Professional Documents
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Department of Justice
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A98
Date of this notice: 10/3/2016
Enclosed is a copy of the Board's decision and order in the above-referenced case.
Sincerely,
DonnL
ct1AA)
Donna Carr
Chief Clerk
Enclosure
Panel Members:
O'Connor, Blair
Grant, Edward R.
Mann, Ana
Userteam: Docket
Alcazar, Ramiro
Law Office of Ramiro Alcazar
26 Edgewood Street
Meriden, CT 06451
..
Date:
In re: AIIIIIIJ-P
OCT - 3 2016
APPEAL
ON BEHALF OF RESPONDENT:
APPLICATION: Reopening
The respondent, a native and citizen of El Salvador, who was ordered removed from the
United States in absentia on April 25, 2016, appeals the decision of the Immigration Judge, dated
May 31, 2016, denying his motion to reopen, which was filed on May 16, 2016.
We review Immigration Judges' findings of fact for clear error, but questions of law,
discretion, and judgment, and all other issues in appeals, de novo. 8 C.F.R. I003.l(d)(3)(i),
(ii).
Considering the totality of the circumstances presented in this case, including no stated
opposition by the Department of Homeland Security, we conclude that an exceptional situation
has been demonstrated warranting reopening to allow the respondent another opportunity to
appear before the Immigration Judge and request relief from removal.
See 8 C.F.R.
I003.23(b)(l); Matter ofJ-J-, 21 I&N Dec. 976 (BIA 1997). At the present time, we express
no opinion regarding the ultimate outcome of these proceedings.
Accordingly, the following order is entered.
ORDER: The respondent's appeal is sustained, the proceedings are reopened, and the record
is remanded to the Immigration Court for further proceedings.
IN REMOVAL PROCEEDINGS
()
IN THE MATTER OF
E-p- 411!11J-
FILE A-498
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RESPONDENT
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Case No.98
CHARGE:
APPLICA TION:
IN THE MATTEROF
The NTA contains a section titled "Failure to appear" that specifies, inter alia, the
consequences of failing to appear for any scheduled hearings. Id The NTA reflects that the
respondent's mother was advised of the consequences of non-appearance in the Spanish
language. Id.
25, 2016, the respondent was not present for his hearing before this Court and was unavailable
for examination under oath. Pursuant to the authority provided in section 240(b)(5)(A) of the
Act, the Court proceeded in absentia and ordered the respondent removed from the United States
to El Salvador on the charge contained in his NTA.
On May 16, 2016, the respondent, through counsel, filed a motion to reopen his removal
proceedings. The DHS has not filed a brief in opposition to the respondent's motion to reopen.
II. Motion to Reopen
An in absentia order of removal may be rescinded only (i) upon a motion to reopen filed
within 180 days after the date of the order of removal if the alien demonstrates that the failure to
appear was because of exceptional circumstances, or (ii) upon a motion to reopen filed at any
time if the alien demonstrates that he did not receive notice in accordance with paragraph (1) or
(2) of section 239(a) of the Act or the alien demonstrates that he was in Federal or State custody
and the failure to appear was through no fault of his own. Section 240(b)(5)(C) of the
Immigration and Nationality Act (2016); 8 C.F.R. I003.23(b)(4)(ii) (2016).
A.
Exceptional Circumstances
Twenty-one days passed between the date the Court ordered the respondent removed in
absentia and the date the respondent filed his motion to reopen. Accordingly, any motion to
reopen based on exceptional circumstances is timely. See INA 240(b)(5)(C); see also 8 C.F.R.
1003.23(b)(4)(ii). The term "exceptional circumstances" refers to exceptional circumstances
beyond the alien's control such as battery or extreme cruelty to the alien or any child or parent,
serious illness of the alien, or serious illness or death of the alien's spouse, child, or parent, but
not including less compelling cir_cumstances. INA 240(e)(1). In any given case, the Court must
look at the totality of circumstances to determine whether exceptional circumstances are present.
See Matter of W-F-, 21 l&N Dec. 503, 509 (BIA 1996) (citing H.R. CONF. REP. No. 955, 101st
Cong., 2d Sess. 132 (1990)).
In the present case, the respondent, through counsel, argues that his case should be
2
On February 2, 2016, the DHS released the respondent from custody. Exhibit 2. On April
reopened based upon exceptional circumstances because he missed his hearing due to "ICE,
ISAP not providing the Court with the correct address for the respondents and his Mother."
Respondent's Motion to Reopen In Absentia Order At 5. Furthermore, the respondent, through
counsel, claims that "the respondent is only two years old and it would be incomprehensible that
rights." Id.
In the case of a minor under fourteen years of age, service is proper if made upon the
person with whom the minor resides and, whenever possible, service shall also be made upon the
near relative, guardian, committee, or friend. 8 C.F.R. 103.8(c)(2)(ii). The purpose of this
regulation is to ensure service of a notice is rendered "upon the person or persons who are most
likely to be responsible for ensuring that an alien appears before the Immigration Court at the
scheduled time." Matter of Amaya-Castro, 21 l&N Dec. 583, 585 (BIA 1996). The Board of
Immigration Appeals has found that "it is implicit in the statute and regulations dealing with
notice that an adult relative who receives notice on behalf of a minor alien bears the
responsibility to assure that the minor appears for the hearing, as required." Matter of Gomez
Gomez, 23 I&N Dec. 522, 528 (BIA 2002). In short, where an NTA is personally served on an
adult with whom an alien under the age of fourteen resides, service is proper and sufficient to
establish notice to the minor alien himself. See Amaya-Castro, 21 I&N Dec. 583, 585; see also
Gomez-Gomez, 23 I&N Dec. 522, 528-29.
In the present case, the respondent was one-year-old when he and his mother entered the
United States. See Exhibit 1. Furthermore, the record reflects that the respondent's mother was
served with the respondent's NTA. Id. Service of the respondent's NTA was thus proper and it
was the obligation of the respondent's mother to comply with the clearly stipulated terms of the
NTA, including the obligation to maintain a current mailing address with the Court. See 8 C.F.R.
I03.8(c)(2)(ii); see also Exhibit I. Failure of the respondent's mother to comply with the
NTA's terms precludes the respondent from establishing that he is eligible for reopening based
on a lack of notice qualifying as an exceptional circumstance. While the respondent may claim
not to have received actual notice, the regulations and precedent cases of the Board of
Immigration Appeals make it clear that the requirements of section 239(a) were fully met insofar
as the respondent's mother was personally served with the respondent's NTA. See 8 C.F.R.
103.8(c)(2)(ii); see also Amaya-Castro, 21 l&N Dec. 583, 585; see also Gomez-Gomez, 23
he had knowledge of the Immigration Court Hearing or had been given and [sic] advisement of
I&N Dec. 522, 528-29. Failure to receive notice of a scheduled hearing is not a ground for
reopening removal proceedings in the instant case and the Court will not rescind the respondent's
in absentia removal order or reopen the respondent's removal proceedings. See INA 240(b)(5);
see also 8 C.F.R. 1 003.23(b)(4)(ii).
ORDER
IT IS HEREBY ORDERED that the respondent's motion to reopen be DENIED.
Date:
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MT ,
201 6
Thomas G. Crossan, Jr.
United States Immigration Ju e