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 22041

DHS/ICE Office of Chief Counsel - BUF

130 Delaware Avenue, Room 203
Buffalo, NY 14202

Name: HERRERA-FIGUEROA, ANA MA...

Riders:202-138-703

A 202-138-702
Date of this notice: 3/31/2016

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

Don.nL C!

t1/VL)

Donna Carr
Chief Clerk
Enclosure
Panel Members:
O'Leary, Brian M.
Grant, Edward R.
Mann, Ana

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Cite as: Ana Maria Herrera-Figueroa, A202 138 702 (BIA March 31, 2016)

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Perez, Jose Enrique

Law Offices of Jose Perez, P.C.
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U.S. Depantment of Justice

Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 22041

Date:

A202 138 702-Buffalo, NY

A202 138 703

In re:

ANA MARIA HERRERA-FIGUEROA

LLANY BERENICE ESCALANTE-HERRERA

MAR 3 1 2016

IN REMOVAL PROCEEDINGS
APPEAL
ON BEHALF OF RESPONDENTS:

Jose E. Perez, Esquire

APPLICATION: Reopening
The respondents, natives and citizens of Guatemala, appeal the decision of the Immigration
Judge, dated December 10, 2015, denying their motion to reopen. The Department of Homeland
Security was affirmatively not opposed to the respondents' motion and has not replied to their
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 respondents with a renewed
opportunity to appear before an Immigration Judge to show why they 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 respondents' appeal is sustained, the orders of removal, entered in absentia on
August 28, 2015, are vacated, the proceedings are reopened, and the record is remanded to the
Immigration Court for further proceedings and the entry of a new decision.

Cite as: Ana Maria Herrera-Figueroa, A202 138 702 (BIA March 31, 2016)

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Files:

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
BUFFALO, NEW YORK

HERRERA-FIGUEROA, Ana Maria

A# 202-138-702
IN REMOVAL PROCEEDINGS

ESCALANTE-HERRER, Llany Berenice

A# 202-138-703
Respondents

Documentation Requirements

CHARGES:

INA 212(a)(7)(A)(i)(I)

MOTIONS:

Motion to Reopen and Rescind In Absentia Order

ON BEHALF OF THE DHS
Office of Chief Counsel
130 Delaware Avenue, Suite 203
Buffalo, New York 14202

ON BEHALF OF RESPONDENT
Jose E. Perez, Esq.
The Law Offices of Jose Perez, P.C.
120 East Washington Street, Suite 925
Syracuse, New York 13202

DECISION AND ORDER OF THE IMMIGRATION JUDGE

Respondents' motion to reopen and rescind the in absentia order is DENIED. Automatic
stay was ALREADY IN EFFECT due to the nature of the motion submitted.
I.

FACTS AND PROCEDURAL HISTORY.

Ana Maria Herrera-Figueroa ("Lead Respondent") and her daughter, Llany Berenice
Escalante-Herrer ("Rider Respondent") are natives and citizens of Guatemala. (Exh. I). They are
not citizens or nationals of the United States. Id. Lead and Rider Respondent arrived in the
United States at or near the Veterans International Bridge in Brownsville, Texas, on or about
December 18, 2014. Id. Both Respondents did not then possess or present a valid immigrant visa,
reentry permit, border crossing identification card, or other valid entry document. Id. Both
Respondents were not then admitted or paroled after inspection by an immigration officer. Id.

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In the Matter of:

On or about January 15, 2015, both Respondents were issued Notices to Appear
("NTA''), charging them as subject to removal pursuant to INA 212(a)(7)(A)(i)(l), after having
been interviewed by an asylum officer. See (Exh. 1).

On or about February 24, 2015, Respondents were released from U.S. Immigration and
Customs Enforcement ("ICE") detention and was provided an Order of Release on
Recognizance. See (Exh. 3). The order required Lead Respondent to report to the ICE Duty
Officer at 26 Federal Plaza, Room 9-110, New York, New York 10278 on August 24, 2015 at
10:00 a.m. Id. Upon a systems check by Hiscock Legal Aid Society based on Syracuse, New
York, as of July 31, 2015, Respondents were scheduled for a Master Calendar Hearing at the
U.S. Immigration Court in New York, New York on August 5, 2015. Id.
On February 25, 2015, Respondents were mailed a fourth Notice of Hearing, requiring
them to appear before the court in San Antonio, Texas. See (Exh. 8). According to the Notice to
EOIR: Alien Address, dated February 25, 2015, Respondents' new address was: 1644 Preble
Road, Preble, New York 13141. See (Exh. 7). On this date, Respondents were also mailed an
administrative notice from the San Antonio Immigration Court stating that a hearing date of
November 29, 2019 was set "as an administrative measure to ensure the appropriate docketing
and tracking of [their] case." This notice was mailed to Geovanna Nichole Guimbarda, Texas
Community Advocates for Social Enterprise, 3310 W. Commerce Street, San Antonio, Texas
78207. See (Exh. 8).
On March 8, 2015, DHS moved to change venue to the U.S. Immigration Court in New
York, New York, due to the new address of the Respondents. See (Exh. 9). On March 9, 2015,
the motion was granted for good cause shown. See (Exh. 10). A Notice of Hearing, dated June 4,
2015, required the Respondents to appear before the U.S. Immigration in New York, New York
on August 5, 2015. See (Exh. 11). This Notice of Hearing was mailed to Geovanna Nichole
Guimbarda, Texas Community Advocates for Social Enterprise, 3310 W. Commerce Street, San
Antonio, Texas 78207 and to 1644 Preble Road, Preble, New York 13141. Id.
On August 5, 2015, Respondent moved to change venue to the U.S. Immigration Court in
Buffalo, New York. See (Exh. ti). This motion was granted. Id. A Notice of Hearing, dated
August 13, 2015, required Respondents to appear before the U.S. Immigration Court in Buffalo
on August 28, 2015. See (Exh. 13). This Notice of Hearing was mailed to Geovanna Nichole
Guimbarda, Texas Community Advocates for Social Enterprise, 3310 W. Commerce Street, San
Antonio, Texas 78207 only. Id.

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Respondents were mailed a Notice of Hearing, dated January 29, 2015, for a hearing
scheduled for February 2, 2015 at the U.S. Immigration Court located in Karnes City, Texas. See
(Exh. 4). This Notice of Hearing was mailed to: Herrera-Figueroa, Ana Maria, c/o Juanita
Hester, Karnes City, Texas 78118. Id. On February 2, 2015, Respondents were mailed another
Notice of Hearing, requiring them to appear before the same court on February 9, 2014. See
(Exh. 5). The address remained the same. On February 9, 2015, a third Notice of Hearing was
mailed to Respondents, requiring them to appear before the same court on February 23, 2015.
See (Exh. 6). The address remained the same. Id.

On August 28, 2015, Respondents failed to appear for their scheduled hearing. See (Exh.
14). Consequently, the Court ordered Respondents removed to Guatemala in absentia. Id.

II.

DOCUMENTARY EVIDENCE

The following documents are included in the record of proceedings for Lead Respondent.
All bond-related documentation is in the record of proceedings but not listed here, as bond
proceedings are separate and apart from removal proceedings:
Exhibit 1:

Lead Respondent's Notice to Appear (Jan. 15, 2015)

Exhibit 2:

Form 1-870 Record of Determination/Credible Fear Worksheet and related

documentation (Jan. 14, 2015)

Exhibit 3:

Letter from Hiscock Legal Aid Society (Jul. 31, 2015)

Exhibit 4:

Notice of Hearing for February 2, 2015 (dated Jan. 29, 2015)

Exhibit 5:

Notice of Hearing for February 9, 2015 (dated Feb. 2, 2015)

Exhibit 6:

Notice of Hearing for February 23, 2015 (dated Feb. 9, 2015)

Exhibit 7:

Notice to EOIR: Alien Address (dated Feb. 24, 2015)

Exhibit 8:

Administrative Notice (dated Feb. 25, 2015)

Exhibit 9:

DHS Motion to Change Venue (Mar. 8, 2015)

Exhibit 10:

Order of the IJ (granting motion to change venue to New York) (Mar. 9, 2015)

Exhibit 11:

Notice of Hearing for August 5, 2015 (dated Jun. 4, 2015)

Exhibit 12:

Order of the IJ (granting motion to change venue to Buffalo) (Aug. 5, 2015)

Exhibit 13:

Notice of Hearing for August 28, 2015 (dated Aug. 13, 2015)

Exhibit 14:

Order of the IJ (removing Respondents in absentia) (Aug. 28, 2015)

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On November 19, 2015, Respondents, through their current counsel, filed a motion to
reopen and rescind the Court's in absentia order of removal and requested an emergency stay.
See (Exh. 15). Respondent also requested the Court use its sua sponte authority to reopen the
motion. Id. On November 23, 2015, DHS submitted a memorandum in response to Respondent's
motion, indicating it was not opposed to the motion. See (Exh. 16).

Respondent's Brief in Support of Emergency Motion to Stay Deportation and

Motion to Reopen and Rescind in Absentia Deportation Order Based on Lack of
Notice or Sua Sponte and supporting documentation (Nov. 19, 2015)
lSA: Copies of Order of the IJ (removing Respondents in absentia) (Aug. 28,
2015)
15B: Form I-589 Application for Asylum and for Withholding of Removal (2
copies)
15C: Affidavit of Llany Escalante (sworn to on Nov. 16, 2015)
15D: Affidavit of Ana Maria Herrera-Figueroa (sworn to on Nov. 16, 2015)
lSE: Copies of Order of the IJ (granting motion to change venue to Buffalo)
(Aug. 5, 2015)

Exhibit 16:

DHS Memorandum in Response to the Motion (Nov. 23, 2015)

III.

FINDINGS OF FACT AND .CONCLUSIONS OF LAW

A. Respondents' request for automatic stay of removal

The removal of an alien is automatically stayed pending disposition by the Immigration

Judge of the motion to reopen and rescind an in absentia order of removal. See INA
240(b)(5)(C); see also 8 C.F.R. 1003.23(b)(4)(ii).
B. Respondents' motion to reopen and rescind the in absentia order of removal
The Court issued its removal decision on August 28, 2015. See Order of the IJ (Aug. 28,
2015). Because the Board of Immigration Appeals ("BIA") lacks jurisdiction to consider an
appeal from an in absentia removal order, see Matter of Guzman, 22 I&N Dec. 722 (BIA 1999),
the Court's order became final upon its issuance. See Order of the IJ (Aug. 28, 2015).1 A
motion to reopen must usually be filed within 90 days of the date of a final administrative order
of removal. INA 240(c)(7)(C)(i); 8 C.F.R. 1003.2(c)(2), 1003.23(b)(l). However, certain
exceptions apply. See, e.g., INA 240{c)(7){C)(ii). Relevant to these proceedings, the "filing of
a motion to reopen an order entered [in absentia] is subject to [a separate deadline]." INA
240(c)(7)(C)(iii) (rescission of in absentia orders of removal).
Respondents' motion to reopen was filed within 90 days of the date of the Court's final
order of removal. Compare Respondent's Brief in Support of Emergency Motion to Stay
Deportation and Motion to Reopen and Rescind in Absentia Deportation Order Based on Lack of
Notice or Sua Sponte (hereinafter "Respondents' motion") (Nov. 19, 2015), with Order of the IJ
(Aug. 28, 2015). Therefore, Respondents can proceed under either the motion to reopen
provision or the rescission subsection. INA 240(b)(5)(C). According to the latter statute, an
order of removal entered in absentia may be rescinded only:

Generally, a decision of the U.S. Immigration Court "becomes fmI upon waiver of appeal or upon expiration of
the time to appeal ifno appeal is taken whichever occurs first." 8 C.F.R. 1003.39.

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Exhibit 15:

(i) upon a motion to reopen filed within 180 days after the date of
the order of removal if the alien demonstrates that the failure to
appear was because of exceptional circumstances (as defined in
subsection (e)(l)), or

Id. Respondents allege that they did not receive notice in accordance with paragraph (2) of
section 239(a) of the INA. INA 239(a)(2) states:
In removal proceedings under section 240, in the case of any
change or postponement in the time and place of such proceedings,
subject to subparagraph (B) a written notice shall be given in
person to the alien (or, if personal service is not practicable,
through service by mail to the alien or to the alien's counsel of
record, if any) specifying1.
11.

the new time or place of the proceedings, and

the consequences under section 240(b)(5) of failing, except under
exceptional circumstances, to attend such proceedings.

Lead Respondent had provided a proper Notice to EOIR: Change of Address form. See (Exh. 7).
However, Respondents' attorney of record at the time the last Notice of Hearing was mailed (see
Exh. 13) remained Ms. Geovanna Nichole Guimbarda. It is a nation-wide Immigration Court
practice that all court correspondence be mailed to the attorney of record, if the respondent has
retained counsel. Ms. Guimbarda was the attorney of record from (on or about) February 23,
2015 (the date Ms. Guimbarda was added to the Immigration Court electronic records) until
present counsel, Mr. Jose Perez, submitted his Notice of Entry of Appearance on November 19,
2015. Therefore, this Court would have only mailed a new Notice of Hearing to the attorney of
record, despite the submission of any Alien Change of Address form. Mr. Perez should have
been aware of this standard court procedure.
C. Respondents' applications for asylum and withholding of removal
The aforementioned deadlines for motions to reopen and rescind do not apply when (as
alleged here) "the bas.is of the motion is to apply for relief under sections 280 or 24l(b)(3) and is
based on changed country conditions arising in the country of nationality or the country to which
removal has been ordered, if such evidence is material and was not available and would not have
been discovered or presented at the previous proceeding." INA 240(c)(7)(C)(ii); see also 8
C.F.R. 1003.23(b)(4)(i). The Court cannot reopen this matter in light of the appended

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(ii) upon a motion to reopen filed at any time if the alien

demonstrates that the alien did not receive notice in accordance
with paragraph (1) or (2) of section 239(a) or the alien
demonstrates that the alien was in Federal or State custody and the
failure to appear was through no fault of the alien.

applications for relief because this information was available and had been discovered at
previous hearings. See, e.g., (Exh. 2).
D. The Court's authority to reopen sua sponte

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The Court declines to reopen these proceedings sua sponte pursuant to INA
240(b)(5)(C). This provision is reserved for exceptional cases only. See 8 C.F.R. 1003.23(b).
Accordingly, the Court shall enter the following order:

ORDER
IT IS HEREBY ORDERED that Respondents' motion to reopen and rescind the in
absentia order is DENIED.

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Rider A# 202-138-703

Philip J. Montante, Jr
U.S. Immigration Judge

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