Академический Документы
Профессиональный Документы
Культура Документы
Department of Justice
Executive Office for Immigration Review
Board ofImmigration Appeals
Office ofthe Clerk
5107 Leesburg Pike, Suite 2000
Fa/ls Church, Virginia 22041
A 205-131-868
Date of this notice: 8/20/2015
Enclosed is a copy of the Board's decision and order in the above-referenced case.
Sincerely,
DorutL
l1ftA)
Donna Carr
Chief Clerk
Enclosure
Panel Members:
Holiona, Hope Malia
Grant, Edward R.
Guendelsberger, John
Userteam: Docket
Echols, Eli A.
Socheat Chea, P.C.
3500 Duluth Park Lane, Bldg. 300
Duluth, GA 30096
Date:
AUG 2 0 2015
APPEAL
ON BEHALF OF RESPONDENT: Eli A Echols, Esquire
Gene P. Hamilton
Assistant Chief Counsel
ON BEHALF OF OHS:
APPLICATION: Reopening
ORDER:
The respondent has appealed the Immigration Judge's denial of a motion to reopen
proceedings in which the respondent was ordered removed in absentia.
We review an
Immigration Judge's findings of fact for clear error, but questions of law, discretion, and
judgment, and all other issues in appeals, are reviewed de novo. 8 C.F.R 1003.l(d)(J)(i), (ii).
On review, in light of the totality of the circumstances presented in this case we will reopen
proceedings and allow the respondent another opportunity to appear for a hearing.
Accordingly, the appeal is sustained, the proceedings are reopened, and the record is
remanded to the Immigration Court for further proceedings consistent with the foregoing opinion
and the entry of a new decision.
Cite as: Salvador Perez-Sandoval, A205 131 868 (BIA Aug. 20, 2015)
IN REMOVAL PROCEEDINGS
C'
.
IJ!
PEREZ-SANDOVAL, Salvador
In Removal Proceedings
File No. A#205-131-868
)
)
)
)
Respondent
________________________ )
APPLICATION:
APPLICABLE LAW
C'
.
In Matter of G-D-, the Board explained that "motions rules respond directly to the legislative
interest in setting meaningful and effective limits on motions and ultimately in achieving finality
in immigration case adjudications." 22 I. & N. Dec. 1132, 1134 (BIA 1999).
As with all motions to reopen, the applicant must state new facts that will be proven at a
hearing if the motion is granted, and it must be supported by affidavits and other evidentiary
material. 8 C.F.R. 1003.23(b)(3); see also INS v. Abudu, 485 U.S. 94 (1988). Any motion to
reopen for the purpose of acting on an application for relief must be accompanied by the
appropriate application for relief and supporting documentation. Id. Finally, if the ultimate
relief is discretionary, the Immigration Judge may deny a motion to reopen even if the moving
party demonstrates primafacie eligibility for relief. Id.; see Abudu, 485 U.S. 94.
III.
DISCUSSION
Generally, motions to reopen for purposes of rescinding an in absentia removal order must
be filed within 180 days after the date of the removal order if the alien demonstrates that the
failure to appear was because of exceptional circumstances. See INA 240(b)(5)(C)(ii); 8
C.F.R. 1003.23(b)(4)(ii). However, if the alien argues that he did not receive notice of the
hearing or asserts that he was in Federal or state custody and the failure to appear was through
not fault of his own, an order entered in absentia pursuant to section 240(b)(5) may be rescinded
upon a motion to reopen filed at any time. 8 C.F.R. I003.23(b)(4)(ii). Only one such motion
may be filed by the alien. Id.
. i
In light of the foregoing, the Court will enter the following order:
ORDER OF THE IMMIGRATION JUDGE
It is ordered that:
an Pelletier
ited States Immigration Judge
Atlanta, Georgia
appear at his hearing in August 2013: "I was under the impression that my court date was in
October and I had been in the process[] of collecting documents to complete my NVC process
and intended to meet with my attorney in September so that we could proceed with our hearing
in October. My wife was also under the impression that Court was in October. I believe this was
a simple error and misunderstanding." Resp't's Aff. at 1. The record shows that the Court
personally served the Respondent with the Notice of Hearing notifying him of his August 8,
2013 hearing. See Notice of Hearing, dated November 15, 20 12 (notice that a hearing is
scheduled in the Respondent's case on August 8, 2013, indicating that it was personally served
on Respondent by court staff). Thus, it appears that the Respondent personally received the
Notice of Hearing with the correct date and then failed to appear to Court due to a simple error
where he mistakenly believed that his hearing was in October. This simple misunderstanding
does not rise to the level of battery, serious illness or death that defines exceptional
circumstances, as quoted above. Therefore, the Court finds that the Respondent has not
demonstrated that his failure to appear was due to exceptional circumstances.