U.S.

Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals
Office of the Clerk
5107 leesburg Pike, Suite 2000
Falls Church, Virginia 22041

DHS/ICE Office of Chief Counsel - DAL

125 E. John Carpenter Fwy, Ste. 500
Irving, TX 75062-2324

A 33 /

b 3 tf-'

Date of this notice: 8/25/2016

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

DOWtL C

t1AA)

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Adkins-Blanch, Charles K.
Mann, Ana
O'Leary, Brian M.

Usertea m: Docket

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Cite as: S-L-A-C-, AXXX XXX 633 (BIA Aug. 25, 2016)

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Ferreira, Paula J., Esq.

Law Office of Miguel A. Elias
4224 Williams Blvd.
Kenner, LA 70065

U.S. Department of Justice

Decision of the Board of Immigration Appeals

Executive Office for Immigration Review

Falls Church, Virginia 22041

In re:

Date:

633 - Dallas, TX
634

AUG 2 5 2016

s-i:.ac-

G----C-

IN REMOVAL PROCEEDINGS
APPEAL
ON BEHALF OF RESPONDENTS: Paula J. Ferreira, Esquire
APPLICATION: Reopening; termination
The respondents, natives and citizens of Honduras, are sisters. They appeal from the
Immigration Judge's deciion dated March 3, 2016, denying their motion to reopen and
terminate proceedings without prejudice. The Department of Homeland Security (DHS) joined
in the respondents' motion below and the DHS has not filed a brief in response to the appeal.
The record establishes that the respondents have an approved Form I-360 (Petition for
Amerasian, Widow(er), or Special Immigrant Juvenile Status). The respondents are therefore
eligible to apply for adjustment of status before the U.S. Citizenship and Immigration Services
(USCIS). Under the totality of the circumstances, we find that discretion should be favorably
exercised to afford the respondents this opportunity.
Accordingly, we will sustain the appeal.
ORDER: The appeal is sustained.
FURTHER ORDER: Proceedings are reopened and terminated without prejudice.

FOR THE BOARD

Cite as: S-L-A-C-, AXXX XXX 633 (BIA Aug. 25, 2016)

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Files:

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.. .

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UNITED STATES DEPARTMENT OF JUSTICE

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

IN THE MATTER OF

s11111,......

FILE A--633

DATE: Mar 7, 2016

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 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
1100 COMMERCE ST., SUITE 1060
DALLAS, TX 75242
OTHER:

CC: BURTON, ROBERT

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

IMMIGRATION COURT

Immigrant & Refugee Appellate Center, LLC | www.irac.net

Law Office of Miguel A. Elias

. Ferreira, Paula J.
4224 Williams Blvd.
Kenner, LA 70065

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
DALLAS, TEXAS
Date: March 3, 2016

Charge: Immigration and Nationality Act (INA or Act) 212(a)(6)(A)(i)

Immigration Removal Proceedings in the Matter of:
SIIILIIIIA_C_ Respondent
Application: Joint Motion to Reopen and Terminate Without Prejudice
On Behalf of Respondent: Paula Ferreira
On Behalf of the Department of Homeland Security: Paul Hunker

WRITTEN DECISION AND ORDER OF THE IMMIGRATION JUDGE

I. PROCEDURAL HISTORY
Respondent is a sixteen year old female native and citizen of Honduras. On March 1,
2006, the government charged Respondent him with removability from the U.S. Respondent
failed to appear for her May 11, 2006 hearing and was ordered removed in absentia based on the
following:
Allegations:
(1) She is not a citizen or national of the United States;
(2) She is a native and citizen of Honduras;
(3) She arrived in the United States at or near Hidalgo, Texas on or about February 27, 2006;
(4) She was not then admitted or paroled after inspection by an immigration officer.
Charge: The government charged Respondent with removability pursuant to INA
212(a)(6)(A)(i), as amended, in that she is an alien present in the U.S. without being admitted or
paroled, or who arrived in the U.S. at any time or place other than as designated by the Attorney
General. The government submitted form I-213, Record ofDeportable/Inadmissible Alien, to
support its removal charge. The Court sustained the allegations and charge of removal.

II.MOTION

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File:A-633

On Februaryl, 2016, Respondent filed a joint motion with the Department of Homeland
Security (OHS) to reopen proceedings and terminate without prejudice. The underlying basis for
the motion is for Respondent to pursue new discretionary relief in the form of adjustment of
status with U.S. Customs and Immigrations Services (USCIS) on an approved I-360 petition for
Special Immigrant Juvenile Status (SUS).
Pagel of3

III. DISCUSSION

A regulatory motion to reopen shall state the new facts and evidence to be presented,the
evidence must be material,and the respondent must also show that it was unavailable and could
not have been discovered or presented at the previous hearing. 8 C.F.R. 1003.23(b)(3); Matter
ofS-Y-G-, 24 l&N Dec. 247,252 (BIA 2007). Ifthe motion is not time barred,the respondent
must also "make a prima facie showing that there is a reasonable likelihood that the reliefsought
would be granted at the reopened hearing. " Ramos v. Lynch, 622 F. App'x. 432,433 (5th Cir.
2015) (quoting Marcello v. INS, 694 F.2d 1033,1035 (5th Cir. 1983). Where the ultimate relief
is discretionary,the respondent must show that a favorable exercise ofdiscretion is warranted.
See INSv. Doherty, 502 U.S. 314,323 (1992). An immigration judge may also consider a
respondent's failure to appear and whether the explanation is a favorable or adverse factor in the
discretionary decision. See In Re M-S-, 22 l&N Dec. at 357.
In this case,the Court finds that Respondent does not merit a favorable exercise of
discretion in pursuing new discretionary reliefbecause she provided no explanation for her
failure to appear. The only positive factor here is that Respondent has potential new reliefon her
1-360 petition. However,Respondent only appears now, a decade after her arrival in the U.S.,for
a petition that was only granted last year. The Court recognizes that Respondent was only six
years old when she was ordered removed,yet she was and is bound by the actions of her parent,
Maria Argentina Castillo. See Matter of Gomez-Gomez, 23 l&N Dec. 522,528 (BIA 2002). As
discussed further below, there were no issues with notice or any claimed exceptional
circumstances that would explain the failure to appear. The Court is also concerned that the in
absentia orders mailed to the address provided by Respondent's mother were returned to the
Court as undeliverable,suggesting further evasion ofthe Court's process. Therefore,the Court
will deny this motion as a matter of discretion as Respondent's mother seemingly evaded
removal proceedings for almost a decade to the detriment ofher daughter's case.
Moreover, the Court finds that even ifRespondent sought to rescind the in absentia order
to allow proceedings to "start over," the order is valid and notice and exceptional circumstances
are not at issue. Respondent's NTA reflects that it was personally served on her mother as
evidenced by her signature. The NTA includes Respondent's obligation to immediately provide a
written record ofany change in address or telephone number and the consequences offailing to
do so,and outlines the consequences offailing to appear. See INA 239(a)(l)(F),(G). The 1-213
also reflects that Respondent's mother was told ofall these requirements and she indicated that
she understood them. The NTA also included the date,time,and location ofthe hearing at this
Court. Thus,Respondent,through her mother,had actual notice ofher hearing and in absentia
proceedings were authorized. Matter ofG-Y-R-, 23 l&N Dec. 181,186 (BIA 2001). Respondent
also alleges no exceptional circumstances for her failure to appear and ifshe did,they would be

Page 2 of3

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The Court recognizes that there are limited instances where a respondent is not required
to rescind an in absentia order before reopening proceedings to apply for new discretionary
relief. See Matter ofJ-G-, 26 I&N Dec. 161,165-67 (BIA 2013); In Re M-S-, 22 I&N Dec. 349,
356-57 (BIA 1998). In this limited exception,a respondent may seek to reopen to apply for new
discretionary reliefsubject to the regulatory motion to reopen requirements in 8 C.F.R.
I003.23(b). See In Re M-S-, 22 l&N Dec. at 357.

time barred. See INA 240(b)(5)(C)(i); 8 C.F.R. I003.23(b)(4)(iii). Therefore, Respondent

would not be entitled to rescind her in absentia order.
Finally, the Court declines to exercise its sua sponte authority to reopen as this case does
not present a ''truly exceptional situation." Matter of G-D-, 22 I&N Dec. 1132, 1133 (BIA 1999);
Matter ofJ-J-, 21 l&N Dec. 976 (BIA 1997).

IV. ORDER
IT IS HEREBY ORDERED THAT Respondent and the DHS's joint motion to reopen and
terminate without prejudice be DENIED.
Date:

'-IJ(a,.4.- '3', ..2<//6

1

Immigration Judge

Page 3 of 3

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Accordingly, the following Order shall be entered: