In this unpublished decision, the Board of Immigration Appeals (BIA) remanded the record for further consideration of the respondent’s application for adjustment of status. The Board concluded the respondent established a prima facie case of ineffective assistance of counsel based on allegations that his prior attorney failed to prepare and submit an Affidavit of Support (Form I-864) in connection with adjustment application. The decision was written by Member Linda Wendtland.Looking for IRAC’s Index of Unpublished BIA Decisions? Visit www.irac.net/unpublished/index
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McKinney, Christopher B., Esq. 900 Westport Road, 2nd Floor 1015 N. Lake Avenue, Suite 209 Kansas City, MO 64111 Name: KURGAT, DAVID KIRWA U.S. Department of Justice Executive Office r Immigration Review Board ofImmigration Appeals Office of the Chief Clerk 5107 Leesburg Pike, Suite 2000 Fas Church. Virginia 20530 OHS/ICE Office of Chief Counsel - KAN 2345 Grand Blvd., Suite 500 Kansas City, MO 64108 A 089-003-420 Date of this Notice: 4/25/2014 Enclosed is a copy of the Board's decision and order in the above-referenced case. Enclosure Panel Members: Wendtland, Linda S. Sincerely, Donna Carr Chief Clerk For more unpublished BIA decisions, visit www.irac.net/unpublished Immigrant & Refugee Appellate Center | www.irac.net Cite as: David Kirwa Kurgat, A089 003 420 (BIA Apr. 25, 2014)
Transcript
McKinney, Christopher B., Esq. 900 Westport Road, 2nd Floor 1015 N. Lake Avenue, Suite 209 Kansas City, MO 64111
Name: KURGAT, DAVID KIRWA
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals Office of the Chief Clerk
5107 Leesburg Pike, Suite 2000 Falls Church. Virginia 20530
OHS/ICE Office of Chief Counsel - KAN 2345 Grand Blvd., Suite 500 Kansas City, MO 64108
A 089-003-420
Date of this Notice: 4/25/2014
Enclosed is a copy of the Board's decision and order in the above-referenced case.
Enclosure
Panel Members:
Wendtland, Linda S.
Sincerely,
Donna Carr Chief Clerk
For more unpublished BIA decisions, visit www.irac.net/unpublished
U.S. Department.of Justice Executive Office for Immigration Review
Decision of the Board of Immigration Appeals
Falls Church, Virginia 20530
File: A089 003 420 - Kansas City, MO
In re: DAVID KIRWA KURGAT
IN REMOVAL PROCEEDINGS
APPEAL AND MOTION
ON BEHALF OF RESPONDENT: Christopher B. McKinney, Esquire
ON BEHALF OF OHS:
CHARGE:
Justin Howard Assistant Chief Counsel
Date:
Notice: Sec. 237(a)(l)(C)(i), I&N Act [8 U.S.C. § 1227(a)(l)(C)(i)] -Nonimmigrant - violated conditions of status
APPLICATION: Adjustment of status; continuance; voluntary departure
APR 25 2014
The respondent appeals the Immigration Judge's March 28, 2012, decision denying the respondent's request for a continuance, pretermitting his application for adjustment of status under section 245(a) of the Immigration and Nationality Act, 8 U.S.C. § 1255(a), and denying his application for voluntary departure. During the pendency of his appeal, the respondent filed a motion to remand based on a claim of ineffective assistance of counsel. The motion will be granted, and the record will be remanded to the Immigration Judge for further proceedings consistent with this opinion and for entry of a new decision.
Through his motion, the respondent contends that he should be permitted to apply for adjustment of status under section 245(a) of the Act because his application was pretermitted by the Immigration Judge due to ineffective assistance of counsel. See Respondent's Motion at 5-9. According to the respondent, his prior counsel failed to complete and submit a Form 1-864 Affidavit of Support despite the fact that he had provided prior counsel with his entire file and his sponsor had provided prior counsel with all of the necessary documentation to complete the form via fax prior to the respondent's proceedings on March 28, 2012, resulting in pretermission of his application. See id. at 6. The respondent further claims that prior counsel advised him that a continuance would be granted at the hearing on March 28, 2012, such that his witnesses need not appear in court. See id. As such, the respondent alleges that he provided prior counsel with all of the necessary information needed to complete the adjustment of status application but prior counsel failed to do so, instead relying on a request for a continuance at the March 28, 2012, hearing. See id. at 5-9.
A successful motion based on a claim of ineffective assistance of counsel must satisfy two conditions. First, the claim must comply with Matter of Lozada, 19 l&N Dec. 637, 639 (BIA 1988). Briefly, the Lozada requirements are (1) that the motion be supported by an affidavit detailing counsel's failings, (2) that counsel be informed of the allegations, and (3) that
the motion show that disciplinary charges have been filed with the appropriate authority, or if not, adequately explain why not. Id. Second, the alien "must also show that he or she was prejudiced by the actions or inactions of counsel." See Matter of Assaad, 23 l&N Dec. 553, 556 (BIA 2003). In this case, the respondent has complied with the procedural requirements of Matter of Lozada, supra.
As to the issue of prejudice, the respondent claims that he and his sponsor provided all of the information needed to complete the Affidavit of Support prior to the March 28, 2012, hearing. In his response, prior counsel submitted evidence showing that the sponsor faxed to him, inter alia, a summary of her prior year's tax return and an employment letter.1 However, prior counsel claims that for various reasons this information was insufficient to complete the Affidavit of Support. Along with his motion, the respondent has provided an affidavit from the sponsor. In her affidavit, the sponsor states she was told by prior counsel that he had received her documents and that he was going to file the Affidavit of Support before the next hearing. Thus, the respective claims in regard to this sponsor by the respondent and prior counsel are in contradiction.
The respondent also asserts through his motion that he provided prior counsel with his entire file from a previous counsel before the March 28, 2012, hearing. In this regard, prior counsel states in his responses to both the respondent and the bar officials that he did not receive the file until after the March 28, 2012, proceedings. For his part, the respondent provided a fax he sent to prior counsel from detention on February 15, 2012, and states that, along with that fax, he faxed over his entire file. While the fax submitted was only a page in length, it refers to a purported previous fax, and on the next page is a letter dated February 17, 2012, saying "I hereby fax to you" the respondent's conviction records. Again, as to this issue, the respective claims by the respondent and prior counsel are in contradiction.
The respondent also asserts that prior counsel advised him that court appearances by his witnesses were not necessary on March 28, 2012, on the basis of a request for a continuance. See Respondent's Motion at 6. In this regard, the respondent has provided affidavits from these witnesses stating their understanding that prior counsel had indicated that they need not attend the March 28, 2012, hearing. However, prior counsel disputes this claim vigorously in his responses, asserting that he would never advise a client in this way because he could never know that an Immigration Judge would in fact grant a continuance. Again, the facts on the issue are in dispute.
Under these circumstances, we conclude that for purposes of the instant appeal and motion, the respondent has met his burden of establishing a prima facie ineffective assistance of counsel claim, requiring a remand to the Immigration Judge to determine the truth in regard to the various issues and claims by both the respondent and prior counsel. In this regard, on remand, the Immigration Judge should develop the record and find facts pertinent to the ineffective
1 Although the employment letter is apparently not on letterhead and there is no explicit indication of the title of the person who signed the document, there is a business address at the bottom of the letter and the notation "RN ADON" appears next to the signatory's name, which may indicate a title and/or position.
assistance of counsel claim. The Immigration Judge should also consider the respondent's arguments on appeal that he misstated the respondent's criminal record in denying voluntary departure. In this regard, we also note that it is incumbent on the Immigration Judge to balance all of the favorable and unfavorable facts in assessing the respondent's moral character and in exercising discretion.
Accordingly, the motion will be granted, and the record will be remanded to the Immigration Judge for further proceedings consistent with this opinion and for entry of a new decision.
ORDER: The motion is granted, and the record is remanded to the Immigration Judge for further proceedings consistent with this opinion and for entry of a new decision.
