U.S.

Department of Justice

Executive Office for Immigration Review

'
Board ofImmigration Appeals
Office ofthe Clerk

5107 Leesburg Pike, Suite 2000

Falls Church, Virg1ma 22041

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Zoltan, Paul Steven OHS/ICE Office of Chief Counsel - DAL
Law Office of Paul S. Zoltan 125 E. John Carpenter Fwy, Ste. 500
P.O. Box 821118 Irving, TX 75062-2324
Dallas, TX 75382

Name: PEREZ-FIGUEROA, JIMMY GIOV... A 206-165-088

Date of this notice: 5/19/2017

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

Sincerely,

Cynthia L. Crosby
Acting Chief Clerk

Enclosure

Panel Members:
Cole, Patricia A.
Greer, Anne J.
Wendtland, Linda S.

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/

Cite as: Jimmy Giovanni Perez-Figueroa, A206 165 088 (BIA May 19, 2017)
., U.S. Department of Justice Decision of the Board of Immigration Appeals
Executive Office for Immigration Review

f Falls Church, Virginia 22041

File: A206 165 088 - Dallas, TX Date:

MAY 1 9 2017
In re: JIMMY GIOVANNI PEREZ-FIGUEROA

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

IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Paul Steven Zoltan, Esquire

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 (found)

APPLICATION: Reconsideration

The respondent, a native and citizen of El Salvador, appeals from the Immigration Judge's
May 10, 2016, decision denying his motion to reconsider. The Department of Homeland
Security does not oppose this appeal. The appeal will be sustained, the motion to reconsider will
be granted, and the respondent's removal proceedings will be reopened and terminated.

We review findings of fact, including credibility findings, for clear error. See 8 C.F.R.
1003. l (d)(3)(i). We review questions of law, discretion, or judgment, and all other issues de
novo. See 8 C.F.R. 1003.l(d)(3)(ii).

The respondent was served with a Notice to Appear ("NTA'') on September 20, 2013
1
(I.J. at 1). He appeared before the Immigration Court on August 21, 2014, and was served with
a Notice of Hearing ("NOH") for his next appearance (I.J. at 1, 3). However, on
September 11, 2014, when the respondent did not appear at his next scheduled hearing, the
Immigration Judge found him inadmissible as charged and ordered him removed in absentia
(September 11, 2014, I.J. Dec.; NTA).

On December 22, 2015, the parties filed a joint motion to reopen and terminate proceedings
on account of the respondent's potential eligibility for adjustment of status pursuant to section
245(h) of the Immigration and Nationality Act, 8 U.S.C. 1255(h}, as a special juvenile
immigrant based on an approved Petition for Amerasian, Widow(er}, or Special Immigrant
(Form I-360), but an Immigration Judge denied the motion (Joint Motion to Reopen at 2;
I.J. at 2-4). On April 1, 2016, the respondent filed a motion to reconsider, and on May 10, 2016,

1 Unless otherwise noted, citations to "l.J." refer to the February 3, 2016, decision denying the
joint motion to reopen and terminate proceedings.

Cite as: Jimmy Giovanni Perez-Figueroa, A206 165 088 (BIA May 19, 2017)
 A206 165 088

the Immigration Judge denied the motion (Respondent's Motion to Reconsider; May 10, 2016,
.

2
I.J. Dec. at 2-3).

On appeal, the respondent asserts that the Immigration Judge erred in declining to sua sponte
reopen these proceedings (Respondent's Br. at 2). A motion to reconsider is a request for
reexamination of a decision in light of additional legal arguments, a change of law, or an

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

argument or aspect of the case that was overlooked. Matter of Ramos, 23 I&N Dec. 336, 338
(BIA 2002) (quoting Matter of Cerna, 20 l&N Dec. 399, 402 n.2 (BIA 1991)). Notwithstanding
the untimely filing of a motion, an Immigration Judge may sua sponte reconsider a case at any
time so long as jurisdiction has not vested with the Board. See 8 C.F.R. 1003.23(b)(l);
Matter ofJ-J-, 21 I&N Dec. 976, 984 (BIA 1997) (limiting sua sponte reopening to "exceptional
circumstances"). We disagree with the Immigration Judge's conclusion that sua sponte
reopening is not warranted in this case (I.J. at 2-3; I.J. at 2-4). See 8 C.F.R. 1003.l(d)(3l)(ii),
1003.23(b)(4)(iv).

Because the parties jointly filed the underlying motion to reope!l and tenninate, their
agreement should be implemented absent compelling reasons for not honoring the agreement.
See Matter of Yewondwosen, 21 I&N Dec. 1025, 1026 (BIA 1997) (stating that an agreement
between the respondent and the DHS "on an issue or the proper course of action should, in most
instances, be detenninative"). In addition, we note that pursuant to 8 C.F.R. 1239.2(c), the
DHS may seek dismissal of removal proceedings, effectively resulting in the tennination of the
matter before the Immigration Court, where, as here, the DHS maintains that the proceedings
were improvidently instituted and/or the circumstances in the case have changed since the
issuance of the NTA such that pursuing removal proceedings is no longer in the government's
best interests (Joint Motion .to Reopen). See 8 C.F.R. 239.2(a)(6)-(7), 1239.2(c);
Matter of G-N-C-, 22 I&N Dec. 281, 284 (BIA 1998) (observing that after proceedings have
commenced, the regulations contemplate that the Immigration Judge will make an "informed
adjudication [of the motion to terminate] .. . based on an evaluation of the factors underlying the
[DHS's] motion"). Accordingly, where, as here, the parties agree that these removal proceedings
do not appear to be in the government's best interests, we conclude that there is a substantial
basis for honoring their joint agreement to reopen and tenninate these proceedings. However,
the Immigration Judge did not adequately consider this significant factor in analyzing the joint
motion (cf I.J. at 4). See Matter of Yewondwosen, supra, at 1026 (indicating that the
government's joining of the alien's motion was a "significant" consideration).

In denying the joint motion, the Immigration Judge focused on whether the underlying in
absentia order was subject to rescission, and he concluded it was not (I.J. at 3-4). In addition, he
concluded that only under a narrow set of circumstances, deemed inapplicable here, could the
respondent reopen proceedings to apply for discretionary relief before the Immigration Court
without first rescinding the outstanding in absentia order (I.J. at 3-4). Thus, the Immigration
Judge concluded that the respondent's in absentia removal order in this case bars him from

2
The respondent acknowledges his motion to reconsider is untimely but requested sua sponte
reconsideration in his motion (Respondent's Request for Sua Sponte Reconsideration). See
8 C.F.R. 1003.23(b)(l).

Cite as: Jimmy Giovanni Perez-Figueroa, A206 165 088 (BIA May 19, 2017)
 A206 165 088

"
adjusting his status under section 245 of the Act, 8 U.S.C. 1255, for a period of 10 years
(I.J. at 2-4). See section 240(b)(7) of the Act, 8 U.S.C. 1229a(b)(7).

However, the statute provides for an exception for individuals who fail to attend proceedings
on account of "exceptional circumstances," as described in section 240(e)(l) of the Act. See
section 240(b)(7) of the Act. We decline to determine whether the respondent's situation

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constitutes "exceptional circumstances"; however, upon reopening and termination of these
proceedings, United States Citizenship and Immigration Services may consider the
circumstances and adjudicate the respondent's application for adjustment of status accordingly,
consistent with the joint request of the parties in the underlying motion to reopen (Joint Motion
to Reopen).

Based on the foregoing and considering the totality of the circumstances, we conclude that
reconsideration of the Immigration Judge's denial of the joint motion is warranted. We will
therefore grant the motion to reconsider and the underlying joint motion to reopen and terminate.
Accordingly, the following orders will be entered.

ORDER: The appeal is sustained.

FURTHER ORDER: The joint motion to reopen is granted.

FURTHER ORDER: The respondent's proceedings are terminated without prejudice.

Cite as: Jimmy Giovanni Perez-Figueroa, A206 165 088 (BIA May 19, 2017)
 1
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, .

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT

.

1100 COMMERCE ST., SUITE 1060

DALLAS, TX 75242

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

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:
Law Office of Pal S. Zoltan ,' 1

Zoltan, Paul Seven

P.O. Box 821118
Dallas, TX 75382

IN THE'MATTER OF FILE A 206-165-088 DATE: May 10, 2016

PEREZ-FIGUEROA, JIMMY GIOVANNI
- I
.
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-._
UNABLE TO FORWARD - NO ADDRESS PROVIDED

A E I S A COPY OF THE DECISION OF THE IMMIGRATION JUDGE. THIS DECISION

-
...,--7-J;!-lNAL
,,.. U ESS AN APPEAL IS FILED WITH THE BOARD OF IMMIGRATION APPEALS
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, Site 2000
FALLS CHURCH, VA 22041
...... "'.>'!
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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) I

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
1100 COMMERCE ST., SUITE 1060
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DALLAS, TX 75242

OTHER:

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UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
DALLAS, TEXAS

Date: May 10, 2016

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

File: A 206-165-088

Charge: INA 212(a)(6)(A)(i)

Immigration Removal Proceedings in the Matter of:

Jimmy Giovanni Perez-Figueroa, Respondent

Application: Motion to Reconsider

On Behalf of Respondent: Paul S. Zoltan, P.O. Box 821118, Dallas, Texas 75382

On Behalf of Department of Homeland Security/Immigration and Customs Enforcement:

Robert H. Dunikoski, 125 E. John Carpenter Freeway, Suite 500, Irving, Texas 75062

WRITTEN DECISION AND ORDER OF THE IMMIGRATION JUDGE

I. PROCEDURAL HISTORY

The Respondent is an eighteen year old male native and citizen of El Salvador. Ex. 1. On
September 20, 2013, the Government charged Respondent as being subject to removal from the
United States. Id. Respondent failed to appear for his hearing on September 11, 2014 and was
ordered removed in absentia based on the following allegtions and charge.

Allegations:
(1) He is not a citizen or national of the United States;
(2) He is a native and citizen of El Salvador;
(3) He arrived in the United States at or near Hidalgo, Texas on or about September 14, 2013;
(4) He was not then admitted or paroled after inspection by an Immigration Officer.

Charge: The Government charged Respondent as being subject to removal from the U.S.
pursuant to INA 212(a)(6)(A)(i), as amended, in that he is an alien present in the U.S. without
'
being admitted or paroled, or who arrived in the U.S. at any time or place other than as
designated by the Attorney General. The Government submitted form 1-213, Record of
Deportable/lnadmissible Alien, to support its removal charge. See Ex. 2. Based upon the clear,
unequivocal, and convincing evidence presented by the Government, the Court sustained the
allegations and charge of removal, specifically finding Respondent subject to removal from the
'
U.S. to his native country of El Salvador.

Page 1 of 3
 (

On December 22, 2015, Respondent filed a joint motion with the Department of
Homeland Security (DHS) to reopen proceedings and terminate without prejudice. Respondent
intended to pursue adjustment of status with U.S. Customs and Immigrations Services (USCIS)
on an approved I-360 Special Immigrant Juvenile (SIJ) visa petition.

On February 9, 2016, the Court denied Respondent's motion to reopen, finding

Respondent was statutorily barred from pursuing adjustment of status because he failed to appear

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after receiving oral notice of the time and place of the proceedings and of the consequences for
failing to appear. INA 240(b)(7). The Court found no exceptional circumstances to excuse
Respondent's failure to appear and escape the ten year bar to relief. Id

II. MOTION

Respondent, through counsel, filed a motion to reconsider requesting that the Court
reconsider its denial of Respondent's motion to reopen. The Court will deny Respondent's
motion on the merits as stated below.

III. STATEMENT OF THE LAW AND ANALYSIS

A motion to reconsider is a request that the Court reexamine its decision in light of
additional legal arguments, a change of law, or an argument or aspect of the case which was
overlooked. Matter ofRamos, 23 I&N Dec. 336, 338 (BJ.A. 2002) (quoting Matter of Cerna, 20
I&N Dec. 399, 402 n.2 (BJ.A. 1991)). A motion to reconsider alleges that at the time of the
Court's previous decision an error was made; it questions the Court's decision for alleged errors
in appraising the facts and the law. Matter ofCerna, 20 I&N Dec. at 402. When the Court
reconsiders a decision it is, in effect, placing itself back in time and considering the case as
though a decision on the record had never been entered. Id The very nature of a motion to
reconsider is that the original decision was defective in some regard. Id. The Board pointed out
that a motion to reconsider is fundamentally different from a motion to reopen in which the
applicant seeks to reopen proceedings so that new evidence can be entered. Id. A motion to
reconsider based on a legal argument that could have been raised earlier in the proceedings will
be denied. See Matter ofMedrano, 20 I&N Dec. 216, 219 (BIA 1991).

Thus, a motion to reconsider must state the reasons for the motion by specifying the
errors of fact or law in the Court's prior decision, and must be supported by pertinent authority.
8 C.F.R. 1003.23(b)(2). A motion to reconsider must be filed within 30 days of the date of
entry of a final administrative order of removal, deportation, or exclusion. 8 C.F.R.
1003.23(b)(l). A respondent may only file one motion to reconsider. Id.

Court's Findings:

The Court finds no errors of fact or law in its previous decision denying Respondent's
motion to reopen. Respondent had proper notice of his hearing, and he did not allege exceptional
circumstances for his failure to appear. Although he had an approved I-360 petition, the Court
correctly found that Respondent was subject to the ten year bar to adjustment of status because

Page 2 of 3
 /

he failed to appear after receiving oral notice of the time and place of the proceedings and the
consequences of failing to appear. See INA 240(b)(7).

Additionally, Respondent has attempted to supplement the record with additional

evidence of an exceptional circumstance, i.e. affidavits from Respondent, his mother, and an
EOIR policy memorandum. This, however, does not demonstrate a change in law, additional
legal arguments, or an aspect of the case overlooked by the Court, which could not have been

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raised earlier in the proceedings. The Court cannot grant a motion to reconsider based on
evidence that should have been presented earlier.

Furthermore, even if the Court considered the new evidence, Respondent still has not
established an exceptional circumstance to excuse his failure to appear. Respondent's mother
states that she did not bring her son to court because she feared being arrested and deported
along with her son. After reviewing the record, the Court finds that Immigration Judge (IJ) Baird
acted appropriately in ordering Respondent to bring his mother, as his custodian, to the next
hearing. In line with EOIR policy, 11 Baird did not make any assurances that Respondent's
mother would not be apprehended if she attended the hearing. The Court has no control over
DHS/ICE operations. It is understandable that Respondent and his mother would fear
deportation, particularly because at the time of Respondent's hearing it appears he had no relief
from removal available. Unfortunately, fear of apprehension and deportation is one of the
inherent risks of living in the U.S. undocumented or without lawful immigration status.
However, this cannot serve as an exceptional circumstance if every respondent in removal
proceedings could conceivably claim this fear to excuse a failure to appear.

Thus, the Court finds no error of fact or law in its previous decision denying
Respondent's motion to reopen.

Accordingly, the following Order shall be entered:

IV.ORDER

IT IS ORDERED THAT Respondent's Motion to Reconsider be DENIED.

Date: 10/6 /)
s----
Immigration Judge

Copy to:
Deputy Chief Counsel, OHS/ICE

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