U.S.

Department of ,Justice
Executive Office for Immigration Review
Board of Immigration Appeals
Office of the Clerk
5 /07 Leesburg Pike, Suite 2000
Falls Church, Virginia 20530

OHS/ICE Office of Chief Counsel - LOS

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

Name: CORTEZ-TALAVERA, GABINO R. ..

A 095-748-656
Date of this notice: 7/10/2015

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

DOYUtL cwvu
Sincerely,

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Grant, Edward R.
Guendelsberger, John
Miller, Neil P.

Userteam: Docket

For more unpublished BIA decisions, visit

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Cite as: Gabino Rolando Cortez-Talavera, A095 748 656 (BIA July 10, 2015)

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Bajramovic, Hadley
Immigration Law Offices of Hadley
Bajramovic
5225 Canyon Crest Drive
STE 450
Riverside, CA 92507

U.S. Department of Justice

Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 20530

File: A095 748 656 - Los Angeles, CA

Date:

In re: GABINO ROLANDO CORTEZ-TALAVERA

JUL 10 2015

APPEAL
ON BEHALF OF RESPONDENT: Hadley Bajramovic, Esquire
ON BEHALF OF DHS:

Tasha Gailys
Assistant Chief Counsel

APPLICATION: Reopening
The respondent has appealed from the Immigration Judge's decision dated
November 6, 2013, denying the respondent's motion to reopen proceedings in which he was
ordered removed in absentia. The appeal will be sustained and the record will be remanded to
the Immigration Judge.
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). 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).
The respondent was scheduled to appear at his hearing before the Los Angeles Immigration
Court at 8:30 a.m. on July 29, 2013. According to the respondent's affidavit, he appeared for his
scheduled hearing approximately 30 minutes late because his fiancee, who was driving him to
the hearing, had problems finding the Court. The respondent indicated that when he arrived at
the Court at 9:00 am, his attorney told him that the hearing was over and the Immigration Judge
had ordered the respondent removed in his absence. The respondent further indicated that the
clerk of the Court told him to file a motion to reopen and that the Immigration Judge walked by
the respondent and his attorney, and the respondent's attorney told the Judge that they would file
a motion to reopen.
In Perez v. Mukasey, 516 F.3d 770 (9th Cir. 2008), the United States Court of Appeals for the
Ninth Circuit found that an alien who arrived two hours late for his immigration hearing, but
while an Immigration Judge was still in the courtroom, did not fail to appear for that hearing.
See also Jerezano v. INS, 169 F.3d 613 (9th Cir. 1999) (while traffic delays are generally not
considered exceptional circumstances, delayed appearances are not nonappearances for purposes
of reopening); Romani v. INS, 146 F.3d 737 (9th Cir. 1998) (finding that there was no failure to
appear where the aliens only failed to enter the proper courtroom due the misdirection of their
counsel's assistant and remanded the record for a hearing on the respondent's persecution claim).
Given the respondent's statement that he arrived at the courtroom shortly after the time of his
scheduled hearing, we find that, considering this record as a whole, the respondent cannot be said
to have failed to appear under these circumstances. See Perez v. Mukasey, supra;
Cite as: Gabino Rolando Cortez-Talavera, A095 748 656 (BIA July 10, 2015)

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

IN REMOVAL PROCEEDINGS

A095 748 '656

ORDER: The respondent's appeal is sustained, the respondent's removal proceedings are
reopened, and the record is remanded to the Immigration Judge for further proceedings
consistent with the foregoing decision.

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Jerezano v. INS, supra; Romani v. INS, supra. We therefore need not determine whether the
reason for the respondent's delay constitutes exceptional circumstances. See e.g. Sharma v. INS,
89 F .3d 545 (9th Cir. 1996). Consequently, we find it appropriate to remand the record to the
Immigration Judge to provide the respondent with a new hearing. Accordingly, the following
order will be entered.

2
Cite as: Gabino Rolando Cortez-Talavera, A095 748 656 (BIA July 10, 2015)
M

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
LOS ANGELES, CALIFORNIA
A 095 748 656

)
)

)
)
CORTEZ-TALAVERA, Gabino Rolando )

In the Matter of:

IN REMOVAL PROCEEDINGS

)
)

Respondent.

CHARGE:

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

--present without admission or parole

APPLICATION:

Motion to Reopen

ON BEHALF OF RESPONDENT:
Hadley Bajramovic, Attorney at Law
24384 Sunnymead Blvd. 220A
Moreno Valley, CA 92553

ON BEHALF OF THE DEPARTMENT:

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

DECISION AND ORDER OF THE IMMIGRATION JUDGE

I. Procedural History
Respondent is a native and citizen of Mexico. On November 7, 2011, the United States
Department of Homeland Security (Department) served Respondent with a Notice to Appear
(NTA), alleging therein that he entered the United States at or near an unknown place, on or
about an unknown date, and was not then admitted or paroled after inspection by an immigration
officer. Jurisdiction vested and proceedings commenced when the Department filed the NTA
with the Court on November 9, 2011. See 8 C.F.R. 1003.14(a).
On July 29, 2013, Respondent failed to appear for a master calendar hearing. The Court
proceeded in absentia and ordered Respondent removed to Mexico based on Respondent's prior
admissions to the four factual allegations and a prior Immigration Judge's finding that
Respondent is removable as charged.
On August 8, 2013, Respondent filed the present motion to reopen alleging exceptional
circumstances. The Government has filed an opposition to the motion to reopen. For the
following reasons, the Court denies Respondent's motion to reopen.

1
LL

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File No.:

II. Law and Analysis

Respondent has not demonstrated exceptional circumstances sufficient to warrant

reopening of the proceedings. Respondent asserts that on July 29, 2013, traffic in Los Angeles
and unfamiliarity with the downtown Los Angeles area were the cause of his absence in court.
Exceptional circumstances refer to situations beyond the respondent's control, such as
serious illness of the respondent or serious illness or death of the spouse, child, or parent of the
respondent, but not including less compelling circumstances. INA 240(e)(l). A respondent
must present specific, detailed evidence to corroborate her claim and demonstrate that her
situation is truly "exceptional." Celis-Castellano v. Ashcroft, 298 F.3 d 888, 890 (9th Cir. 2002);
Matter of J-P-, 22 l&N Dec. 33, 34 (BIA 1998). Typical daily occurrences that may cause
mishaps, delays, and oversight do not constitute exceptional circumstances. See Valencia
Fragoso v. INS, 321 F.3d 1204, 1205 (9th Cir. 2003) (finding no exceptional circumstances
where Respondent lost the hearing notice and had forgotten the scheduled time, causing her to
arrive late); Sharma v. INS, 89 F.3d 545, 547 (9th Cir. 1996) (holding that traffic congestions
and parking problems that made the respondent one hour late did not constitute 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 of W-F-, 21 I&N Dec. 503 (BIA 1996); Matter of Shaar, 21 I&N Dec.
541 (BIA 1996). The probability of the alien obtaining relief as well as any lack of due 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, 321 F.3d at 1206 (finding no
showing of exceptional circumstance where only possibility of relief was discretionary grant of
voluntary departure); Singh, 295 F.3d at 1038-40; Sharma, 89 F.3d at 547 (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 respondents
had relief through an approved visa petition). Additionally, a respondent's failure to contact the
Court on the day of her hearing undercuts her claim. See Matter of J-P-, 22 I&N Dec. at 34.
Respondent's assertion that traffic in Los Angeles and unfamiliarity with the downtown
Los Angeles area as the cause of his absence in court does not constitute exceptional
circumstances. See, e.g., Sharm 89 F.3d at 547. Therefore, the Court finds that Respondent
has not presented exceptional circumstances sufficient to warrant reopening, and the Court
denies the motion.
Accordingly, the following order shall be entered:

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An in absentia removal order may be rescinded by the Court upon a motion to reopen
filed within 180 days after the date of the order of removal if the alien demonstrates that the
failure to appear was because of exceptional circumstances as defined in INA 240(e)(l).
8 C.F.R. 1003.23(b)(4)(ii). Respondent filed his motion to reopen in a timely manner.

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

'71 .)013

Arlene E. Dorfman
Immigration Judge

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