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 2204/

DHS/ICE Office of Chief Counsel - HLG

1717 Zoy Street
Harlingen, TX 78552

Name: MACH-CHAVEZ, HECTOR FRAN...

A 206-888-919

Date of this notice: 3/14/2016

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

DC!nn.L c
Sincerely,

t1/vL)

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Guendelsberger, John
Grant, Edward R.
Adkins-Blanch, Charles K.

Userteam: Docket

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Cite as: Hector Fransua Mach-Chavez, A206 888 919 (BIA March 14, 2016)

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Lubarsky, Alexander H
Community Legal Centers
PO Box 605
San Mateo, CA 94401

'U.S. Department of Justice

Decision of the Board of Immigration Appeals

Executive Office for Immigration Review

J8

Church, Virginia 22041

File: A206 888 919 - Harlingen, TX

Date:

MAR 1 4 2016

In re: HECTOR FRANSUA MACH-CHAVEZ

APPEAL
ON BEHALF OF RESPONDENT: Alexander H. Lubarsky, Esquire
APPLICATION: Reopening
The respondent, a native and citizen of Guatemala, appeals the decision of the Immigration
Judge, dated October 22, 2015, denying his motion to reopen. The Department of Homeland
Security has not replied to the respondent's appeal.
We review Immigration Judges' findings of fact for clear error, but questions of law,
discretion, and judgment, and all other issues in appeals, de novo. 8 C.F.R. 1003.l(d)(3)(i),
(ii).
Considering the totality of the circumstances presented in this case, we conclude that
reopened removal proceedings are warranted in order to provide the respondent with a renewed
opportunity to appear before an Immigration Judge to show why he should not be removed from
the United States. See 8 C.F.R. 1003.23(b)(l). At the present time, we express no opinion
regarding the ultimate outcome of these proceedings. Accordingly, the following order is
entered.
ORDER: The respondent's appeal is sustained, the order of removal, entered in absentia on
August 24, 2015, is vacated, the proceedings .,are reopened, and the record is remanded to the
Immigration Court for further proceedings and th entry of a new decision.

Cite as: Hector Fransua Mach-Chavez, A206 888 919 (BIA March 14, 2016)

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IN REMOVAL PROCEEDINGS

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
2009 W. JEFFERSON AVE, STE 300
HARLINGEN, TX 78550

.<

IN THE MATTER OF
MACH-CHAVEZ, HECTOR FRANSUA

FILE A 206-888-919

DATE: Oct 26, 2015

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 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
BOARD OF IMMIGRATION APPEALS
MUST BE MAILED TO:
OFFICE OF THE CLERK
5107 Leesburg Pike, Suite 2000
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 AND 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
HARLINGEN, TX 78550
OTHER:

CC: ASSISTANT CHIEF COUNSEL

1717 ZOY ST.
HARLINGEN, TX, 785520000

IMMIGRATION COURT

FF

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MACH-CHAVEZ, HECTOR FRANSUA

102 S IDAHO STREET 6B
SAN MATEO, CA 94010

UNITED STATES DEPARTMENT OF WSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
HARLINGEN IMMIGRATION COURT
HARLINGEN, TEXAS

MACH CHAVEZ, HECTOR

FRANSUA
RESPONDENT
APPLICATION:

Octo, 2015

)
)

File Number: A 206 888 919

)
)
)

In Removal Proceedings

Motion to Reopen
ON BEHALF OF THE GOVERNMENT
Assistant Chief Counsel
U.S. Department of Homeland Security
1717 Zoy Street
Harlingen, TX 78552

ON BEHALF OF THE RESPONDENT

Pro Se

DECISION OF THE IMMIGRATION JUDGE

On August 24, 2015, the Court ordered the respondent removed to Guatemala in absentia
pursuant to section 240(b)(S)(A) of the Immigration and Nationality Act (Act). On September 23, 2015,
the respondent, through counsel, filed a motion to reopen, requesting that his removal proceedings be
reopened because the respondent believed his case was transferred to a different Immigration Court and
was awaiting notification of that transfer. The respondent's motion to reopen will be denied.
The Court notes that the respondent does not contest the issue of notice, but rather asserts that he
failed to appear for his August 24, 2015 removal hearing because he believed the location of his
immigration proceedings were being moved and that he would be receiving a notice relating to the change
of venue. The record reflects that the respondent was released from immigration custody on January 23,
2015. In his affidavit in support of his motion to reopen the respondent states that at the time of his
release from immigration custody he asked a "security guard" about his court date and was told to call a
telephone number which appeared on his bail paperwork. Members of the respondent's family attempted
to call the number but found that the number was not in service. On January 26, 2015 the respondent then
called "the offices of the Detention Center" and was told that he would be sent a hearing notice that
would inform him of his next court date. The record reflects that on January 30, 2015 a hearing notice
was sent the respondent. The notice stated that the respondent was scheduled to appear for a master
hearing in the Harlingen, Texas Immigration Court on August 24, 2015.

The Court finds that the respondent's motiont to reopen removal proceedings based on
exceptional circumstances is timely. INA 240(b)(S)(C)(i) (requiring that a motion to reopen
based upon exceptional circumstances must be filed within 180 days of the date of the order of
removal); 8 C.F.R. 1003.23(b)(4)(ii). However, the respondent's belief that the location of his
hearing had been changed and his subseuqent failure to appear does not constitue and
exceptional circumstance as defined in section 240(e)(l). Exceptional circumstances are those
which are "beyond the control of the alien." INA 240(e)(l) (such as serious illness of the
1

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IN THE MATTER OF

Accordingly, the following orders shall be entered:

ORDER: The respondent's motion to reopen is DENIED.

David Ayala
United States Immi,:..i. a.i...

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respondent or death of an immediate relative). The respondent's ignorance of the intricacies and
complexity of this country's immigration laws is not beyond the control of the alien.
Furthermore, the hearing notice, mailed after the respondents conversation with "the offices of
the Detention Center", made clear that the respondent was scheduled to appear for a hearing in
the Harlingen, Texas Immigration Court. Any assumptions that the respondent made about the
location of his hearing being moved does not constitue an exceptional circumsntance which
would be beyond his control.