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 I

Name: ORTIZ VILLEGAS, JAVIER

A 200-975-995
Date of this notice: 7/1/ 2016

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

bOrutL

{7l2/v'L)

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

Userteam: Docket

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Cite as: Javier Ortiz Villegas, A200 975 995 (BIA July 1, 2016)

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U.S. Department of Justice

,. Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 22041

File: A200 975 995 - Los Angeles, CA
In re: JAVIER ORTIZ VIILEGAS

Date:

JUL - 1 201&

APPEAL
ON BEHALF OF RESPONDENT: Pro se
APPLICATION: Reopening
The respondent, a native and citizen of Mexico, was ordered removed in absentia on
June 13, 2014. On November 21, 2014, the respondent filed a motion to reopen proceedings,
which an Immigration Judge denied on December 10, 2014. The respondent filed a timely
appeal of that decision. The appeal will be sustained, proceedings will be reopened and the
record will be remanded.
The Board reviews an Immigration Judge's findings of fact, including findings as to the
credibility of testimony, under the clearly erroneous standard. 8 C.F.R I003.1(d)(3)(i). The
Board reviews questions of law, discretion, and judgment and all other issues in appeals from
decisions of Immigration Judges de novo. 8 C.F.R. 1003. l(d)(3Xii).
Upon de novo review of the record and in light of the totality of circumstances presented in
1
this case, we conclude that the respondent demonstrated that reopening is warranted. See
sections 240(b)(S)(C)(i), (e)(l) of the Immigration and Nationality Act, 8 U.S.C.
1229a(b)(S)(C)(i), (e)(l). We will therefore sustain the respondent's appeal and remand the
record for further proceedings.
ORDER: The respondent's appeal is sustained, the in absentia order is vacated, proceedings
are reopened and the record is remanded to the Immigration Judge for further proceedings and
for the entry of a new decision.

Among other factors, we have considered that the respondent attended numerous hearings
prior to the June 13, 2014, hearing, he filed an application for asylum, and has indicated that he
takes care of his elderly citizen father. In addition, it is unclear whether the Immigration Judge
had received the Government's non-opposition to the respondent's motion to reopen proceedings
prior to his decision.

Cite as: Javier Ortiz Villegas, A200 975 995 (BIA July 1, 2016)

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1N REMOVAL PROCEEDINGS

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
LOS ANGELES, CALIFORNIA

In the Matter of
JAVIER ORTIZ VILLEGAS
Respondent

)
)
)
)
)
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IN REMOVAL PROCEEDINGS

CHARGE:

Section 2 l 2(a)(6)(A)(i) of the Immigration and Nationality Act (INA) Entered without inspection

APPLICATION:

Motion to Reopen

ON BEHALF OF RESPONDENT:
H. Samuel Hernandez, Esquire
4129 Main Street, Suite B-1
Riverside, California 92501

ON BEHALF OF THE DEPARTMENT:

Assistant Chief Counsel
606 South Olive Street, g th Floor
Los Angeles, California 90014

DECISION AND ORDER OF THE IMMIGRATION JUDGE

The respondent has filed a motion to reopen proceedings following an in absentia order
of removal that was entered against him after he failed to appear for a hearing scheduled on June
13, 2014. Having considered the motion and the record of proceedings, the Court finds that the
respondent has not demonstrated that his failure to appear was due to exceptional circumstances.
8 C.F.R. I003.23(b)(4)(ii); INA 240(e)(l).
The respondent's motion states that the reason he failed to appear at his hearing was due
to the fact that he "could not find the location of the court and did not have a way to call the
court or anybody to help him." See Resp. 's Mot. at p. 2. The respondent contends that he
appeared at prior hearings because he was transported by relatives on those occasions. Id. The
respondent's motion is unsupported by an affidavit and does not satisfy the minimal evidentiary
requirements for a motion to reopen. See 8 C.F.R. 1003.23(b)(3) (requiring that a motion to
reopen "shall be supported by affidavits and other evidentiary material."); see also INS v.
Phinpathya, 464 U.S. 183, 188-89 n.6 (1984) (counsel's unsupported statements in a motion are
not entitled to evidentiary weight). Additionally, the respondent's reasons for failing to appear
do not amount to exceptional circumstances. Exceptional circumstances are those compelling
events or circumstances, such as the alien's serious illness or the death or serious illness of an
immediate family member, that are beyond the alien's control. INA 240(e)(l). Typical daily
occurrences that may cause mishaps or delays, such as a respondent's unfamiliarity with a given
area, do not constitute exceptional circumstances. See Valencia-Fragoso v. INS, 321 F.3d 1204,
1205-06 (9th Cir. 2003); see also Sharma v. INS, 89 F.3d 545, 547 (9th Cir. 1997) (daily
occurrences such as traffic congestion and parking problems do not constitute exceptional

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File No.: A200-975-995

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circumstances). Accordingly, the Court finds the respondent's motion insufficient to establish a
basis for reopening on a claim of exceptional circumstances.

Accordingly, the following order will issue:

ORDER
IT IS HEREBY ORDERED that the respondent's motion to reopen is DENIED.

Q/l

DATE: December 10, 2014

Rodin Rooyani
Immigration Judge

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The Court further finds that this case does not merit sua sponte reopening. See Matter of
J-J-, 21 I&N Dec. 976, 984 (BIA 1997) (proceedings should be reopened sua sponte only under
exceptional circumstances). The respondent has a criminal history in the United States and has
not shown that his equities outweigh his criminal record such that sua sponte reopening would be
warranted in this matter.