Dimuth Amaratunge C.

6142 San Lorenzo Drive

Buena Park, CA 92620
Name: BALDERAS-MARQUEZ, ISABEL
U.S. Department of Justice
Executive Ofce fr Immigration Review
Board of Immigration Appeals
Office of the Clerk
510 7 l.eesl111rg l'ike. S11i1e WOO
Falls Cl111rd1. Virgi11i11 12041
OHS/ICE Ofice of Chief Counsel - LOS
606 S. Olive Street, 8th Floor
Los Angeles, CA 90014
A095-810-160
Date of this notice: 6/30/2011
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosure
Panel Members:
Adkins-Blanch, Charis K.
Gucndclsbcrger, John
Holmes, David B.
Sincerely,
Donna Carr
Chief Clerk
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Cite as: Isabel Balderas-Marquez, A095 810 160 (BIA June 30, 2011)
BALDERAS-MARQUEZ, ISABEL
A# 095-810-160
62 CIVIC CENTER PLAZA
SANTA ANA, CA 92701
Name: BALDERAS-MARQUEZ, ISABEL
U.S. Department of Justice
Executive Ofce fr Immigration Review
Board of Immigration Appeals
Office of the Clerk
5/07 l.eesb11rg Pike, Suite 2000
Fll. C/111rcl1. Virginia 2 2041
OHS/ICE Office of Chief Counsel LOS
606 S. Olive Street, 8th Floor
Los Angeles, CA 90014
A095-810-160
Date of this notice: 6/30/2011
Enclosed is a copy of the Board's decision in the above-referenced case. This copy is being
provided to you as a courtesy. Your attorney or representative has been served with this
decision pursuant to 8 C.F.R. 1292.S(a). If the attached decision orders that you be removed
from the United States or afirms an Immigration Judge's decision ordering that you be
removed, any petition for review of the attached decision must be filed with and received by the
appropriate court of appeals within 30 days of the date of the decision.
Enclosure
Panel Members:
Adkins-Blanch, Charis K.
Guendelsberger, John
Holmes, David B.
Sincerely,
Donna Carr
Chief Clerk
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Cite as: Isabel Balderas-Marquez, A095 810 160 (BIA June 30, 2011)
U.S. Deparent of Justice
Exeeuive Ofce fr Imigration Review
Falls Church, Virginia 22041
File: A095 810 160 - Los Angeles, CA
In re: ISABEL BALDERAS-MARQUEZ
I REMOVA PROCEEDINGS
APPEAL
Decision of the Board of Imigation Appeals
Date:
Jh $0 Jll
ON BEHALF OF RESPONDENT: Dimuth C. Amaratunge, Esquire
ON BEHALF OF OHS:
APPLICATION: Reopening
Malgorzata Gasior
Assistant Chief Counsel
The respondent has appealed fom the Immigration Judge's decision dated June 22, 2010. The
Immigration Judge denied the respondent's motion to reopen proceedings in which she was ordered
removed in absentia. On appeal, the respondent argues that exceptional circumstances prevented her
fom appearing fr her scheduled hearing. The Department of Homeland Security ("OHS") opposes
the appeal. The appeal will be sustained, and the record will be remanded fr fher proceedings
consistent with this opinion.
The Board reviews an Immigration Judge's findings of fct, including findings as to the
credibility of testimony, under the "clearly erroneous" standard. 8 C.F.R. 1003.1 (d)(3)(i);
Matter of S-H-, 23 l&N Dec. 462, 464-65 (BIA 2002). The Board reviews questions of law,
discretion, and judgment and all other issues in appeals fom decisions of Immigation Judges de
novo. 8 C.F.R. 1003.l(d)(3)(ii); Matter of A-S-B-, 24 I&N Dec. 493 (BIA 2008).
The respondent was scheduled to appear at her hearing befre the Los Angeles Immigration
Court at 12:30 p.m. on Februar 9, 2010. (Exh. 2). The Immigration Judge entered an in absentia
order ofremoval at approximately 1 :30 p.m. (l.J. at 4). The respondent appeared fr her scheduled
hearing approximately two-hours late, due to her confsion about the location of the Court, and
having to care fr a sick child while in en route to the hearing (Motion to Reopen at 2-4, 6;
Declaration of the Respondent at 2-3). The respondent indicated that when she arrived at the
Immigration Court at approximately 2:30 p.m. she was instructed by a security person that "the Court
had fnished all its hearings fr the day" and was "closed." (Declaration of the Respondent at 4).
In Perez v. Muksey, 516 F.3d 770 (9th Cir. 2008), the United States Court of Appeals fr the
Ninth Circuit, fund that an alien who arrived two hours late fr his immigration hearing, but while
an Immigration Judge wa still in the courtroom, did not fil to appear fr that hearing, and therefre,
did not have to establish exceptional circumstances to reopen his proceedings. See also
Jerezano v. INS, 169 F.3d 613 (9th Cir. 1999) (while trafc delays are generally not considered
exceptional circumstances, delayed appearances are not nonappearances fr puroses of reopening).
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Cite as: Isabel Balderas-Marquez, A095 810 160 (BIA June 30, 2011)
A095 810 160
Considering this record as a whole, we conclude that the respondent did not fil to appear at her
hearing. See Perez v. Muksey, supra; Jerezano v. INS, supra. Consequently, we fnd it appropriate
to remand the record to the Immigration Judge to provide the respondent with a new hearing.
Accordingly, the fllowing order will be entered.
ORDER: The respondent's appeal is sustained, the respondent's removal proceedings are
reopened, and the record is remanded to the Immigration Judge fr frther proceedings consistent
with the fregoing decision

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Cite as: Isabel Balderas-Marquez, A095 810 160 (BIA June 30, 2011)
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
606 SOUTH OLIVE ST., lSTH FL.
DIMUTH C. AARATUGE, ESQ.
6142 SAN LORENZO DRIVE
BUENA PARK, CA 90620
IN THE MATTER OF
BALDERAS-MRQUEZ, ISABEL
LOS AGELES, CA 90014
FILE A 095-810-160
_ UE TO FORWARD NO ADDRESS PROVIDED
DATE: Jun 23, 70:c
TACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE. THIS DECISION
IS FINAL ULESS AN APPEAL IS FILED WITH THE BOARD OF IMMIGRATION APPEALS
WITHIN 30 CALENDAR :)AYS OF THE DATE OF THE MAILING OF THIS WRITTEN DECISION.
SEE THE ENCLOSED FORMS AND INSTRUCTIONS FOR PROPERLY PREPARING YOUR APPEAL.
YOUR NOTICE OF APPEAL, ATTACHED DOCUMENTS, AD FEE OR FEE WAIVER REQUEST
MUST BE MAILED TO: BOARD OF IMMIGRATION APPEALS
OFFICE OF THE CLERK
P.O. BOX 8530
FALLS CHURCH, VA 22041
ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE AS THE RESULT
OF YOUR FAILURE TO APPEAR AT YOUR SCHEDULED DEPORTATION OR REMOVAL HEARING .
.
. THIS DECISION lS F LNAI, UNLESS A MOTION TO REOPEN IS FILED IN ACCORDANCE
WITH SECTION 2428 (c) (3) OF THE IMMIGRATION AD NATIONALITY ACT, 8 U.S. C.
SECTION 1252B(c) (3) IN DEPORTATION PROCEEDINGS OR SECTION 240(c) (6),
8 U.S.C. SECTION 1229a(c) (6) IN REMOVAL PROCEEDINGS. IF YOU FILE A MOTION
TO REOPEN, YOUR MOTION MUST BE FILED WITH THIS COURT:
IMMIGRATION COURT
606 SOUTH OLIVE ST., 15TH FL.
' . .
CC:
, ,
H .
<
K

IMMIGRATION COURT FF
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UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRTION REVIEW
UNITED STATES I.MIGRA TION COURT
LOS ANGELES, CALIFO&'lA
File Number: A 95 810 160
In the Matter of
BALDERAS-MARQUEZ,
Isabel
Respondent.
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IN REMOVAL PROCEEDINGS
CHARGE: Section 212(a)(6)(A)(i) of the Immigration and Nationality Act ("Act") -
- Present in the United States without being admilted or paroled
APPLICATION: Motion to Reopen.
ON BEHALF OF RSPONDENT:
Dimuth Amaratunge, Esquire
6I42 San Lorenzo Drive
Buena Park, Califria 92620
ON BEHALF OF THE GOVERMENT:
Malgorata Gasior
Assistant Chief Counsel
Department of Homeland Security
606 South Olive Street, 8th Floor
Los Angeles, Califria 90014
DECISION AND ORDER OF THE IMMIGRATION JUDGE
I. Procedural Histor
Respondent is Isabel BALDERAS-MARQUEZ. On October 29, 2009, the Goverent
personally served Respondent with a Form 1-862 Notice to Appear ("NTA"). See Exh. I.
Removal proceedings commenced and jurisdiction vested when the Goverent fled the NT A
with the Court on December I I, 2009. Id.; also 8 C.F.R. I003.14(a)(2009). In the NTA,
the Goverent alleged that Respondent, a native and citizen of Mexico, entered the United
States at or near San Ysidro, Califria, on an unown date and time in 1992. Id. The
Goverent frther alleged that Respondent was not admitted or paroled afer inspection by an
Immigration Ofcer. Id. Accordingly, the Goverent charged Respondent with inadmissibility
pursuant to section 212(a)(6)(A)(i) of the Act. Id.
.
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On December 28, 2009, the Court served Respondent by regular mail with a Notice of
Hearing ordering her to appear befre the Immigration Court on February 9, 2010. See Exh. 2.
On February 9, 2010, Respondent and Respondent's counsel filed to appear fr her
scheduled heaing. The Court proceeded in absentia and fund Respondent removable by clear,
convincing, and unequivocal evidence based on the Goverent's submission of a For 1-213
Record of Deportable/lnadmissible Alien. See Exh. 3; see also INA 240(b)(5)(A). The Cour
ordered Respondent removed to Mexico based on the charge contained in the NT A.
On Februar 17, 20 I 0, Respondent fled the pending motion to reopen. In her motion,
she argues that her filure to appear on February 9, 2010, was due to exceptional circumstances.
Specifcally, Respondent asserts that her daughter's illness, and her misplacement of the Notice
of Hearing, caused a two-hour delay in ariving to the Court. Respondent's counsel contends that
his filure to appear was due to a collision en route to the hearing. 1
On March 10, 2010, the Goverent fled a brief in opposition to Respondent's motion
to reopen, arguing that Respondent has not established that her filure to appear was due to
exceptional circumstances. On March 19, 2010, Respondent fled a reply to the Goverent's
brief in opposition, reasserting the claim that the totality of the circumstances surounding her
filure to appear constitute exceptional circum3tances.
For the fllowing reasons, Respondent's motion to reopen will be denied:
II. Law and Analysis
An in absentia removal order may be rescinded by the Court upon a motion to reopen
fled within 180 days afer the date of the order of removal if the respondent demonstrates that
the filure to appear was because of exceptional circumstances. 8 C.F.R. 1003.23(b)(4)(ii).
Exceptional circumstances are defned as "exceptional circumstances (such as battery or extreme
cruelty to the alien or any child or parent of the alien, serious illness of the alien, or serious
illness or death of the spouse, child, or parent of the alien, but not including less compelling
circumstances) beyond the control of the alien." INA 240(e)(l ).
In deterining whether the respondent's absence was due to exceptional circumstances,
the Cour must look at the "totality of the circumstances." Matter of W-F-, 21 l&N Dec. 503
(BIA 1996); Matter of Shaar, 21 l&N Dec. 541 (BIA 1996). Specifcally, the Court must look to
the paricularized fcts presented in the case. See Shara v. INS, 89 F.3d 545 (9th Cir. 1996).
Finally, a motion to reopen based on exceptional circumstances must be supported by specifc,
detailed evidence to coroborate the claim. Celis-Castellano v. Ashcrof, 298 F.3d 888, 890 (9th
1 The Cour notes that Respondent does not claim that her filure to appear was afected by her counsel's filure to
appear. However, Respondent's counsel provided documentar evidence to support his claim that his failure to
appear was due to a vehicle collision.
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Cir. 2002).
Here, Respondent argues that reopening is appropriate because she was frced to attend to
her sick daughter several times en route to the Cour. See Respondent's Declaration. According
to Respondent, her daughter sufered fom the fu and had a severe temperature. Id.
Fuherore, Respondent states that she arrived at the Court approximately two hours late
because she lost the Notice of Hearing, which contained the proper address of the Immigration
Court. Id. Respondent contends that she told her fiend to take her to the Immigration Cour on
"Los Angeles Street." Id. She claims that at 12:45 p.m., her attorey called her and infred her
that he had been involved in a collision and that she should notif the judge of the accident and
request a continuance. Id. It was then that a secuity guard infred her that she was not at the
Imigration Cour. Id. She claims that she called her attorey and advised him of what
happened. Id. Counsel then told her of the proper address and directed her to infr the
Immigation Judge of what had occured. Id. Respondent states that afer she solicited directions
fom various people, she arived at the Court at 2:30 p.m. and spoke to a security guard who
infred her that the Judge had fnished his hearings fr the day and that there was nothing she
could do. Id.
In the present matter, Respondent has not established that "exceptional circumstances"
stemming fom her daughter's illness the moring of the hearing caused her absence on the date
of her scheduled hearing. Generally, if an alien claims that te illness of himself or a close
family member prevented him fom attending a schedule hearing, the alien should provide
documentary evidence to substantiate the claim. See Celis-Castallano, 298 F.3d at 890 (alien's
lack of evidence regarding the severity of his asthma attack restricts the Cour's ability to
deterine if the illness was exceptional). Moreover, the Court can consider whether the alien
notifed the Court of the reason fr his absence. Id. (consideration of alien's filure to notif
Immigration Court of the reason fr his absence was not improper).
While Respondent's counsel stresses that it would have been impossible to obtain any
records prior to her hearing, Respondent could have obtained medical records or documentation
to coroborate her daughter's illness afer the hearing. Additionally; the record does not refect
that Respondent notifed the Court of the reason of her absence. Respondent gave no explanation
fr neglecting to contact the Immigration Court on the day of the hearing. Moreover, Respondent
did not support her claim with medical records or other evidence, such as afdavits by persons
with kowledge regarding the extent and seriousness of Respondent's daughter's illness and the
remedies she used to treat it. See Matter of J-P-, 22 I&N Dec. 33 (BIA 1998). Although
Respondent claims that a security guard at the Court stated that there was nothing she could do
when asked if she could meet with the Judge or another member of the Court, there were other
fral avenues of communication with the Cour that could have been taken.
Given the Jack of evidence to demonstrate the severity of her daughter's sickness,
Respondent failed to show that her filure to appear was due to exceptional circumstances.
3
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.
Furthermore, Respondent asserts that she misplaced of the Notice of Hearing, causing her
to become lost and preventing her fom appearing befre the Court on time. However, this
circumstance does not rise to the level of "exceptional circumstances" within the meaning of the
Act. Preliminarily, Respondent admits that she had visited the Court on previous occasions and
therefre, should have known the vicinity of the Court. See Respondent's Declaration, 3.
Although Respondent's previous visits seems to have been to the Detained Cour, her confsion
over the location of the Court and subsequent untimely appearance is not an "exceptional
circumstance." Respondent had ample time between receiving her Notice of Hearing and the
scheduled hearing to become familiar with the address of the Court. Although she discovered
that she misplaced the notice when she arived in downtown Los Angeles, her declaration
indicates that she had access to a phone, which Respondent should have utilized in order to
confn the location of the Court. Accordingly, the circumstances leading to Respondent's
filure to appear were not beyond her control and do not constitute "exceptional circumstances"
within the meaning of the Act.
Lastly, the Cour notes that neither Respondent nor Respondent's counsel atempted to
notif the Cour of their tardiness or inability to appear. The record refects that although her
heang was scheduled fr 12:30 p.m., the Immigration Judge generously gave her until the end
of his master calendar to appear in court. It was not until I :30 p.m. that Respondent was ordered
removed in absentia. Since no effrts were made to notif the Court of the abovementioned
circumstaces, the Court properly proceeded in absentia.
Therefre, the Cour fnds that Respondent has not met her burden in establishing that
exc

ptional circumstances prevented her fom appearing at her Februar 9, 2010, hearing.
Accordingly, the fllowing order will be entered:
ORDER
IT IS HEREBY ORDERED that Respondent's motion to reopen is DENIED.
DATE: b (zll
1 h/S.OuCUMEN r WAS SEtWED BY:
. [ Li) [ )PERSONAL SERVICE (P)
T: [ )ALIEN
( )ALINE t/Ost|i1lON|rtr
( J'S k00B

DAT: B CUR S
kr|ot:( )EOIR-33
[ )L I WmUs ( )WW
David C. Anderson
IMMIGRTION JUDGE
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