U.S.

Department of Justice Executive Office for Immigration Review

Board ofImmigration Appeals Office ofthe Clerk

5107 leesburg Pike. Suite 2000 Falls Church, Virginia 20530

Parker, Anthony W., Esquire Kelly, Parker & Cohen LLP 5425 Jonestown Rd., Suite 103 Harrisburg, PA 17112

OHS/ICE Office of Chief Counsel - HLG 1717 Zoy Street Harlingen, TX 78552

Immigrant & Refugee Appellate Center | www.irac.net

Name: BUSTILLO-DELARCA, RAMOS ...

A 077-400-623

Date of this notice: 12/31/2013

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

DOrtfU.- ct1/lA)
Donna Carr Chief Clerk

Enclosure Panel Members: Guendelsberger, John

schwarzA

Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: Ramon Octavio Bustillo-Delarca, A077 400 623 (BIA Dec. 31, 2013)

U.S. Department of Justice

Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falis Church, Virginia 20530

File:

A077 400 623 - Harlingen, TX

Date:

DEC 31 2013

In re: RAMON OCTAVIO BUSTILLO-DELARCA a.k.a. Ramos Octavio Bustillo-Delarca IN REMOVAL PROCEEDINGS

Immigrant & Refugee Appellate Center | www.irac.net

APPEAL ON BEHALF OF RESPONDENT: APPLICATION: Reopening Anthony W. Parker, Esquire

The respondent, a native and citizen of Honduras, has appealed from the Immigration Judge's decision mailed on February 25, 2013, denying his motion. The appeal will be sustained and the record will be remanded to the Philadelphia, Pennsylvania, Immigration Court. We review the findings of fact made by the Immigration Judge under a "clearly erroneous" standard. 8 C.F.R. 1003.l(d)(3)(i). We review questions of law, discretion, and judgment under a de novo standard. 8 C.F.R. 1003.l(d)(3)(ii). On appeal, the respondent argues that the Immigration Judge erred in declining to reopen his proceedings and to rescind the in absentia order of removal, in light of the joint motion to reopen submitted by the respondent and the Department of Homeland Security on February 19, 2013. In light of the joint motion to reopen and the totality of circumstances presented in this case, we find that reopening is warranted in the respondent's case. Matter of G-D-, 22 I&N Dec. 1132 (BIA 1999); Matter of J-J-, 21 I&N Dec. 976 (BIA 1997). Accordingly, the appeal is sustained and the record will be remanded to the Immigration Court for further proceedings. The joint motion also requested that the venue in these proceedings be transferred to Pennsylvania, although it did not specify to which of the Immigration Courts in Pennsylvania the parties desired the venue to be transferred. The venue will be transferred to the Philadelphia, Pennsylvania, Immigration Court. 1 ORDER: The appeal is sustained, the in absentia order of removal is rescinded, and the removal proceedings are reopened. FURTHER ORDER: proceedings. The record is remanded to the Immigration Court for further

The respondent may request a further change of venue with the Philadelphia Immigration Court.

Cite as: Ramon Octavio Bustillo-Delarca, A077 400 623 (BIA Dec. 31, 2013)

, .

' '

A077 400 623

FURTHER ORDER: Upon remand, the venue is transferred to the Philadelphia, Pennsylvania, Immigration Court.

......,

Immigrant & Refugee Appellate Center | www.irac.net

Cite as: Ramon Octavio Bustillo-Delarca, A077 400 623 (BIA Dec. 31, 2013)

UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT 2009 W. JEFFERSON AVE, STE 300 HARLINGEN, TX 78550

KELLY, PARKER & COHEN, LLP PARKER, ANTHONY W., ESQ. 5425 JONESTOWN ROAD, SUITE 103 HARRISBURG, PA 17112

Immigrant & Refugee Appellate Center | www.irac.net

IN THE MATTER OF BUSTILLO-DELARCA,

FILE A 077-400-623 RAMOS OCTAVIO

DATE:

Feb 25,

2013

UNABLE TO FORWARD - NO ADDRESS PROVIDED

TACHED 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 CALENIJl!Mt 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 P.O. BOX 8530 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) 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 2009 W. JEFFERSON AVE, HARLINGEN, TX 78550

STE 300

OTHER:

COURT CLERK I:MMIGRATION COURT CC: ASSISTANT CHIEF COUNSEL 1717 ZOY ST. HARLINGEN, TX, 785520000 FF

'

UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW HARLINGEN IMMIGRATION COURT 2009 WEST JEFFERSON AVENUE, SUITE 300 HARLINGEN, TEXAS 78550

IN THE MATTER OF

Ramon OctavioBustillo-Delarca RESPONDENT

) ) ) ) )

February

let::

, 2013

Immigrant & Refugee Appellate Center | www.irac.net

Case Number: A077-400-623 IN REMOVAL PROCEEDINGS

ONBEHALF OF

THE RESPONDENT

Anthony Parker, Esq. Kelly, Parker & Cohen, LLP 5425 Jonestown Rd., Ste. 103 Harrisburg, PA 17112

ONBEHALF OF THE GOVERNMENT Mark R. Whitworth Assistant Chief Counsel 1717 Zoy St. Harlingen, TX 78552

ORDER OF THE IMMIGRATION JUDGE

On January 11, 2013, the Court denied respondent's motion to reopen. On February 4, 2013, respondent, through counsel, submitted a motion to reconsider this decision. The motion to reconsider will be denied. Respondent claims that this court abused its discretion by "summarily dismiss[ing] the affidavit. .. because it was unnotarized." This was not the case. In its original decision, the Court noted that the statement was unnotarized and it did give it

less

weight than a notarized statement,

simply because a notarized statement carries with it a greater degree of authenticity. In addition, the Court gave less weight to the statement because it was an unswom statement, parts of which were clearly contradicted in the record, and which had no supporting documentation. 1 As to respondent's argument that he acted with due diligence, the Court again disagrees. 2 Respondent agrees that he received the original Notice to Appear (NTA). Respondent thus knowledge that the hearing would be rescheduled, 3 it is reasonable to presume that if the properly received notice of his proceedings in general, if not the specific date. Since he had

1 The Court did mention that statements within a motion itself-that is, statements presented by counsel-are not considered evidence. Dec. 503

See INSv. Phinpathya, 464 U.S.

183, 188-89 n.6 (1984);

Matter ofRamirez-Sanchez,

17 I&N

2 See Rep't Mot. to Recon., 4. ("Respondent had every intention of attending the first hearing and, in fact, was en
route to the hearing .... ") 3 See Id.

(BIA 1980). This statement did not mean that the court was in any way ignoring respondent's declaration.

respondent had diligently been attending to his immigration affairs, he would have inquired about the rescheduled hearing long before thirteen years had passed. Further, the respondent 4 clearly moved several times and never notified the Court of these moves. This supports the belief that respondent was not diligently attending to his immigration affairs, as he was fully and properly notified in the NTA of his obligation to notify the Court of any changes of address and simply chose not to do so. Finally, the Court's sua sponte authority is its own power to deny or grant and not subject to review.

Immigrant & Refugee Appellate Center | www.irac.net

Because the motion to reconsider is denied, the emergency motion for stay of removal is considered moot. As such, the following orders shall be entered: ORDER: Respondent's motion to reconsider is DENIED.

4 See Id. at Tab B,

G-325A, Biographic Infonnation.

2