SOCHEAT CHEA.

ESQUIRE
Socheat Chea, P.C.
3500 Duluth Park Lane, Bldg. 300
Duluth, GA 30096-0000
U.S. Department of Justice
Executive Ofce fr Immigration Review
8oaraofImmigratioaAppea!s
ujceofthec!erk
5107 Leebur Pike. Suite 2000
Fals Church. Vrinia 12041
OHS/ICE Ofice of Chief Counsel - HLG
P.O. Box 1711
Harlingen, TX 78551
Name: MEJIA-GARCIA, XAVIER ARISTIDES A098-119-800
Date of this notice: 4/15/2011
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosure
Panel Members:
Guendelsberger, John
Kendall-Clark, Molly
Pauley, Roger
Sincerely,
Donna Carr
Chief Clerk
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Cite as: Xavier Aristides Mejia-Garcia, A098 119 800 (BIA April 15, 2011)
U.S. Department of Justice
Executive Ofce fr Imigation Review
Decision of the Board of Imigation Appeals
Falls Chuch, Viginia 22041
File: A098 119 800 - Halingen, T
I re: XAVIER ARISTIDES MEJIA-GARCIA
IN REMOVAL PROCEEDINGS
APPEAL
Date:
ON BEHALF OF RESPONDENT: Socheat Chea, Esquire
ON BEHALF OF OHS: Mark R. Whitworth
Assistant Chief Counsel
APPLICATION: Reopening
A|R ll!
The respondent, a native and citizen of Honduras, timely appeals fom a decision dated April 16,
2010, by the Immigation Judge in which he denied the respondent's motion to reopen removal
proceedings, which had been conducted in absentia on Januar 31, 2005. The appeal will be
sustained, the proceedings will be reopened and the record will be remanded.
The Immigration Judge denied the respondent's motion to reopen fnding that he had filed
to establish that he did not receive proper notice fr his January 31, 2005, heaing. The Imigration
Judge also concluded that the circustances of this case did not warrant reopening sua sponte. Upon
de novo review, we fnd that in light of the totality of circumstances presented, reopening sua sponte
is warranted to allow the respondent another opportunity to appear fr a hearing. The respondent
was 13 years old at the time the notice fr his hearing was issued and he provided an afdavit in
which he states that his mother never infrmed him of his hearing and of the obligation to attend,
and she abandoned him befre the hearing and shortly afer she received notice. We therefre reverse
the Imigration Judge's denial of sua sponte reopening, and will reopen these proceedings.
ORDER: The appeal is sustained, proceedings are reopened and the record is remanded to
the Immigration Judge fr fher proceedings.
F RTHEBOAR
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Cite as: Xavier Aristides Mejia-Garcia, A098 119 800 (BIA April 15, 2011)
ATTORNEY AT LAW
ECHOLS, ELI A., ESQ.
c.
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
2009 W. JEFFERSON AVE, STE 300
HARLINGEN, TX 78550
3500 DULUTH PARK LAE, BLDG. 300
DULUTH, GA 30096
IN THE MATTER OF FILE A 098-119-800 DATE: Apr 16, 2010
MEJIA-GARCIA, XAVIER ARISTIDES
UNABLE TO FORWAD - NO ADRESS PROVIDED
ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE. THIS DECISION
IS FINAL UNLESS A APPEAL IS FILED WITH THE BOARD OF IMIGRATION APPEALS
WITHIN 30 CALENDAR DAYS OF THE DATE OF THE MAILING OF THIS WRITTEN DECISION.
SEE THE ENCLOSED FORMS AND INSTRUCTIONS FOR PROPERLY PREPARING YOUR APPEAL.
YOUR NOTICE OF APPEAL, ATTACHED DOCUMENTS, AND FEE OR FEE WAIVER REQUEST
MUST BE MAILED TO: BOARD OF IMMIGRATION APPEALS
OFFICE OF THE CLERK
P.O. BOX 8530
FALLS CHURCH, VA 22041
ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE AS THE RESULT
OF YOUR FAILURE TO APPEAR AT YOUR SCHEDULED DEPORTATION OR REMOVAL HEARING.
THIS DECISION IS FINAL UNLESS A MOTION TO REOPEN IS FILED IN ACCORDANCE
WITH SECTION 242B(c) (3) OF THE IMMIGRATION AD NATIONALITY ACT, 8 U.S.C.
SECTION 1252B(c) ( 3) IN DEPORTATION PROCEEDINGS OR SECTION 240(c) (6),
8 u.s.c. SECTION 1229a(c) (6) IN REMOVAL PROCEEDINGS. IF YOU FILE A MOTION
TO REOPEN, YOUR MOTION MUST BE FILED WITH THIS COURT:
IMMIGRATION COURT
2009 W. JEFFERSON AVE, STE 300
HER:
CC: ASSISTAT CHIEF COUNSEL
P.O. BOX 1711
HARLINGEN, TX, 785510000
78550
FF
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\
.
UITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
HARLINGEN, TEXAS, 78550

IN THE MA TER OF
Xavier Aristides Mejia-Garcia
RESPONDENT
)
)
)
)
)
APPLICATION: Motion to Reopen
ON BEHALF OF THE RESPONDENT
Eli A. Echols, Esq.
3500 Duluth Park Lane, Bldg. 300
Duluth, GA 30096
April I i. 20 I 0
File Number: A098-1 l 9-800
In Removal Proceedings
ON BEHALF OF THE GOVERMENT
Assistant Chief Counsel
P.O. Box 1711
Harlingen, TX 78551
DECISION OF THE IMMIGRTION JDGE
On January 31, 2005, the Court ordered the respondent removed to Honduras in absentia
pursuant to section 240(b)(5)(A) of the Immigration and Nationality Act (INA or Act). In his motion
to reopen, the respondent through counsel argues that his removal proceedings should be reopened
because he was 13 years old when he was apprehended by the Department of Homeland Securit
(OHS) and his mother, who was properly served with a Notice to Appear (NTA), efectively
abandoned him at his uncle's house in Georgia afer his release fom OHS custody. The respondent's
motion to reopen will be denied.
The Court concludes that the respondent was served with proper notice of his Januar 31,
2005 removal hearing in accordance with section 239(a) of the Act because, as he acknowledges, his
mother was properly served with his NTA which contained the date, time and location of his removal
hearing. See INA 240(b)(5)(C)(ii); 8 C.F.R. 1236.2(a), 103.5a(c)(2)(ii); Matter of Ponce
Hemandez, 22 l&N Dec. 784 (BIA 1999); Matter of Mejia-Andino, 23 I&N Dec. 533 (BIA 2002).
The Court frter concludes the respondent has not demonstrated that his filure to appear at the
January 31, 2005 removal hearing was because of exceptional circumstances both because his motion
to reopen is untimely and because the circumstances of this case are inconsistent with the tpe of
exceptional circumstances contemplated and required by the Act. INA 240(b)(5)(C)(i), 240(e)(l ).
Finally, the Court concludes the circumstances of this case do not warrant the exercise of the
Cour's limited discretion to reopen sua sponte. See INS v. Dohert, 502 U.S. 314, 323 (1992)
(motions to reopen are especially disfvored in immigration proceedings because ever delay works
to the advantage of the deportable alien); Matter ofG-D-, 22 l&N Dec. 1132, 1133-34 (BIA 1999)
(Board's discretion to reopen a case sua sponte is an extaordinary remedy reserved fr tuly
exceptional situations); Matter of J-J-, 21 I&N Dec. 976 (BIA l 997)(holding the Board and
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( \,
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Immigation Judge,s power to reopen or reconsider cases sua sponte is limited to exceptional
circumstances and is not meant to cure fling defcts or circumvent regulations, where enfrcing them
might result in hardship).
Accordingly
,
the fllowing order will be entered:
ORDER: The respondenfs motion to reopen is DENIED.
David Ayala
United States Im
CERTIFICATE OF SERVICE
THIS DOCUMENT WAS SERVED BY: MAIPERSONAL SERVIC)
TO: ( ) ALIEN ( )ALIEN C/O CUSTODIANLIEN,S AIY/REP ) OHS
DATE: !-_~, 0 BY: COURT STAFF __
A TACHMENTS: () EOIR-33 () EOIR-28 () LEGAL SERV S LIST () OTHER
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