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U.S.

Department of Justice

..

Executive Office for Immigration Review

Board ofImmigration Appeals


Office of the Clerk
5107 Leesburg Pike, Suite 2000
Falls Church, Virginia 22041

DHS/ICE Office of Chief Counsel - SNA


8940 Fourwinds Drive, 5th Floor
San Antonio, TX 78239

A98
Date of this notice: 10/3/2016
Enclosed is a copy of the Board's decision and order in the above-referenced case.
Sincerely,

DonnL

ct1AA)

Donna Carr
Chief Clerk
Enclosure
Panel Members:
O'Connor, Blair
Grant, Edward R.
Mann, Ana

Userteam: Docket

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Cite as: A-J-E-P-, AXXX XXX 498 (BIA Oct. 3, 2016)

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Alcazar, Ramiro
Law Office of Ramiro Alcazar
26 Edgewood Street
Meriden, CT 06451

..

U.S. Department of Justice

Decision of the Board of Immigration Appeals

Executive Office for Immigration Review


Falls Church, Virginia 22041

File: 498 - San Antonio, TX

Date:

In re: AIIIIIIJ-P

OCT - 3 2016

APPEAL
ON BEHALF OF RESPONDENT:

Ramiro Alcazar, Esquire

APPLICATION: Reopening
The respondent, a native and citizen of El Salvador, who was ordered removed from the
United States in absentia on April 25, 2016, appeals the decision of the Immigration Judge, dated
May 31, 2016, denying his motion to reopen, which was filed on May 16, 2016.
We review Immigration Judges' findings of fact for clear error, but questions of law,
discretion, and judgment, and all other issues in appeals, de novo. 8 C.F.R. I003.l(d)(3)(i),
(ii).
Considering the totality of the circumstances presented in this case, including no stated
opposition by the Department of Homeland Security, we conclude that an exceptional situation
has been demonstrated warranting reopening to allow the respondent another opportunity to
appear before the Immigration Judge and request relief from removal.
See 8 C.F.R.
I003.23(b)(l); Matter ofJ-J-, 21 I&N Dec. 976 (BIA 1997). At the present time, we express
no opinion regarding the ultimate outcome of these proceedings.
Accordingly, the following order is entered.
ORDER: The respondent's appeal is sustained, the proceedings are reopened, and the record
is remanded to the Immigration Court for further proceedings.

FOR THE BOARD

Cite as: A-J-E-P-, AXXX XXX 498 (BIA Oct. 3, 2016)

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IN REMOVAL PROCEEDINGS

()

UNITED STATES DEPARTMENT OF JUSTICE


EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
800 DOLOROSA STREET, SUITE 300
SAN ANTONIO, TX 78207

IN THE MATTER OF
E-p- 411!11J-

FILE A-498

DATE: May 31, 2016

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
BOARD OF IMMIGRATION APPEALS
MUST BE MAILED TO:
OFFICE OF THE CLERK
5107 Leesburg Pike, Suite 2000
FALLS CHURCH, VA 22041
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 12528(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
800 DOLOROSA STREET, SUITE 300
SAN ANTONIO, TX 78207
OTHER:
COURT CLERK
IMMIGRATION COURT

CC:
I

FF

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Law Office Ramiro Alcazar


Alcazar, Ramiro
26 Edgewood Street
Meriden, CT 06451

UNITED STATES DEPARTMENT OF JUSTICE


EXECUTIVE OFFICE FORIMMIGRATION REVIEW
IMMIGRATION COURT
800 DOLOROSA STREET, SUITE 300
SAN ANTONIO, TEXAS 78207

RESPONDENT

_______________

In Re moval Proce e dings

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Case No.98

CHARGE:

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


amended: Alien present in the United States without being admitted or
paroled, or who arrived in the United States at any time or place other
than as designated by the Attorney General.

APPLICA TION:

8 C.F.R. 1003.23(b): Motion to Reopen.


ONBEHALFOFTHEGOVERNMENT
U.S. Immigration & Customs Enforcement
Office of the Chief Counsel
8940 Fourwinds Drive, 5th Floor
San Antonio, TX 78297

ON BEHALF OF THE RESPONDENT


Ramiro Alcazar, Esq.
Law Office of Ramiro Alcazar
26 Edgewood Street
Meriden, CT 06451

WRITTEN DECISION & ORDEROF THE IMMIGRATION JUDGE


I. Proce dural History
The respondent is a one-year-old male, native and citizen of El Salvador, who arrived in
the United States at or near Roma, Texas, on or about October 30, 2015. Exhibits 1 and 4. On
October 31, 2015, the Department of Homeland Security (OHS) personally served the
respondent's mother with the respondent's Notice to Appear (NTA), charging the respondent as
removable pursuant to section 212(a)(6)(A)(i) of the Immigration and Nationality Act (the Act),
as amended, as an alien present in the United States without being admitted or paroled, or who
arrived in the United States. at any time or place other than as designated by the Attorney
General. Exhibit 1.

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IN THE MATTEROF

The NTA contains a section titled "Failure to appear" that specifies, inter alia, the
consequences of failing to appear for any scheduled hearings. Id The NTA reflects that the
respondent's mother was advised of the consequences of non-appearance in the Spanish
language. Id.
25, 2016, the respondent was not present for his hearing before this Court and was unavailable
for examination under oath. Pursuant to the authority provided in section 240(b)(5)(A) of the
Act, the Court proceeded in absentia and ordered the respondent removed from the United States
to El Salvador on the charge contained in his NTA.
On May 16, 2016, the respondent, through counsel, filed a motion to reopen his removal
proceedings. The DHS has not filed a brief in opposition to the respondent's motion to reopen.
II. Motion to Reopen

An in absentia order of removal may be rescinded only (i) 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, or (ii) upon a motion to reopen filed at any
time if the alien demonstrates that he did not receive notice in accordance with paragraph (1) or
(2) of section 239(a) of the Act or the alien demonstrates that he was in Federal or State custody
and the failure to appear was through no fault of his own. Section 240(b)(5)(C) of the
Immigration and Nationality Act (2016); 8 C.F.R. I003.23(b)(4)(ii) (2016).
A.

Exceptional Circumstances

Twenty-one days passed between the date the Court ordered the respondent removed in
absentia and the date the respondent filed his motion to reopen. Accordingly, any motion to
reopen based on exceptional circumstances is timely. See INA 240(b)(5)(C); see also 8 C.F.R.
1003.23(b)(4)(ii). The term "exceptional circumstances" refers to exceptional circumstances
beyond the alien's control such as battery or extreme cruelty to the alien or any child or parent,
serious illness of the alien, or serious illness or death of the alien's spouse, child, or parent, but
not including less compelling cir_cumstances. INA 240(e)(1). In any given case, the Court must
look at the totality of circumstances to determine whether exceptional circumstances are present.
See Matter of W-F-, 21 l&N Dec. 503, 509 (BIA 1996) (citing H.R. CONF. REP. No. 955, 101st
Cong., 2d Sess. 132 (1990)).
In the present case, the respondent, through counsel, argues that his case should be
2

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On February 2, 2016, the DHS released the respondent from custody. Exhibit 2. On April

reopened based upon exceptional circumstances because he missed his hearing due to "ICE,
ISAP not providing the Court with the correct address for the respondents and his Mother."
Respondent's Motion to Reopen In Absentia Order At 5. Furthermore, the respondent, through
counsel, claims that "the respondent is only two years old and it would be incomprehensible that
rights." Id.
In the case of a minor under fourteen years of age, service is proper if made upon the
person with whom the minor resides and, whenever possible, service shall also be made upon the
near relative, guardian, committee, or friend. 8 C.F.R. 103.8(c)(2)(ii). The purpose of this
regulation is to ensure service of a notice is rendered "upon the person or persons who are most
likely to be responsible for ensuring that an alien appears before the Immigration Court at the
scheduled time." Matter of Amaya-Castro, 21 l&N Dec. 583, 585 (BIA 1996). The Board of
Immigration Appeals has found that "it is implicit in the statute and regulations dealing with
notice that an adult relative who receives notice on behalf of a minor alien bears the
responsibility to assure that the minor appears for the hearing, as required." Matter of Gomez
Gomez, 23 I&N Dec. 522, 528 (BIA 2002). In short, where an NTA is personally served on an
adult with whom an alien under the age of fourteen resides, service is proper and sufficient to
establish notice to the minor alien himself. See Amaya-Castro, 21 I&N Dec. 583, 585; see also
Gomez-Gomez, 23 I&N Dec. 522, 528-29.
In the present case, the respondent was one-year-old when he and his mother entered the
United States. See Exhibit 1. Furthermore, the record reflects that the respondent's mother was
served with the respondent's NTA. Id. Service of the respondent's NTA was thus proper and it
was the obligation of the respondent's mother to comply with the clearly stipulated terms of the
NTA, including the obligation to maintain a current mailing address with the Court. See 8 C.F.R.
I03.8(c)(2)(ii); see also Exhibit I. Failure of the respondent's mother to comply with the
NTA's terms precludes the respondent from establishing that he is eligible for reopening based
on a lack of notice qualifying as an exceptional circumstance. While the respondent may claim
not to have received actual notice, the regulations and precedent cases of the Board of
Immigration Appeals make it clear that the requirements of section 239(a) were fully met insofar
as the respondent's mother was personally served with the respondent's NTA. See 8 C.F.R.
103.8(c)(2)(ii); see also Amaya-Castro, 21 l&N Dec. 583, 585; see also Gomez-Gomez, 23

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he had knowledge of the Immigration Court Hearing or had been given and [sic] advisement of

I&N Dec. 522, 528-29. Failure to receive notice of a scheduled hearing is not a ground for
reopening removal proceedings in the instant case and the Court will not rescind the respondent's
in absentia removal order or reopen the respondent's removal proceedings. See INA 240(b)(5);
see also 8 C.F.R. 1 003.23(b)(4)(ii).

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

Date:

>1

MT ,

201 6
Thomas G. Crossan, Jr.
United States Immigration Ju e

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Accordingly, the following order is hereby entered: