U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals
Office of the Clerk
5 /07 Leesburg Pike, S11ile 2000
Falls Church, Virginia 22041

Name: LOPEZ, JUAN FRANCISCO

A 095-805-348

Date of this notice: 8/10/2016

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

DonnL C

f1AA)

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Grant, Edward R.
Mann, Ana
O'Leary, Brian M.

Userteam: Docket

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Cite as: Juan Francisco Lopez, A095 805 348 (BIA Aug. 10, 2016)

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DHS/ICE Office of Chief Counsel - LOS

606 S. Olive Street, 8th Floor
Los Angeles, CA 90014

U.S. Department of Justice

Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Vnginia 22041

File: A095 805 348 1 - Los Angeles, CA

Date:

In re: JUAN FRANCISCO LOPEZ

AUG 1 0 2016

APPEAL
ON BEHALF OF RESPONDENT: Pro se
APPLICATION: Reopening

The respondent, a native and citizen of Mexico, was ordered removed in absentia on
July 7, 2014. On January 7, 2015, the respondent filed a motion to reopen proceedings, which an
Immigration Judge denied on April 7, 2015. The respondent filed a timely appeal of that
decision. The appeal will be sustained, proceedings will be reopened and the record will be
remanded.
The Board reviews an Immigration Judge's findings of fact, including fmdings 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).
Upon de novo review of the record and in light of the totality of circumstances presented in
this case, we conclude that the respondent demonstrated that reopening is warranted. 2 See
sections 240(b)(5)(C)(i), (e)(l) of the Immigration and Nationality Act, 8 U.S.C.
1229a(b)(5)(C)(i), (e)(l). We will therefore sustain the respondent's appeal and remand the
record for further proceedings.

The Immigration Judge mistakenly listed the respondent's A# as 200 039 304 instead of bis
correct A# 095 805 348.
2

Among other factors, we have considered that the respondent attended numerous hearings
prior to the July 7, 2014, hearing, he submitted evidence on appeal reflecting the referenced
mechanical work on his wife's vehicle, his citizen wife submitted an affidavit attesting to the
events surrounding his late appearance for bis hearing as well as the absence of opposition from
the Department of Homeland Security.

Cite as: Juan Francisco Lopez, A095 805 348 (BIA Aug. 10, 2016)

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IN REMOVAL PROCEEDINGS

 A095"805 348

ORDER: The respondent's appeal is sustained, the in absentia order is vacated, proceedings
are reopened and the record is remanded to the Immigration Judge for further proceedings and
for the entry of a new decision.

Board Member Ana L. Mann respectfully dissents without opinion.

Cite as: Juan Francisco Lopez, A095 805 348 (BIA Aug. 10, 2016)

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:J}_

(
United States Department of justice

Executive Office for Immigration Review

Immigration Court

In the Matter of: JUAN FRANCISCO LOPEZ

A Number: A095-805-348

ORDER OF THE IMMIGRATION JUDGE

Upon consideration of (JUAN FRANCISCO LOPEZ'S) (MOTION TO REOPEN), it is HEREBY ORDERED
That the motion be

D GRANTENIED because:

D DHS does not oppose the motion.

D The respondent does not oppose the motion.
D Good cause has been established for the motion.
D The court agrees with the reasons stated in the opposition to the motion.
D The motion is untimely per_

her:

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Deadlines:

D The application(S) for relief must be file by_____,,...-.::;;;___;;,.,,-------migration Judgank M. Travleso

Date

Immigration Judge

nificate of service

This document was served b'(tj Mail ersonal Service

To: q(\uen

Date:

Alie C/o Custodial Officer

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D Alien's Atty/Rep

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By: Court Staff_____.,.-+(Q/YVvt

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Los Angeles California

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
LOS ANGELES, CALIFORNIA
A 200 039 304

In the Matter of:

LOPEZ, Juan Francisco

)
)
)
)

IN REMOVAL PROCEEDINGS

)
)

The Respondent
CHARGE:

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

(2009) -present without admission or parole

APPLICATION:

Motion to Reopen

ON BEHALF OF THE RESPONDENT:

Pro Se
1535 Darby Avenue
Pomona, California, 91767

ON BEHALF OF THE GOVERNMENT:

Assistant Chief Counsel
U.S. Department of Homeland Secwity
606 South Olive Street, Eighth Floor
Los Angeles, California 90014

DECISION AND ORDER OF THE IMMIGRATION JUDGE

I. Procedural History
On October 13, 2009, the Government personally served the Respondent with a Notice
to Appear (NTA). See Ex. 1. In the NTA, the Government alleged that the Respondent entered
the United States at an unknown place on or about 1990, and was not then admitted or paroled
after inspection by an immigration officer. Id. Accordingly, the Government charged the
Respondent with inadmissibility pursuant to section 212(a)(6)(A)(i) of the INA. Id. Proceedings
were commenced upon the filing of the NTA with the Court on October 20, 2009. See 8 C.F.R.
I003.14(a) (2009).
On May 6, 2011, the Respondent appeared in court, with counsel, and admitted the
factual allegations and conceded the charge of inadmissibility contained in the NTA. On
December 2, 2011, the Government filed a motion to change venue to the Mira Loma Detention
Center in Lancaster, California. The Court granted the Government's motion on December 8,
2011, and transferred venue. Thereafter, an Immigration Judge granted the Respondent's motion
and transferred venue back to the Los Angeles Immigration Court on February 15, 2012.
Once back in Los Angeles, the Court provided the Respondent several opportunities to
seek new counsel and file relief applications. On April 25, 2014, the Respondent appeared and

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File No.:

stated he would represent himself. At the hearing, the Court notified the Respondent that it was
adjourning his case to July 7, 2014, to consider the merits of his pending applications. The Court
personally provided the Respondent with written and oral notification of the July 7'11 hearing, as
well as the consequences of failing to appear. However, on July 7, 2014, the Respondent failed
to appear in court for his scheduled hearing. Accordingly, the Court ordered the Respondent
removed in absentia, based on his previous admissions and concession.

For the following reasons, the Court denies the Respondent's motion to reopen.
II. Law and Analysis
A.

Timeliness

An in absentia order of removal may be rescinded upon a motion to reopen filed within
180 days after the final order of removal ifthe respondent can show that the failure to appear was
due to exceptional circumstances, or at any time if the respondent demonstrates that he did not
receive proper notice. 1 See INA 240(b)(5)(C); 8 CFR 1003.23(b)(4)(ii) (2001). For the
purposes of calculating motion deadlines, the date that an immigration judge's order is entered
fixes the deadline for filing a motion to reopen. Matter of Goolcharan, 23 l&N Dec. 5, 6 (BIA
2001).
In the present case, the Court issued an in absentia order removing the Respondent and
concluding his proceedings on July 7, 2014. The Respondent did not file the pending Motion
until January 7, 2015, four days past the 180-day deadline. Therefore, Respondent's Motion is
untimely.
B.

Alternative Finding - Exceptional Circumstances

Even if the Respondent's Motion had been timely, the Court would, nevertheless, deny
the Motion. Here, the Court finds the Respondent failed to establish that he missed his hearing
due to exceptional circumstances.
In determining whether a respondent's absence was due to "exceptional circumstances,"
the Court must look at the "totality of the circumstances." Singh v. INS, 295 F.3d 1037, 1040
(9th Cir. 2002); Matter ofW-F-, 21 l&N Dec. 503, 509 (BIA 1996); Matter ofShaar, 21 I&N
Dec. 541, 550 (BIA 1996). The probability of the respondent obtaining relief as well as any lack
ofdue diligence on the part of the alien in filing a motion to reopen are also relevant
considerations in deciding whether exceptional circumstances exist. See Valencia-Fragoso v.
INS, 321 F.3d 1204, 1206 (9th Cir. 2003) (finding no showing of exceptional circumstance
where only possibility of reliefwas discretionary grant of voluntary departure); Sharma v. INS,
1

The Respondent does not argue that he lacked notice of his July 7, 2014 hearing.
2

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On January 7, 2015, the Respondent filed the pending motion to reopen, arguing that he
did not attend his July 7, 2014 hearing due to exceptional circumstances. To date, the
Government has not replied to the Respondent's motion.

..

In the instant matter, the Respondent alleges that he missed his hearing due to a
"mechanical problem with [his] wife's car, multiple misfires." Resp't's Brief at 1. However, he
has submitted no evidence to support this allegation, other than his bare assertion. Id. At the
very least, the Court would expect an affidavit from the Respondent's wife verifying the
allegation. Further, the Respondent's claim lacks details and fails to even state whether the
"mechanical problem" with his wife's car rendered the car undriveable. Id. Thus, the
Respondent has failed to support his motion with specific, detailed evidence to corroborate the
claim of exceptional circumstances. As such, the Court would deny the Motion on that basis,
even if the Respondent's motion was timely filed.
C.

Sua Sponte

An Immigration Judge may upon his own motion at any time, or upon motion of the
Government or alien, reopen or reconsider any case in which he has made a decision. 8 C.F.R.
1003.23(b)(l). The decision to grant or deny a motion to reopen is within the discretion of the
Immigration Judge. 8 C.F.R. 1003.23(b)(l)(iv). The Board of Immigration Appeals (Board)
has stated that "the power to reopen on our own motion is not meant to be used as a general cure
for filing defects or to otherwise circumvent the regulations, where enforcing them might result
in hardship." Matter of J-J-, 21 I&N Dec. 976, 984 (BIA 1997). Proceedings should be
reopened sua sponte only in "exceptional situations." Id. Moreover, the Board has indicated that
because finality is a key objective, the threshold for sua sponte reopening is extremely high. See
Matter of 0-, 19 l&N Dec. 871, 871 (BIA 1989).
The Court declines to exercise its sua sponte authority in the present case. The Court
acknowledges the Respondent's favorable equities, which consist of his U.S.-citizen wife and
children. Nevertheless, the Respondent has not demonstrated due diligence in filing the present
motion to reopen. Pursuant to the Respondent's own admission, he learned of his removal order
on the day it was issued, yet he waited over six months to file this Motion. Resp't's Brief at 1.
He has provided no explanation for this delay. Additionally, the Court considers that th
Respondent's only opportunity for relief would be a discretionary grant of cancellation of
removal for certain nonpermanent residents. See Singh. 295 F .3d at 1040 (emphasizing that
reopening should be granted where the denial leads to the unconscionable result of deporting an
individual eligible for relief from deportation). The alien in Singh possessed an approved
immediate relative immigrant petition, had attended several hearings, and "apart from a few
formalities that needed to be carried out, if the hearing had been held, [he] would not have been
ordered deported." Id. at 1039. In contrast, in the instant matter, Respondent has only requested,
through the pending motion, cancellation of removal, a discretionary form of relief. See INA
240A(a). Unlike in Singh, it is far from certain that Respondent would be granted relief. 295
3

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89 F.3d 545, 547 (9th Cir. 1996) (finding no exceptional circumstances where the respondent's
only avenue of relief was a discretionary grant of asylum); cf. Singh, 295 F.3d at 1039 (finding
reopening appropriate where the respondent had relief through an approved visa petition). The
Respondent bears the burden of supporting the motion with specific, detailed evidence to
corroborate the claim of exceptional circumstances. Celis-Castellano v. Ashcroft, 298 F.3d 888,
890 (9th Cir. 2002); Matter of Beckford, 22 l&N Dec. 1216, 1218 (BIA 2000) (citing Matter of
J-J-, 21 l&N Dec. 976, 984-85 (BIA 1997)).

._,,

F.3d at 1040. Based on the foregoing, and in the interest of finality, the Court declines to reopen
the Respondent's case sua sponte.
Accordingly, the following order shall be entered:

IT IS HEREBY ORDERED that the Respondent's motion to reopen be DENIED.

DATE:

A rrl 2 riv l.C

APPEAL RIGHTS: Both parties have the right to appeal the decision in this case. Any appeal
is due at the Board of Immigration Appeals on or before thirty (30) calendar days from the date
of this Order.

CERTIFICATE OF SERVICE
THJS1l0CU'11EN. AS SERVED B't
fiV) L {M) [. PERSONAL SERVICE (P)
TO: \V"J AtletJ:

) ALIEN o/otodlal Officer

DH
( ) ALIEN'S ATT/REP
DATE: y..ot-15 B"= COURTS AFF--.
Attachments: ( ) EOIR-33
[ ] EOIR-28
[l\'\1 Othe
[ ] Legal Services List
4

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ORDER