U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office ofthe Clerk

5107 leesburg Pike, Suite 2000

Falls Church, Virginia 22041

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Sachs, Wayne OHS LIT.Nork Co. PrisonNOR
Sachs Law Group 3400 Concord Road
1518 Walnut St York, PA 17402
Suite 702
Philadelphia, PA 19102

Name: PELEAYZ, AUGUSTINE A 208-934-106

Date of this notice: 10/24/2017

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

Sincerely,

Donna Carr
Chief Clerk

Enclosure

Panel Members:
Mann, Ana
Kelly, Edward F.
Grant, Edward R.

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index
 U.S. Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office ofthe Clerk

5107 Leesburg Pike, Suite 2000

Falls Church, V1rgm1a 22041

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PELEAYZ, AUGUSTINE OHS LIT.Nork Co. Prison/YOR
A208-934-106 3400 Concord Road
C/O YORK ICE York, PA 17402
3400 CONCORD ROAD
YORK, PA 17402

Name: PELEAYZ, AUGUSTINE A 208-934-106

Date of this notice: 10/24/2017

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.S(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,

DOYUtL ctl./v\)
Donna Carr
Chief Clerk

Enclosure

Panel Members:
Mann, Ana
Kelly, Edward F.
Grant, Edward R.

Userteam:
U.. Department of Justice Decision of the Board oflmmigration Appeals
Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A208 934 106 - York, PA Date:

OCT 2 It 2017
In re: Augustine PELEA YZ a.k.a. Lorenzo Lopez

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IN REMOVAL PROCEEDINGS

APPEAL AND MOTION

ON BEHALF OF RESPONDENT: Wayne Sachs, Esquire

ON BEHALF OF DHS: Jeffrey Forrest Boyles

Assistant Chief Counsel

APPLICATION: Reopening

The respondent, a native and citizen of Mexico, who was ordered removed from the United
States on January 16, 2017, appeals the Immigration Judge's decision, dated June 19, 2017,
denying his motion to reopen, which he filed on June 13, 2017. Subsequent to the filing of this
appeal, the respondent filed a motion to remand, along with new documentary evidence. The
Department of Homeland Security opposes the request for remand.

We review the findings of fact, including the determination of credibility, made by the
Immigration Judge under the "clearly erroneous" standard. 8 C.F.R. 1003. l(d)(3)(i). We review
all other issues, including issues of law, discretion, or judgment, under a de novo
standard. 8 C.F.R. 1003. l(d)(3)(ii).

We have considered the totality of the circumstances presented in this case, including the new
and previously unavailable documentary evidence concerning the respondent's application for
nonimmigrant U visa status, and find that an exceptional situation has been demonstrated
warranting reopening to allow him the opportunity to request a continuance or administrative
closure of these proceedings while his application for U visa status is adjudicated by the United
States Citizenship and Immigration Services. See 8 C.F.R. 1003.23(b)(l); Matter ofJ-J-,
21 I&N Dec. 976 (BIA 1997); Matter of Sanchez-Sosa, 25 l&N Dec. 807 (BIA 2012); Matter of
Avetisyan, 25 l&N Dec. 688 (BIA 2012). Accordingly, the appeal will be sustained, the
proceedings will be reopened, and the record will be remanded.

ORDER: The appeal is sustained, the proceedings are reopened, and the record is remanded
to the Immigration Court for further proceedings.
 :....
...

!;>-<1-c.,

...-; . ....
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
3400 CONCORD ROAD, SUITE 2
YORK, PA 17402

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Sachs Law Group
Sachs, Wayne
1518 Walnut St
Suite 702
Philadelphia, PA 19102

'
IN THE MATTER OF FILE A 208-934-106 DATE: Jun 19, 2017
PELEAYZ, AUGUSTINE

UNABLE TO FORWARD - NO ADDRESS PROVIDED

x 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 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 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
3400 CONCORD ROAD, SUITE 2
YORK, PA 17402

OTHER:

COURT CLERK
IMMIGRATION COURT FF
CC: DISTRICT COUNSEL, C/0 YORK PRISON
3400 CONCORD ROAD
YORK, PA, 174020000
'

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
YORK, PENNSYLVANIA

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IN THE MATTER OF )
)
PELEAYZ, Augustine )
AKA: LOPEZ, Lorenzo )
) A 208-934-106
RESPONDENT )
------ >

ON BEHALF OF RESPONDENT ON BEHALF OF DBS

Wayne Sachs, Esq. Richard O'Brien, Esq.
1518 Walnut Street, Suite 702 Office of the Chief Counsel
Philadelphia, PA 19102 Immigration and Customs Enforcement
York. PA

ORDER DENYING EMERGENCY STAY OF REMOVAL AND MOTION TO REOPEN

Respondent is a native and citizen of Mexico. Ex. I. Respondent first entered the United States on
in August 2007, at an unknown place without having been admitted or paroled by an Immigration
Officer. Id

On September 13, 2016, the Department of Homeland Security (OHS) initiated removal
proceedings with the filing of a Notice to Appear (NTA), charging Respondent as removable
pursuant to INA 212(a)(6)(A)(i), 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. Id. On January 26, 2017, the Immigration Judge sustained the charge of
removability and ordered Respondent removed to Mexico. Respondent did not reserve appeal.

Respondent now requests a motion to reopen sua sponte. Respondent asserts that because he
appeared before the court prose on January 26, 2017, he was not aware of his eligibility for a U
visa.1 Respondent, with counsel, has since submitted a U-visa certification request which is
currently pending. Respondent's Motion to Reopen. Respondent avers that the pending U-visa
certification merits a sua sponte motion to reopen based on changed circumstances.

1 On September 9, 2016, Respondent claims he was assaulted by a Pennsylvania State Trooper who is now facing
criminal charges as a result of this assault. Respondent gave a statement to the Pennsylvania State Police and Chester
County Detectives to assist in the prosecution of the State Trooper See Respondent's Motion to Reopen, tab I.
J

I Standards Governing Motions to Reopen

Generally, only one motion to reopen may be filed before the Immigration Court, and such motion
must be filed within 90 days of the entry of a final administrative order of removal, deportation,
or exclusion. 8 C.F.R. 1003.23(b)(l). The motion must state new facts that will be proven at a
hearing if the motion is granted, and it must be supported by affidavits and other evidentiary

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materia1. 8 C.F.R. 1003.23(b)(3). A motion to reopen will not be granted unless the immigration
judge is satisfied that the evidence offered is material and was not available and could not have
been discovered or presented at the former hearing. Id. Additionally, any motion to reopen for
the purpose of applying for relief from removal, deportation, or exclusion must be accompanied
by the appropriate application for relief and all supporting documents. 8 C.F.R. 1003 .23(b)(3).
Finally, the immigration judge has discretion to deny a motion to reopen even if the moving party
demonstrates prima facie eligibility for relief. Id.

The immigration judge may also reopen the proceedings at any time in a case in which he has
made a decision, unless jurisdiction is vested with the BIA. 8 C.F.R. 1003.23(b)(l). This sua
sponte power "is not meant to be used as a general cure for filing defects or to otherwise circumvent
the regulations. where enforcing them might result in hardship." Matter of J-J-, 21 I&N Dec 976,
984 (BIA 1997). Rather, the authority to grant a motion to reopen sua sponte should be used
sparingly as an "extraordinary remedy reserved for truly exceptional situations." Matter of G-D-,
22 I&N Dec. 1132, 1134 (BIA 1999). The respondent has the burden of demonstrating
'4exceptional circumstances" and must show "a substantial likelihood that the result in his case
would be changed if reopening is granted." Matter of Beckford, 22 I&N Dec. 1216, 1219 (BIA
2000).

Decision

As a preliminary matter, the Court notes that the present motion is not timely filed. See 8 C.F.R.
1003.23(b)(l). Respondent's motion was filed on June 13, 2017. Respondent waived appeal on
January 26, 2017. The Immigration Judge's decision became administratively final upon
Respondent's waiver of the right to appeal. See Matter of Shih, 20 l&N Dec. 697 (BIA 1993).
Respondent does not argue, and the Court does not find, that Respondent's motion falls within any
of the statutory or regulatory exceptions to the time limits for motions to reopen. See INA
240(c)(7)(C). Rather, Respondent urges the court to reopen his case sua sponte.

As noted above, the authority to grant a motion to reopen sua sponte is an "extraordinary remedy
reserved for truly exceptional situations." Matter of G-D-, 22 I&N Dec. at 1134. The Court finds
that becoming potentially eligible for a U-visa after a final order of removal does not amount to a
truly exceptional situation. Rather, Respondent's relief is not only speculative but this Court lacks
jurisdiction over the adjudication of Respondent's U-visa petition. 8 C.F.R. 214.14(c)(l). See
Matter of Yauri. 25 I&N Dec. 103, 110 (BIA 2009) (concluding that the Board generally lacks
authority to reopen the proceedings of respondents under final orders of removal who seek to
pursue relief over which the Board and the Immigration Judges have no jurisdiction, especially
where reopening is sought simply as a mechanism to stay the final order while the collateral matter
is resolved by the agency or court having jurisdiction to do so).
 The Court further notes that Respondent's lack of counsel at his January 26, 2017 hearing does not
constitute ineffective assistance of counsel nor is his motion based on new or previously
unavailable evidence. Thus, the Court finds that no ..exceptional situation" exists to warrant an

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untimely reopening of these proceedings under the Court's limited sua sponte authority. See Matter
ofJ-J-, 21 l&N Dec. at 984.

Accordingly, the Court finds that Respondent has not met his burden of demonstrating exceptional
circumstances and a substantial likelihood that the result in his case would be changed if reopening
is granted.

ORDER

For the reasons set forth herein, Respondent's Emergency Stay of Removal and Motion to
Reopen is denied.

6/\'\ '\7
ftATE "
U.S. Immigration Judge