U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office of the Clerk

5107 leesburg Pike, Suue 2000

Falls Church. Virginia 22041

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

Johnson, Randall Lee OHS/ICE Office of Chief Counsel - SNA
Johnson & Associates, P.C. 8940 Fourwinds Drive, 5th Floor
2000 Clarendon Boulevard San Antonio, TX 78239
Suite 201
Arlington, VA 22201

Name: ROMERO-GUERRA, ARGELIA A 079-038-133

Date of this notice: 5/18/2017

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

Sincerely,

Cynthia L. Crosby
Acting Chief Clerk

Enclosure

Panel Members:
Grant, Edward R.
Kelly, Edward F.
Mann, Ana

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/

Cite as: Argelia Romero-Guerra, A078 038 133 (BIA May 18, 2017)
U.S.DepartlnentofJusdce Decision of the Board of Immigration Appeals
Executive Office for Inunigration Review

Falls Church, Vuginia 22041

File: A079 038 133 - San Antonio, TX Date:

In re: ARGELIA ROMERO-GUERRA

MAY 1 8 2017

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

IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Randall L. Johnson, Esquire

APPLICATION: Reopening

The respondent, a native and citizen of Honduras, was ordered removed in absentia on
August 17, 2001. On October 3, 2016, the respondent filed a motion to reopen proceedings,
which an Immigration Judge denied on November 9, 2016. The respondent filed a motion to
reopen and reconsider as well as a motion to administratively close proceedings on
December 9, 2016. The Immigration Judge denied the motion to reopen as number-barred and
denied the motion for reconsideration because the respondent had not identified any error of fact
or law in the November 9, 2016, decision. The respondent filed a timely appeal of that decision.
The appeal will be sustained, the Immigration Judge's order will be vacated, proceedings will be
reopened and the record will be remanded.

The Board reviews an Immigration Judge's findings of fact, including findings as to the
credibility of testimony, under the clearly erroneous standard. 8 C.F.R 1003.l(d)(3)(i), (tl).
The Board reviews questions of law, discretion, and judgment and all other issues in appeal s
from decisions of Immigration Judges de novo.

Upon de novo review of the record and in light of the totality of the circumstances presented
in this case, we conclude that the respondent demonstrated that reopening is warranted. 1 See
section 240(b)(S)(C)(ii) of the Im.migration and Nationality Act, 8 U.S.C. 1229a(b)(S)(C)(ii).
We will therefore sustain the respondent's appeal and remand the record for further proceedings.

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

FOR THEBO

1 Among other factors, we have considered that the dent was a minor at time she entered
the United States, she is married to a United States and has an approved 1-130 visa
petition, her citiz.en child has serious health issues and there has been no opposition from the
Department of Homeland Security to the motion or the appeal.

Cite as: Argelia Romero-Guerra, A078 038 133 (BIA May 18, 2017)
 \

UNITED ST ATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
800 DOLOROSA STREET, SUITE 300
SAN ANTONIO, TX 78207

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

In the Matter of )
)
R OMERO-GUERRA, ARGELIA ) Case No.: A 079-038-133
)
RESPONDENT )
)
In Removal Proceedings )
>

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

Act), as amended: Alien present in the United States without being
admitted or paroled, or who has arrived in the United States at any
time or place other than as designated by the Attorney General.

APPLICATIONS: 8 C.F.R. l 003.23(b): Motion to Reopen.

8 C.F.R. 1003.23(b): Motion to Reconsider.

Motion to Administratively Close Proceedings.

ON BEHALF OF THE RESPONDENT ON BEHALF OF THE GOVERNMENT

Randall Lee Johnson, Esq. U.S. Immigration & Customs Enforcement
Johnson & Associates, P.C. Office of the Chief Counsel
2000 Clarendon Boulevard, Suite 201 8940 Fourwinds Drive, 5th Floor
Arlington, VA 2220 l San Antonio, TX 78239

WRITTEN DECISION & ORDERS OF THE IMMIGRATION JUDGE

I. Procedural History

The respondent is a thirty-one-year-old female, native and citizen of Honduras, who

entered the United States at or near Eagle Pass, Texas, on or about June 5, 2001. Respondent's

Notice to Appear, Form 1-862; Respondent's Record of Deportable/Inadmissible Alien, Form 1-

213. On June 5, 2001, the Immigration and Naturalization Service (INS}, now the Department of

Homeland Security (OHS), personally served the respondent with her Notice to Appear (NTA},

l

.
charging her as removable pursuant to section 212(a)(6)(A)(i) of the Immigration and Nationality

Act (th Act), as amended, as 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. Respondent's Notice to Appear, Form 1-862. The NTA contains a section

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

titled "Failure to appear" that specifies, inter alia, the consequences of failing to appear for any

scheduled hearings and of failing to apprise the Court of the respondent's current mailing

address. Id. The NTA reflects that the respondent was advised of the consequences of non

appearance in the Spanish language. Id.

On August 13, 2001, the respondent was not present for her hearing before this Court and

was unavailable for examination under oath. Pursuant to the authority provided in section

240(b)(5)(A) of the Act, the Court proceeded in absentia and, on August 17, 2001, ordered the

respondent removed from the United States to Honduras on the charge contained in her NTA.

On September 27, 2016, the respondent, through counsel, attempted to file a motion to

reopen and dismiss her removal proceedings, but the Court rejected said filing because the

respondent's counsel did not fill out Form EOIR-28, Notice of Entry of Appearance, in its

entirety. On October 3, 2016, the respondent, through counsel, filed a motion to reopen and

dismiss her removal proceedings in which she furthermore requested a stay of removal. The

DHS did not file a brief in opposition to the respondent's motion. On November 9, 2016, the

Court denied the respondent's motions to reopen and dismiss her removal proceedings, as well as

her request for a stay of removal. On December 9, 2016, the respondent, through counsel, filed

the instant motion to reopen and dismiss her removal proceedings, as well as a motion to

reconsider the Court's previous denial of her motion to reopen. Also on December 9, 2016, the

respondent, through counsel, submitted a motion to administratively close her removal

proceedings. The OHS did not file briefs in opposition to the respondent's motions.

II. Motion to Reopen

The respondent is number-barred from filing the instant motion to reopen. See 8 C.F.R.

1003.23{b)(l) (2016). An alien may file only one motion to reopen proceedings. Id. On

November 9, 2016, the Court denied the respondent's motion to reopen filed on October 3, 2016.

On December 9, 2016, the respondent filed the instant motion to reopen. See Respondent's

Motion to Reopen and Reconsider. The respondent is barred from filing a second motion to

reopen. See 8 C.F.R. 1003.23(b)(l). Consequently, the Court will deny the respondent's instant

2
 - -

motion to reopen.

II. Motion to Reconsider

A motion to reconsider must specify the errors of fact or law in the Immigration Judge's

prior decision and the motion must be supported by relevant authority. Section 240(c)(6)(C) of

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

the Immigration and Nationality Act (2016); 8 C.F.R. l003.23(b)(2). The motion must be filed

within thirty days of the date of entry of a final administrative order of removal. INA

240(c)(6)(B); 8 C.F.R. l 003.23(b)(l). A motion to reconsider is a "request that the [Court]

reexamine its decision in light of additional legal arguments, a change of law, or perhaps an

argument or aspect of the case which was overlooked." Matter of 0-S-G-, 24 l&N Dec. 56, 57

(BIA 2006) (citing Matter of Ramos, 23 I&N Dec. 336, 338 (BIA 2002) (quoting Matter of

Cerna, 20 l&N Dec. 399, 402 n.2 (BIA 1991)).

The respondent filed her motion to reconsider exactly thirty days from the date of the

Court's denial of her motion to reopen. Therefore, the Court finds that the respondent's motion

to reconsider is timely. INA 240(c)(6)(B); 8. C.F.R. l003.23(b)(2). The respondent, through

counsel, asks that the Court reconsider its denial of the respondent's previous motion to reopen.

See Respondent's Motion to Reopen and Reconsider. Specifically, the respondent's counsel

claims that "Ms. Romero's previous Motion to Reopen incorrectly stated in one subsection that

she was eligible for adjustment of status under INA 245(a)" and, "[a]s such, the Immigration

Judge declined to reopen proceedings because Ms. Romero failed to prove a valid bases upon

which her case may be reopened." Id. at 2. The respondent's counsel further avers that "Ms.

Romero intended to seek reopening on the basis of her eligibility for a Form I-601A, Provisional

Unlawful Presence Waiver, with the U.S. Citizenship and Immigration Service, and ultimately,

consular processing to obtain lawful permanent residence in the United States," which she

indicated "in her prior Motion to Reopen in the Introduction, Argument, and Conclusion sections

of the motion." Id.

The Court is cognizant of the fact that the respondent is presently ineligible to receive a

provisional unlawful presence waiver due to her removal order unless her removal proceedings

are reopened and administratively closed. 8 C.F.R. 212.7(e)(4). The Court expressed in its

November 9, 2016 decision that the respondent remained unlawfully present in the United States

since she entered in 2001. The Court furthermore emphasized in its November 9, 2016 decision

that the respondent failed to demonstrate exceptional circumstances warranting a sua sponte

3
 ..
reopening of her removal proceedings due to her omission of evidence demonstrating that she

filed wih the U.S. Citizenship and Immigration Service a provisional waiver of unlawful

presence. Additionally, the Court importantly notes that its sua sponte authority to reopen an

alien's removal proceedings is entirely discretionary. 8 C.F.R. 1003.23(b)(l ). Therefore, the

respondent, through counsel, failed to specify an error of fact or law in the Court's previous

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

order regarding its decision to not sua sponte reopen the respondent's removal proceedings. INA

240(c)(6)(C); 8 C.F.R. l003.23( b)(2 ). Thus, the respondent did not proffer any valid bases

upon which to sustain her present motion to reconsider.

Accordingly, the following orders are here by entered:

ORDERS

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

IT IS FURTHER ORDERED that the respondent's motion to reconsider be DENIED.

IT IS FINALLY ORDERED that the respondent's motion to administratively close be

DENIED.

Date: .......
----'/-1_.fk
'---O""'
"---
--' ..
-L
-=--
...C. .._-
_ ' 201 6
Thomas G. Crossan, Jr.
United States Immigration