Lewis, Neil F ., Esq.

Neil F. Lewis, P.A.

505 East Jackson Street, Suite 213
Tampa, FL 33602-0000
Name: DRKULA, CESTMIR
U.S. Department of Justice
Executive Ofce fr Immigration Review
Board of Immigration Appeals
Ofce of the Clerk
J0rr10rg8r,ttlr J000
fJh1LhttrCh, 1rgnlJ JJ04f
OHS/ICE Ofce of Chief Counsel - ORL
3535 Lawton Road, Suite 100
Orlando, FL 32803
A098-939-865
Date of this notice: 4/7/2011
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosure
Panel Members:
Grant, Edward R.
Malphrus, Garry D.
Miller, Neil P.
Sincerely,
Donna Carr
Chief Clerk
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Cite as: Cestmir Drkula, A098 939 865 (BIA April 7, 2011)
For more unpublished BIA decisions, visit www.irac.net/unpublished
V.S: Deparent of Justice
Executive Ofce fr lmmigation Review
Decision of the Board of Immigration Appeals
Falls Church, Virginia 22041
File: A098 939 865 - Orlando, FL Date:
In re: CESTMIR DRKULA
IN REMOVAL PROCEEDINGS
APPEAL
ON BEHALF OF RESPONDENT: Neil F. Lewis, Esquire
ON BEHALF OF OHS: Alexandra Rivas
Assistant Chief Counsel
APPLICATION: Motion to reopen
APR-7 ZD
The respondent, a native and citizen of the Czech Republic, appeals fom the November 20,
2009, decision of the Immigration Judge denying the respondent's motion to reopen proceedings
held in absentia on July I, 2008. The appeal will be sustained.
We review the fndings of fct, including the determination of credibility, made by the
Immigration Judge under a "clearly eroneous" standard. 8 C.F.R. 1003. l(d)(3)(i). We review all
other issues, including whether the paries have met the relevant burden of proof, and issues of
discretion, under a de NVstandard. 8 C.F.R. 1003.1 (d)(3)(ii); Matter f A-S-B-, 24 I&N Dec. 493
(BIA 2008).
The record refects that the Notice of Hearing fr the July I, 2008, hearing was mailed on June 9,
2008, to the respondent's then attorey. That attorey on June 13, 2008, moved to withdraw as the
respondent's representative citing "irreconcilable diferences" and stating in his motion that the
respondent "has not communcated with counsel in over 5 months even afer written correspondence
giving [the respondent] notice of counsel's withdrawal." (Motion to withdraw as counsel dated
June 13, 2008). The motion did not refect, however, that prior counsel infrmed the respondent of
the July 1, 2008, hearing date. The respondent in his affdavit states that he was unaware of the
hearing date and that his frmer counsel did not advise him of that date. There is nothing in the
record to contadict these assertions. Based on these circumstances, we will sustain the respondent's
appeal and direct the reopening of proceedings.
ORER: The appeal is sustained and the motion to reopen is granted.
FURTHER ORDER: The order of removal dated .. uly I, 2008, is vacated.
FURTHER ORER: The record is remanded to the I migration Judge fr fher proceedings
consistent with the fregoing decisiow e

FOR THE BOA

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Cite as: Cestmir Drkula, A098 939 865 (BIA April 7, 2011)
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I THE MA TIER OF:
DRKULA, CESTIMIR
RESPONDENT
.ITED STATES DEPARTMENT t JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
80 N. Hughey Avenue Suite 203
Orlando, Florida 32801
CASE NO.
A 098 939 865
I REMOVAL PROCEEDINGS
ON BEHALF OF RESPONDENT: Neil F. Lewis, Esq.
ON BEHALF OF DHS: Alexandra Rivas, Esq., Assistant Chief Counsel
DECISION ON A MOTION
The Respondent has fled a Motion to Reopen (an in absentia order) in the above-captioned case. The Motion
has been duly considered and it appears to the Court that:
[ X]
No substantial grounds have been advanced to warrant that the motion be granted. Therefre, IT
IS HEREBY ORDERED that the motion be and the same is hereby DENIED.
[ X ]
This motion is denied for the fllowing reasons:
On April 13, 2006, frmer Immigration Judge R. Kevin McHugh conducted a master calendar
hearing in this case. Like Mr. Lewis, I have listened to the taped recording of that hearing, which
is available fr either party's review at the Orlando Immigration Court. The respondent was
represented by Mr. George N. Konstantakis at that hearing and the Goverment was represented by
Mr. Manuel Ramirez.
Mr. Konstantakis requested a continuance and lJ McHugh continued the case the case to June 22,
2006. No hearing was conducted on June 22, 2006, however.
On December 26, 2006, Mr. Konstantakis moved to withdraw as attorney of record. Former
Immigration Judge Gail Padgett granted that motion on January 17, 2007.
On January 25, 2007, Mr. Tom Billiris entered his appearance as attorey of record. His EOIR Form
28 is contained in the Record of Proceeding.
Also on January 25, 2007, the Orlando Immigration Court issued a Notice of Hearing, ordering the
respondent to appear at a master calendar hearing at I 0:30 a.m., on May 17, 2007. In accordance
with 8 CFR 1292.S(a), that Notice of Hearing was served on Mr. Bill iris. There is no evidence in
the Record of Proceedings, however, that a hearing was conducted on May 17, 2007.
On June 9, 2008. the Orlando Immigration Court issued another Notice of Hearing, ordering the
respondent to appeUl at a master calendar hearing at I :00 p.m . . on July I. 2008. That Notice of
I karing \\as. again in accordance\\ ith 8 lTR I 29..5(a). scncd on rcsponJcnt's counsd.
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Date Signed:
On June 16, 2008, Mr. Bill iris moved to withdraw as attorey of record. He cited as bases fr that
motion irreconcilable diffrences with the respondent, and the fct that the respondent had not
communicated with him in more than fve months. I granted that motion on June 23, 2008.
The respondent filed to appear at the July I, 2008, master calendar hearing. Accordingly, he was,
that date, ordered removed to Czechoslovakia in absentia. Now, 16 months later, respondent seeks
to reopen his case, alJeging that he filed to receive notice of the July l , 2008, hearing.
In his motion, respondent and respondent's counsel contend that, in May, 2007, respondent
"requested of the Immigration Judge that his hearing notices be sent to him and he gave his home
address of 9408 Goldenrod Rd., Apt. B, Tampa, Florida." That simply is not the case. There was
no hearing conducted in this case in May, 2007. The only two hearings in this case were the master
calendar hearings on April 13, 2006, and July 1, 2008.
The respondent received proper notice of the July 1, 2008, hearing. That notice was mailed to
respondent's counsel before he withdrew fom the case. 8 CFR 1292.S(a). Notice to counsel
constitutes notice to the respondent. 8 CFR l 003 .26( c )(2); Matter of Barocio, 19 I&N Dec. 255
(BIA l 985)(holding that notice to alien's counsel constitutes notice to the alien).
Respondent next attempts to make out an inefctive assistance of counsel claim against Mr. Billiris.
At Tab H of his motion, respondent states "I currently have pending a bar complaint against the
lawyer, Tom Bill iris, who represented me last in Immigration Court. He did not notif me of my
fnal hearing date, not (sic) did he ever contact me to discuss my case or represent me in any way
apart fom showing up next to me at a few court hearings."
In order to allege inefective assistance of counsel in a motion to reopen, alien must: ( 1) attach
afdavit to the motion; (2) infrm the frmer counsel of the allegation and provide an opportunity
to respond; and (3) indicate whether or not a complaint has been fled with the appropriate
disciplinar authority. Matter of Lozada, 19 l&N Dec. 637, 639 (BIA 1988). In addition to the
procedural requirements, the alien must show that "the conduct of frmer counsel was so egregious
that it rendered [the] hearing unfir." Matter ofB-8-, 22 I& N Dec. 309, 31 J (BIA J 998).
The respondent's inefective assistance of counsel claim fils fr two reasons. First, respondent has
utterly filed to comply with Lozada's procedural requirements. Second, a motion to reopen based
on inefective assistance of counsel must be fled within 180 days afer the date of the order or
removal. INA 240(b){5)(C)(i); 8 CFR 1003.24(b)(4)(ii).
Accordingly, the respondent's motion to reopen to rescind an in absentia order is DENIED.
Immigration .J UdgC
Appeal: \\'.\l\TD ( .\
B l
Appeal Due By:
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