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Immigrant & Refugee Appellate Center, LLC | www.irac.net U.S. Department of Justice Executive Office for Immigration

U.S. Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals Q[fice ofthe Clerk

Labrada Dume, Marilyn

Labrada Dume & Associates

1 Engle Street, Suite 204 Englewood, NJ 07631

Name: CUN-BALAN, BERNABE

5/07 Leesburg Pike,

Falls Church,

Suite 2000

22041

Virginia

DHS/ICE Office of Chief Counsel - DAL 125 E. John Carpenter Fwy, Ste. 500 Irving, TX 75062-2324

A 205-305-480

Date of this notice:

2/10/2016

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

Board's decision and order in the above-referenced case. Sincerely, bon.rtL C tVvtJ Enclosure Panel Members:

Sincerely,

bon.rtL CtVvtJ

Enclosure

Panel Members:

Adkins-Blanch, Charles K. Grant, Edward R. Guendelsberger. John

Donna Carr

Chief Clerk

Userteam: Docket

John Donna Carr Chief Clerk Userteam: Docket For more unpublished BIA decisions, visit

For more unpublished BIA decisions, visit www.irac.net/unpublished/index/

Cite as: Bernabe Cun-Balan, A205 305 480 (BIA Feb. 10, 2016)

BIA decisions, visit www.irac.net/unpublished/index/ Cite as: Bernabe Cun-Balan, A205 305 480 (BIA Feb. 10, 2016)

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Immigrant & Refugee Appellate Center, LLC | www.irac.net U.S. Department of Justice Executive Office for Immigration

U.S. Department of Justice

Executive Office for Immigration

Review

Decision ofthe Board of Immigration Appeals

Falls Church, Virginia 22041
Falls Church, Virginia 22041

File:

A205 305 480 - Dallas, TX

In re: BERNABE CUN-BALAN

IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT:

B E H A L F O F R E S P O N D E

ORDER:

Date:

Marilyn Labrada Dume, Esquire

FEB

f O 2016

The respondent has appealed the Immigration Judge's denial of a motion to reopen

proceedings in which the respondent was ordered removed in

We review an

Immigration Judge's findings of fact for clear error, but questions of law, discretion, and

judgment, and all other issues in appeals, are reviewed de novo. 8 C.F.R. § 1003.l(d)(3)(i), (ii).

On review, in light of the totality of the circumstances presented, we find that the respondent

established exceptional circumstances for his failure to appear at the scheduled removal hearing.

See section 240(b)(5)(C) ofthe Immigration and Nationality Act, 8 U.S.C. § 1229a(b)(5)(C).

Accordingly, the appeal is sustained, the in absentia removal order is rescinded, the

proceedings are reopened, venue is changed to the Immigration Court in Newark, New Jersey,

and the record is remanded to the Immigration Court for further proceedings consistent with the

foregoing opinion and the entry of a new decision.

the foregoing opinion and the entry of a new decision. Cite as: Bernabe Cun-Balan, A205 305

Cite as: Bernabe Cun-Balan, A205 305 480 (BIA Feb. 10, 2016)

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UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFJCE FOR IMMIGRATION REVIEW IMMIGRATION COURT

1100 COMMERCE ST.,

SUITE 1060

REVIEW IMMIGRATION COURT 1100 COMMERCE ST., SUITE 1060 DALLAS, TX 75242 LAW OFFICES OF MARILYN LABRADA

DALLAS,

TX

75242

LAW OFFICES OF MARILYN LABRADA DUME DUME, MARILYN LABRADA ONE EAGLE STREET, SUITE 204 ENGLEWOOD, NJ 07631

LABRADA ONE EAGLE STREET, SUITE 204 ENGLEWOOD, NJ 07631 IN THE MATTER OF CUN-BALAN, BERNABLE FILE

IN THE MATTER OF CUN-BALAN, BERNABLE

FILE A 205-305-480

DATE:

Nov 29,

2014

UNABLE TO FORWARD - NO ADDRESS PROVIDED

ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE.DATE: Nov 29, 2014 UNABLE TO FORWARD - NO ADDRESS PROVIDED THIS DECISION IS FINAL UNLESS

THIS DECISION

IS FINAL UNLESS AN APPEAL IS FILED WITH THE BOARD OF IMMIGRATION APPEALS WITHIN 30 CALENDAR DAYS OF THE DATE OF THE MAILING OF THIS WRITTEN DECISION.

SEE THE ENCLOSED FORMS AND INSTRUCTIONS FOR PROPERLY PREPARING YOUR APPEAL.

YOUR NOTICE OF APPEAL, MUST BE MAILED TO:

ATTACHED DOCUMENTS,

AND FEE OR FEE WAIVER REQUEST

Suite 2000

BOARD OF IMMIGRATION APPEALS OFFICE OF THE CLERK

5107 Leesburg Pike,

FALLS CHURCH,. VA

OFFICE OF THE CLERK 5107 Leesburg Pike, FALLS CHURCH,. VA 20530 hTTACHED IS A COPY OF

20530

hTTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE AS THE RESULT OF YOUR FAILURE TO APPEAR AT YOUR SCHEDULED DEPORTATION OR REMOVAL HEARING. THIS DECISION IS FINAL UNLESS A MOTION TO REOPEN IS FILED IN ACCORDANCE

WITH SECTION 242B(c} (3}

SECTION 1252B(c)(3) IN DEPORTATION PROCEEDINGS OR SECTION 240(c) (6),

8 U.S.C. SECTION 1229a(c) (6) IN REMOVAL PROCEEDINGS. TO REOPEN, YOUR MOTION MUST BE FILED WITH THIS COURT:

OF THE IMMIGRATION AND NATIONALITY ACT,

8 U.S.C.

IF YOU FILE A MOTION

AND NATIONALITY ACT, 8 U.S.C. IF YOU FILE A MOTION � OTHER: CC: IMMIGRATION COURT 1100

OTHER:

CC:

IMMIGRATION COURT 1100 COMMERCE ST.,

SUITE 1060

DALLAS, TX 75242 , tJd)if) ·to . 1•,. rl) Reopw CW)ULLJ. OCT COURT CLERK IMMIGRATION
DALLAS,
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75242
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OCT
COURT CLERK
IMMIGRATION COURT
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HARLOW,
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125
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HWY 114,
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500
IRVING,
TX,
75062

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Immigrant & Refugee Appellate Center, LLC | www.irac.net UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR
Immigrant & Refugee Appellate Center, LLC | www.irac.net UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR

UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT DALLAS, TEXAS

IN THE MATTER OF:

CUN-BALAN, Bernable

RESPONDENT

CHARGE:

IN THE MATTER OF: CUN-BALAN, Bernable RESPONDENT CHARGE: APPLICATION: ) ) IN REMOVAL PROCEEDINGS ) )

APPLICATION:

OF: CUN-BALAN, Bernable RESPONDENT CHARGE: APPLICATION: ) ) IN REMOVAL PROCEEDINGS ) ) A 205-305-480 )

)

) IN REMOVAL PROCEEDINGS

)

) A 205-305-480

)

) ) IN REMOVAL PROCEEDINGS ) ) A 205-305-480 ) Section 212(a){7)(A)(i)(l) of the Immigration and

Section 212(a){7)(A)(i)(l) of the Immigration and Nationality Act (Act), as amended, as an immigrant who, at the time of application for admission, is not in possession of a valid unexpired immigrant visa, reentry permit, border crossing card, or other valid entry document required by the Act, and a valid unexpired passport, or other suitable travel document, or document of identity and nationality as required under the regulations issued by the Attorney General under section 21 l(a) ofthe Act.

Motion to Reopen

ON BEHALF OF THE RESPONDENT:

ofthe Act. Motion to Reopen ON BEHALF OF THE RESPONDENT: Marilyn Labrada Dume, Esq. Law offices

Marilyn Labrada Dume, Esq. Law offices of Marilyn Labrada Dume, P.C. One Engle St., Suite 204 Englewood, New Jersey 07631

ON BEHALF OF THE DEPARTMENT

OF HOMELAND SECURITY:

Paul B. Hunker III, Esq. Chief Counsel- DHS/ICE 125 E. John Carpenter Freeway, Suite 500 Irving, TX 75062

WRITTEN DECISION OF THE IMMIGRATION JUDGE

FACTUAL AND PROCEDURAL HISTORY

The Respondent is a male native and citizen of Guatemala who arrived in the United

States at or near Hidalgo, Texas on or about February 19, 2012, without being inspected by an

immigration officer. Exhibit 1. Soon thereafter, the Respondent was apprehended and detained

Soon thereafter, the Respondent was apprehended and detained b y B o r d e r

by Border Patrol agents. Exhibit 4. Subsequently, on August 3, 2012, the Government mailed

Page 1 of7

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

Immigrant & Refugee Appellate Center, LLC | www.irac.net tlie Respondent a Notice to Appear (NTA) charging
Immigrant & Refugee Appellate Center, LLC | www.irac.net tlie Respondent a Notice to Appear (NTA) charging

tlie Respondent a Notice to Appear (NTA) charging him with removability under section

212(a)(7)(A)(i)(I) of the Immigration and Nationality Act (Act). Exhibit 1.

On August 14, 2012, the NTA was filed with the Dallas Immigration Court (Court).

Id.

On September 4, 2012, the Court served the Respondent with a Notice of Hearing (NOH) by

mail indicating that his hearing would be held on October 4, 2012 at 9:00 A.M at the Dallas

Immigration Court.

The Respondent, represented by counsel, appeared before this Court on September 23,

2012 for a bond hearing. The Respondent was subsequently released from custody on a $5,000

bond.

On October 4, 2012, the Respondent failed to appear at his scheduled hearing.

The

Respondent's counsel, however, appeared telephonically. 1 The Respondent's attorney explained

that the Respondent was not present because she was acting under the belief that since her

because she was acting under the belief that since her motion for telephonic hearing was granted,

motion for telephonic hearing was granted, it also waived the Respondent's appearance.

The

Immigration Judge explained that the telephonic hearing was granted solely to the attorney and

that the Respondent was required to be present, and without his presence the Court would

proceed in absentia.

The Respondent's counsel at that time requested a continuance.

The

Government indicated they had no opposition, so the matter was continued to November 7, 2012

and an in absentia order was not issued. However, the Court made it clear to the Respondent's

attorney that unless the motion to change venue is granted, the Respondent was required to be

present at the Dallas Immigration Court on November 7, 2012.

On October 5, 2012, the Court

also mailed the Respondent's attorney a Notice of Hearing advising the Respondent of the

consequences if he failed to appear at the hearing.

1 The Respondent's counsel had previously filed a motion requesting to appear telephonically for this hearing. That motion was granted by the Court on September 4, 2012. See Motion to Request for Counsel to Appear Telephonically for Master Calendar Hearing.

Page 2 of7

September 4, 2012. See Motion to Request for Counsel to Appear Telephonically for Master Calendar Hearing.

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

Immigrant & Refugee Appellate Center, LLC | www.irac.net On October 26, 2012, 2 the Respondent filed
Immigrant & Refugee Appellate Center, LLC | www.irac.net On October 26, 2012, 2 the Respondent filed

On October 26, 2012, 2 the Respondent filed a motion for change of venue with the Court

acknowledging receipt of the NTA, admitting the allegations contained in the NTA and

conceding removability. See Exhibit 2. Along with the motion, the Respondent also submitted

an application seeking asylum and a motion requesting for counsel to appear telephonically and

waive the Respondent's appearance or issue a continuance in the alternative. Id.

On November 7, 2012, the Respondent and his counsel failed to appear at the scheduled

hearing and the proceedings were conducted in absentia pursuant to section 240(b)(S)(A) of the

Act.

The Court concluded that the Respondent had adequate notice of the hearing, that he had

previously admitted the allegations set forth in the NTA, and that the charge of removability had

been established by clear and convincing evidence.

The Court also denied the Respondent's

motion to change venue and held that any applications for relief from removal had been

abandoned. Subsequently, the Respondent was ordered removed in absentia.

On May 2, 2013, Respondent filed the present Motion to Reopen, asserting that his case

should be reopened and his in absentia order rescinded due to exceptional circumstances. See

Motion to Reopen. The Respondent's motion contends that Ms. Dume advised the Respondent

that he did not need to be present at the hearing because since he had filed a timely motion to

change venue and had filed for relief, his case would be transferred to New Jersey. Id.

not filed a response.

DHS has

STATEMENT OF THE LAW If an alien does not attend a removal hearing after written notice has been provided to the alien or the alien's counsel of record, the alien will be ordered removed in absentia if the

Government establishes by clear, unequivocal, and convincing evidence that the written notice

was provided and that the alien is removable.

INA § 240(b)(5). Adequate notice can be

2 There was also an identical motion to change venue filed on October 12, 2012.

Exhibit 2.

Page 3 of7

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Immigrant & Refugee Appellate Center, LLC | www.irac.net accomplished through personal service, or if personal service
Immigrant & Refugee Appellate Center, LLC | www.irac.net accomplished through personal service, or if personal service

accomplished through personal service, or if personal service is not practicable, through service

by mail to the alien or to the alien's counsel of record. INA§ 239(a)(l).

If an alien did not receive adequate notice of the hearing, an in absentia order may be

rescinded at any time upon the filing of a motion to reopen with the appropriate filing fe e and fee

receipt.

INA § 240(b)(5)(C)(ii); 8 C.F.R. §§ 1003.23(b)(4)(ii), 1 003.23(b)(l)(ii), 1003.24(b).

An in absentia order may also be rescinded upon a motion to reopen filed 180 days after an

administratively final order of removal is entered if the Respondent shows "exceptional

circumstances" leading to his absence from the hearing.

INA § 240(b)(5)(C)(i); 8 C.F.R. §

1003.23(b)(4)(iii). Exceptional circumstances are circumstances beyond the control of the alien,

including "battery or extreme cruelty to the alien or any child or parent of the alien, serious

to the alien or any child or parent of the alien, serious illness of the alien,

illness of the alien, or serious illness or death of the spouse, child, or parent of the alien, but not

including less compelling circumstances." INA§ 240(e){l). This "is a difficult burden to meet."

Magdaleno de Morales v. INS, 116 F.3d 145, 148 (5th Cir. 1997). The Court must look to the

"totality of the circumstances" in deciding whether exceptional circumstances exist. In re W-F-,

21 I&N Dec. 503, 509 (BIA 1996).

The Court may also exercise its sua sponte authority to reopen in ''truly exceptional

situations" where the interests of justice would be served. Matter of G-D-, 22 l&N Dec. 1132

(BIA 1 999).

ANALYSIS

The Respondent filed a timely motion to reopen with the appropriate filing fee and fee receipt. See Motion to Reopen. Thus, this Court has jurisdiction over the present motion. The Respondent asserts that his case should be reopened and his in absentia order rescinded due to exceptional circumstances. See Motion to Reopen. He claims that he

Page 4 of 7

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,
,

"detrimentally relied on his attorney's representation that since he had filed a timely motion to

change venue and had filed for relief, his case should be transferred to Newark, New Jersey." Id.

The Respondent states that he was "wrongfully advised" to go to Ms. Dume' s office instead of

traveling to Texas. Id., Tab A. The Respondent further states that his attorney, Ms. Dume, relied

on her legal assistant' s assumption that a telephonic hearing would be held instead and that the

motion to change venue would be decided during that hearing on November 7, 20 1 2. See id. On

November 7, 20 12, the Respondent and Ms. Dume were in her New Jersey office waiting for a

call from the Dallas Immigration Court. See id. However, the call was never received and by

the time Ms. Dume called the Court, she was informed that the Respondent was ordered removed

in absentia.

See id.

The Respondent and his attorney have both submitted affidavits to this

effect.

See id.,

Tab A, B.

However, the Court finds that in considering the totality of the

circumstances, the Respondent's failure to appear at his hearing was not due to "exceptional

circumstances" as contemplated by the statute and regulations.

"Exceptional circumstances" are defined as "circumstances beyond the control of the

alien (such battery or extreme cruelty to the alien or any child or parent of the alien, serious

illness of the alien, or serious illness or death of the spouse, child, or parent of the alien, but not

including less compelling circumstances)."

INA § 240(e) (emphasis added).

Courts have

consistently held that "the mere submission of a motion for continuance does not relieve an alien

or his counsel of the obligation to appear for a noticed hearing." Patel v. INS, 803 F.2d 804, 806

(5th Cir. 1986); see also Ta ng v. Ashcroft, 354 F .3d 1 1 92, 1 1 95 (1 0th Cir. 200 3); Romero­ Mo rales v. INS, 25 F.3d 125, 129 (2d Cir. 1994). Moreover, "it is never reasonable to assume

that a motion to change venue will be granted." Hernandez- Vivas v.

INS, 23 F.3d 1557, 1560-6 1

(9th Cir. 1994). Likewise, the Court made it clear to the Respondent's attorney during the

Page 5 of7

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Immigrant & Refugee Appellate Center, LLC | www.irac.net ',"'- October 4, 2012 hearing in which the

',"'-

Appellate Center, LLC | www.irac.net ',"'- October 4, 2012 hearing in which the Respondent failed to

October 4, 2012 hearing in which the Respondent failed to attend, that unless the change of

venue request was granted, both the Respondent and the attorney were required to be present in

Dallas on November 7, 2012. Therefore, unless and until the Court granted a change of venue 3

or a continuance, the Respondent had an obligation to attend his hearing in Dallas, Texas on

November 7, 20 1 2. 4

In his motion to this Court, both the Respondent and his counsel further state that the

Respondent's failure to attend the hearing was a result of Hurricane Sandy which made

communication and travel difficult.

See id., Tab A, B.

However, the Respondent 's failure to

appear at his scheduled hearing was not due to weather concerns.

As stated in his affidavit in

support of his motion to change venue, the Respondent "was wrongfully advised to go to [Ms.

Dume's] office rather than fly to Texas" and consequently, he did as advised. Id., Tab A. The

Court finds that poor legal advice from the Respondent's attorney, after the Respondent had

already been informed that he was required to be present on November 7, 2012 and the

consequences for failing to do so, does not rise to the level of an "exceptional circumstance"

warranting that these proceedings be reopened.

Rather it is a circumstance "less compelling"

than those described by the statute. Based on the foregoing, the Court finds that the Respondent

has failed to establish the presence of an exceptional circumstance causing him to be absent from

his November 7, 2012 hearing.

If it is the Respondent's intention to make an ineffective assistance of counsel claim, the

Respondent has failed to meet the requirements for such a claim as articulated in Ma tter of

Lozada, 19 l&N Dec. 637, 639 (BIA 1 988).

The Respondent has not submitted any evidence

3 The Court denied the Respondent' s request for change of venue because the Respondent failed to appear for his removal hearing on October 4, 20 12 and thus, was unable to show that "he's likely to appear for future hearings." See Order of lmmigration Judge. 4 The same applies to the motion for a telephonic hearing. The Court never ruled on that motion, thus, it would be unreasonable to assume that a telephonic hearing would held.

Page 6 of 7

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Immigrant & Refugee Appellate Center, LLC | www.irac.net that a complaint has been filed with the

that a complaint has been filed with the requisite disciplinary authorities, nor has he explainedImmigrant & Refugee Appellate Center, LLC | www.irac.net his failure to submit such a complaint. See

his failure to submit such a complaint. See id. The Court would also note that the record reflects

that the Respondent continues to be represented by the attorney whom he claims provided him

be represented by the attorney whom he claims provided him with poor legal advice. Thus, there

with poor legal advice. Thus, there is no "prior counsel" against whom to make an ineffective

assistance of counsel claim. See id. Accordingly, the Court finds that the Respondent has failed

to meet the initial requirements for establishing an ineffective assistance of counsel claim. Se e,

e. g., Tang, 354 F.3d at 1 1 96-97.

Finally, the Court

declines

to exercise its

sua

sponte

authority,

as

the present

circumstance does not rise to the level of a "truly exceptional situation," where reopening would

serve the interests ofjustice. See Matter ofG-D-, 22 I&N at 1135-36 (citing examples of when it

is appropriate for the Court to exercise its sua sponte authority).

Accordingly, the following Orders will be entered:

ORDER

IT IS HEREBY ORDERED that the Respondent's Motion to Reopen is DENIED.

IT IS FURTHER ORDERED that the Respondent's Request for St

DENIED.

ORDERED that the Respondent's Request for St DENIED. Immigration Judge Date: t h day of October

Immigration Judge

Date: t h day of October 20 14 Dallas, Texas

Judge Date: t h day of October 20 14 Dallas, Texas Page 7 of 7 &Z

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