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

A-.S03
Date of this notice: 6/27/2016

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

Don.,u_ CtVvu
Donna Carr
Chief Clerk
Enclosure
Panel Members:
Greer, Anne J.
Kendall-Clark, Molly
O'Herron, Margaret M

Userteam: Docket

For more unpublished BIA decisions, visit

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Cite as: J-R-S-, AXXX XXX 803 (BIA June 27, 2016)

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Arroyo, Belinda Martinez

Belinda Arroyo Law Office PLLC
P.O. Box 136638
Fort Worth, TX 76136

..

(!.S. Department of Justice

Executive Office for Immigration Review

Decision of the Board oflmmigration Appeals

Falls Church, Virginia 22041

File: 803 - Dallas, TX

In re:J

Date:

JUN 2 7 2016

APPEAL
ON BEHALF OF RESPONDENT: Belinda Martinez Arroyo, Esquire
CHARGE:
Notice: Sec.

212(a)(7)(A)(i)(I), l&N Act [8 U.S.C. I I 82(a)(7)(A)(i)(I)] Immigrant - no valid immigrant visa or entry document

APPLICATION: Reopening; termination

The respondent appeals the Immigration Judge's February 4, 2016, denial of a motion to
reopen and terminate proceedings, filed jointly by the respondent and the Department of
Homeland Security ("DHS"). The Department of Homeland Security has not responded to this
appeal. The appeal will be sustained.
We review an Immigration Judge's findings of fact for clear error, but questions of
law, discretion, and judgment, and all other issues in appeals, are reviewed de novo. 8 C.F.R.
1003.l(d)(3)(i), (ii).
The respondent was ordered removed in absentia at his July 14, 2015, hearing. The
respondent, who was 17 years old at the time and living in the care of his aunt, claimed that his
aunt did not observe the notice in the mail, which arrived only a few days prior to the hearing.
The respondent has an approved Special Immigrant Juvenile visa and seeks to adjust his status to
that of a lawful permanent resident on that basis (Resp. Motion at Tab B). To that end, the
respondent, together with the OHS sought reopening and termination of the proceedings.
On review, in light of the totality of the circumstances presented in this matter, we will
reopen proceedings, rescind the in absentia removal order, and terminate proceedings without
prejudice. The following order will be entered.
ORDER: The respondent's appeal is sustained, the proceedings are reopened, the in absentia
removal order is rescinded and the removal proceedings are terminated without prejudice.

Cite as: J-R-S-, AXXX XXX 803 (BIA June 27, 2016)

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IN REMOVAL PROCEEDINGS

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UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
1100 COMMERCE ST., SUITE 1060
DALLAS, TX 75242

FILE A--803

DATE: Feb 9, 2016

UNABLE TO FORWARD - NO ADDRESS PROVIDED

ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE. THIS DECISION
IS FINAL UNLESS AN APPEAL IS FILED WITH THE BOARD OF IMMIGRATION APPEALS
WITHIN 30 CALENDAR DAYS 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, AND FEE OR FEE WAIVER REQUEST
MUST BE MAILED TO:
BOARD OF IMMIGRATION APPEALS
OFFICE OF THE CLERK
5107 Leesburg Pike, Suite 2000
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 IS FINAL UNLESS A MOTION TO REOPEN IS FILED IN ACCORDANCE
WITH SECTION 242B(c) (3) OF THE IMMIGRATION AND 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
1100 COMMERCE ST., SUITE 1060
DALLAS, TX 75242

CC: DAVIS, JUDSON

125 E. HWY 114, STE 500
IRVING, TX, 75062

COURT CLERK
IMMIGRATION COURT

FF

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Belinda Arroyo Law Office PLLC

Arroyq., Belinda Martinez
P.0. Box 136638
Fort Worth, TX 76136

''
. . ..t

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
DALLAS, TEXAS
Date: February 3, 2016

Charge: INA 212(a)(7)(A)(i)(I)

Immigration Removal Proceedings in the Matter of:
Josue Rubio Suazo, Respondent
Application: Joint Motion to Reopen and Terminate Without Prejudice
On Behalf of Respondent: Belinda Arroyo, P.O. Box 136638, Fort Worth, Texas 76136
On BehaH of Department of Homeland Security/Immigration and Customs Enforcement:
Judson J. Davis, 125 E. John Carpenter Freeway, Suite 500, Irving, Texas 75062

WRITTEN DECISION AND ORDER OF THE IMMIGRATION JUDGE

I. PROCEDURAL IDSTORY
The Respondent is an eighteen year old male native and citizen of Honduras. Ex. 1. On
April 30, 2015, the Government served Respondent with a Notice to Appear (NTA) charging
him with removability from the United States. Id. Respondent failed to appear for his hearing on
July 14, 2015 and was ordered removed in absentia based on the following:
Allegations:
(1) He is not a citizen or national of the United States;
(2) He is a native and citizen of Honduras;
(3) On April 29, 2015, he applied for admission at the Eagle Pass International Bridge in Eagle
Pass, Texas and expressed credible fear if returned to Honduras;
(4) He was an immigrant not in possession of a valid unexpired immigrant visa, reentry permit,
border crossing card, or other valid entry document as required by the INA;
(5) He was processed for a NTA and paroled into the United States pending his removal
proceedings.
Charge: The Government charged Respondent as being subject to removal from the
United States pursuant to INA 2I2(a)(7)(A)(i)(I),as amended, as any immigrant at the time of
application for admission, who is not in possession of a valid unexpired immigrant visa, reentry
permit, border crossing identification card, or other valid entry document required by this Act,
and a valid unexpired passport, or other suitable travel document, or document of identity and

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File:A-803

'f

nationality as required under the regulations issued by the Attorney General under section 21l(a)
of the Act.

II. MOTION
On January 8, 2016, Respondent filed a joint motion with the Department of Homeland
Security (DHS) to reopen proceedings and terminate without prejudice based on exceptional
circumstances. The underlying basis for the motion is to pursue adjustment of status with U.S.
Customs and Immigrations Services (USCIS) on an approved 1-360 Special Immigrant Juvenile
(SIJ) visa petition.
III. DISCUSSION
If an alien does not attend a removal hearing after written notice has been provided to the
alien or the alien's counsel of record, she will be ordered removed in absentia if the Government
establishes by clear, unequivocal, and convincing evidence that written notice of the hearing was
provided and that the alien is removable. INA 240(b)(5)(A).
The in absentia order may be rescinded upon a motion to reopen filed 180 days after an
administratively final order of removal is entered if the respondent shows "exceptional
circumstances" leading to her absence from the hearing. INA 240(b)(S)(C)(i); 8 C.F.R.
1003.23(b)(4)(iii). "Exceptional circumstances" include circumstances beyond the control of the
alien, including "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." INA 240(e)(l). An in absentia order may also be
rescinded upon the filing of a motion to reopen filed at any time if an alien has not received
adequate notice of the hearing. INA 240(b)(5)(C)(ii); 8 C.F.R. 1003.23(b)(4)(ii).
Adequate notice can be accomplished through personal service or through service by mail
to the alien at the last provided address. INA 239(a)(l). The Notice to Appear (NTA) includes
the alien's obligation to immediately provide a written record of any change in address or
telephone number and the consequences of failing to do so, and also outlines the consequences of
failing to appear. See INA 239(a)(l)(F), (G). Thus, if the alien receives actual notice of the
hearing or can be charged with receiving constructive notice, through receipt of a NTA, in
absentia proceedings are authorized. Matter ofG-Y-R-, 23 I&N Dec. 181, 186 (BIA 2001).
Finally, the granting of a motion to reopen lies within the "broad discretion" of the
Immigration Judge. See INSv. Doherty, 502 U.S. 314, 323 (1992). The Court may exercise its
sua sponte authority to reopen in "truly exceptional situations," where the interests of justice

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Sustaining of the Charge: The Government submitted form I-213, Record of

Deportable/Inadmissible Alien, to support its removal charge. See Ex. 2. Based upon the clear,
unequivocal, and convincing evidence presented by the Government, the Court sustained the
allegations and charge of removal, specifically finding Respondent subject to removal from the
United States to his native country of Honduras.

,,

would be served. Matter ofG-D-, 22 l&N Dec. 1132, 1133 (BIA 1999); Matter ofJ-J-, 21 I&N
Dec. 976 (BIA 1997).
Court's Finding:

Additionally, the Court notes Respondent has correctly not contested notice in this case.
Respondent's NTA reflects that he was personally served as evidenced by his signature. See Ex.
1. According to the1-213, Respondent was fourteen years old at the time of this service making
it effective. See Matter ofCubor-Cruz, 25 l&N Dec. at 472. Thus, Respondent was on notice of
the initiation of removal proceedings, his obligation to update the Court with any change of
address, and the consequences of failing to appear as required by INA 239(a)(l ). See Matter of
G-Y-R-, 23 I&N Dec. at 186. Notice was timely mailed to the last provided address and thus in
absentia proceedings were authorized.
The Court recognizes that there are limited instances where a respondent is not required
to rescind an in absentia order before reopening proceedings to apply for new discretionary
relief. See Matter ofJ-G-, 261. & N. Dec. 161, 165-67 (BIA 2013); In Re M-S-, 221. & N. Dec.
349, 356-57 (BIA 1998). In their joint motion, the parties have not proffered an explanation as to
why Respondent fits within this limited exception.
However, even if Respondent is legally allowed to request reopening without rescinding
his in absentia order, the Court will deny the motion to reopen as a matter of discretion.
Respondent and his aunt were aware of the proceedings and failed to remain vigilant to ensure
Respondent complied with his obligations to the Court. Respondent only appears now with
potential relief. Had Respondent appeared for his hearing and then pursued SIJ relief, this case
may have been decided differently. Therefore, in the alternative, the Court will deny the joint
motion to reopen as a matter of discretion.
Furthermore, the Court declines to reopen sua sponte as this case does not present an
"exceptional situation." See Matter ofG-D-, 22 I&N Dec. at 1133; Matter of J-J-, 21 l&N Dec.
976.
Next, as the Court has denied the joint motion to reopen, it will also deny the motion to
terminate. The joint motion does not establish which basis the parties have moved for dismissal
under 8 C.F.R. 239.2(a). Based off the record, the likely bases for termination include that the
NTA was improvidently issued and that circumstances have changed after the NTA was issued.
See Id. 239.2(a)(6)-(7). The other grounds for termination seemingly do not apply in this case.

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The Court finds that Respondent has failed to establish an exceptional circumstance to
rescind his in absentia order. Respondent's aunt, as his custodian, states that she received the
Notice of Hearing (NOH) after the hearing date because she only checks the mail once a week.
Lack of diligence and negligence by Respondent's custodian is not an exceptional circumstance.
Also, the potential availability of relief and the custodian's actions after the hearing are not
relevant to showing exceptional circumstances because they do not explain the failure to appear.

Accordingly, the following Order shall be entered:

IV.ORDER
IT IS HEREBY ORDERED THAT Respondent and the DHS's joint motion to reopen and
terminate without prejudice be DENIED.
Date:

?e "t, l (.
Immigration Judge
USDOJ/EOIR

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The Court finds that the NTA was properly issued as the 1-213 submitted in support of
the in absentia order states that Respondent was determined to be a citizen of Honduras who did
not have any immigration documents that would allow him to live or work in the U.S. Also, if
the government believes it is no longer in its best interests to continue the case because of
"changed circumstances," the Court finds the in absentia order was validly entered and
Respondent is still removable from this country. Once jurisdiction vests with the court, "neither
party can compel the termination of proceedings without a proper reason for the Immigration
Judge to do so." Matter ofSanchez-Herbert, 26 I&N Dec. 43, 45 (BIA 2012) (emphasis added).
Because the Court has already denied the joint motion to reopen and thus Respondent is
removable pursuant to a valid in absentia order, the parties have not provided a proper reason to
terminate proceedings.