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Keywords

attorneyappealhearingmotionjudicial review
attorneyappealhearingmotionnaturalizationjudicial review

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Beltre-Veloz v. Mukasey

Facts

Victor Beltre-Veloz, a native and citizen of the Dominican Republic, entered Puerto Rico without inspection in January 1993. After being apprehended in 1996, he was served a show-cause order regarding his immigration status. Following a hearing in October 1997, a notice for a resumed hearing was issued for January 1998, which he did not attend, leading to an in absentia removal order. Eight years later, he sought to reopen the proceedings, alleging his former attorney failed to inform him of the hearing.

The facts are straightforward. Beltre-Veloz, a native and citizen of the Dominican Republic, entered Puerto Rico without inspection on or about [**2] January 20, 1993. Some two and one-half years later, he was apprehended attempting to board a commercial flight to the continental United States. The Immigration and Naturalization Service (INS) proceeded to issue a show-cause order as a means of testing his immigration status.

Issue

Did the Board of Immigration Appeals abuse its discretion in denying Beltre-Veloz's motion to reopen his removal proceedings based on claims of ineffective assistance of counsel?

Did the Board of Immigration Appeals abuse its discretion in denying Beltre-Veloz's motion to reopen his removal proceedings based on claims of ineffective assistance of counsel?

Rule

A motion to reopen an in absentia removal order must be filed within 180 days unless the alien's absence was due to 'exceptional circumstances,' such as ineffective assistance of counsel, which must be substantiated with specific evidence.

A motion to reopen an in absentia removal order must be proffered within 180 days of the entry of the challenged order unless the alien's absence from the hearing was due to 'exceptional circumstances.' 8 U.S.C. 1229a(b)(5)(C)(I). Ineffective assistance of counsel can qualify as an exceptional circumstance.

Analysis

The court found that Beltre-Veloz failed to meet the requirements for claiming ineffective assistance of counsel. He did not provide sufficient evidence that he notified his former attorney of the allegations against her, nor did he demonstrate due diligence in pursuing his immigration status, as he waited eight years to file his motion to reopen. The BIA's decision was upheld under a deferential abuse-of-discretion standard.

The court found that Beltre-Veloz failed to meet the requirements for claiming ineffective assistance of counsel. He did not provide sufficient evidence that he notified his former attorney of the allegations against her, nor did he demonstrate due diligence in pursuing his immigration status, as he waited eight years to file his motion to reopen. The BIA's decision was upheld under a deferential abuse-of-discretion standard.

Conclusion

The court denied the petition for judicial review, concluding that the BIA did not abuse its discretion in denying the motion to reopen.

The petition for judicial review is denied.

Who won?

The Board of Immigration Appeals prevailed because the court found no abuse of discretion in their denial of the motion to reopen, citing the lack of evidence and due diligence from Beltre-Veloz.

The Board of Immigration Appeals prevailed because the court found no abuse of discretion in their denial of the motion to reopen, citing the lack of evidence and due diligence from Beltre-Veloz.

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