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Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals Office of the Clerk

5107 leesb11rg Pike. Suite 2000 Falls C/111rc/1, Virginia 2204/

Al-Jazrawi, Joy, Esq. 3000 Wilcrest Drive, Ste. 230 Houston, TX 77042

DHS/ICE Office of Chief Counsel 126 Northpoint Drive, Suite 2020 Houston, TX 77060


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A 043-745-973

Date of this notice: 8/9/2013

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

DCinltL ct1/VL)
Donna Carr Chief Clerk

Panel Members: Pauley, Roger

Trane Userteam: Docket

Cite as: Osman Orozco Garcia, A043 745 973 (BIA Aug. 9, 2013)

U.S. Department of Justice

Executive Office for Immigration Review Falls Church, Virginia 22041

Decision of the Board oflmmigration Appeals


A043 745 973 - Houston, TX




9 2013

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Bradley A. Shennan Assistant Chief Counsel

CHARGE: Notice: Sec. 212(a)(2)(A)(i)(II), I&N Act [8 U.S.C. 1182(a)(2)(A){i)(II)] Controlled substance violation 212(a)(7)(A)(i){I), I&N Act [8 U.S.C. l l 82(a)(7)(A)(i)(I)] Immigrant - no valid immigrant visa or entry document 212(a)(6)(C)(i), I&N Act [8 U.S .C. 1182(a)(6)(C)(i)] Fraud or willful misrepresentation of a material fact

Lodged: Sec.

Lodged: Sec.

APPLICATION: Reopening; adjustment of status

The respondent has appealed the Immigration Judge's April 25, 2013, decision to deny his motion to reopen. The respondent's appeal will be dismissed. 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. 1003.l (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)(3)(ii). The Court granted the respondent's application for voluntary departure on June 6, 2011. The respondent had until October 4, 2011 to voluntarily depart the United States. The respondent received written advisals of the consequences for failing to voluntarily depart by October 4, 2011 (1.J at 2; Respondent's Motion to Stay Removal at Tab F). The respondent did not depart the United States by October 4, 2011. On October 26, 2011, the state criminal court vacated the respondent's controlled substance conviction on constitutional grounds and dismissed the criminal action (Respondent's Motion to Stay Removal at Tab E). 1 On April 11, 2013, the respondent filed a motion to reopen on the grounds that his criminal action was dismissed. The
1 The Department of Homeland Security lodged additional charges that were conceded by the respondent and sustained by the Immigration Judge (l.J. at I).

Cite as: Osman Orozco Garcia, A043 745 973 (BIA Aug. 9, 2013)

A043 745 973

Immigration Judge denied the respondent's motion finding that it was time-barred, that he was statutorily ineligible for the relief requested for his failure to voluntarily depart, that sua sponte reopening was not warranted, and that no exceptional circumstances merited reopening in his case. We affinn the Immigration Judge's conclusion that the respondent's motion to reopen should be denied. 8 C.F.R. 1003.l(d)(3)(ii). The June 6, 2011, order included the following warning: Pursuant to section 240B(d) of the INA, 8 U.S.C. section 1229c(d), if the respondent fails to depart the United States within the time specified, or any extensions granted by the Department of Homeland Security, the respondent shall be subject to a civil penalty of not less than $1,000.00 and not more than $5,000.00, and shall be ineligible for a period of ten (10) years for any further relief under section 240B and sections 240A, 245, 248, and 249 of the INA. (Emphasis added); see also section 240B(d) of the Act. The respondent did not depart. Instead, he filed a motion to reopen with the Immigration Judge almost two-years after his criminal conviction had been vacated (l.J. at 3). The record also reflects that the respondent filed his motion to . reopen after the period of voluntary departure granted him by the Immigration Judge had expired. No evidence was included in his motion establishing that the DHS had extended the voluntary departure period granted by the Immigration Judge. Under these circumstances, and consistent with the section 240B(d) of the Act, and the written notice of the consequences of his failure to depart the United States within the time allotted as included in the Immigration Judge's June 6, 2011, order and quoted above, the respondent is barred from being considered for adjustment of status under section 245 of the Act for a period of I 0 years. Although the respondent argues that his vacated conviction establishes a material change meriting reopening, we note that granting a motion to reopen, simply allows a party the opportunity to establish eligibility for relief in the reopened proceedings; it is not an ultimate finding of such statutory eligibility. Here, the respondent is not statutorily eligible for the relief sought (l.J. at 2). As an additional matter, we observe that the respondent is in removal proceedings, not deportation proceedings. Fonner section 242B(e)(2)(A) of the Act, which is applicable only in deportation proceedings, permits a showing of "exceptional circumstances" (l.J. at 3-4) to excuse an alien's having overstayed his or her period of voluntary departure. In the absence of such a showing, the alien is barred from various fonns of relief, including adjustment of status, for a period of 5 years. Further, the provisions of section 242B(e)(2)(A) of the Act are triggered only if the alien was given both oral and written notice of the consequences of his failure to timely depart the country voluntarily within the time allotted by either the Im.migration Judge or this Board. See section 242B(e)(2)(B) of the Act. In contrast, under section 2408( d) of the Act, which is applicable in removal proceedings, there is no corresponding "exceptional circumstances" provision. Instead, section 240B(d) of the Act provides that if an alien is pennitted to depart the United States voluntarily and fails to do so within the time period specified, he or she shall be subject to a civil penalty of not less than $1,000 and not more than $5,000. The alien is also ineligible for various fonns of relief,

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Cite as: Osman Orozco Garcia, A043 745 973 (BIA Aug. 9, 2013)

A043 745 973

including adjustment of status under section 245 of the Act, for a period of 10 years. Further, oral notice of the consequences of a failure to timely depart is not required. Only written notice is mandated.

See section 240B(d) of the Act.

The respondent herein was placed in removal proceedings on November 13, 2010. See Exh. (Notice to Appear). Therefore, the provisions of section 240B( d) of the Act apply here. Given 1 that the necessary written warnings were included in the June 6, 2011, order granting the respondent voluntary departure, and that he did not depart voluntarily within the time permitted and has not presented any evidence of having been granted an extension of his voluntary departure period by the DHS, he is barred under section 240B(d) of the Act from being considered for adjustment of status. See Banda-Ortiz v. Gonzales, 445 F.3d 387 (5th Cir. 2006);

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see also Matter of Zmijewska, 24 l&N Dec. 87 (BIA 2007) (finding no equitable exceptions to the penalty provisions for failure to depart); 8 C.F.R. 1003.1 (d)(3)(ii). As such, we need not
reach the respondent's remaining arguments on appeal. Accordingly, the following order shall be entered. ORDER: The respondent's appeal is dismissed.


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Cite as: Osman Orozco Garcia, A043 745 973 (BIA Aug. 9, 2013)


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File No:

A 043-745-973

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Respondent's Motions to Reopen and Stay Removal



Joy Al-Jazrawi, Esq. 3000 Wilcrest Drive, Suite 230 Houston, Texas 77042

Bradley A. Sherman, Esq. OCC/ICE/DHS Houston, Texas


Pending before the Court is Respondent's Motion to Reopen, filed on April 11, 2013. Respondent asks the Court to reopen his removal proceedings on the grounds that Respondent's criminal conviction was reopened and the criminal action was dismissed. For the reasons stated below, the Court denies Respondent's motion to reopen. I. FACTS AND PROCEDURAL HISTORY Respondent is a native and citizen of Colombia. Exh. l. He was convicted of possession of crack cocaine on August 21, 1989. Id.; Group Exh. 3. He became a lawful permanent resident on February 17, 1993. Exh. 1. On December 13, 2010, the Department of Homeland Security with (DHS) being

commenced removal

proceedings against




removable pursuant to Section 212(a)(2)(A)(i)(II) of the Immigration and Nationality Act (INA or Act) based upon a conviction for possession of crack cocaine. Exh. l DHS subsequently lodged two additional grounds of inadmissibility against Respondent pursuant to Sections 212(a)(7)(A)(i)(I) and 212(a)(6)(C)(i) of the Act. In that regard, DHS alleged that Respondent failed to disclose his controlled substance conviction on his application for an immigrant visa. See Exhs. 4,


At a hearing held on June 6, 2011, Respondent appeared with counsel and admitted the factual allegations and conceded the charges listed in the amended Notice to Appear (NTA). Based upon Respondent's admissions and concessions, as well as the exhibits submitted by DHS, the Court sustained the charge of removability by clear and


A 043-745-973

convincing evidence. Respondent thereafter identified pre-hearing voluntary departure as his sole relief from removal. Respondent testified that he has been convicted four times. In 1989, he was convicted for possession of cocaine. Three rocks were found in his car when he was stopped by police. Respondent claimed that the drugs did not belong to him. Respondent also admitted to three convictions for driving while intoxicated. His last occurred four to five years prior to the hearing. Respondent related that he has been married to his wife for 12 years, and they have a daughter together. His wife and daughter are United States citizens. The Court granted Respondent's application for pre-hearing voluntary departure until October 4, 2011. See Order of the Immigration Judge (June 6, 2011). Respondent and OHS waived appeal. The state criminal court reopened Respondent's controlled substance conviction and dismissed the criminal action on October 26, 2011.

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See Motion to Reopen, Tab S at

70-80. Respondent now seeks to reopen his immigration proceedings to pursue adjustment of status in conjunction with a waiver under section 212(i) of the Act.


A. Time Limitation
Respondent's motion is time-barred. A motion to reopen shall be filed within 90 days of the date of entry of a final administrative order of deportation or by July 31, 1996, whichever is later. INA 240(c)(7)(C)(i); 8 C.F.R. 1003.23(b)(l ) (2012). Respondent's order granting voluntary departure until October 4, 2011, was issued on June 6, 2011, and his motion to reopen was filed nearly two years later. The Court therefore finds the motion to be untimely. See id.

B. Eligibility for Relief

An alien who does not depart following a grant of voluntary departure and who has been provided written notice of the consequences of remaining in the United States is statutorily barred for 10 years from applying for adjustment of status and other discretionary relief. INA 240B(d); 8 C.F.R. 1240.26(e)(2). Respondent accepted pre hearing voluntary departure on June 6, 2011, and received both written and oral advisals about the consequences for failing to voluntarily depart by October 4, 2011. Respondent did not depart the United States. Therefore, he is statutorily ineligible at this time for the relief he seeks. See id.

A 043-745-973


Sua Sponte

The Court has discretion under its sua sponte authority to reopen any case in which the Court has made a decision, unless jurisdiction in the case is vested in the Board.

See 8 C.F.R. 1003.23(b)(l ). Sua sponte authority is to be invoked sparingly, not

as a general remedy for any hardships created by enforcement of the time and number limits in the motions regulations, but as an extraordinary remedy reserved for truly exceptional situations.

Matter of G-D-, 22 l&N Dec. 1132, 1133-34 (BIA 1999). For

example, a fundamental change in the law, not merely an incremental development, would qualify as an exceptional situation that merits the use of sua sponte authority. Id. at 1135. It is Respondent's burden to persuade the Court that his circumstances are truly exceptional before it will intervene. 1218 (BIA 2000).

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Id. at 1134; Matter of Beckford, 22 l&N Dec. 1216,

Matter of X-G-W-, 22 I&N Dec. 71 (BIA 1998), is the only controlling case that illustrates the type of situation in which sua sponte action is appropriate. See G-D-, 22 l&N Dec. at 1135. In that case, an asylum-seeker's motion to
reopen was granted when the Board found exceptional circumstances due to a fundamental change in the definition of "refugee" brought about by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. See X-G-W-, 22 I&N Dec. at 71. "Sweeping changes" to the immigration laws were enacted only four months after the Board dismissed the respondent's appeal. reopen was filed five months later. Id.

The Board's decision in

Id. at 72. The respondent's motion to

Respondent's situation is not as compelling as the one presented in Respondent is not

X-G-W-. prima facie eligible for adjustment of status. See INA 240B(d); 8

C.F.R. 1240.26(e)(2). Moreover, Respondent claims eligibility for that relief by virtue of a change in his personal circumstances after disregarding his responsibilities under the immigration laws of this country. Respondent failed to comply with the terms of the Court's voluntary departure order. Respondent provided no explanation as to why he chose to disobey the Court's voluntary departure order and remain unlawfully in the United States. The purpose of voluntary departure is not to allow aliens who are otherwise deportable to remain in the United States for an indefinite period of time until they are eligible for some other form of relief. See Matter of Shaar, 21 I&N Dec. 541 (BIA 1996). Also, Respondent has not explained why he waited until the day before the end of his voluntary departure period to file his Writ of Habeas Corpus with the state criminal court. See Motion to Reopen, Tab S at 73. His conviction was vacated by that court a mere 23 days later. See id. at 72. Had he pursued post-conviction relief earlier, Respondent may have been able to file his motion reopen within the 90-day period or, at least, within the voluntary departure period. Moreover, Respondent waited until he was detained by DHS-18 months following the dismissal of his criminal action-to file this motion to reopen.

A 043-745-973

On at least three occasions, In addition, Respondent has negative equities. Respondent has violated the criminal laws and endangered the lives of members of his community by driving a motor vehicle while under the influence of alcohol. He further conceded making a material misrepresentation to immigration officials to procure an immigrant visa.

See Exhs. 4, 5. Although his conviction was vacated under Padilla


Kentucky, the renewed criminal action was dismissed because the drugs had already been destroyed. See Motion to Reopen, Tab S. The record also indicates that he may have been arrested for possession of a firearm in December 1987. See Exh. 2. Respondent denied being arrested for this offense when questioned by immigration officials. See id.
The Court also acknowledges Respondent's positive equities. He is married to a

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See Motion to Reopen, Tabs K, L. They have a United States citizen daughter together. See id, Tab M. Respondent is the sole
breadwinner for his family, and he has extensive family ties in the United States through his wife. of a brother with serious medical issues. See

United States citizen, Darlene Orozco Garcia.

See id., Tabs H, N, U. Respondent claims that his wife serves as the caretaker id., Tab T.

Despite these favorable points and the difficult circumstances Respondent and his family find themselves in, the Court is not convinced that this case presents exceptional circumstances such that Respondent should be exempt from the time limits on motions set forth in the regulations. See Beckford, 22 I&N Dec. at 1218; G-D-, 22 l&N Dec. at 1134. When Congress passes laws, and agencies promulgate rules as directed by those laws, these acts are meant to have real and substantial effect. Matter of J-J-, 21 I&N Dec. 976, 984 (BIA 1997). These rules are meant to bring finality to immigration proceedings and to redress the problem of abuses resulting from the filing of successive or frivolous

Id Sua sponte reopening is not meant to serve as a general cure for filing defects or to otherwise circumvent the regulations where enforcing them might result in hardship. Id. It would be inappropriate for this Court to expansively employ its sua sponte authority in a manner that contravened the intentions of Congress or failed to give effect to the comprehensive regulatory structure in which it exists. See G-D-, 22 I&N Dec. at 1133-34.
Accordingly, the following orders will be entered:


A 043-745-973



that Respondent's Motion to Reopen is DENIED. that Respondent's Motion to Stay is DENIED.


Signed at Houston, Texas, this 25th day of April, 2013.

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Immigration Judge