U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals
Office of the Clerk
5/07 leesburg Pike, Suite 2000
Falls Church, Virginia 2204/

DHS/ICE Office of Chief Counsel - NYC

26 Federal Plaza, 11th Floor
New York, NY 10278

Name: ESPINAL,NOEMI

A 075-928-918
Date of this notice: 4/15/2016

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

Doruu... CWlA)
Donna Carr
Chief Clerk
Enclosure
Panel Members:

Kendall-Clark, Molly
Guendelsberger, John
Holiona, Hope Malia

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/
Cite as: Noemi Espinal, A075 928 918 (BIA April 15, 2016)

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Arandia, Alex
ARANDIA LAW FIRM
80-02 KEW GARDENS ROAD
SUITE 702
KEW GARDENS, NY 11415

U.S. Department of Justice

Decision of the Board of Immigration Appeals

Executive Office for Immigration Review

F,aJJs Church, Virginia 22041

File: A075 928 918-New York, NY

Date:

In re: NOEMI ESPINAL

IN REMOVAL PROCEEDINGS
APPEAL
ON BEHALF OF RESPONDENT: Alexander Arandia, Esquire
APPLICATION: Reopening

The respondent, a native and citizen of the Dominican Republic, appeals from an
Immigration Judge's December 1, 2015, decision denying the respondent's motion to reopen
proceedings held in absentia on November 12, 1999. The Department of Homeland Security
("OHS") has not responded to the appeal. 1 The appeal will be sustained.
Considering the totality of circumstances, including the lack of any DHS opposition to the
respondent's motion below, we will exercise our sua sponte authority to reopen this case. See 8
C.F.R. 1003.2(a); see also Matter ofG-D-, 22 I&N Dec. 1132 (BIA 1999); Matter ofJ-J-, 21
I&N Dec. 976 (BIA 1997). The respondent will therefore have an opportunity to apply for
adjustment of status and any other available relief from removal.
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ORDER: The appeal is sustained, the in absentia order of removal is rescinded, the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.

On August 24, 2015, the OHS granted the respondent deferred action as a childhood arrival
("DACA").

Cite as: Noemi Espinal, A075 928 918 (BIA April 15, 2016)
-

m@

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

APR 1 5 20t&

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
26 Federal Plaza
New York, New York 10278

------------------------------x

In the Matter of

IN REMOVAL PROCEEDINGS

Noemi Espinal-Gonzalez
Respondent

------------------------------x
ON BEHALF OF RESPONDENTS:
Alexander Arandia, Esq.
80-02 Kew Gardens Rd Suite 702
Kew Gardens, New York 11415

CHARGES:
APPLICATION:

ON BEHALF OF THE DEPT.

OF HOMELAND SECURITY:
Office of Chief Counsel
26 Federal Plaza
New York, New York 10278

Section 212(a) (7) (A) {i) {I)); Immigration & Nationality Act;
No immigrant visa.
Motion to Reopen
DECISION OF THE IMMIGRATION JUDGE

Respondent is a native and citizen of the Dominican Republic who arrived in the
United States on November 23, 1998 at the age of 12, seeking admission into the United
States as a United States citizen. A Notice to Appear was issued against respondent
on November 23, 1998. Respondent appeared with her father for several Master calendar
hearings. She admitted the truth of the factual allegations and conceded that she
was removable under Section 212(a) (7)(A} (i) (I) as an immigrant not in possession of
an immigrant visa or other valid entry document.
Respondent was scheduled for a Master calendar on November 12, 1999, but failed
to appear. A letter was submitted by her representative on November 12, 1999,
indicating that respondent could not attend her hearing because she had dental surgery
on November 10, 1999 and had a follow up visit on November 12, 1999. A letter from
the treating dentist was not offered. The Court found that a follow up dental
appointment did not constitute exceptional circumstance for her failure to appear
and ordered respondent removed to the Dominican Republic in absentia.

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

A075 928 918

On November 13, 2015, respondent filed the present motion to reopen. She seeks
reopening for several reasons. She asserts that her case should be reopened because
she has demonstrated exceptional circumstances for her failure to appear. She seeks
,reopening because she has been approved for DACA benefits and to have an opportunity
to apply for adjustment of status based on her marriage to a United States citizen.
The motion will be denied.

Even assuming that that a follow up dental visit constitutes exceptional

circumstance, her motion was filed late. Even assuming that she could not have been
expected to file a motion to reopen because she was a minor, she has not demonstrated
that she took any reasonable efforts to remedy the problem. Clearly, respondent was
aware of the hearing. There is no indication that she took any steps to find out what
had happened or what remedies she might pursue. Respondent has been an adult for several
years, but has not made any diligent efforts to remedy her situation until 2015.
Having been approved for DACA, a form of prosecutorial discretion, is not, by
itself, a basis for reopening an in absentia order.
Further, becoming eligible for relief from removal after a final administrative
order is common and does not, in itself, constitute exceptional circumstance
warranting granting an untimely motion. See Matter of Yauri, 25 I&N Dec 103 (BIA,
2009).
Having sought admission into the United States with a fraudulent United Sates
birth certificate, her eligibility for adjustment of status cannot be presumed.
Accordingly, the following order will be entered:
ORDER:

It is ordered that the respondents' motion to reopen is

Dated: December 1, 2015

BARBARA A. NELSON
Immigration Judge

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

Respondent's motion is untimely. The regulations require that a motion to

reopen be filed within 90 days of the order or 180 days after entry of an in absentia
order. 8 CFR 1003. 23. As respondent was ordered removed in absentia on November 12,
1999, her motion is untimely. Respondent has not demonstrated that she falls within
any of the regulatory exceptions to the filing requirements.