U.S.

Department of Justice
Executive Office for Immigration Review

Board ofImmigration Appeals

Office of the Clerk
5107 Leesburg Pike, Suite 2000
Falls Church, Virginia 20530

OHS/ICE Office of Chief Counsel - DAL

Law Offices of Johanna M. Herrero

98 North Washington St
Suite 402

125 E. John Carpenter Fwy, Ste. 500

Irving, TX 75062-2324

Boston, MA 02114

Name: GUZMAN, SARA DEL CARMEN

A 202-125-309

Date of this notice: 5/7/2015

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

DCrutL cQ./lA)
Donna Carr
Chief Clerk

Enclosure
Panel Members:
Holiona, Hope Malia
Holmes, David 8.
Miller, Neil P.

Userteam: Docket

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Cite as: Sara Del Carmen Guzman, A202 125 309 (BIA May 7, 2015)

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Herrero, Johanna

Decision ofthe Board ofImmigration Appeals

U.S. Department of Justice

Executive Office for Immigration Review
'Falls Church, Virginia 20530

Date:

File: A202 125 309 - Dallas, TX

MAY -7201

In re: SARA DEL CARMEN GUZMAN

APPEAL
ON BEHALF OF RESPONDENT: Johanna M. Herrero, Esquire
APPLICATION: Reopening
The respondent has appealed the Immigration Judge's January 30, 2015, decision denying
her motion to reopen removal proceedings, in which the respondent was ordered removed in
absentia under section 240(b)(5) of the Immigration and Nationality Act, 8 U.S.C. 1229a(b)(5).
The Department of Homeland Security ("DHS") has not responded to the respondent's appeal,
which will be sustained.
The respondent has established exceptional circumstances for not appearing at her
December 3, 2014, hearing. The corroborating affidavits of the respondent, her bond obligor,
and an attorney sufficiently demonstrate that the respondent relied on an Immigration and
Customs Enforcement officer's advice, such that the respondent believed she was obligated to
travel to Massachusetts following her release from custody and would be able to change the
venue of her proceedings to Boston, Massachusetts. Further, the respondent diligently pursued
reopening after learning of the in absentia removal order. See generally Matter of C-R-C-,
24 I&N Dec. 677 (BIA 2008). Under the circumstances, including the lack of opposition from
the DHS to the respondent's motion below and on appeal, we will sustain the appeal.
ORDER: The appeal is sustained.
FURTHER ORDER: The venue is changed from Dallas, Texas to the Immigration Court in
Boston, Massachusetts.
FURTHER ORDER: The record is remanded to the Immigration Court for further
proceedings consistent with the foregoing decision and for the entry of a new decision.

t:>e

Q J)

L.__

____

FoRTHlIBoARD
.

Cite as: Sara Del Carmen Guzman, A202 125 309 (BIA May 7, 2015)

Immigrant & Refugee Appellate Center, LLC | www.irac.net

IN REMOVAL PROCEEDINGS

...

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
1100 COMMERCE ST.,
DALLAS,

TX

SUITE 1060

75242

Herrero,
98

Johanna

North Washington St

Suite 402
Boston,

MA

02114
FILE A 202-125-309

IN THE MATTER OF
GUZMAN,

DATE:

Jan 30,

2015

SARA DEL CARMEN

UNABLE TO FORWARD - NO ADDRESS PROVIDED

ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE.

THIS DECISION

IS FINAL UNLESS AN APPEAL IS FILED WITH THE BOARD OF IMMIGRATION

WITHIN 30

APPEALS

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

BOARD OF IMMIGRATION APPEALS

MUST BE MAILED TO:

OFFICE OF THE CLERK

5107

Leesburg Pike,

FALLS CHURCH,

VA

b. ,
... p.i

Suite 2000

20530

a-

ATTACHED IS .A COPY OF THE DECISION OF THE IMMIGRA

.
11,

IQN

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 AND NATIONALITY ACT,

U.S.C.

SECTION 1252B(c) {3) IN DEPORTATION PROCEEDINGS OR SECTION 240(c)(6),

8

IF YOU FILE A MOTION

U.S.C. SECTION 1229a(c) (6) IN REMOVAL PROCEEDINGS.

TO REOPEN,

YOUR MOTION MUST BE FILED WITH THIS COURT:

IMMIGRATION COURT
1100 COMMERCE ST.,

'

OTHER:

HotuiJ

SUITE 1060

TX

0TO eq:no

cknd
{ )L7

COURT CLERK

IMMIGRATION COURT
CC:

PEGGY PRICE
125 E. HWY 114,
IRVING,

TX,

STE 500

75062

"' .......

Immigrant & Refugee Appellate Center, LLC | www.irac.net

Law Offices of Johanna M. Herrero

FF

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE OF IMMIGRATION REVIEW
DALLAS IMMIGRATION COURT

Case No. 202-125-309

ORDER

This matter is before the Court pursuant to the Respondent's January 26, 2015,
Motion to Reopen. For the reasons set forth below, it will be DENIED.
The Immigration Judge may rescind an

in absentia removal order pursuant to a

motion to reopen through two means. INA 240(b)(5).

First, if there is a violation of

the respondent's Constitutional right to adequate notice, the alien may file a motion to
reopen at any time and the court may rescind an

in absentia removal order if the "alien

demonstrates that the alien did not receive adequate notice in accordance with the [notice
requirements of the INA]." INA 240(b)(5)(C)(ii). Second, a motion to reopen may be
rescinded if it is filed within 180 days of the order of removal and if the alien can prove
exceptional

circumstances

existed

to excuse his

failure

to

appear.

C.F .R.

1003.23(b)(4)(ii).
Proper notice can be accomplished through personal service of the written notice,
or if personal service is not practicable, through service by mail to the Respondent. INA
239(a)(l). A Notice of Hearing is properly served when it is personally delivered to the
alien or his attorney, or when it is mailed to the attorney or to the last address provided by
the alien in accordance with INA 239(a)(l)(F). INA 239(a)(l)(G)(i). Additionally,
service by mail of a Notice of Hearing is sufficient if there is proof of attempted delivery
to the alien1s most recently provided address. INA 239(c)

When a motion to reopen alleges exceptional circumstances existed to excuse the

respondent's failure to appear, an Immigration Judge must examine the totality of the
circumstances to determine whether exceptional circumstances exist.
I&N Dec. 503 (BIA 1996).

Matter of W-F-, 21

Exceptional circumstances have been defined

"

as

those

[circumstances] beyond the control of the alien such as 'battery or extreme cruelty to the
alien or any child or parent of the alien, serious illness of the alien, or serious illness or
death of the spouse, child, or parent of the alien, but not including less compelling
circumstances.'" IN A 240(e)(1).
The court may also invoke its

sua sponte authority to reopen proceedings in "truly

exceptional situations."

Matter of G-D-, 22 l&N Dec. 1132 (BIA 1999). The Court's

sua sponte is limited to cases where exceptional circumstances are
demonstrated. Matter ofJ-J-, 21 I&N Dec. 976 (BIA 1997).

discretion to reopen

In the present case, the Respondent was personally served with the Notice to
Appear (NTA) while she was in the custody of Immigration and Customs Enforcement

Page I of3

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In Re: Sara Del Carmen Guzman

(ICE).

NTA, dated Nov. 4, 2014.

The Respondent was provided oral notice of the

contents of the NTA in Spanish, and she signed the document. Id. The Respondent also
received a Notice of Hearing (NOH) while in custody informing her of her hearing before
the Court on November 24, 2014. NOH, dated Nov. 19, 2014.

in, the following exchange took place:

Immigration Judge: Would you like to take some time to try to speak with
an attorney or take some time to try to pay your bond or proceed with your
hearing now?
Respondent: To pay my bond.
Immigration Judge: Ok ma'am. Your next court date will be December 3
at 9:00 a.m. Ma'am please listen carefully to what I'm about to tell you. If
you bond out before your next hearing, you must appear here in court in
Dallas on December 3 at 9:00 am. Do you understand?
Respondent: Yes
Immigration Judge: If you do not appear at my court on that date and time
I will order you removed. Do you understand?
Respondent: Yes.
Immigration Judge: Just so we're clear ma' am, what happens if you bond
out before your next hearing but do not appear at my court here in Dallas
on December 3 at 9:00 am?
Respondent: I'm going to be removed.
The Respondent was then served with a NOH informing him of her hearing before the
Court on December 3, 2014. NOH, dated Nov. 24, 2014.
The Dallas Immigration Court received from the Department of Homeland
Security (DHS or Government) a Form I-830, Notice to EOIR: Alien Address, dated
December 1, 2014, stating that the Respondent had been released from ICE custody on a
bond and that upon release, she had reported her address as 26 O'Brien Ct. # 881,
Charlestown, MA 02129.
The Respondent failed to attend her hearing on December 3, 2014, and the
hearing was conducted

in absentia. Based upon the clear, unequivocal, and convincing

evidence offered by the Government, the Court found the charge of removal against the
Respondent established and ordered her removed to El Salvador. 8 C.F.R. 1003.26(c).

Page 2 of3

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At a master calendar hearing on November 24, 2014, the Immigration Judge

advised the Respondent of her rights in the proceedings. After the Respondent was sworn

Here, the Respondent was personally served with her NTA.

4, 20 14.

See NTA, dated Nov.

She was then served with her Notice of Hearing while in the custody of the

Government.

See NOH dated, Nov. 19, 2014; See NOH dated, Nov. 24, 2014.

Consequently, service of the NOH in this case was proper. Furthermore, at her hearing on

must

Court even if released on bond. The Immigration Judge warned the Respondent of the
consequences of failing to appear at her hearing. The Immigration Judge asked the
Respondent if she understood these consequences. The Respondent agreed that she
understood. For the foregoing reasons, there is no claim to lack of notice.
Additionally, the Respondent has also failed to establish that exceptional
circumstances caused her failure to appear on December 3, 2014. As reflected by the
recording of the Respondent's hearing on November 24,

2014,

the Respondent

understood that her failure to appear for her next scheduled hearing would result in an
order of removal. The Immigration Judge gave the Respondent an opportunity to ask any
questions she had about the hearing date on December 3, 2014 and the consequences of
failing to appear. Upon questioning by the Immigration Judge, the Respondent stated on
the record that she would "be removed" if, after being released from detention, she failed
to appear for her hearing on December 3, 2014 at the Dallas Immigration Court.
Therefore, the Court finds that the Respondent's purported confusion regarding her
hearing date is not an exceptional circumstance which warrants reopening of the present
proceedings under INA 240(b)(5)(C)(i).
There are only two grounds for rescinding an

in absentia order of removal, lack of

proper notice and exceptional circumstances as defined at section 240(e)(1) of the Act,
and the Respondent has not shown that she qualifies for reopening under either ground.
INA 240(b)(S)(C).
Finally, the Court does not see any evidence in the record warranting a

sua sponte
reopening of this case. Matter ofG-D-, 22 I&N Dec. 1 132, 1133 (BIA 1999); Matter of
J-J-, 21 l&N Dec. 976 (BIA 1997).

On this

30+\.. day of January, 2015.

igration Judge

Copy to:
Chief Counsel, DHS/ICE

Page 3 of3

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November 24, 2014, the Immigration Judge informed the Respondent that she

appear for her hearing on December 3, 2014 at 9:00 a.m. before the Dallas Immigration