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 - BUF

130 Delaware Avenue, Room 203
Buffalo, NY 14202

Name: GARCIA-DE LUNA, FELIX

A 205-493-691
Date of this notice: 1/6/2017

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

DOYlflL ct1.AA)
Sincerely,

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Grant. Edward R.
Adkins-Blanch, Charles K.
O'Connor, Blair

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/
Cite as: Felix Garcia-De Luna, A205 493 691 (BIA Jan. 6, 2017)

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Borowski, Matthew
Law Office of Matthew Borowski
295 Main St., Suite 836
Buffalo, NY 14203

U.S. Department of Justice

Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 22041

File: A205 493 691 - Buffalo, NY

Date:

In re: FELIX GARCIA-DE LUNA

JAN - 6 2017.

APPEAL
ON BEHALF OF RESPONDENT: Matthew K. Borowski, Esquire
APPLICATION: Reopening

ORDER:
The respondent, a native and citizen of Mexico, appeals from the Immigration Judge's
decision dated November 23, 2015, which denied the motion to reopen proceedings. The
Department of Homeland Security (DHS) has not replied to the respondent's brief on appeal.
The record will be remanded.
We review Immigration Judges' findings of fact for clear error, but we review questions of
law, discretion, and judgment, and all other issues in appeals de novo. 8 C.F.R.
1003.l(d)(3)(i), (ii).
The record shows that in a September 18, 2015, decision, the Immigration Judge granted the
respondent until October 19, 2015, in which to voluntarily depart the United States. On
October 15, 2015, the respondent filed a motion to reopen, joined by counsel for the DRS, based
on his lack of representation at the prior hearing and his apparent eligibility for some form- of
relief and/or discretion.
We find that reopening and remanding the matter is warranted here. As the Immigration
Judge noted, the respondent's motion did not include an application for relief. See 8 C.F.R.
1003 .23(b)(3). However, the motion may still be granted if the DHS affirmatively joins the
motion, as is the case here. Matter of Yewondwosen, 21 l&N Dec. 1025, 1026-27 (BIA 1997).
In addition, under the circumstances here, we find no basis to deny the motion in the exercise of
discretion. Accordingly, the case is reopeneq, and the record is remanded to the Immigration
Judge for further proceedings.

Cite as: Felix Garcia-De Luna, A205 493 691 (BIA Jan. 6, 2017)

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IN REMOVAL PROCEEDINGS

"

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UNITED STATE DEPARTMENT OF JUSTICE

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

GARCIA-DE LUNA, Felix

A# 205-493-691

IN REMOVAL PROCEEDINGS

Respondent

CHARGES:

INA 212(a)(6)(A)(i)

MOTIONS:

Motion to Reopen

ON BEHALF OF RESPONDENT
Matthew Borowski, Esq.
Law Office of Matthew Borowski
474 Elmwood Avenue, Suite 204
Buffalo, New York 14222

Present Without Permission or Parole

ON BEHALF OF THE DHS

Carla J. Hengerer, Esq.
Chief Counsel
130 Delaware Avenue, Suite 203
Buffalo, New York 14202

DECISION AND ORDER OF THE IMMIGRATION JUDGE

Felix Garcia-De Luna and the U.S. Department of Homeland Security's joint motion to
reopen proceedings is DENIED.
I.

FACTS AND PROCEDURAL HISTORY

Felix Garcia-De Luna ("Respondent"), 38 years of age, is a native and citizen of Mexico.
See (Exh. 1). Respondent is not a citizen or national of the United States. Id He arrived in the
United States at or near an unknown place, on or about an unknown time. Id. He was not then
admitted or paroled after inspection by an immigration officer. Id.
On June 30, 2014, the Department of Homeland Security ("DHS") issued Respondent a
Notice to Appear ("NTA''), charging him as subject to removal pursuant to INA
212(a)(6)(A)(i). 1 Id

According to INA 212(a)(6)(A)(i), "[a]n alien present in the United States without being admitted or paroled, or
who arrives in the United States at any time or place other. than as designated by the Attorney General, is
inadmissible."

A# 205-493-691

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In the Matter of:

On September 18, 2015, Respondent again appeared pro se before the Court. Respondent
testified that at the time of the hearing his address was: 23 Brookside Road North Java, New
York. Respondent acknowledged proper service of the NTA. Respondent admitted all factual
allegations in the NTA. The government indicated that Respondent was apprehended by the
U.S. Border Patrol near Laredo, Texas on May 20, 2004 and was granted a voluntary return to
Mexico, which was completed administratively and did not require a hearing before an
immigration judge. The government indicated that if Respondent were willing to comply with
the prerequisite conditions for pre-conclusion voluntary departure, the government would not
oppose such a grant. The Court granted Respondent the privilege of pre-conclusion voluntary
departure.
On October 15, 2015, Respondent and the Department of Homeland Security jointly
moved the Court to reopen proceedings.
II.

DOCUMENTARY EVIDENCE

The following documents are included in the record of proceedings; however, not all
exhibits are admitted into evidence. Exhibits have been renumbered for clarity.
Exhibit 1:
Exhibit 2:
Exhibit 3:
Exhibit 4:
Exhibit 5:
Exhibit 6:
Exhibit 7:
Exhibit 8:
Exhibit 9:

Respondent's Notice to Appear, dated June 30, 2013

Notice to EOIR: Alien Address (Form I-830) (Oct. 21, 2013)
Notice of Hearing in Removal Proceedings (Oct. 24, 2013)
Notice of Hearing in Removal Proceedings dated October 24, 2013 with envelope
labeled "Return to Sender, Not Deliverable as Addressed, Unable to Forward"
(Nov. 15, 2015)
Notice of Hearing in Removal Proceedings (May 23, 2014)
Alien's Change of Address Form/Immigration Court (Form EOIR-33/IC) (Aug. 7,
2014)
Order of the Immigration Judge (September 18, 2015) indicating that Respondent
was granted pre-conclusion voluntary departure
Notice to Produce Audio Recording of Master Calendar Hearing (Sep. 24, 2015)
Joint Motion to Reopen Proceedings (Oct. 15, 2015)

2
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On May 23, 2014, Respondent first appeared pro se before the Buffalo Immigration
Court ("the Court"). Respondent stated that his address is "1830 Perry Road North Java, New
York." The Court indicated that it mailed a notice to that address and it was returned to the
Court labeled "Return to Sender Undeliverable." Respondent stated that when he was detained
he was removed to Mexico, but once he got his job back, he returned to the address on Perry
Road. The Court indicated that the notice in question was sent out on October 24, 2013.
Respondent stated that he did not live at the address on Perry Road on October 24, 2013, but he
lived there on the date of his hearing on May 23, 2014. The Court granted Respondent a
continuance to seek representation.

III.

TESTIMONIAL EVIDENCE
Testimony of Respondent.on September 18, 2015
A. Questioning by the Immigration Judge

The Court inquired whether Respondent wished to request the privilege of voluntary
departure. Respondent stated that he did not wish to request voluntary departure. He stated that
"he tried to leave two years ago." Respondent testified that he has been working without
authorization since 2008.
Respondent testified that he will depart from the U.S. if the Court .orders him to depart.
He stated that he understands that if he returns to the United States he will be subject to arrest.
He stated that he understands that if he fails to depart from the U.S. he will be subject to a $5,000
fine and a ten year bar from further relief. Respondent testified that he has sufficient funds to
pay for his departure from the U.S.
Respondent testified that he has never been arrested anywhere in the world. He testified
that he has never bought, sold, used, or possessed illegal drugs, narcotics, guns, knives, weapons,
bombs, or explosives. He stated that he has never engaged in any acts of violence, including
domestic violence. He stated that he has never been a part of or known anyone who is a part of
any gang-related, subversive, terrorist or drug organization.
Respondent testified that he will depart from the United States on or before the date
ordered by the Court. He testified that he has earned approximately $23,000 per year since his
entry into the U.S. Respondent testified that he has an ITIN number and has paid taxes during
his time in the U.S. Respondent testified that at the time of his hearing on September 18, 2015
he had sufficient funds to pay for his departure from the U.S. Respondent testified that he would
depart from the U.S. before October 19, 2015. Respondent testified that he has a passport that
will allow him to lawfully enter Mexico.
IV.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The Court has considered the entire record carefully. All evidence has been considered,
even if not specifically addressed in the decision below.
Generally, a motion to reopen must be filed within ninety days of the date of entry of a
final administrative order of removal, deportation, or exclusion, and only one motion to reopen
may be filed. 8 C.F.R. 1003.23(b)(l). However, when a motion to reopen is agreed upon by
all parties and jointly filed, the time and numerical limitations do not apply. 8 C.F.R.
1003.23(b)(4)(iv).
3

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Respondent stated that the only reason he came to the U.S. was to "earn some money."
He stated that no one is looking for him in Mexico and he is not afraid of anyone in Mexico. He
testified that no one is looking to hurt, harm or injure him or his family members in Mexico, nor
has anyone done so in the past. He stated that he has no family in the United States.

'-...--

However, Respondent does not appear to have complied with the general requirements
for a motion to reopen for the purpose of acting on an application for relief. See 8 C.F.R.
1003.23(b)(3) (stating that such a motion "must be accompanied by the appropriate application
for relief and all supporting documents") (emphasis added). Respondent has not provided the
Court with any application for relief or supporting documents.
Nonetheless, the Court must still determine whether Respondent's removal proceedings
should be reopened as a matter of discretion. See Matter of M-S-, 22 I&N Dec. 349, 357 (BIA
1998). Among other factors, in making its discretionary determination, the Court is usually
required to consider "adverse factors with respect to the ultimate discretionary determination."
Matter ofBarocio, 19 I&N Dec. 255 (BIA 1985) (for the proposition that "deliberate flouting of
immigration laws [is] a serious adverse factor in discretionary determinations") (emphasis
added).
Respondent failed to abide by the stipulation that he voluntarily depart the United States.
The Court notes that Respondent was ordered to voluntarily depart the United States on or before
October 19, 2015. See Order of the Immigration Judge (September 18, 2015). The Court notes
limited positive equities in Respondent's case, including the following: (1) Respondent has
allegedly resided in the United States, interrupted for only a brief period when he accepted a
voluntary return, since prior to 2004; (2) Respondent has no apparent criminal record; and (3)
DHS has jointly filed this motion. Supra at 2, 3; see (Exh. 9). The Court, however, finds that
Respondent's failure to comply with the immigration laws of the United States outweigh any
equities Respondent possesses. The Court would deny the reopening of this case as a matter of
discretion.
Accordingly, the Court shall enter the following:

A# 205-493-691

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Here, both parties have filed a joint motion to reopen in order to allow Respondent to
apply for any form of relief or discretion which he may be eligible for. See (Exh. 9 at 1).
Because this is a joint motion, there are no timely filing issues or numerical bar issues. See 8
C.F.R. 1003.23(b)(4)(iv). The Joint Motion indicates that Respondent may be eligible for some
relief and/or discretion which he was unable to raise during his hearing due to his lack of legal
representation. See (Exh. 9 at 1).

ORDER
IT IS HEREBY ORDERED the joint motion to reopen is DENIED.

A# 205-493-691

Philip p-. Montante, Jr.

U.S. Immigration Judge

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