Nasseri, Saman

Law Ofices of Saman Nasseri

925 B Street, Suite 402
San Diego, CA 92101
U.S. Department of Justice
Executive Ofce fr Imigration Review
Board of Immigration Appeals
Ofce of the Clerk
J11L000hlg|80, NI0J
0b LutCh, lrgN0 ZJJ
OHS/ICE Ofice of Chief Counsel - SND
880 Front St., Room 1234
San Diego, CA 92101-8834
Name: GARCIA JAVIER , DOMINGA M A 077-599-243
Date of this notice: 4/11/2014
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosure
Panel Members:
Grant, Edward R.
Guendelsberger, John
Hofman, Sharon
Sincerely,
DO c t
Dona Car
Chief Clerk
Trane
Userteam: Docket
For more unpublished BIA decisions, visit www.irac.net/unpublished
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
Cite as: Dominga M. Garcia-Javier, A077 599 243 (BIA Apr. 11, 2014)
".
U.S. Department of Justice
Executive Ofce fr Immigration Review
Decision of the Board of Immigation Appeals
Falls Church, Virginia 20530
File: A077 599 243 - San Diego, CA
In re: DOMINGA M. GARCIA-JAVIER
IN REMOVAL PROCEEDINGS
APPEAL
Date:
ON BEHALF OF RESPONDENT: Saman Nasseri, Esquire
ON BEHALF OF DHS:
APPLICATION: Reopening
Ted Y. Yamata
Deputy Chief Counsel
APR 11 2014
The respondent, a native and citizen of Mexico, appeals the Immigration Judge's decision
dated June 14, 2013, denying the respondent's motion to reopen an order of removal entered in
absentia on February 27, 2013. The Board defrs to the fctual fndings of a Immigation Judge,
unless they are clearly erroneous, but it retains independent judgment and discretion, subject to
applicable govering standads, regarding pure questions of law and the application of a
particula standard of law to those fcts. 8 C.F.R. 1003. l(d)(3). Under the totality of the
circumstances, we are persuaded by the respondent's argument that the Immigation Judge
should have exercised his sua sponte authority to reopen these proceedings. See 8 C.F.R.
1003.23(b)(l). See also Matter of J-J-, 21 I&N Dec. 976 (BIA 1997).
Accordingly, the fllowing order will be entered.
ORER: The appeal is sustained, the in absentia order of removal is rescinded, these
proceedings are reopened, and the record is remanded fr frther proceedings consistent with the
fregoing opinion.
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
Cite as: Dominga M. Garcia-Javier, A077 599 243 (BIA Apr. 11, 2014)
.i
.
United States Deparment of Justice
Executive Ofce for Immigration Review
Immigration Court
San Diego California
In the matter of: Dominga Garcia Javier A Number: A077-599-243
ORDER OF TH IMIGRTION JUDGE
Upon consideration of Dominga Gacia Javier's Motig to Repen, it is HRBY
ORDERED that the motion be 'R\TD OEND because:
l DHS does not oppose the motion.
r The respondent does not oppose the motion.
( A response to the motion has not been fed with the cour.
D God cause has been established.
C The court agrees with the reasons stated in the opposition to the motion.
l Jhe motion is untimely per
fOther
Se-
<
Deadlines:
[ The application(s) fr relief must be fled by
[ The respondent must comply with DHS biometrics instr
Date Ho
Certifcate of Serice
This document was sered by: g Mail g Personal Serice
To: [ ien [ ] Alien c/o Custodial Ofcer [ Alien's
Date:
4
By: Cour Staf_
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
077599243
Dominga Garcia Javier
On May 14, 2013, the respondent trough counsel fled a motion to reopen. The Goverent
fled its response on May 22, 2013. Both submissions have been considered by the Court.1 The
motion is not supported by an afdavit fom the respondent. Counsel's representations in te
motion as to what the respondent may have thought leading to her filure to appear cannot be
considered as evidence under the precedent of the Board of Immigration Appeals. Matter of
Ramirez-Sanchez, 17 l&N Dec. 503 (BIA 1980). The respondent has filed to demonstrate
exceptional circumstances fr the filue to appear based solely on the pre-existing medical
conditions of her family members. The Goverment's charge relates to alien smuggling. The in
absentia decision also directly refrences the fndings of the Board of Immigration Appeals, as
well alterate independent fndings of the Court, in concluding that the order of removal was
appropriate.
APPEAL RIGHTS: Both parties have the right to appeal the decision. Any appeal must be
received by the Board of Immigration Appeals on or befre 30 calendar days fom the date of
service of this decision.
A prior attempt to fle a motion by the respondent had been rejected. The respondnet's
May 14, 2013, motion is considered to be his frst motion subsequent to the Cout's Febru 27,
2013, order. Although the Goverent's response refrs to a brief allegedly fled May 17, 2013,
the Cour did not receive such alleged fling.
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t