U.S.

Department of Justice
Executive Office for Immigration Review

Board ofImmigration Appeals

Office of the Clerk
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Sperling, David M

Name: FUENTES, ANIBAL DE JESUS

A 094-762-542

Date of this notice: 3/ 18/2015

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

DOYUtL ca.AA)
Donna Carr
Chief Clerk

Enclosure
Panel Members:
Guendelsberger, John
Neal, David L
Cole, Patricia A.

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Cite as: Anibal de Jesus Fuentes, A094 762 542 (BIA March 18, 2015)

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U.S. Department of Justice

Decision of the Board of Immigration Appeals

Executive Office for Immigration Review

Falls Church, Virginia 20530

File: A094 762 542 - New York, NY

Date:

MAR 18 2015

In re: ANIBAL DE JESUS FUENTES a.k.a. Anibal Fuentes Chicas

APPEAL
ON BEHALF OF RESPONDENT:

David M. Sperling, Esquire

CHARGE:
Notice: Sec.

212(a)(6)(A)(i), I&N Act [8 U.S.C. 1182(a)(6)(A)(i)] Present without being admitted or paroled

APPLICATION: Temporary Protected Status

This case was last before the Board on October 11, 2012, when we dismissed the
respondent's appeal of an Immigration Judge's June 7, 2011, decision finding the respondent
ineligible for Temporary Protected States ("TPS") and ordering him removed. We affirme d the
Immigration Judge's determination that the respondent was ineligible for TPS because he filed
an untimely application 1 and was not eligible to equitably toll the application deadline because,
upon discovering in January 2002 that the non-attomer he relied on to file had deceived him, he
did not exercise due diligence in pursuing a remedy. Cf Iavorski v. INS, 232 F.3d 124, 134
(2d Cir. 2000) ("In a situation where fraud or concealment of the existence of a claim prevents
an individual from timely filing, equitable tolling of a statute of limitations is permitted until the
fraud or concealment is, or should have been, discovered by a reasonable person in the
situation."); see also Cekic v. INS, 435 F.3d 167 (2d Cir. 2006).

The Attorney General designated El Salvador for TPS in March 2001, and applications must
have been filed by September 9, 2002. See Matter of Barrientos, 24 l&N Dec. 100, 100 n.1
(BIA 2007); Designation of El Salvador Under Temporary Protected Status Program, 66 Fed.
Reg. 14214 (Mar. 9, 2001). The respondent filed his first TPS application in November 2002,
after the filing deadline expired. The respondent did not argue that he satisfied any of the late
registration criteria listed in 8 C.F.R. 1244.2(f)(2). See Fuentes v. Holder, 548 F. App'x 736,
738 (2d Cir. 2013). We note that El Salvador's designation for TPS has been continually
extended, and the current extension remains in effect until September 9, 2016. See Extension of
the Designation of El Salvador for Temporary Protected Status, 80 Fed. Reg. 893-01 (Jan. 7,
2015).
2 The United States Court of Appeals for the Second Circuit has not decided whether equitable
tolling applies in the case of a non-attorney posing as an attorney. See Fuentes v. Holder, supra,
at 738 & n.1.

Cite as: Anibal de Jesus Fuentes, A094 762 542 (BIA March 18, 2015)

Immigrant & Refugee Appellate Center | www.irac.net

IN REMOVAL PROCEEDINGS

. '."'

A094 762 542

Moreover, the Court noted that the respondent's actions in repeatedly refiling his TPS
applications in 2004, 2005, and 2007, again on advice given by the non-attorney or an attorney
recommended by the non-attorney, and without being given any indication that the first
submission, which was rejected due to a payment deficiency, had also been untimely filed, did
not manifest the sort of inaction evident in cases such as Iavorski v. INS, 232 F.3d 124, 134
(2d Cir. 2000). Fuentes v. Holder, supra, at 738-39. Because of this, and since the Court found
that we did not indicate what more the respondent could have done (and when) to demonstrate
due diligence, the Second Circuit remanded the respondent's case to the Board. Id
In order to determine whether the respondent exercised the requisite due diligence requires a
two-part inquiry evaluating first whether and when a reasonable person in the respondent's
situation should have discovered the ineffective assistance of counsel; secondly, the respondent
then bears the burden of proving that he exercised due diligence in the period that elapsed
between the point at which he discovered, or should have discovered, the ineffective assistance
of counsel, and the filing of the motion to reopen, or in this case, the filing of the TPS
application. Wang v. BIA, 508 F.3d 710, 715 (2d Cir. 2007); see also Cekic v. INS, supra, at 171.
The Immigration Judge found that the respondent had not established that he acted with due
diligence in alleging ineffective assistance of counsel for two reasons (I.J. at 5-7). First, the
Immigration Judge stated that the respondent was not consistent about the dates he sought advice
(1.J. at 5 (citing Exh. 4)). However, the Immigration Judge does not specifically indicate what
3
the inconsistencies are, and he does not explicitly find the respondent not credible. To the
extent he does base his decision on an adverse credibility determination, we find clear error. It is
true that the timeline in Exhibit 4 which is referenced by the Immigration Judge is not consistent
in that the respondent indicates he sought legal advice in 2002 and went back in 2001. However,
this appears to be a minor and possibly merely a typographical error, which cannot support an
adverse credibility finding. See Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008)
(stating that an Immigration Judge can rely on any inconsistency to make an adverse credibility
determination so long as the totality of the circumstances establishes the alien is not credible).
At any rate, the Immigration Judge did not deem the discrepancy as being important (see I.J. at
5).
3

Although the Immigration Judge's decision references discrepancies in dates in an affidavit

(Exh. 4) and states that he pointed the discrepancies out during the hearing (l.J. at 5), we are not
able to fmd explicit references or findings regarding inconsistencies in the record.

2
Cite as: Anibal de Jesus Fuentes, A094 762 542 (BIA March 18, 2015)

Immigrant & Refugee Appellate Center | www.irac.net

On December 26, 2013, the United States Court of Appeals for the Second Circuit remanded
the case to us for further proceedings. Fuentes v. Holder, supra, at 739. The Court found that
we had not adequately explained what actions the respondent could have taken between January
2002, when the respondent became aware that something was wrong with his TPS application
because he had not yet received employment authorization, and November 2002, when his
application was fmally filed; since the application deadline was still 9 months away when the
respondent became aware of the problem, the Court found that we had not explained what due
diligence was required of the respondent. Id. at 738.

A.094 762 542

Rather, the Immigration Judge found it more relevant that the respondent "had reason to be
concerned" about his TPS application in March of 2002, but then glossed over what he did
during the rest of 2002, 2003, and 2004, stating only that he took action in 2005 (I.J. at 6).
However, as noted by the Second Circuit, while the respondent may have had reason to know
that something was wrong with his TPS application as early as January of 2002, because he did
not then receive employment authorization, the time for filing the application was still nine

adequately represented. Fuentes

v.

Holder, supra, at 738.

Furthermore, even after November of 2002, as noted by the Second Circuit, it still appeared
that the respondent's non-attorney was working on his behalf in that after the first November
2002 TPS application was rejected in March of 2003, the respondent was told that this was an
error, and a new application was filed in 2004, as well as in 2005 and 2007, again on the advice
of the non-attorney or an attorney recommended by the non-attorney (see Exh. 4). Therefore, we
also find clear error in the Immigration Judge's conclusion that the respondent did not take legal
steps to follow up on his TPS application until 2005 (I.J. at 6); this was clearly an ongoing
process with several attempts made at filing the TPS application on behalf of the respondent by
the non-attorney and attorneys alike.
Nevertheless, we find that a remand is needed for more factual determinations to be made by
the Immigration Judge.

The Immigration Judge correctly noted that there were gaps in the

respondent's affidavit regarding what occurred after the filing deadline passed in 2002 and with
regard to what actions the respondent took (I.J. at 6). In fact, in his prior brief on appeal to this
Board, the respondent admitted that his affidavit alleging ineffective assistance of counsel
"did not cover every year and every course of action by respondent" (Respondent's Sept. 29,
2011, Br. at 10). On remand, the Immigration Judge should conduct the Second Circuit's two
part inquiry to determine when the respondent did become aware or should have become aware
of his non-attorney's or attorney's ineffective assistance and allow the respondent to present
evidence that he acted with due diligence prior to attempting to file his TPS application with the
Immigration Judge.

See Wang

v.

BIA, supra, at 715 (discussing the two-step inquiry for

analyzing equitable tolling and due diligence); Cekic

v.

INS, supra, at 171, see also Matter of

Barrientos, supra (allowing an alien to renew his TPS application before an Immigration Judge

after it has been denied by the Administrative Appeals Unit). The respondent offered a new and
apparently more detailed affidavit on appeal. This affidavit, as well as any other new evidence,
should be submitted to the Immigration Judge on remand.

The Immigration Judge should also

permit the respondent to testify about his claim (see Respondent's Sept. 29, 2011, Br. at 9-10
(arguing that the Immigration Judge did not allow the respondent to present testimony in support
of his claims)).
ORDER:

The record of proceedings is remanded for further proceedings consistent with this

decision and that issued by the court of appeals.

---

Cite as: Anibal de Jesus Fuentes, A094 762 542 (BIA March 18, 2015)

Immigrant & Refugee Appellate Center | www.irac.net

months away and, therefore, it was not clear that the respondent's "non-attorney" had failed to
act on the respondent's behalf or that the respondent should have known that he was not being