U.S.

Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

Qffice of the Clerk

5107 Leesburg Pike. Suile 2000

Falls Church. Virginia 22041

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Garcia, Juliana DHS/ICE Office of Chief Counsel - LOS
Gomez & Associates 606 S. Olive Street, 8th Floor
523 West 6th Street, Suite 640 Los Angeles, CA 90014
Los Angeles, CA 90014

Name: GALONO, ANNA MAY DE LEON A 089-528-341

Date of this notice: 9/29/2015

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

Sincerely,

DonrtL Cf1/Vu
Donna Carr
Chief Clerk

Enclosure

Panel Members:
Guendelsberger, John
Grant, Edward R.
O'Leary, Brian M.

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/

Cite as: Anna May De Leon Galono, A089 528 341 (BIA Sept. 29, 2015)
U.S. Department of Justice Decision of the Board of Immigration Appeals
Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A089 528 341 - Los Angeles, CA Date:

SEP 2 9 2015
In re: ANNA MAY DE LEON GALONO

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IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Juliana Garcia, Esquire

APPLICATION: Reopening

The respondent has appealed from the Immigration Judge's decision dated May 7, 2014,
denying the respondent's motion to reopen proceedings in which she was ordered removed in
absentia. 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 Department of Homeland Security has not responded to the appeal.
We have considered the totality of the circumstances presented in this case, and find that an
exceptional situation, including the protracted nature of these proceedings, has been
demonstrated warranting reopening to allow the respondent an opportunity to apply for relief
from removal. See 8 C.F.R. 1003.23(b)(l); Matter ofJ-J-, 21 I&N Dec. 976 (BIA 1997).
Accordingly, the appeal will be sustained, the proceedings will be reopened, and the record will
be remanded.

ORDER: The appeal is sustained, the proceedings are reopened, and the record is remanded
to the Immigration Court for further proceedings.

:::::,,,

Cite as: Anna May De Leon Galono, A089 528 341 (BIA Sept. 29, 2015)
.z....f:: ;:.... :.:::.N i i::,u.. . b ,i. .....___ l
 UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
606S0UTH OLIVE ST., 15TH FL.
LOS ANGELES, CA 90014

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ANNA MAY DE LEON GALONO

IN THE MATTER OF: FILE A 089-528-341 DATE: 05/08/14

ANNA MAY DE LEON GALONO

Unable to forward - No address provided

X 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
P. 0. 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 deportati.on or removal hearing. This decision is final
unless a motion to Reopen is f'tled 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
606 S. Olive Street, 15th Floor
Los Angeles, CA 90014

X Other: PLEASE SEE ATTACHED IJ DECISION. THANK YOU.

cc: ERICA MARTINEZ

Assistant District Counsel Immigration Court Clerk

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 UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
LOS ANGELES, CALIFORNIA

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File No. A089-52834 l ) Date: May 7, 2014
)
)
IN THE MATTER OF ) IN REMOVAL PROCEEDINGS
)
Anna May de Leon GALONO, )
)
Respondent. )
)

CHARGE(S): Section 237(a)(l)(B) of the Immigration and Nationality Act- Any alien who is
present in the United States in violation of the law.

APPLICATION(S): Respondent's Motion to Reopen.

ON BEHALF OF RESPONDENT: ON BEHALF OF DHS:

Anna May de Leon Galono Sirin Ozen Hallberg
Respondent pro se Senior Attorney
Department of Homeland Security
606 South Olive Street, 8th Floor
Los Angeles, CA 90014

DECISION OF THE IMMIGRATION JUDGE

I.
INTRODUCTION AND PROCEDURAL SUMMARY

On March 21, 2008, the U.S. Depru1ment of Homeland Security (OHS) issued a Notice to
Appear (NTA) conm1encing removal proceedings against respondent under section 240 of the
lnu11igration and Nationality Act (INA). The NTA was served on respondent on March 21,
2008, and was filed with the immigration court on March 27, 2008. The NTA advised
respondent of the requirement of submitting any change of address to the immigration com1 on
Form EOIR-33 and of the consequences of failing to do so and of failing to appear at a hearing.
See Exhibit 1.

1
 The NTA alleged (I} that respondent is not a citizen or national of the United States; (2)
that she is a native and citizen of the Philippines; (3) that she was admitted to the United States at
Los Angeles on September 30, 2006 with authorization to remain until March 29, 2007; and (4)
that she remained in the United States beyond the period of time authorized. Respondent was
charged with being removable under INA 237(a)(l )(B) for being present in the United States in
violation of the law.

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At a hearing on January 6, 20 IO, 1 the court set the matter for hearing on June 2, 20 IO at
9:00 a.m. Respondent was provided notice of this new hearing date and time. Exhibit 4.
Respondent failed to appear on June 2, 2010. DHS submitted evidence of deportability and she
was ordered removed in absentia. Exhibits 2-3.

On June 2, 2010, the inunigration court mailed respondent a copy of the in absentia
removal order. On November 24, 2010, respondent filed a notice of appeal and a motion to
reopen to the Board of Immigration Appeals. In a decision dated January 20, 2011, the BIA
noted that respondent had incorrectly submitted the motion to reopen to the BIA instead of the
immigration court. However, the BIA indicated that the cover letter from the immigration court
to respondent merely instructed her to see the immigration judge's decision, but did not instruct
her to file an appeal to the inunigration court rather than an appeal with the BIA. Consequently,
the BIA deemed respondent's appeal to constitute a timely motion to reopen and returned the
record to the immigration court for further action.

Thereafter, the case apparently had no action taken on it until March 17, 2014, when
respondent filed another motion to reopen which contained essentially the same information as
the original motion she filed with the BIA. Respondent contends that she missed the hearing on
June 2, 2010, because her mother was hospitalized in the Philippines on April 17, 2010 until
approximately April 30, 2010. After respondent's mother was released from the hospital she
apparently suffered from renal failure and needed regular dialysis. Respondent's Motion to
Reopen at 1-3. Respondent claimed that due to stress arising out of her mother's condition, as
well has the need to pay high telephone bills and a divorce which was filed in 2008, she lost
track of the date of the hearing on Jm1e 6, 20 l O and believed that it was scheduled the following
week. Respondent's Motion to Reopen at 4.

II.
STATEMENT OF THE LAW

To rescind an in absentia removal order the alien must demonstrate that the failure to
appear was because of exceptional circumstances beyond the control of the alien, INA
240(b)(5)(C)(i), or that the alien did not receive proper notice of the hearing or was in federal or
state custody. INA 240(b)(5)(C)(ii). A motion premised on exceptional circumstances must be
1
Previously, hearings were held on May 21, 2008; July 23, 2008; November 26, 2008; March 18, 2009;
and August 26, 2009. At the first hearing on May 21, 2008 respondent was granted a continuance to locate counsel.
At the hearings on July 23, 2008; November 26, 2008; and March 18, 2009, respondent's counsel was given
continuances to prepare. On August 12, 2009, respondent's counsel moved to withdraw based on respondent's lack
of cooperation. The court granted the motion to withdraw and granted respondent a continuance from August 12,
2009 to January 6,2010 to locate counsel. The court continued the matter again on January 6, 20 IO for respondent
to obtain cow1sel.

2
filed within 180 days after the date of the removal order. INA 240(b)(5)(C)(i). A motion
based on improper notice or the alien's custody may be filed at any time. INA
240(b)(5)(C)(ii).
The term "exceptional circumstances" refers to exceptional circumstances beyond the
control of the alien, such as battery or extreme cruelty to the alien or a child or parent of the

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alien, serious illness of the alien, or death or serious illness of the spouse, child or parent of the
alien, but not including less compelling circumstances. INA 240(e)(l). It is necessary to look
at the "particularized facts presented in each case" in determining whether an alien has
established exceptional circumstances for failing to appear for a scheduled removal hearing. See
Singh v. INS, 295 F.3d 1037, 1040 (9th Cir. 2002).

III.
DISCUSSION

The motion to reopen will be denied. Respondent has not demonstrated exceptional
circumstances for failing to attend the hearing. Respondent's claim that she mistakenly thought
that the hearing was scheduled for a different date does not constitute exceptional circumstances
beyond the control of the alien. See, e.g., Valencia-Fregoso v. INS, 321 F.3d 1204, 1205-06 (9th
Cir. 2003) (belief that hearing was scheduled at 1 :00 p.m. rather than 8:30 a.m. does not
constitute exceptional circumstances); Acquaah v. Holder, 589 F.3d 332, 336-37 (6th Cir. 2009)
(mistaken belief that hearing was scheduled for another date does not constitute exceptional
circumstances outside the control of the alien); Thomas v. INS, 976 F.2d 786, 788-90 (1st
Cir.1992) (alien's claim he failed to appear at the hearing because he and his attorney had
"crossed signals" about where to meet was not a reasonable basis for failing to appear).

In Dominguez-Capistran v. Gonzales, 438 F.3d 876 (8th Cir. 2006), the court held that. an
attorney's poor calendaring and failure to personally remind the alien of her hearing date did not
constitute an exceptional circumstance since the alien was informed of the date of the hearing.
Id. at 877-78. Moreover, the court rejected the alien's claim that she missed the hearing date
because she was suffering from mental distress due to abuse by her husband. Id. at 877. The
cou1i stated, "Dominguez-Capistran cannot show the abuse she suffered in late 2001 was
causally related to her failure to appear at the January 2003 hearing." Id. at 878.

In Uriostegui v. Gonzales, 415 F.3d 660, 663-64 (7th Cir.2005), the court rejected an
alien's claim that she misunderstood the correct month of her hearing. The court stated, '1his
mistake falls short of the exceptional circumstances that have excused nonappearance in other
cases." Id. at 663. In fact, the court stated that the alien's mistaken was Hnowhere near the
illustrative examples given in the statute." Id.

In this case, respondent's claim that she mistakenly believed the hearing was scheduled
for a week later does not constitute an exceptional circwnstance justifying her failure to appear.
Nothing in the particular facts of this case would justify deviating from the general rule that a
mistaken belief regarding the hearing date does not constitute exceptional circumstances. As in
Dominguez-Capistran, the fact that respondent was under stress from various factors does render
her mistake exceptional. While respondent's mother was hospitalized, there is no evidence that

3
she was hospitalized on the clay of the hearing. Moreover, respondent was not required to rush to
the hospital the day of the hearing following her mother's emergent and unexpected illness.
While an alien's need to attend to a close relative's serious and emergent illness on the day of the
hearing may be beyond the alien's control, respondent's failure to properly remember the date of
her hearing due to stress was not due to circwnstances beyond her control. Congress deliberately
set a high bar when requiring an alien to demonstrate exceptional circumstances beyond his or

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her control as a condition for reopening. The types of stress described by respondent, namely
stress resulting from the illness of a parent, bills, and personal matters such as a divorce, are
faced by most people. They are not so unusual as to justify an individual failing to remember the
date of her hearing.

In addition, respondent did not immediately take steps to request reopening of her
removal proceedings. She did not file her motion to reopen until November 24, 2010, just days
before the deadline for filing. See Acquaah v. Holder, 589 F.3d at 336. Respondent also has not
articulated eligibility for relief from removal,2 even though she was given numerous
continuances by the comt for attorney preparation. See Valencia-Fregoso v. INS, 321 F.3d at
1205-06. Finally, respondent in this case failed to cooperate with her attorney in even though
she was granted various continuances to prepare. Consideration of these particular factors also
cuts against respondent's allegation that her failure to appear at the hearing on June 2, 2010 was
due to exceptional circumstances.

For the foregoing reasons, respondent's motion to reopen is denied and the court will
enter the following order:

ORDER

IT IS HEREBY ORDERED that respondent's Motion to Reopen be denied.

DATED: May 7, 2014.

(Q, & t;
Lee A. 0' Connor
Immigration Judge

2 Respondent's renewed motion to reopen contains documents showing that respondent's mother has since
immigrated to the United States and become a lawful pem1anent resident. She apparently filed an 1-1 30 petition for
respondent sometime after February 27, 20 1 4. There is nothing to indicate whether this petition has been approved.
However, the court notes that respondent is listed on the application as being married. Since a lawful permanent
resident may not petition for married sons and daughters, the petition does not appear to be approvable. Moreover,
even if respondent were single, the 2B preference (w1married sons and daughters of lawful permanent residents) for
the Philippines is tremendously backlogged and subject to a waiting list of ten years or more. In other words, this
petition does not present any basis for relief for respondent for the foreseeable future.