Cite as: Abel Ramon Amaya, A073 987 815 (BIA Dec.

21, 2012)
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,
lgbokwe, Chinedu I., Esq
Banwo & lgbokwe Law Firm L.L.C.
3568 Dodge St., Suite 100
Omaha, NE 68131
Name: AMAYA, ABEL RAMON
t.S. Department of Justice
Executive Ofice for Immigration Review
8oorJ of Im|got|on Jppee!s
Qqce of i/e c|ck
5107 leasbrug Pike, Suite 2000
Fa/s Church, Virginia 22041
OHS/ICE Ofice of Chief Counsel OMA
1717 Avenue H
Omaha, NE 68110
A 073-987-815
Date of this
notic
e
: 12/21/2012
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosure
Panel Members:
Grant, Edward R.
Creppy, Michael J.
Liebowitz, Ellen C
Sincerely,
DC <w
Donna Car
Chief Clerk
schwarzA
Userteam: Docket
Cite as: Abel Ramon Amaya, A073 987 815 (BIA Dec. 21, 2012)
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U.S; Deparent of Justice
Executive Of ce fr Imigaion Review
Decision of the Board of Imigation Apeas
Fa!I Chuch, Virginia 2201
File: A073 987 815 - Omaha, NE
I re: ABEL RAMON AMAYA
IN REMOVAL PROCEEDINGS
APPEAL
Date:
ON BEHALF OF RESPONDENT: Chinedu Igbokwe, Esquire
ON BEHALF OF OHS: Alexandra Kostich
Assistant Chief Counsel
APPLICATION: Motion t reopen
I1 J!
The respondent, a native and citizen of El Salvador, appeals fom the June 3, 2011, decision of
the Immigation Judge denying the respondent's motion to reopen removal proceedings held in
absentia on April 14, 2011. The appeal will b sustained, and the reord remanded fr frther
proceedings.
We review fr clea error the findings of fct, including the determination of credibility, made
by the Immigation Judge. 8 C.F.R. 1003 .I ( d)(3)(i). We review de novo all other issues, including
whether the parties have met the relevat burden of proof, ad issues of discretion. 8 C.F .R.
1003.l(d)(3)(ii).
The Immigation Judge h made no fndings of f act that contradict the account of the respondent
and his attorey. The Immigation Judge was located in Chicago, while the respondent and his
attorey were required to appear via video teleconference fom Oa. The respondent claims that
he was present in the waiting area and that his attorey was in the courtroom (Resp. Motion at I).
The attorey arrived on time, waited for the Immigration Judge, and attempted to contact the
Immigation Judge via the court administator ad the telephone (Resp. Motion at 1-2). The atorey
is competent as a witness to relate what he did on the date of the respondent's heaing. The attorey
independently confrs the respondent's recitation of events. Therefre, upon our de novo review,
we will sustain the respondent's appeal. Accordingly, the following order will be entered.
ORDER: The appeal is sustained, the record is reopened, the removal order is rescinde, ad
the reord is remaded to the Immigation Judge for frther proceedings consistent with the
foregoing opinion and entry of a new decision.
Cite as: Abel Ramon Amaya, A073 987 815 (BIA Dec. 21, 2012)
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Cite as: Abel Ramon Amaya, A073 987 815 (BIA Dec. 21, 2012)
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UNITED STATES DEPARTMENT OF JUSTICE
Executive Ofce fr Igration Review
Igration Court
File: A073 987 815
I the Matter of
Abel R. AMAYA,
Respondent
APLICATION: Motion to Reopen
)
)
)
)
)
Omaha, Nebraska
Date: June 3, 2011
IN REMOVAL PROCEEDINGS
ON BEHALF OF THE RESPONDENT: ON BEHALF OF THE GOVERNMNT:
Chinedu lgbokwe, Esq.
3568 Dodge Steet, Ste. I 00
Omaha, NE 68131
Mirta J. Woodall, Ass't. Chief Counsel
Depaent of Homelad Security
for Omaha NE
DECISION OF THE IMIGRATION JUDGE
The respondent is a native and citizen of El Salvador who was ordere removed in
absentia at a removal hearing on April 14, 2011. On May 2, 2011, he filed a motion to reopen to
rescind this order. The motion is opposed by te goverent and will be denied.
Section 240(b)(5) of the Immigation and Nationality Act states that an alien who does
not attend his removal hearing shall be ordered removed in absentia if the goverent
establishes by clea, convincing and unequivocal evidence that the requisite written notice w
provided and the alien is removable. The order may be rescinded under either of the fllowing
conditions:
(1) upon a motion t reopen filed within 180 days afer the date of
the order of deportation if the alien demonstrates that the filure to
appear was because of "exceptional circumstances"; or
(2) upon a motion to reopen fled at any time if the alien demonstates
that he did not receive notice in accordance with subsection (a)(2)
or was in Federal or State custody and was not at fault in failing
to appear.
Cite as: Abel Ramon Amaya, A073 987 815 (BIA Dec. 21, 2012)
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. According to te statute, the term "exceptional circumstances" refers to circumstances
which a beyond the alien's control, e.g. serious illness of the alien or death of the alien's
immediate relative, but not less compelling.
The Board of hnmigation Appeals has held that "exceptional circumstances" did not
exist where:
(I) the alien, who alleged that her filure to appear was due to inefective assistance of
counsel, did not flly comply with the requirements set frth in Matter of Lozada, 19 I & N Dec.
637 (BIA 1988), afd, 857 F. 2d 10 (!st Cir. 1988); 1
(2) the alien, who alleged a long-standing minor illness ad his son's automobile accident, did
not provide suficient evidence specifng how such circumstances resulted in his failure to
depart;2
(3) the alien simply advanced a general asserion that he was prevented fom reaching the
hearing on time because of "heavy trafic".1
( 4) The alien asserted that he was unable to attend the hearing because he was sufering from
a severe headache but gave no explaation fr neglecting to contact the Immigration Court on te
day of the hearing ad failed to suppor his claim with medical records or other evidence such as
afidavits;
(5) The alien asserted that he was unable to attend the heaing because he had sufered a fot
injury the previous day but gave no explanation fr neglecting to contact the hnmigtion Court
before the hearing and filed to support his clam with medical records or other evidence such as
an afdavit fom his employer;5
However, as correctly pointed out by the goverent, the motion is defcient
inasmuch a it is entirely authored by the respondent's attorey. Statements made in a brief,
motion or Notice of Appeal are not evidence and a thus not entitled to any evidenta weight.
!Sv. Phinpathya, 464 U.S. 183 (1984); Matter of Ramirez-Sanchez, 17 I & N Dec. 503 (BIA
1980).
1 In re Rwera-Claro, 21 I & N 232 (BIA 1996)
2 In re Ali, 21 I & N Dec. 1058 (BIA 1997)
3 In re S-A-, 21 I & N Dec. I 050 (BIA 1997). Because te alien was i exclusion procedings, the Board
applied the "reasonable cause" standard i detennining whether te circumstances surounding his filure to appear
waranted te repening of bis i absentia hearing. Tis is seemingly a lower stadard t "exceptional
circwnstances ".
4 In re J-P-, 22 I & N Dec. 33 (BIA 1998)
5 In re B-A-S-, 22 I & N Dec. 57 (BIA 1998)
2
Cite as: Abel Ramon Amaya, A073 987 815 (BIA Dec. 21, 2012)
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Accordingly, the following order will be entered:
ORDER
IT IS HREBY ORDERED that the Respondent's Motion to Reopen b DED.
3
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Imigtion Judge