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Department of Justice

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Board of Immigration Appeals

Office of the Clerk

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Falls Church. Virgmia 2204 /

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Zuniga, Robert P. OHS/ICE Office of Chief Counsel - CHL
The Law Office of Robert Zuniga 5701 Executive Ctr Dr., Ste 300
200 East Woodlawn Road Charlotte, NC 28212
Suite 140
Charlotte, NC 28217

Name: MORENO-GOMEZ, OSCAR A 206-653-438

Date of this notice: 3/29/2017

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

Sincerely,

..J

Cynthia L. Crosby
Acting Chief Clerk

Enclosure
Panel Members:
Mann, Ana
KELLY, EDWARD F.
Grant, Edward R.

Userteam: Docket

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Cite as: Oscar Moreno-Gomez, A206 653 438 (BIA March 29, 2017)
 U.S. Department or Justice Decision of the Board of Immigration Appeals
Executive Office for Immigration Review
Falls Church, Virginia 22041

File: A206 653 438 - Charlotte, NC Date:

MAR 2 9 2017
In re: OSCAR MORENO-GOJvIEZ

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IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Robert P. Zuniga, Esquire

APPLICATION: Reopening

The respondent, a native and citizen of Mexico, was ordered removed in absentia on
December 14, 2015. On January 7, 2016, the respondent filed a motion to reopen proceedings,
which the Immigration Judge denied on February 25, 2016. The respondent filed a timely appeal
of that decision. The appeal will be sustained, proceedings will be reopened, and the record will
be remanded.
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.
Upon de novo review of the record and in light of the totality of circumstances presented in
this case, we conclude that the respondent demonstrated that reopening is warranted. Among
other factors, we have considered the respondent's affidavits in which he indicates that he
mistakenly believed his hearing was scheduled for January 4, 2016. A review of the digital
audio recording confirms that the Immigration Judge stated at the end of the proceeding that he
would see the respondent again on January 4, 2016. In addition, the respondent was diligent in
obtaining counsel and filing his motion to reopen proceedings. See sections 240(b)(5)(C)(i),
(e)(l) of the Immigration and Nationality Act, 8 U.S.C. 1229a(b)(5)(C)(i), (e)(I). We will
therefore sustain the respondent's appeal and remand the record for further proceedings.

ORDER: The respondent's appeal is sustained, the in absentia order is vacated, proceedings
are reopened and the record is remanded to the Immigration Judge for further proceedings and
for the entry of a new decision.

Cite as: Oscar Moreno-Gomez, A206 653 438 (BIA March 29, 2017)
 .1 :
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UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
CHARLOTTE, NORTH CAROLINA

IN THE MATTER OF ) IN REMOVAL PROCEEDINGS

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

)
MORENO-GOMEZ, OSCAR, ) File No. A 206-653-438
)
Respondent. ) ORDER TO REOPEN
)
) Date: January 7, 2016
)

COMES NOW the Court upon review and consideration of Respondent's Motion to
Reopen these proceedings, and enters the following ORDERS:

[ ] The motion is GRANTED and the case is adjourned to an individual / master calendar

r a.t;ai'kJ O""ld.e.-i
hearing on ______ at ____ am/ pm.
The motion is DENIED. 8 C.F.R. 1003.23(b)(3).
[)(}
[ ] A telephonic appearance of counsel [ ] is [ ] is not authorized for the next hearing only.
[ ] Respondent shall file all [ ] applications for relief and [ ] supporting documents no later
than ____ __ or they may be deemed waived and abandoned by the Court pursuant to
8 C.F.R. 1003.3 l(c).
[ ] Other: _______________________

v
,.

Date 7 V. STUART COUCH

United States Immigration Judge
Charlotte, North Carolina
 --...

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
CHARLOTTE, NORTII CAROLINA

IN THE MATTER OF ) IN REMOVAL PROCEEDINGS

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

)
OSCAR MORENO GOMEZ, ) File No. A 206-653-43 8
)
Respondent. ) MINUTE ORDER
)
) February 25, 2016
)

NOW COMES the Court, upon review and consideration of Respondent's Motion to
Reopen Proceedings filed on January 7, 2016; the Department of Homeland Security's
(DHS) opposition filed on February 4, 2016; and the record of proceedings. The Court finds
the following:

1. That Respondent was served with a Notice to Appear (NTA) on November 11, 2014.
Exhibit 1.

2. That on September 30, 2015, Respondent appeared at a master calendar and was
advised by the Court, inter alia, of the consequences if he failed to appear for scheduled
future court hearings. INA 240(b)(S)(A). Respondent was served with a written Notice of
Hearing for a master calendar hearing scheduled on December 14, 2015 at 8:30 a.m., and
included an advisal as to the consequences of failure to appear. Exhibit 2.

3. That on December 14, 2015, Respondent failed to appear at the master calendar
hearing. Upon motion by the DHS, the Court found Respondent was voluntarily absent from
the hearing and entered an order of removal in absentia pursuant to INA 240(b)(5)(A).

4. That Respondent does not contest he had proper notice of the master calendar hearing
held on December 14, 2015, but contends exceptional circumstances caused him to miss the
hearing, to wit: he was confused and understood his next hearing was on January 4, 2016.
Respondent's Motion to Reopen, tab D.

5. That this motion to reopen an in absentia order of removal was filed within 180 days
after the date of the order of removal. INA 240(b)(5)(C).

"Motions to reopen are disfavored because every delay works to the advantage of the
deportable alien who wishes merely to remain in the United States." Barry v. Gonzales, 445
F.3d 741, 744-45 (4th Cir. 2006) (citing Stewart v. Immigration & Naturalization Serv., 181
F.3d 587, 596 (4th Cir.1999)) (internal citations omitted). In order to sustain his burden on a
motion to reopen, the respondent must establish that the ultimate relief he seeks would be
merited as a matter of discretion. See Matter of Coleho, 20 I & N Dec. 464 (BIA 1992).
 II

"A motion to reopen for the purpose of providing the alien an opportunity to apply for
any form of discretionary relief will not be granted if it appears that the alien's right to apply
for such relief was fully explained to him or her by the Immigration Judge and an opportunity
to apply therefore was afforded at the hearing, unless the relief sought on the basis of
circumstances that have arisen subsequent to the hearing." 8 C.F.R. 1003.23(b)(3)
(emphasis added).

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The Court finds that the respondent was orally advised of the hearing scheduled on
December 14, 2015, and served with written notice of the same, in open court on September
30, 2015. Exhibit 2; INA 239(a)(2)(A). The Court finds that the respondent has not
demonstrated his failure to appear was because of exceptional circumstances as defined in
INA 240(e)(l). 8 C.F.R. 1003.23(b)(4)(1II)(l); see also Acquaah v. Holder, 589 F.3d
332, 335 (6th Cir. 2009) (alien's mistake as to correct date of hearing which resulted in
failure to appear was not exceptional circumstance where he had proper notice of hearing
date). The Court finds that the respondent has not met his burden to reopen his proceedings
for improper notice, and that the in absentia order of removal entered on December 14, 2015
is legally correct. INA 240(b)(S)(A); 8 C.F.R. 1003.23(b)(4)(ii), 1003.26(a) and (c).

The Court finds that the respondent has failed to demonstrate a valid basis to set aside
the in absentia removal order, to include material evidence of changed country conditions.
INA 240(c)(7)(B) and (C)(ii); 8 C.F.R. 1003.23(b)(4). Moreover, the respondent has
not submitted any applications for relief he intends to pursue. 8 C.F.R. 1003.23(b)(3).

The Court has discretion to deny the motion to reopen the respondent's case pursuant
to 8 C.F.R. 1003.23(b)(3), and hereby exercises that discretion. Accordingly, the Court
enters the following:
ORDER

IT IS HEREBY ORDERED that Respondent's motion to reopen is DENIED.

Date V. STUART COUCH

United States Immigration Judge
Charlotte, North Carolina