Galvez-Garcia

MEMORANDUM **

Jose Luis Galvez-Garcia (“Galvez-Garcia”) petitions for review of the Board of Immigration Appeals’ (“BIA”) dismissal of his appeal of the Immigration Judge’s (“IJ”) denial of his motion to reopen his deportation proceedings. Galvez-Garcia failed to appear at his deportation proceeding, and was ordered deported in absentia. Galvez-Garcia sought to reopen his deportation hearing claiming exceptional circumstances based on the ineffective assistance of counsel. The IJ denied his motion to *796 reopen because Galvez-Garcia had not met the requirements of Matter of Lozada, 19 I. & N. Dec. 637 , 1988 WL 235454 (BIA 1988) for establishing a claim of ineffective assistance of counsel. 1 Galvez-Garcia appealed to the BIA, attaching new evidence that prima facie meets the requirements of Lozada. The BIA refused to consider the evidence on the ground that its role is to review the record, not create one.

Motions involving new evidence which are presented while an appeal is still pending are in appropriate circumstances to be treated as motions to remand. See 8 C.F.R. § 3.2 (b)(1); 2 8 C.F.R. § 3.2 (c)(4). 3 Because Galvez-Garcia attached a “Motion to Reopen and Reconsider”…