommunication. The
potential also existed fr misunderstandings concerng who was actually representing the
respondent. Such appears to have been the case here, as the respondent believed he was being
represented by the paralegal in Illinois, whom he believed to be an atorey.
A attorey of record has a responsibility to ensure that an alien she represents is provided with
adequate notice of his need to appear at his removal hearing. This does not appear to have been done
here. There is no indication that attorey Norton ever advised the respondent in writing of the need
fr him to appear at his December 12, 2008, removal hearing, unless the change of venue motion she
had fled in his behalf was approved. As to comparable oral notice, attorey Norton explains that
she believed that the respondent had been so advised in a timely fashion by a paralegal/Spanish
language tanslator in her own ofce, but she concedes that she later leaed that this was not the
case. See Motion to Reopen fled in Immigration Court, at 3.
Although phone messages may have been lef on the respondent's voice mail by attorey
Norton's frm on December 11 and 12, 2008, regarding his need to appear at his master calendar
hearing on December 12th, such notice was not provided in a timely manner, given that the hearing
wa scheduled fr 9:00 a.m. on December 12th in Omaha, Nebraska, and the respondent lived in
Illinois. Furer, the respondent contends he was specifcally advised not only by the paralegal in
Illinois, but also by the attorey in Illinois on December 11, 2008, that he did not have to appear at
his master calendar hearing on December 12th.
Based on the circumstances presented here, and the totality of the evidence presented, we now
reopen the respondent's proceedings, vacate our July 30, 2010, decision, and remand the record fr
a new hearing fllowing proper notice to consider anew the respondent's removabilit and, if
necessary, his eligibility fr any frm of relief fr which he may qualif.3
Accordingly, the fllowing orders are entered.
ORDER: The respondent's removal proceedings are reopened sua sponte.
1 Atorey Svetlana Schreiber was the respondent's attorey on appeal.
2 On this record, there is no indication whatsoever that the paralegal was employed by, or had any
contctual relationship with, Ms. Norton or her frm.
3 In light of this disposition, we need not address the respondent's motion as it relates to his other
claims of inefective assistance of counsel, including those concering his Board appeal.
2
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Cite as: Miguel Angel Gutierrez-Melendez, A076 882 990 (BIA Feb. 11, 2011)
Ao16 882 990
FURTHR ORER: Te Board's July 30, 2010, is vacated.
FURTHER ORER: The record is remanded fr frther proceedings consistent with the
fregoing opinion and the ent of a new decision.
\ .
FOR THE BOA
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Cite as: Miguel Angel Gutierrez-Melendez, A076 882 990 (BIA Feb. 11, 2011)