U.S.

Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

Office of the Clerk

5107 /,eesburg Pike. Suite 2000

FallsChurch, Virginia 2204/

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Lunn, Laura P. OHS/ICE Office of Chief Counsel -BLM
CARA Pro Bono Project (MSP)
PO Box 18070 1 Federal Drive, Suite 1800
Dilley, TX 78017 Ft. Snelling, MN 55111

Name:-M-

Date of this notice: 6/2/2017

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:
Greer, Anne J.
Kendall Clark, Molly
Neal, David L

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/

Cite as: M-E-A-S-, AXXX XXX 912 (BIA June 2, 2017)

 U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

Qfjice of the Clerk

5107 J.eesburg Pike, Suite 2000

Falls Church, Virginia 2204/

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A SM-E- OHS/ICE Office of Chief Counsel -BLM
912 (MSP)
c/o BCFRC 1 Federal Drive, Suite 1800
1040 BERKS ROAD Ft. Snelling, MN 55111
LEESPORT, PA 19533

Name:
Riders

Date of this notice: 6/2/2017

Enclosed is a copy of the Board's decision in the above-referenced case. This copy is being
provided to you as a courtesy. Your attorney or representative has been served with this
decision pursuant to 8 C.F.R. 1292.5(a). If the attached decision orders that you be
removed from the United States or affirms an Immigration Judge's decision ordering that you
be removed, any petition for review of the attached decision must be filed with and received
by the appropriate court of appeals within 30 days of the date of the decision.

Sincerely
.,,7
0;/1
(.,"
J"'---
Cynthia L. Crosby
Acting Chief Clerk

Enclosure
Panel Members:
Greer, Anne J.
Kendall Clark, Molly
Neal, David L

Userteam:

Cite as: M-E-A-S-, AXXX XXX 912 (BIA June 2, 2017)

U.S. Department of Justice Decision of the Board of Immigration Appeals
Executive Office for Immigration Review

Falls Church, Virginia 22041

Files: 912 - Fort Snelling, MN Date:

JUN - 2 2017
In re:

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IN REMOVAL PROCEEDINGS

APPEAL AND MOTION

ON BEHALF OF RESPONDENTS: Laura P. Lunn, Esquire

ON BEHALF OF DHS: Amy K.R. Zaske

Assistant Chief Counsel

APPLICATION: Reopening; remand

The respondents; natives and citizens of El Salvador, appeal from the Immigration Judge's
June 14, 2016, decision denying their motion to reopen and rescind the in absentia removal order
entered on September 10, 2015. The respondents have also filed additional evidence on appeal,
which we construe as a motion to remand. The Department of Homeland Security ("DHS")
opposes the appeal and the motion. The fee-waiver request is granted. See 8 C.F.R. 1003.8(a)(3).
The appeal will be sustained and the record will be remanded for further proceedings.

We review findings of fact determined by an Immigration Judge, including credibility findings,

under a "clearly erroneous" standard. 8 C.F.R. 1003.l(d)(3)(i). We review questions of law,
discretion, and judgment, and all other issues in appeals from decisions of Immigration Judges de
novo. 8 C.F.R. 1003.l(d)(3)(ii).

As an initial matter, we are not persuaded by the respondents' contention that reopening and
rescission of the in absentia removal order is warranted on the basis of either lack of notice or
exceptional circumstances. See sections 240(b)(5)(C)(i) and 240(b)(5)(C)(ii) of the Immigration
and Nationality Act, 8 U.S.C. 1229a(b)(5)(C)(i), (ii). The record reflects that the respondents
were properly advised of the September 10, 2015, hearing and of the consequences of failing to
appear (Tr. at 16-19; see also Hearing Notice, dated Aug. 4, 2015). Additionally, the respondents'
request for reopening on the basis of exceptional circumstances is untimely. See section
240(b)(5)(C)(i) of the Act (providing that a motion to reopen claiming exceptional circumstances
must be filed within 180 days of the in absentia order).

The respondents also seek reopening on the basis of changed circumstances. See section
240(c)(7)(C)(ii) of the Act; 8 C.F.R. 1003.23(b)(4)(i); see also Matter ofJ-G-, 26 I&N Dec. 161
(BIA 2013) (holding that proceedings conducted in absentia may be reopened where the alien

llliiiiit in this case include the lead respondent (912) and her minor daughter

Cite as: M-E-A-S-, AXXX XXX 912 (BIA June 2, 2017)

I
912 etal.

seeks asylum or withholding of removal based on changed country conditions). In support of this
request, the respondents submitted evidence indicating that they have recently received multiple
threats from an individual in El Salvador threatening to kill them if they return to the country (Mot.
to Reopen, Attach.A at 5). This individual is the child of the adult respondent's significant other,
and he has threatened the respondents due to their association with his father. There is no dispute
that these circumstances are both "new" and "material." See section 240(c)(7)(C)(ii) of the Act; 8

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C.F.R. 1003.23(b)(4)(i).

The Immigration Judge found this evidence insufficient to warrant reopening for two reasons.
First, the Immigration Judge concluded that the supporting evidence, consisting solely of a
statement signed by the adult respondent, merited minimal weight (I.J. at 2). Second, the
Immigration Judge concluded that this evidence established a change in personal circumstances as
opposed to a change in country conditions (Jd.).2 For the following reasons, we conclude that the
respondents have established that reopening is warranted.

We do not agree with the Immigration Judge's conclusion that the signed statement merits little
weight. The statement is in the form of a sworn statement or declaration as recommended by the
Immigration Court Practice Manual. The adult respondent has signed and dated the document and
swore to the accuracy of its contents under penalty of perjury. See Immigration Court Practice
Manual, Glossary at 4-5 (last revised Jan. 31, 2017). The document was submitted in English, so
the requirements with respect to foreign-language documents are not applicable. Cf 8 C.F.R.
1003.33; Immigration Court Practice Manual, Chapter 3.3(a). Instead, because the adult
respondent is not fluent in English, the statement must be accompanied by a certificate reflecting
that the declaration had been translated to the adult respondent in a language that she understands
prior to signing it. See Immigration Court Practice Manual, Chapter 3.3(a). Such a certificate
accompanies the adult respondent's statement.

Furthermore, we conclude that the respondents' circumstances are not analogous to the
changed personal circumstances that have been found insufficient to warrant reopening under
section 240(c)(7)(C)(ii) of the Act. In those cases, the relevant "change" related to an event that
occurred outside the country of removal. See Averianova v. Holder, 592 F.3d 931, 937
(8th Cir.2010) (acknowledging that "changed personal circumstances arising ... outside the
country of feared persecution" do not support reopening under section 240(c)(7)(C)(ii) of the Act);
see, e.g., Li Yun Lin v. Mukasey, 526 F .3d 1164, 1165 (8th Cir. 2008) (birth of children in the
United States); Zhong Qin Zheng v. Mukasey, 523 F.3d 893, 895 (8th Cir. 2008) (same); see also
Zhang v. U.S. Att'y Gen., 572 F.3d 1316, 1319 (11th Cir. 2009) (same); Chen v. U.S. Att'y Gen.,
565 F.3d 805, 810 (11th Cir. 2009) (per curiam) (same); see also Ji Cheng Ni v. Holder, 715 F.3d
620, 624 (7th Cir. 2013) (same); Zhao-Cheng v. Holder, 721 F.3d 25, 27 n.4 (1st Cir. 2013)
(practicing Christianity in the United States); Khan v. Att'y Gen. of the U.S., 691 F.3d 488, 497-
98 (3d Cir. 2012) Goining a political party in the United States); Hui Zheng v. Holder, 562 F.3d

2 The record does not support the Immigration Judge's determination that the respondents failed
to submit a Form 1-589 (Application for Asylum and for Withholding of Removal) in support of
their request for reopening (I.J. at 2; see Respondents' Supp'l Filing, filed June 3, 2016).
See 8 C.F.R. 1003.23(b)(3) (providing that a motion to reopen to pursue a form of relief from
removal must be accompanied by the applicable application form).

Cite as: M-E-A-S-, AXXX XXX 912 (BIA June 2, 2017)

, 912 et al.

647 (4th Cir. 2009) (birth of children in the United States); He v. Gonzales, 501 F.3d 1128, 1132
(9th Cir. 2007) (same); Haddad v. Gonzales, 437 F.3d 515 (6th Cir. 2006) (divorce while in the
United States). The changed circumstances in this case-the recent threats conveyed to the
respondents-relate to events that occurred in El Salvador and are independent of any action by
the respondents in the United States and qualify as "changed country conditions" within the
meaning of section 240(c)(7)(C)(ii) of the Act.

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For these reasons, we conclude that the Immigration Judge erred in denying the respondents'
motion to reopen. The record will therefore be remanded to the Immigration Court to allow the
respondents to pursue asylum, withholding of removal, and protection under the Convention
Against Torture, and any other form of relief for which they may be eligible. We express no
opinion as to the outcome on remand.

We also note that the respondents have submitted evidence on appeal showing that the minor
respondent has obtained the predicate state court order needed to apply for special immigrant
juvenile ("SU") status under section 101(a)(27)(J) of the Act, 8 U.S.C. 1101(a)(27)(J), and has
filed a Form I-360 (Petition for Amerasian, Widow(er), or Special Immigrant) with the
United States Citizenship and Immigration Services ("USCIS"). On remand, the parties may
explore, as appropriate, whether a continuance or administrative closure is warranted while the SIJ
petition is adjudicated by USCIS. See 8 C.F.R. 1003.2(a); see also Matter of Sanchez Sosa, 25
I&N Dec. 807, 815 (BIA 2012) ("As a general rule, there is a rebuttable presumption that an alien
who has filed a prima facie approvable application with the USCIS will warrant a
favorable exercise of discretion for a continuance for a reasonable period of time.")
(internal citation omitted); Matter of Avetisyan, 25 I&N Dec. 688 (BIA 2012) (discussing the
standards for administratively closing proceedings); Matter of Hashmi, 24 I&N Dec. 785
(BIA 2009) (setting forth a framework to analyze whether good cause exists to continue
proceedings to await adjudication by USCIS of a pending family-based visa petition).3

Accordingly, the following orders will be entered.

ORDER: The appeal is sustained.

FURTHER ORDER: The record is remanded to the Immigration Judge for further proceedings
consistent with the foregoing opinion and entry of a new decision.

3
We separately note that guidance provided to Immigration Judges by the Chief Immigration
Judge states that if an unaccompanied child is seeking SIJ status, "appropriate time must be given
for [USCIS] to adjudicate the Form I-360 after the requisite state or juvenile court findings have
been made." See Memorandum from Brian M. O'Leary, Chief Immigration Judge, to Immigration
Judges, Docketing Practices Relating to Unaccompanied Children Cases and Adults with Children
Released on Alternatives to Detention Cases in Light of the New Priorities, at 2 (Mar. 24, 2015).

3
Cite as: M-E-A-S-, AXXX XXX 912 (BIA June 2, 2017)

I
.I!/

UNITED STATES DEPARTMENT OF JUSTICE ,'

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
1 FEDERAL DRIVE, SUITE 1850
FORT SNELLING, MN 55111

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

CARA Pro Bono Project
Shepherd, Kathryn Emma
PO Box 18070
Dilley, TX 78017

Marc Prokosch, Esq.

2950 Metro Drive, Suite 201
Bloomington, MN 55425

Date: Jun 14, 2016

File -912

In the Matter of:

s-raE-
Attached is a copy of the written decision of the Immigration Judge.
This decision is final unless an appeal is taken to the Board of
Immigration Appeals. The enclosed copies of FORM EOIR 26,
Notice of Appeal, and FORM EOIR 27, Notice of Entry as Attorney or
Representative, properly executed, must be filed with the Board of
Immigration Appeals on or before
The appeal must be accompanied by proof of paid fee ($110.00).

Enclosed is a copy of the oral decision.

Enclosed is a transcript of the testimony of record.

You are granted until ________ to submit a brief

to this office in support of your appeal.

___ Opposing counsel is granted until to submit a

brief in oppositi ppeal.

Enclosed is a copy ofdecision of the Immigration Judge.
. ,.
All papers filed with the Court shall be accompari'ied by proof
of service upon opposing counsel.

Court Clerk UL
cc: OFFICE OF THE PRINCIPAL LEGA
1 FEDERAL DR., SUITE 1800
FORT SNELLING, MN 55111
 ..
,.

EXECUTIVE OFFICE FOR lMMlGRA TJON REVIEW

JMMJGRATJON COURT
BLOOMTNGTON, MN

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)
ln the Matter of: )
)
M S111111 ) File Nos.-9 1 2,.
Lead Respondent )
)
)
)
)
Jn removal proceedings. )

ORDER OF THE IMMIGRATION JUDGE

Upon consideration of Respondent's Motion to Rescind Absentia Order, it is

HEREBY ORDERED that the motion be:

[ ] GRANTED.

J,4 oENIED. k_ Ci-

fmmigration Judge

Certificate of Service

This document was served by: [)('M ail l ] Personal Service

To: [ ] Alien [ ] Al ien c/o Custodial Officer ,l ien's Atty/ReHS

Date: // Y f
--=-V-l-'-
--'-f-/ y?__ By: Court

c.,.....,---
Staff --,411 / ___

9
The motion to reopen is denied. The motion asserts facts that do not comport with the record of
proceedings in this case. The Court has reviewed all of the hearings' recordings and all of the
documents of record. The record of proceedings shows the following:

An initial hearing was held on 5/12/2015. The Respondents did not appear. The Court began an in

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absentia proceeding. However, upon receipt of the forms 1-213 the Court noted that the Lot Number
portion of Respondents' address had not been included in the forms 1-830, hence notice of the hearing
was sent to an incomplete address. See Exhibits SA and SB, and 2A and 28. The cases were rescheduled
and notice sent to the complete address.

The next hearing was 6/4/2015. The Respondents were again not present and the Cou rt proceeded in
absentia and reserved decision. The Respondents appeared later in the day (after the interpreter had
been excused). The Court rescheduled the hearing without issuing an in absentia decision.

The next hearing occurred on 6/30/2015. The Respondents were present. The daughter was age 15 at
that time. The Court provided the Respondents with a full explanation of their rights, gave them a copy
of the Legal Services List and other documents. The Government provided the Respondents with copies
of their Notices to Appear and Forms 1-213. All of the documents were explained to the Respondents.
The cases were continued to allow Respondents time to find cpunsel.

The next hearing occurred on 8/4/2015. The Respondents appeared without counsel. The lead
Respondent asked for more time to earn money because the lawyers she spoke with "cost a lot of
money." The Court gave the Respondent another copy of the Legal Aid list (which Respondent claimed
she had not received at the last hearing). The Court specifically advised the Respondents that if they
came back for the next hearing without an attorney that the Court would start the case that day. The
Court also advised the Respondents that normally a case was not concluded on the same day it was
started. The Respondents were also specifically advised to be sure to return for court whether they
had an attorney or not because if they failed to appear they could be ordered removed in their
absence. Thus the Respondents were provided both written and oral notice of the next hearing date
and the consequences of failing to appear. The Respondents were repeatedly asked if they understood
and if they had any questions. There is no evidence of record that the Respondents did not understand
or that the Court's instructions were not clear.

The last hearing was held on September 10, 2015. The Respondents failed to appear. In absentia
removal orders were issued.

As noted, this record contradicts the Respondents assertions. One only has to listen to the record of
proceedings to know that the Respondents were given detailed information about the nature and
purpose of the proceedings, their rights and even explanations of the documents (NTAs and l-213s)
given to them by the government during the hearing at which they first appeared. Respondents were
clearly advised that if they did not appear for court they could be ordered removed. The cases were
reschedule an initial time for the Respondents to seek counsel and then were rescheduled a second time
for them to continue to seek counsel.
912

The Court does not find good cause to reopen the proceedings, sua sponte or otherwise, given all of
these circumstances. Reopening to a pply for asylum requires subm ission of an application and evidence
of changed country conditions. Although the Motion to Reopen includes documents whose index
indicates a Form 1-589 was included, no such asylum application was included in the submission filed
with the Court. Indeed, the index indicates "Declaration and Form 1-589, Application for Asylum ... pages

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1-6." A Form 1-589 is, at a minimum, 10 pages long. What the Respondents did submit was a six page
document purporting to be the affidavit of the lead Respondent. However, the signature page bears
only a signature and certification. There are no indicia that reflect that the Respondent saw, or the
translator translated, the English document actually attached to the signature page. In addition, no
evidence was submitted for the Court to conclude that country conditions had changed significantly. See
generally Matter of J-G-, 26 l&N Dec. 161 (BIA 2013