Beruflich Dokumente
Kultur Dokumente
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
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
Bajramovic, Hadley
Immigration Law Offices of Hadley
Bajramovic
5225 Canyon Crest Drive
STE 450
Riverside, CA 92507
Date:
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)
IN REMOVAL PROCEEDINGS
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.
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
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CORTEZ-TALAVERA, Gabino Rolando )
IN REMOVAL PROCEEDINGS
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Respondent.
CHARGE:
APPLICATION:
Motion to Reopen
ON BEHALF OF RESPONDENT:
Hadley Bajramovic, Attorney at Law
24384 Sunnymead Blvd. 220A
Moreno Valley, CA 92553
1
LL
File No.:
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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