U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals
Office ofthe Clerk
5107 Leesburg Pike, Suite 2000

Falls Church. Virginia 22041

OHS/ICE - Office of Chief Counsel - OKT

4400 SW 44th Street, Suite A
Oklahoma City, OK 73119-2800

Name: REYES-ZAVALA, IRIS YESSENIA

A 206-775-262

Date of this notice: 3/22/2016

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

DOrutL Ca.,,vu
Donna Carr
Chief Clerk
Enclosure
Panel Members:
Grant, Edward R.
Guendelsberger, John
O'Leary, Brian M.
:.l., '

Use rteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/
Cite as: Iris Yessenia Reyes-Zavala, A206 775 262 (BIA March 22, 2016)

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Pilsbury, Anne
Central American Legal Assistance
240 Hooper Street
Brooklyn, NY 11211

l:J.S. Department.of Justice

Decision of the Board of Immigration Appeals

Executive Office for Immigration Review

Falls Church, Virginia 22041

Date:

File: A206 775 262 - Dallas, TX

In re: IRIS YESSENIA REYES-ZAVALA
IN REMOVAL PROCEEDINGS
APPEAL

ON BEHALF OF RESPONDENT: Anne Pilsbury, Esquire

APPLICATION: Reopening
The respondent, a native and citizen of El Salvador, appeals from an Immigration Judge's
February 20, 2015, decision denying the respondent's motion to reopen proceedings held in
absentia on September 23, 2014. The Department of Homeland Security has not responded to
the appeal. The appeal wilJ be sustained, proceedings will be reopened, and the record will be
remanded.
We review for clear error the findings of fact, including the determination of credibility,
made by the Immigration Judge. 8 C.F.R. 1003.l(d)(3)(i). We review de novo all other issues,
including whether the parties have met the relevant burden of proof, and issues of discretion.
8 C.F.R. 1003.l(d)(3)(ii).
The Board possesses discretion to reopen or reconsider cases sua sponte. See 8 C.F.R.
1003.2(a); see also Matter of G-D-, 22 I&N Dec. 1132 (BIA 1999); Matter of J-J-, 21 I&N
Dec. 976 (BIA 1997). Based on the totality of the circumstances in this case, we will grant the
respondent's motion to reopen to rescind her in absentia order pursuant to our sua sponte
authority. See 8 C.F.R. 1003.2(a); see also Matter of J-J-, supra. Accordingly, the following
order will be entered.
ORDER: The appeal is sustained, the in absentia order of removal is rescinded, the
proceedings are reopened, and the record is remanded for further proceedings consistent with the
foregoing opinion.

FOR THE BOA

Cite as: Iris Yessenia Reyes-Zavala, A206 775 262 (BIA March 22, 2016)
vW:

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MAR 2 2 2015

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UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
1100 COMMERCE ST., SUITE 1060
DALLAS, TX 75242

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Caballero Law Office

Caballero, Mario
10109 Hammerly Blvd.
Houston, TX 77080
IN THE MATTER OF
REYES-ZAVALA, IRIS YESSENIA

FILE A 206-775-262

DATE: Feb 20, 2015

UNABLE TO FORWARD - NO ADDRESS PROVIDED

TTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE. THIS DECISION
;S 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 20530

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 NATILITY ACT, 8 U.S..C.
. \

t
SECTION 1252B(c) { 3) IN DEPORTATION PROCEEDINGS OR Sl!CTI.ON 2 4 0 { c) (6) ,
.

,
8 u.s.c. SECTION 1229a(c) (6) IN REMOVAL PROCEEDINGS.- YOU FILE A MOTI?.If'".,. '
TO REOPEN, YOUR MOTION MUST BE FILED WITH THIS COURT:
. ..,Jt- '
1/ff .,
IMMIGRATION COURT
1100 COMMERCE ST., SUITE 1060
DALLAS, TX 75242

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OTHER:

CC: GRIMES, DAWNITA

125 E. HWY 114, STE 500
IRVING, TX, 75062

COURT C
IMMIGR}\.l:ION COURT
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UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
DALLAS, TEXAS

REYES-ZAVALA, Iris Yessenia

RESPONDENT

IN REMOVAL PROCEEDINGS
A 206-775-262

CHARGE:

Section 212(a)(7)(A)(i)(I) of the Immigration and Nationality Act

(Act), as amended, as an immigrant who, at the time of application
for admission, is not in possession of a valid unexpired immigrant
visa, reentry permit, border crossing card, or other valid entry
document required by the Act, and a valid unexpired passport, or
other suitable travel document, or document of identity and
nationality as required under the regulations issued by the Attorney
General under section 21l(a) of the Act.

APPLICATIONS:

Motion to Reopen and to Stay Deportation

ON BEHALF OF THE RESPONDENT:

Mario Caballero, Esq.
1 0109 Hammerly Blvd.
Houston, TX 77080

ON BEHALF OF THE DEPARTMENT

OF HOMELAND SECURITY:
Paul B. Hunker III, Esq.
Chief Counsel - DHS/ICE
125 E. John Carpenter Freeway, Suite 500
Irving, TX 75062

WRITTEN DECISION OF THE IMMIGRATION JUDGE

I.

Factual and Procedural History

The Respondent is a native and citizen of El Salvador. Exhibit 1. She entered the United
States at or near the Hidalgo, Texas, on June 25, 2014. Id. The Respondent did not then possess
or present a valid immigrant visa, reentry permit, border crossing identification card, or other
valid entry document and was not then admitted or paroled after inspection by an immigration
officer. Id. Soon thereafter, the Respondent was apprehended and detained by the Department
of Homeland Security (DHS or Government). She was subsequently served with a Notice to

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)
)
)
)
)

IN THE MATTER OF:

Appear (NTA) on July 31 , 201 4, charging her with removability pursuant to section
21 2(a)(7)(A)(i)(l) of the Immigration and Nationality Act (INA or Act). Id.
The Respondent appeared before this Court on September 9, 2014, represented by
The Respondent's counsel admitted all the factual allegations and the charge of

removability contained in the NTA. Based on the admissions and concessions made on behalf of
the Respondent, the Court found that removability had been established as charged. The
Respondent declined to designate a country of removal thus, pursuant to the regulations the
Court designated El Salvador. The Respondent indicated that she would be seeking Asylum and
Withholding of Removal. The Court set a new hearing date of September 23, 2014, and
instructed the Respondent to submit her application for relief in court on that date. The Court
also advised both the Respondent and her attorney that the Respondent must be present at the
Dallas Court whether the Respondent is released from government custody or not and that failure
appear would result in a finding that she has abandoned any and all applications for relief and the
Court would order her removed to El Salvador.
Shortly thereafter, the Respondent was released from Government custody, and on
September 23, 201 4, she failed to appear. Her attorney was also not present. Therefore, the
proceedings were conducted in absentia pursuant to section 240(b)(5)(A) of the Act. At the
hearing, the Court concluded that the Respondent had adequate notice of the hearing. The Court
further noted that the Respondent had previously admitted the allegations set forth in the NTA
and conceded the charge of removability. Thus, the Court found that removability had been
established by clear and convincing evidence and ordered the Respondent removed to El
Salvador.

The Respondent appeared via video and her attorney via telephone.

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counsel. 1

On October 29, 2014, the Respondent filed a Motion to Reopen requesting that her in
absentia order be rescinded. The Government has not filed a response.
Applicable Law & Analysis

II.

alien or the alien's counsel of record, the alien will be ordered removed in absentia if the
Government establishes by clear, unequivocal, and convincing evidence that the written notice
was provided and that the alien is removable. INA 240(b)(5). An in absentia order may be
rescinded upon a motion to reopen filed 180 days after an administratively final order of removal
is entered if the Respondent shows "exceptional circumstances" leading to his or her absence
from the hearing.

INA 240(b)(5)(C)(i); 8 C.F.R. 1003.23(b)(4)(iii).

"Exceptional

circumstances" are defined as "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)." INA 240(e) (emphasis added).
Initially, the Court notes that the Respondent has not filed a filing fee and fee receipt as
required.2 See 8 C.F.R. 1003.24(b). Thus, the Court does not have jurisdiction to consider this
motion.
Furthermore, the Court finds that the Respondent's failure to appear at her scheduled
hearing was not due to "exceptional circumstances" as contemplated by the statute and
regulations. After her release from DHS's custody, the Respondent moved to New York. She

2 In her motion, the Respondent c]aims she will seek Asylum and Withholding of Removal. The regulations provide
that a motion to reopen based exclusively on an application for relief such as asy]um does not require a fee. See 8
C.F.R. 1003.24(b)(2)(i). However, the Court finds that the Respondent's motion is not based on an application for
asy]um as no application was provided to the Court and instead is based on "exceptional circumstance." See 8
C.F.R. 1003.23(b)(3) (a motion to reopen submitted for the purpose of acting on an application for relief must be
accompanied by the appropriate application for relief and all supporting documents).

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If an alien does not attend a removal hearing after written notice has been provided to the

claims that she was advised that the hearing would be cancelled if she bonded out before the
September 23 court date. However, two days before the Respondent was released, on September
9, 2014, the Court specifically advised the Respondent in her native language that failure to

order of removal. The Respondent acknowledged that she understood the Court's warnings and
indicated that she did not have any questions. Thus, the Court is not persuaded that the
Respondent believed she did not have to be present at the Dallas Court after her release from
custody. Therefore, the Court finds that the Respondent's failure to attend her scheduled hearing
was not due to "exceptional circumstances" as contemplated by the Act. See INA 240(b)(5).
Finally, the Court declines to exercise its sua sponte authority to reopen the Respondent's
case as it does not find that this case presents a "truly exceptional situation." See Matter of G-D,
22 I&N 1132, 1135-36 (BIA 1999) (citing examples of when it is appropriate for the court to
exercise its sua sponte authority).
Accordingly, the following order will be entered:
ORDER
IT IS HEREBY ORDERED that the Respondent's Motion to Reopen and Stay of
Removal is DENIED.

-::J .. IA :L

Date: - 7
Dallas, Texas

'1

:l,.0/.,S-

e1tnc . 1ms
Immigration Judge

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attend the hearing, for other than exceptional circumstances, would result in the issuance of an