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Immigrant & Refugee Appellate Center, LLC | www.irac.net U.S. Department of Justice Executive Office for Immigration

U.S. Department of Justice

Center, LLC | www.irac.net U.S. Department of Justice Executive Office for Immigration Review Board qfImmigration

Executive Office for Immigration Review

Board qfImmigration Appeals Office ofthe Clerk

Baldini-Potermin, Maria Theresa, Esq. Maria Baldini-Potermin & Associates, P.C. 1 N. LaSalle, Suite 2150 Chicago, IL 60602

Name: RINCON-VELASQUEZ, OTONIEL

5/07 Leesb11rg Pike. Suite 2000 Falls Church. Virginia 22041

DHS/ICE Office of Chief Counsel - CHI 525 West Van Buren Street Chicago, IL 60607

A 089-284-279

Date of this notice: 10/21/2015

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

Sincerely,

DonnL ca.AA)

Enclosure

Panel Members:

Cole, Patricia A. Malphrus, Garry D. Geller, Joan B

Donna Carr

Chief Clerk

Userteam: Docket

D. Geller, Joan B Donna Carr Chief Clerk Userteam: Docket For more unpublished BIA decisions, visit

For more unpublished BIA decisions, visit www.irac.net/unpublished/index/

Cite as: Otoniel Rincon-Velasquez, A089 284 279 (BIA Oct. 21, 2015)

BIA decisions, visit www.irac.net/unpublished/index/ Cite as: Otoniel Rincon-Velasquez, A089 284 279 (BIA Oct. 21, 2015)

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'u.S. Department ofJustice Decision of the Board oflmmigration Appeals Executive Office for Immigration Review
'u.S. Department ofJustice
Decision of the
Board oflmmigration Appeals
Executive Office for Immigration
Review
FalJs Church, Virginia
22041

File:

A089 284 279 - Chicago, IL

Date:

In re: OTONIEL RINCON-VELASQUEZ

IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT:

Maria Theresa Baldini-Potennin, Esquire

ON BEHALF OF DHS:

CHARGE:

Seth B. Fitter Senior Attorney

Notice:

Sec.

212(a)(6)(A){i), I&N Act [8 U.S.C. § 1182(a)(6)(A)(i)] - Present without being admitted or paroled

APPLICATION:

Reopening

OCT 21 2015

This case was last before us on November 25, 2014, when we remanded the record to the Immigration Judge to address legal and evidentiary issues arising from an order from the United States Court of Appeals for the Seventh Circuit that granted the government's motion to remand. On April 14, 2015, the Immigration Judge certified this case back to the Board, stating that no additional fact-finding was needed, that the issue presented was a legal one that had been fully briefed by the parties. The Immigration Judge declined to make any changes to her January 7, 2013, decision denying the respondent's motion to reopen and rescind his in absentia removal order. The respondent's removal proceedings will be reopened, and the record remanded to the Immigration Court for further proceedings.

We review the findings of fact, including the determination of credibility, made by the

We

review all other issues, including whether the parties have met their relevant burden of proof, and issues of discretion, under a de novo standard. 8 C.F.R. § 1003 .1(d)(3)(ii).

Immigration Judge under a "clearly erroneous" standard. 8 C.F.R. § 1003.l(d)(3)(i).

1

We conclude that the totality of the circumstances, which included the kidnapping of the respondent's two brothers, the kidnapping of the respondent's cousin, the murder of the respondent's father in the family's own home in May 2012, shortly before the respondent's June 2012 hearing, and the emotional and psychological impact these events had on the

1 We acknowledge at the outset the respondent's assertion that while the Immigration Judge characterized him as "fugitive," he voluntarily appeared at the county jail to serve his sentence even after the in absentia removal order was issued against him in June 2012 (Respondent's Br. at 64).

Cite as: Otoniel Rincon-Velasquez, A089 284 279 (BIA Oct. 21, 2015)

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Immigrant & Refugee Appellate Center, LLC | www.irac.net A089 284 279 r e s p o

A089 284 279

Refugee Appellate Center, LLC | www.irac.net A089 284 279 r e s p o n d

respondnt during the period of time leading to his hearing, constituted "exceptional

circumstances" for purposes of rescinding his in absentia removal order. 2 The death of a parent is explicitly included in section 240(e)(l) of the Immigration and Nationality Act, 8 U.S.C.

§ 1229a(e)(l ), as an example of the type

"exceptional circumstances" warranting rescission of an in absentia order. The gravity and detail of the assertions in the respondent's affidavit distinguish this case from Matter ofB-A-S-, 22 I&N Dec. 57 (BIA 1998), in which the alien's evidence did not show that a foot injury was severe enough to prevent his attendance at his deportation hearing.

of compelling circumstances that may amount to

Accordingly, the respondent's removal proceedings will be reopened and his in absentia removal order will be rescinded. The record is remanded to the Immigration Court for further proceedings. The following orders are entered.

ORDER: The respondent's removal proceedings are reopened and the Immigration Judge's June 19, 2012, in absentia removal order is rescinded.

FURTHER ORDER:

The record is remanded to the Immigration Court for further

proceedings and for entry of a new decision.

for further proceedings and for entry of a new decision. 2 We note that in considering
for further proceedings and for entry of a new decision. 2 We note that in considering

2 We note that in considering whether exceptional circumstances exist, we reject the respondent's assertion that fear of removal from the United States is a justifiable reason for not attending his removal proceedings. Such a reasoning would frustrate the overall statutory scheme of the in absentia provisions which were enacted so that aliens would either appear for their immigration proceedings or be ordered removed. See generally Matter of Grijalva, 21 I&N Dec. 27, 30-31 (BIA 1995) (provisions enacted in response to concerns raised regarding "delays in the deportation process and the substantial number of aliens who fail to appear for their scheduled

deportation hearings); Abu Hasirah v. Department ofHomeland Security, 478 F.3d 474, 478-79

(2d Cir. 2007) (finding that in absentia removal orders were intended for aliens who failed entirely to appear for a hearing, and noting legislative report which contained language that "willful and unjustifiable failure to attend deportation hearings that have been properly noticed is intolerable").

2

Cite as: Otoniel Rincon-Velasquez, A089 284 279 (BIA Oct. 21, 2015)

have been properly noticed is intolerable"). 2 Cite as: Otoniel Rincon-Velasquez, A089 284 279 (BIA Oct.

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Immigrant & Refugee Appellate Center, LLC | www.irac.net UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR

UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW UNITED STATES IMMIGRATION COURT CHICAGO, ILLINOIS

File: A089-284-279

In the Matter of

OTONIEL RINCON-VELASQUEZ

RESPONDENT

CHARGES:

APPLICATIONS:

)

)

)

)

RINCON-VELASQUEZ RESPONDENT CHARGES: APPLICATIONS: ) ) ) ) June 19, 2012 IN REMOVAL PROCEEDINGS ON BEHALF

June 19, 2012

IN REMOVAL PROCEEDINGS

ON BEHALF OF RESPONDENT: MICHELLE URKA

ON BEHALF OF OHS: LYNN HOLLANDER, Assistant Chief Counsel

THIS WILL BE THE ORDER OF THE COURT

The respondent has conceded his removability as charged while

appearing before this Court on November 8, 2011, with counsel. He has admitted that

he is removable for having entered the United States without being admitted or paroled

in violation of Section 212(a)(6)(A)(i) of the Immigration and Nationality Act. He

expressed no fear of return to Mexico but indicated at that earlier hearing that he was

going to be filing an application of cancelation of removal based on his claim of lengthy

presence in the United States and the existence of qualifying relatives for purposes of

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Immigrant & Refugee Appellate Center, LLC | www.irac.net

Immigrant & Refugee Appellate Center, LLC | www.irac.net cancelation. The respondent's case was continued to today

cancelation. The respondent's case was continued to today for presentation of a

disposition on a 2010 controlled substance arrest. Had the respondent been convicted

of such types of offense, he would not have been eligible for cancellation of removal.

He was advised of the new hearing date.

consequences of failure to appear. He was to file all of these documents to preserve

his right to proceed any further.

provided to his attorney, both in writing and orally, this Court finds that he has

His attorney advised him of the

Now, by failing to appear after proper notice being

abandoned the opportunity to pursue all relief from removal even if he was eligible for

cancellation, something I am not entirely certain of at this· point.

ORDERS

I am not entirely certain of at this· point. ORDERS And so therefore, the respondent is

And so therefore, the respondent is hereby ordered removed from the

United States to Mexico based on the charge contained on the Notice to Appear. Upon

service of the in absentia removal order, attorney Michelle Urka of the Solis Law Firm,

will also allowed to withdraw and an order will be provided to her to that effect.

JENNIE L. GIAMBASTIANI Immigration Judge

order will be provided to her to that effect. JENNIE L. GIAMBASTIANI Immigration Judge A089-284-279 2
order will be provided to her to that effect. JENNIE L. GIAMBASTIANI Immigration Judge A089-284-279 2