U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals
Office of the Clerk
5107 leesburg Pike, Suite 2000
Falls Church, Virginia 22041

DHS/ICE Office of Chief Counsel - DAL

125 E. John Carpenter Fwy, Ste. 500
Irving, TX 75062-2324

Name: REYES, HERNAN ANTONIO

A 095-084-205
Date of this notice: 9/18/2015

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

DoYUU- c

tYv\J

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Guendelsberger, John

Usertea m: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/

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Dubove, Fernando A
Law Office of Fernando Dubove
400 South Zang Boulevard
Suite 600
Dallas, TX 75208

.U.S. Department of Justice

Executive om for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Vuginia 22041

File: A095 084 205 - Dallas, TX

Date:

SEP 18 2015

In re: HERNAN ANTONIO REYES

APPEAL
ON BEHALF OF RESPONDENT: Fernando Dubove, Esquire
APPLICATION: Reopening
The respondent, a native and citizen of El Salvador, has filed a timely appeal of the
Immigration Judge's decision dated June 18, 2014, denying a joint motion to reopen filed by the
parties. The Department of Homeland Secwity (DHS) has not tiled an opposition to the appeal.
Due to the circumstances presented in this case, the following orders will be entered.
ORDER: The appeal is sustained.
FURTHER ORDER: The record is remanded for reopened proceedings to consider the
respondent's application for special rule cancellation of removal relief under the Nicaraguan
Adjustment and Central American Relief Act (NACARA).

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IN REMOVAL PROCEEDINGS

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
DALLAS, TEXAS
)
)
)
)
)

REYES, Hernan Antonio

RESPONDENT

IN REMOVAL PROCEEDINGS
A 095-084-205

CHARGE:

Section 212(a)(6)(A)(i) of the Immigration and Nationality Act, as

amended, in that you are an alien present in the United States
without being admitted or paroled, or who arrived in the United
States at any time or place other than as designated by the Attorney
General.

APPLICATION:

Joint Motion to Reopen

ON BEHALF OF THE RESPONDENT:

Fernando Dubove, Esq.
400 S. Zang Blvd., Ste. 600
Dallas, Texas 75208

ON BEHALF OF THE DEPARTMENT

OF HOMELAND SECURITY:
Paul B. Hunker III, Esq.
Chief Counsel- OHS/ICE
125 E. John Carpenter Freeway, Ste. 500
Irving, TX 75062

WRITTEN DECISION OF THE IMMIGRATION JUDGE

FACTUAL AND PROCEDURAL HISTORY
The Respondent is a male native and citizen of El Salvador. Exhibit 1. On or about
October 10, 1998, he arrived in the United States at or near Brownsville, Texas. Id. He was not
then admitted or paroled after inspection by an immigration officer. Id.
At a Master Calendar hearing on October 1, 2012, the Respondent admitted the factual
allegations contained in the Not!ce to Appear and conceded the charge of removal. Based on the
admissions and concessions of the Respondent, the Court sustained the charge of removal. See 8
C.F.R. 1240.8(c). The Court designated El Salvador as the country of removal. The
Respondent requested relief under the Nicaraguan Adjustment and Central American Relief Act

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IN THE MATTER OF:

--

(NACARA) and cancellation of removal for certain non-permanent residents under Section
240A(b) of the Act. The Court ordered the Respondent to submit his applications for relief and
corresponding filing fee receipts on or before January 29, 2013. The Court also advised the

filing fee receipt. See 8 C.F.R. 1003.3l(c).

The Respondent filed his NACARA application with the Court on January 28, 2013. He
did not file the fee receipt as requested by the Court. Neither did the Respondent file his
application for cancellation of removal. Therefore, on February 19, 2013, the Court pretermitted
the Respondent's applications and ordered the Respondent removed.
On March 4, 2014, the Respondent filed the present motion to reopen. DHS has joined in
the motion. The parties request that the Court reopen the proceedings in order to permit the
Respondent to pursue NACARA relief.
STATEMENT OF LAW & ANALYSIS
A motion to reopen must be accompanied with the appropriate filing fee and fee receipt.
8 C.F.R. 1003.23(b)(l)(ii), 1003.24(b). Though the Respondent's motion does not include
evidence that a filing fee has been paid, because this motion is a joint motion, no filing fee is
required. 8 C.F.R. 1003 .24(b)(2)(vii). As such, this Court has jurisdiction over this motion.
Generally, a motion to reopen must be filed within 90 days of the entry of a final
administrative order of removal. 8 CFR 1003.23(b)(l). However,

as DHS has joined in the

motion, these time limitations are also overcome. 8 C.F.R. 1003.23(b)(4)(iv).

A motion to reopen shall state the new facts that will be proven at a hearing if the motion
is granted and shall be supported by affidavits and other evidentiary material. 8 C.F .R.
1003.23(b)(3). Furthermore, a motion to reopen will not be granted unless the Immigration Judge

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Respondent and his counsel of the consequences of failure to timely file the application and

----

is satisfied that the evidence sought to be offered is material and was not available and could not
have been discovered or presented at the former hearing. Id. The Respondent seeks reopening in
order to apply for NACARA relief, a form of relief which was available to the Respondent and

NACARA was pretermitted due to his failure to timely file a fee receipt. Thus, the Respondent
has articulated no new, previously unavailable relief.
Respondent's counsel contends that the Respondent failed to timely file the fee receipt
because as of January 29, 20 13, he had still not received said receipt from USCIS. However, this
information is not a "new fact." As noted in this Court's removal order, the Respondent had the
opportunity to file a motion with the Court to extend the filing deadline upon realization that he
would not receive the fee receipt before that date. No such motion was filed. Thus, while the
receipt is "material" and may not have been physically "available" on the date of the filing
deadline, the fact that the Respondent did not receive the receipt until after the filing deadline
"could have been discovered or presented at a former hearing." Id. Therefore, the Respondent
has failed to meet the requirements for a motion to reopen.
The Court will decline to exercise its sua sponte authority to reopen as the Respondent
has not demonstrated a "truly exceptional situation" where the interests of justice would be
served by reopening. Matter of G-D-, 22 l&N Dec. 1132 (BIA 1999). The Respondent was
given approximately 120 days to file his NACARA application and fee receipt. The record
reflects that the Respondent wrote checks for the application fees on January 23, 2013, a mere
six days before the filing deadline. See 1-881 Supplemental Exhibits, pg. 2. This made it unlikely
that he would timely receive the fee receipt. Not only did the Respondent delay in filing the
application fee, but as stated above, the Respondent failed to request an extension to submit his

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he was seeking before this Court prior to his order of removal. The Respondent's application for

application and fee receipt. The Respondent was given ample time to file his application and fee
receipt and had means of avoiding the removal order, but neglected to use them. The Court does
not find this to be a ''truly exceptional situation" warranting sua sponte reopening. Further, the

ordered removed on February 19, 2013. The Respondent waited over a year before filing this
motion to reopen. The Respondent's delay in addressing his outstanding removal order also does
not compel the Court to exercise its sua sponte authority.
Accordingly, the following Order will be entered:
ORDER
IT IS HEREBY ORDERED that the Respondent's Motion to Reopen i

J.{ )l

Date:
1f
Dallas, Texas

Deitrich H. Sims
Immigration Judge

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Respondent's fee receipt is dated January 28, 2013. See Motion to Reopen, pg. 10. He was