U.S.

Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals
Office of the Clerk
51()7 leesburg Pike. Suite 2000
Falls Church, Virginia 2204/

DHS/ICE Office of Chief Counsel - EAZ

P .0. Box 25158
Phoenix, AZ 85002

Name: MALDONADO, SANTOS FRANCI...

A 092-963-279
Date of this notice: 7/28/2016

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

DOY!.Jt4.., c

tVvt.)

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

Userteam: Docket

For more unpublished BIA decisions, visit

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Cite as: Santos Francisco Maldonado, A092 963 279 (BIA July 28, 2016)

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Morales, Alfonso
Law Offices of Alfonso Morales
3737 Martin Luther King Jr. Blvd.
Suite 612
Lynwood, CA 90262

U.S. Department of Justice

Decision of the Board of Immigration Appeals

Executive Oce for Immigration Review

Falls Church, Virginia 22041

File: A092 963 279 - Eloy, AZ

Date:

In re: SANTOS FRANCISCO MALDONADO

JUL 2 8 2016

APPEAL
ON BEHALF OF RESPONDENT: Alfonso Morales, Esquire
ON BEHALF OF DRS:

Megan McLean
Assistant Chief Counsel

APPLICATION: Reconsideration
The respondent, a native and citizen of Honduras, appeals the decision of the Immigration
Judge, dated April 4, 2016, denying his motion to reconsider. The Department of Homeland
Security is opposed to the respondent's appeal.
We review Immigration Judges' findings of fact for clear error. 8 C.F.R. 1003.l(d)(3)(i).
We review questions of law, discretion, and judgment, and all other issues in appeals de novo.
8 C.F.R. 1003.l(d)(3) (ii).
Considering the totality of the circumstances presented in this case, we conclude that
reopened removal proceedings are warranted in order to provide the Immigration Judge with a
renewed opportunity to further consider the charge of removability in this case. See 8 C.F.R.
1003.23(b)(l). Upon remand, the parties are not precluded from raising other issues
concerning the respondent's removability and potential eligibility for relief from removal.
At the present time, we express no opinion regarding the ultimate outcome of these
proceedings. The following order is entered.
ORDER: The respondent's appeal is sustained, the order of removal is vacated, the
proceedings are reopened, and the record is remanded to the Immigration Court for further
proceedings and the entry of a new decision.

Board Member Ana L. Mann respectfully dissents without opinion.

Cite as: Santos Francisco Maldonado, A092 963 279 (BIA July 28, 2016)

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IN REMOVAL PROCEEDINGS

J)

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
1705 EAST HANNA ROAD, SUITE 366
ELOY, ARIZONA 85131

MALDONADO, Santos Francisco

RESPONDENT
MOTION:

)
)
)
)
)
)

MOTION TO REOPEN
FILE NO.

A092-963-279

DATE:

April 4, 2016

Respondent's Motion to Reopen Removal Proceedings

ON BEHALF OF THE RESPONDENT:

Alfonso Morales, Esquire
Law Offices of Alfonso Morales
3737 Martin Luther King Jr. Blvd.
Lynwood, CA 90262
. f-:. ,

ON BEHALF OF THE DEPARTMENT:

Assistant Chief Counsel
Department of Homeland Security
1705 East Hanna Road
Eloy, Arizona 85131

MEMORANDUM DECISION AND ORDER OF THE IMMIGRATION COURT

I.

PROCEDURAL HISTORY

The above-named respondent is a native and citizen of Honduras. (Exh. 1, Notice to

Appear (Jan. 13, 2000).) The respondent first entered the United States without inspection on or
about May 1, 1981 at or near the San Ysidro, California port of entry. (Id) The respondent
became a Legal Permanent Resident ("LPR") on or about October 10, 1990 via Amnesty
Legalization. (Id.) On April 23, 1999, the respondent was convicted of Driving Under the
Influence with lnjtrry in violation of Section 23153(A) of the California Vehicle Code. (Resp't
Mot. to Reopen at 3 (Mar. 29, 2016)) Based on this conviction, the Department of Homeland
Security ("DHS" or "the Depwtment") issued a Notice to Appear ("NTA") against the
respondent on January 13, 2000. (Exh. I, Notice to Appear.) The NTA alleged that:
1.
2.
3.
4.
5.

[The respondent is] not a citizen or national of the United States;

[He is] a native of Honduras and a citizen of Honduras;
[He] entered the United
States at or near San Ysidro, California on or
1
about May 1, 1981 without being admitted, inspected or paroled by an
Immigration Officer.
[He] was granted Lawful Permanent Resident status via Amnesty
Legalization on May 1, 1981;
[He was] on April 23, 1999 convicted in the Superior Court of California,
in and for the County of Los Angeles, for the offense of Driving Under
the Influence (DUI) with Injury, in violation of Section 23153(A) of the
California Vehicle Code;

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IN THE MATTER OF:

MALDONADO
A092-963-219
6.
(Id.)

For that offense, [he was] sentenced to confinement for a period of One
Year Four Months.

at any time after admission, [was] convicted of an aggravated felony as defined in

Section10I(a)(43)(F) of the Act.
(Id.)

The respondent appeared prose before this Court on February 7, 2000, but the hearing
was rescheduled for February 23, 2000 so as to give the respondent more time to procure an
attorney. (Hr'g (Feb. 7, 2000).) The respondent again appeared pro se on February 23, 2000,
and admitted all of the factual allegatins, conceded the charge of removability in the NTA, and
designated Honduras as his country of removal. (Hr'g (Feb. 23, 2000.) The Court sustained the
charge of removability, and, after determining that no relief was available to him, ordered him
removed to Honduras. (Id.; IJ Order (Feb. 23, 2000.))
On March 31, 2016, the Court received a Motion to Reopen from the respondent through
counsel. (Resp't Mot. to Reopen (Mar. 29, 2016).) The Court has carefully considered the
motion and denies the respondent's request for the following reasons.
, t

... .' j.. .

II.

I.

STATEMENT OFLAW

An Immigration Judge upon his or her motion, or upon motion of the Department or an
alien, may reopen any case in which he or she has made a decision, unless jurisdiction is vested
with the Board of Immigration Appeals ("BIA" or "the Board"). 8 C.F.R. 1003.23(b)(l).
Except when certified to the Board, the decision of the Immigration Judge becomes final upon
waiver of appeal or upon expiration of the time to appeal if no appeal is taken, whichever occurs
first. 8 C.F.R. 1003.39.
A motion to reopen mut .be filed within ninety (90) days of the date of entry of a final
administrative order of removal, deportation, or exclusion, or on or before September 20, 1996,
whichever is later. INA 240(c)(7)(C)(i); 8 C.F.R. 1003.23(b)(l). The time limitation does
not apply if the basis of the motion to reopen is to apply for asylum under section 208 of the Act,
withholding of removal under section 241(b)(3) of the Act, or withholding of removal under the
Convention Against Torture, if such application is based on "changed country conditions arising
in the country of nationality or the country to which removal has been ordered." 8 C.F.R.
I003.23(b)(4)(i). The evidence must be material and could not have been available,
discoverable, or presented at . . the previous proceedings. (Id.) A change in personal
circumstances, such as a change in health, does not satisfy the requirement for a change in
country conditions. Almaraz v. Holder, 608 F.3d 638, 640 (9th Cir. 2010).

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Based on these allegations, OHS charged the respondent as being subject to removal from
the United States pursuant to11section 237(a)(2)(A)(iii) of the Immigration and Nationality Act
("INA" or "the Act"), in that the respondent,

MALDONADO
A092-963-279

Where an alien moves to reopen for the purpose of acting on an application for relief, the
motion must be accompanied by the appropriate application for relief and all supporting
documents. 8 C.F.R. 100323(b)(3). "A motion to reopen for the purpose of providing the
alien an opportunity to apply ror' ariy form of discretionary relief will not be granted if it appears
that the alien's right to apply for such relief was fully explained to him or her by the Immigration
Judge and an opportunity to apply therefore was afforded at the hearing, unless the relief is
sought on the basis of circumstances that have arisen subsequent to the hearing." 8 C.F.R.
1003.23(b)(3); see also Matter of G-Q-, 9 I&N Dec. 376 (BIA 1976). The alien must establish
prima facie eligibility for the relief sought, by showing that there is a reasonable likelihood of
success on the merits so as to make it worthwhile to develop the issues further at an individual
hearing. See INS v. Rios-Pineda, 471 U.S. 444,449 (1985); Platero-Reymundo v. INS, 807 F.2d
865, 867 (9th Cir.1987); Matter ofL-0-G-, 21 I&N Dec. 413, 419 (BIA 1996).
When a motion is untimely and requires the exercise of judicial discretion, the Court may
grant a motion to reopen sua sponte, See Matter of J-J-, 21 I&N Dec. 976 (BIA 1997). The
Court's power to reopen sua sponte is limited to exceptional circumstances and is not meant to
cure filing defects or circumvent the regulations. Id The Court must be persuaded by
sufficiently compelling reasoning that the extraordinary intervention of its sua sponte authority is
warranted. Matter of G-D-, 22 l&N Dec. 1132 (BIA 1999).
III.

FINDINGS AND ANL

YSIS
. - ,, ; .i J

In the respondent's motion, the respondent requests that the Court reopen immigration
proceedings because the law was misapplied in the respondent's removal proceedings. (See
Resp't Mot. to Reopen.) He states that precedent at both the 9th Circuit and Supreme Court level
holds that DUI convictions are not crimes of violence. (See Id.; see also Leocal v. Ashcroft, 543
U.S. 1 (2004); see also United States v. Trinidad-Aquino, 259 F.3d 1140 (9th Cir. 2001); see also
Montiel-Barraza v. United States, 215 F.3d 1178 (9th Cir. 2002).) The respondent thus argues
that his conviction for Driving Under the Influence with Injury,in violation of Section 23153(A)
of the California Vehicle Code, does not qualify as an aggravated felony conviction because he
was not convicted of a crime of violence for which a sentence to imprisonment of one year or
more was imposed. (See Respt Mot. to Reopen.) Thus, the respondent argues the law was
misapplied and his deportation was unlawful. (See Resp't Mot. to Reopen.)
Although the respondent's counsel argues that the respondent's order of removal was
erroneous due to a misapplication of law, the law, as it stood at the time of the respondent's

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A motion to reopen must state the new facts that will be proven should such motion be
granted, and must be supported by affidavits or other evidentiary material. INA 240(c)(7)(B);
8 C.F.R. 1003.23(b)(3). "A mot.ion to reopen will not be granted unless the Immigration Judge
is satisfied that evidence sought to, be offered is material and was not available and could not
have been discovered or presented at the former hearing." 8 C.F.R. 1003.23(b)(3). The
decision to grant or deny a motion to reopen is within the discretion of the Immigration Judge. 8
C.F.R. 1003.23(b}(l)(iv).

MALDONADO
A092-963-279

The Court understands the respondent's argument to be that the cases decided after his
deportation, holding that DUI is not a crime of violence, constitute a fundamental change in law
disqualifying his DUI conviction.as an aggravated felony for which he could be deported. (Id.)
1

A. Timeliness

As preliminary matter, the Court has determined that the respondent's motion to reopen is
untimely as it was filed well outside the ninety-day deadline following the final administrative
order. 8 C.F.R. I003.23(b)(l). Specifically, the record reflects that respondent was ordered
removed on February 23, 2000, and the order became final, as described in 8 C.F.R. 1003.39,
as the respondent waived appeal. (IJ Order (Feb. 23, 2000).) The instant motion to reopen was
filed on March 31, 2016, nearly sixteen years after the expiration of the ninety-day deadline.
(Resp't Mot. to Reopen.)
Moreover, the respondent did not file the motion within a reasonable time following the
claimed change in his circumstances, to wit: the holding by the United States Court of Appeals
for the Ninth Circuit (held in 2001 and 2002) and the United States Supreme Court (held in
2004) that driving under the influence is not a crime of violence . (Resp't Mot. to Reopen at 4,7.)
Accordingly, even considering the timeliness in the light most favorable to the respondent, he
still filed the motion approximately eleven years after the ninety-day deadline. On this record,
the Court finds that the respondei;it's motion is untimely as he failed to comply with the deadline
provided in the regulations.
Nevertheless, the Court considers whether one of the exceptions to the filing deadlines is
applicable in the respondent's ci1se. The regulations provide the following exceptions to the
ninety-day filing deadline: when the basis of the motion to reopen is to seek asylum or
withholding of removal; the removal order was entered in absentia; or the motion to reopen is
jointly filed. 8 C.F.R. I003.23(b)(4). Although the Department, as of the date of this decision,
has not filed any opposition with this Court, this is not sufficient evidence to indicate that the
motion was jointly filed. Therefore,' none of the filing deadline exceptions apply in the instant
case as the removal order
iltjt entered in absentia, the motion was not filed jointly, and
because the respondent is not seeking asylum or withholding relief. Accordingly, the
respondent's untimely motion is not cured by one of the regulatory exceptions.

was

B. Sua Sponte

Finally, the Court considers whether to grant the respondent's request for sua sponte
reopening. When considering whether sua sponte reopening is appropriate, an Immigration
4

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removal proceedings, was applied correctly. It was not until after the respondent was ordered
removed that the Ninth Circuit Court of Appeals held that DUI convictions did not constitute
convictions for crimes of violence and the Supreme Court of the United States did not hold as
such until four years after the respondent's removal order. (See Resp't Mot. to Reopen at 4.)
Therefore, the best interpretation of the respondent's argument is that there was a fundamental
change in law after the respondent's order of removal that warrants reopening the respondent's
removal proceedings.

MALD"ONAPO
. ' A092-963-279
Judge must weigh the government's interest in bringing finality to immigration decisions against
the alien's interest in reopening proceedings. See Matter ofJ-J-, 21 l&N Dec. 976 (BIA 1997).

On this record, the Court . fi.nds that the respondent is not eligible for a motion to reopen
due to the untimeliness of hl'.s" !Ihotiii to reopen and his lack of due diligence in filing after the
change in law. Therefore, his interest in reopening his proceedings is outweighed by the
government's interest in bringing finality to the decision. Accordingly, the Court will not
exercise the extraordinary remedy of sua sponte reopening for this case.
IV.

CONCLUSION
Accordingly, the following order shall be entered:

ORDER:

IT IS HEREBY ORDERED THAT the respondent's motion to reopen is

DENIED

:-., L' ,;,.

. .' t

s
ates Immigration Judge

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In the present case the respondent's removal order has been administratively final for
approximately sixteen years .<:l #;i record does not reflect that the respondent has demonstrated
exceptional circumstances. Although decisions subsequent to the respondent's order of removal
held that DUis were no longer crimes of violence, and this could be a fundamental change in law
which may be considered an exceptional circumstance warranting sua sponte reopening, the
respondent did not act with due diligence after the decisions in these cases. (See Resp't Mot. to
Reopen.) The respondent waited thirteen years after the decision in Trinidad-Aquino, fourteen
years after the decision in Montiel-Barazza, and twelve years after the decision in Leocal to file
his motion to reopen. (See Resp't Mot. to Reopen.) The respondent's counsel argues that the
delay in filing was beyond the respondent's control because he was not aware of the change in
law until present counsel reviewed his case. (Resp't Mot. to Reopen at 2.) However, there is no
evidence demonstrating why the respondent waited sixteen years before having counsel review
his removal proceedings. That the respondent waited over a decade to acquire counsel to review
his removal proceedings file a motion to reopen based on the change in the law is a clear lack of
due diligence in pursuing his case, especially absent any indication that this delay was due to
inability to access counsel. The respondent thus had ample opportunity to file a motion to
reopen at a time more proximate to the change in law. His failure to do so demonstrates a lack of
due diligence which precludes the use of the fundamental change in law as an exceptional
circumstance warranting sua sponte reopening.

I .

'MALDONADO
A092-963-279

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CERTIFICATE OF SERVICE
THIS DOCUMENT WAS SERVED BY: MAIL (M)
PERSONAL SERVICE (P)
TO: ( ) ALIEN ( ) ALIEN c/o Custodial Officer M ALIEN'S ATT/REP (P) DHS
BY COURT STAFF: __Q,,,.,... =--------
DATE: \6}ll1
Attachments: ( ) EOIR-33 (,. ) EOIR-28 ( ) Legal Servi&sust ( ) Other