U.S.

Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals
Office of the Clerk
5/07 Leesburg P;ke, Suile 2000
Falls Church, Virginia 22041

DHS/ICE Office of Chief Counsel - LOS

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

Name: LAGUNAS, ISRAEL FRANCISCO

A 200-154-729
Date of this notice: 3/21/2016

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

Doruu...
Donna Carr
Chief Clerk

(1/Vu

Enclosure
Panel Members:
Guendelsberger, John
0 1 Leary, Brian M.
Grant, Edward R.

Userteam: Docket

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Cite as: Israel Francisco Lagunas, A200 154 729 (BIA March 21, 2016)

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LAGUNAS, ISRAEL FRANCISCO

8001 HOLLAND DR., #12-E
HUNTING. BEACH, CA 92647

U.S. Department of Justice

Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 22041

File: A200 154 729 - Los Angeles, CA

In re: ISRAEL FRANCISCO LAGUNAS

Date:

MAR t

2 015

APPEAL
ON BEHALF OF RESPONDENT: Pro se
APPLICATION: Reopening

The respondent, a native and citizen of Mexico, was ordered removed _from the United States
in absentia on January 14, 2014, after not appearing at a hearing. He appeals from the
Immigration Judge's decision dated October 9, 2014, denying his June 13, 2014, motion to
reopen. The Board defers to the factual findings of an Immigration Judge, unless they are clearly
erroneous, but it retains independent judgment and discretion, subject to applicable governing
standards, regarding questions of law and the application of a particular standard of law to those
facts. 8 C.F.R. 1003. l(d)(3)(i), (ii). Under the totality of the circumstances, we are persuaded
by the respondent's argument that the Immigration Judge should have exercised his sua sponte
authority to reopen these proceedings. See 8 C.F.R. 1003.23(b)(l). See also Matter of J-J-,
21 I&N Dec. 976 {BIA 1997).
Accordingly, the following order will be entered.
ORDER: The appeal is sustained, the in absentia order of removal is rescinded, these
proceedings are reopened, and the record is remanded for further proceedings consistent with the
foregoing opinion.

FOR TlIEBO

Cite as: Israel Francisco Lagunas, A200 154 729 (BIA March 21, 2016)

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IN REMOVAL PROCEEDINGS

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
606 SOUTH OLIVE ST.
LOS ANGELES, CA 90014

IN THE MATTER OF
LAGUNAS, ISRAEL FRANCISCO

FILE A 200-154-729

DATE: Oct 10, 2014

UNABLE TO FORWARD - NO ADDRESS PROVIDED

ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE. 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, ATTACHED DOCUMENTS, AND FEE OR FEE WAIVER REQUEST
MUST BE MAILED TO:
BOARD OF IMMIGRATION APPEALS
OFFICE OF THE CLERK
5107 Leesburg Pike, Suite 2000
FALLS CHURCH, VA 20530
ATTACHED 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) OF THE IMMIGRATION AND NATIONALITY ACT, 8 U.S.C.
SECTION 1252B(c)(3) IN DEPORTATION PROCEEDINGS OR SECTION 240(c)(6),
8 U.S.C. SECTION 1229a{c)_(6) IN REMOVAL PROCEEDINGS. IF YOU FILE A MOTION
TO REOPEN, YOUR MOTION MUST BE FILED WITH THIS COURT:
IMMIGRATION COURT
606 SOUTH OLIVE ST.
LOS ANGELES, CA 90014
OTHER:

COURT

Qlvu40

IMMIGRATION COURT

CC:
I

FF

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LAGUNAS, ISRAEL FRANCISCO

1280 CABRILLO PARK DR# H
SANTA ANA, CA 92707

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
LOS ANGELES, CALIFORNIA
File No.:

A 200154 729

In the Matter of:

LAGUNAS, Francisco Israel
RESPONDENT

IN REMOVAL PROCEEDINGS

CHARGE:

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

APPLICATION:

Motion to Reopen
ON BEHALF OF THE DBS:
Office of the Chief Counsel- ICE
Department of Homeland Security
606 South Olive Street, Eighth Floor
Los Angeles, CA 90014

ON BEHALF OF THE RESPONDENT:

Pro Se

DECISION AND ORDER OF THE IMMIGRATION JUDGE

I. Procedural History
The respondent is a native and citizen of Mexico. On August 20, 2013, the Court
personally served the respondent with a Notice of Hearing (NOH), informing him of his removal
hearing scheduled on January 14, 2014, and of the consequences of failing to appear at said
hearing.
On January 14, 2014, the respondent failed to appear in court for his scheduled hearing.
When the Court asked the respondent's counsel the whereabouts of his client at 2:52 p.m.,
counsel responded that he talked to his client at 1 :00 p.m. and his client had informed counsel
that he was unable to come to Court because he was "on the computer." Accordingly, the Court
granted the request of the Department of Homeland Security to proceed in absentia and, based
on the respondent's prior written admissions and concessions, found that removability had been
established by clear and convincing evidence. Accordingly, the Court ordered the respondent
removed to Mexico.
On June 16, 2014, the respondent filed the pending motion to reopen. The motion
contains only a single page affidavit from the respondent's former neighbor, Juan Carlos Aburto,
claiming that the respondent was on the telephone with the mentally distressed affiant.
For the following reasons, the Court will deny the respondent's motion to reopen.
1

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)
)
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II. Law and Analysis

The affidavit supporting the pending motion loosely describes a bout of depression
during which the affiant, Juan Carlos Aburto, called the respondent while scrolling through his
cellphone directory. He claims the respondent helped calm him down until his wife got home.
Several months later, the affiant alleges that the respondent told him that he missed his
Immigration Court date as a result of their telephone conversation and the affiant agreed to write
the affidavit.
The facts, even taken as true, do not meet the requirements of section 240(e){l) of the
INA. The section has four enumerated categories: (1) battery; (2) extreme cruelty to the alien,
child of alien, parent of alien; (3) serious illness of alien; (4) serious illness or death of the
spouse, child, or parent of the alien. The Ninth Circuit has largely rejected excuses other than
those enumerated as less than exceptional circumstances. Valencia-Fragoso v. INS, 321 F.3d
1204 (9th Cir. 2003) (misunderstanding about time); Sharma v. INS, 89 F.3d 545 (9th Cir. 1996)
(traffic and parking issues); In re B-A-S-, 22 l&N Dec. 57 (BIA 1998) (minor sickness or injury).
Here, the respondent clearly does not fit into the first three enumerated categories. The
affiant is not a family member of the respondent suffering from serious illness or injury as
contemplated by section 240(e)(l) the INA. The affiant's relationship with the respondent
cannot even be analogized to a close family relationship: the affiant did not recognize the voice
of the respondent when he called or know the respondent's last name, and admits they only came
into contact occasionally as members of the same apartment complex.
The affiant does not even state whether the alleged conversation actually extended to the
time of the respondent's hearing. In addition, the respondent failed to personally substantiate,
summarize, or explain the allegations contained in the affidavit and as a result has not met his
burden of providing "specific detailed evidence" to prove exceptional circumstances. See Celis
Castellano, 298 F.3d at 890. Finally, the affiant's statements directly contradict the statements
2

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An alien may seek to rescind an in absentia order of removal within 180 days of the
issuance of such order if she can demonstrate that exceptional circumstances prevented her
appearance at the hearing. 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. Section 240(e)(l)
of the Act. In determining whether a respondent's absence is due to exceptional circumstances,
the Court looks at the ''totality of the circumstances." See Matter of W-F-, 21 l&N Dec. 503
(BIA 1996); Matter of Shaar, 21 l&N Dec. 541 (BIA 1996). A motion to reopen based on
exceptional circumstances must be supported by specific, detailed evidence. Celis-Castellano v.
Ashcroft, 298 F.3d 888, 890 (9th Cir. 2002). The Court may also weigh the alien's probability of
obtaining relief from deportation. Singh v. INS, 295 F.3d 1037,1038-1040 (9th Cir. 2002); In re
B-A-S-, 22 I&N Dec. 57, 59 (1998). Because motions to reopen are reviewed without further
factual hearing, facts alleged in accompanying affidavits are regarded as true unless "inherently
unbelievable." Bhasin v. Gonzales, 423 F.3d 977,987 (9th Cir. 2005),Limsico v. INS, 951 F.2d
710,213 (9th Cir. 1991).

of the respondent's own counsel during the January 14, 2014, in absentia hearing when he stated
that the respondent could not be present because he was "on the computer."
Accordingly, the following order shall be entered:
ORDER

DATE:

r-

0/f l1

srettM.Parchert
Immigration Judge

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3

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IT IS ORDERED that the respondent's motion to reopen be DENIED.