U.S.

Department of Justice
Executive Office for Immigration Review
Board qfImmigration Appeals
Office ofthe Clerk
5/07 Leesb11rg Pike. Suite 2000
Falls Church. Virginia 22041

DHS/ICE Office of Chief Counsel - CHI

525 West Van Buren Street
Chicago, IL 60607

Name: RINCON-VELASQUEZ, OTONIEL

A 089-284-279
Date of this notice: 10/21/2015

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

DonnL ca.AA)
Sincerely,

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Cole, Patricia A.
Malphrus, Garry D.
Geller, Joan B

Userteam: Docket

For more unpublished BIA decisions, visit

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Cite as: Otoniel Rincon-Velasquez, A089 284 279 (BIA Oct. 21, 2015)

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Baldini-Potermin, Maria Theresa, Esq.

Maria Baldini-Potermin & Associates, P.C.
1 N. LaSalle, Suite 2150
Chicago, IL 60602

'u.S. Department of Justice

Decision of the Board oflmmigration Appeals

Executive Office for Immigration Review

FalJs Church, Virginia 22041

Date:

File: A089 284 279 - Chicago, IL

OCT 21 2015

In re: OTONIEL RINCON-VELASQUEZ

APPEAL
ON BEHALF OF RESPONDENT: Maria Theresa Baldini-Potennin, Esquire
ON BEHALF OF DHS: Seth B. Fitter
Senior Attorney
CHARGE:
Notice: Sec.

212(a)(6)(A){i), I&N Act [8 U.S.C. 1182(a)(6)(A)(i)] Present without being admitted or paroled

APPLICATION: Reopening
This case was last before us on November 25, 2014, when we remanded the record to the
Immigration Judge to address legal and evidentiary issues arising from an order from the
United States Court of Appeals for the Seventh Circuit that granted the government's motion to
remand. On April 14, 2015, the Immigration Judge certified this case back to the Board, stating
that no additional fact-finding was needed, that the issue presented was a legal one that had been
fully briefed by the parties. The Immigration Judge declined to make any changes to her
January 7, 2013, decision denying the respondent's motion to reopen and rescind his in absentia
removal order. The respondent's removal proceedings will be reopened, and the record
remanded to the Immigration Court for further proceedings.
We review the findings of fact, including the determination of credibility, made by the
Immigration Judge under a "clearly erroneous" standard. 8 C.F.R. 1003.l(d)(3)(i). 1 We
review all other issues, including whether the parties have met their relevant burden of proof, and
issues of discretion, under a de novo standard. 8 C.F .R. 1003 .1(d)(3)(ii).
We conclude that the totality of the circumstances, which included the kidnapping of the
respondent's two brothers, the kidnapping of the respondent's cousin, the murder of the
respondent's father in the family's own home in May 2012, shortly before the respondent's
June 2012 hearing, and the emotional and psychological impact these events had on the
1

We acknowledge at the outset the respondent's assertion that while the Immigration Judge
characterized him as "fugitive," he voluntarily appeared at the county jail to serve his sentence
even after the in absentia removal order was issued against him in June 2012 (Respondent's
Br. at 64).

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Cite as: Otoniel Rincon-Velasquez, A089 284 279 (BIA Oct. 21, 2015)
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IN REMOVAL PROCEEDINGS

A089 284 279

Accordingly, the respondent's removal proceedings will be reopened and his in absentia
removal order will be rescinded. The record is remanded to the Immigration Court for further
proceedings. The following orders are entered.
ORDER: The respondent's removal proceedings are reopened and the Immigration Judge's
June 19, 2012, in absentia removal order is rescinded.
FURTHER ORDER: The record is remanded to the Immigration Court for further
proceedings and for entry of a new decision.

We note that in considering whether exceptional circumstances exist, we reject the respondent's
assertion that fear of removal from the United States is a justifiable reason for not attending his
removal proceedings. Such a reasoning would frustrate the overall statutory scheme of the in
absentia provisions which were enacted so that aliens would either appear for their immigration
proceedings or be ordered removed. See generally Matter of Grijalva, 21 I&N Dec. 27, 30-31
(BIA 1995) (provisions enacted in response to concerns raised regarding "delays in the
deportation process and the substantial number of aliens who fail to appear for their scheduled
deportation hearings); Abu Hasirah v. Department of Homeland Security, 478 F.3d 474, 478-79
(2d Cir. 2007) (finding that in absentia removal orders were intended for aliens who failed
entirely to appear for a hearing, and noting legislative report which contained language that
"willful and unjustifiable failure to attend deportation hearings that have been properly noticed is
intolerable").

2
Cite as: Otoniel Rincon-Velasquez, A089 284 279 (BIA Oct. 21, 2015)

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

respondnt during the period of time leading to his hearing, constituted "exceptional
circumstances" for purposes of rescinding his in absentia removal order. 2 The death of a parent
is explicitly included in section 240(e)(l) of the Immigration and Nationality Act, 8 U.S.C.
1229a(e)(l ), as an example of the type of compelling circumstances that may amount to
"exceptional circumstances" warranting rescission of an in absentia order. The gravity and detail
of the assertions in the respondent's affidavit distinguish this case from Matter ofB-A-S-, 22 I&N
Dec. 57 (BIA 1998), in which the alien's evidence did not show that a foot injury was severe
enough to prevent his attendance at his deportation hearing.

File: A089-284-279

June 19, 2012

In the Matter of
)
)
)
)

OTONIEL RINCON-VELASQUEZ
RESPONDENT

IN REMOVAL PROCEEDINGS

CHARGES:
APPLICATIONS:
ON BEHALF OF RESPONDENT: MICHELLE URKA
ON BEHALF OF OHS: LYNN HOLLANDER, Assistant Chief Counsel

THIS WILL BE THE ORDER OF THE COURT

The respondent has conceded his removability as charged while
appearing before this Court on November 8, 2011, with counsel. He has admitted that
he is removable for having entered the United States without being admitted or paroled
in violation of Section 212(a)(6)(A)(i) of the Immigration and Nationality Act. He
expressed no fear of return to Mexico but indicated at that earlier hearing that he was
going to be filing an application of cancelation of removal based on his claim of lengthy
presence in the United States and the existence of qualifying relatives for purposes of

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

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
CHICAGO, ILLINOIS

cancelation. The respondent's case was continued to today for presentation of a

disposition on a 2010 controlled substance arrest. Had the respondent been convicted
He was advised of the new hearing date. His attorney advised him of the
consequences of failure to appear. He was to file all of these documents to preserve
his right to proceed any further. Now, by failing to appear after proper notice being
provided to his attorney, both in writing and orally, this Court finds that he has
abandoned the opportunity to pursue all relief from removal even if he was eligible for
cancellation, something I am not entirely certain of at this point.
ORDERS
And so therefore, the respondent is hereby ordered removed from the
United States to Mexico based on the charge contained on the Notice to Appear. Upon
service of the in absentia removal order, attorney Michelle Urka of the Solis Law Firm,
will also allowed to withdraw and an order will be provided to her to that effect.

JENNIE L. GIAMBASTIANI
Immigration Judge

A089-284-279

June 19, 2012

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of such types of offense, he would not have been eligible for cancellation of removal.