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Fernando Placencia Castellanos, A205 285 337 (BIA Sept. 16, 2013)

Fernando Placencia Castellanos, A205 285 337 (BIA Sept. 16, 2013)

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In this unpublished decision, the Board of Immigration Appeals (BIA) reopened proceedings upon finding the respondent’s confusion regarding the dates of his criminal and removal hearings constituted “exceptional circumstances” justifying his failure to appear. The decision was written by Member Molly Kendall-Clark and joined by Chairman David Neal and Vice Chairman Charles Adkins-Blanch.
In this unpublished decision, the Board of Immigration Appeals (BIA) reopened proceedings upon finding the respondent’s confusion regarding the dates of his criminal and removal hearings constituted “exceptional circumstances” justifying his failure to appear. The decision was written by Member Molly Kendall-Clark and joined by Chairman David Neal and Vice Chairman Charles Adkins-Blanch.

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10/23/2013

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U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals Office of the Clerk
5107 J.eesb11rg Pike, S11ite 1000 Falls C/111rc/1, Virgillia 21041

Nana Amoako 2500 Highway 881 Suite 108 Minneapolis, MN 55418

OHS/ICE Office of Chief Counsel - BLM 2901 Metro Drive, Suite 100 Bloomington, MN 55425

Immigrant & Refugee Appellate Center | www.irac.net

Name: PLACENCIA-CASTELLANOS, FE...

A 205-285-337

Date of this notice: 9/16/2013

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

DonrtL ctVlA)
Donna Carr Chief Clerk

Enclosure
Panel Members: Kendall-Clark, Molly Neal, David L Adkins-Blanch, Charles K.

yungc Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: Fernando Placencia Castellanos, A205 285 337 (BIA Sept. 16, 2013)

U.S. Department of Justice

Decision of the Board oflmmigration Appeals

Executive Office for Immigration Review

Falls Church, Virginia 22041

File:

A205 285 337 - Bloomington, MN

Date:

In re: FERNANDO PLACENCIA CASTELLANOS IN REMOVAL PROCEEDINGS

SEP 1 6 2013

Immigrant & Refugee Appellate Center | www.irac.net

APPEAL ON BEHALF OF RESPONDENT: Nana Amoako, Esquire ON BEHALF OF DHS: Thomas S. Madison Assistant Chief Counsel APPLICATION: Reopening

The respondent is a native and citizen of Mexico. On April 4, 2013, he was ordered removed from the United States, following his failure to appear at his hearing. On May 6, 2013, he filed a motion to reopen under section 240(b)(S)(C) of the Immigration and Nationality Act, 8 U.S.C.

§ 1229a(b)(5)(C).

The motion was denied and this appeal followed. sustained and the record will be remanded for further proceedings.

The appeal will be

Upon review, and considering the totality of the circumstances presented, we find that there were exceptional circumstances in this case within the meaning of section 240(e)(1) of the Act and that reopening is appropriate. See 8 C.F.R. § 1003. l (d)(3)(ii) (except for factual findings under the clear error standard, the Board reviews questions of law, discretion, and judgment and all other issues in appeals from decisions of Immigration Judges de novo). We note that the respondent filed this motion well within the statutory 180 days after the date of the removal order and has previously appeared for scheduled hearings, as directed. He also went to the immigration court when he thought his hearing was scheduled, albeit one day late (Br. at 3; Tab "C" (Affidavit)). In light of the foregoing and his lengthy residence here in the United States since 1994, as reflected in the Notice to Appear, we conclude that the respondent should be afforded an opportunity to apply for cancellation of removal. ORDER: The appeal is sustained. FURTHER ORDER: The record is remanded for further proceedings consistent with this decision.

FOR THE BOARD

Cite as: Fernando Placencia Castellanos, A205 285 337 (BIA Sept. 16, 2013)

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. •.

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UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT

7850

METRO PARKWAY, BLOOMINGTON,

MN

SUITE

320 55425

AMOAKO,

NANA

2500

HIGHWAY

88,
MN

SUITE

MINNEAPOLIS,

55418

107-109

Immigrant & Refugee Appellate Center | www.irac.net

IN THE MATTER OF PLACENCIA-CASTELLANOS, UNABLE TO FORWARD -

FILE A FERNANDO

205-285-337

DATE:

May

17, 2013

NO ADDRESS PROVIDED JUDGE. THIS DECISION

'1._

ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION WITHIN

IS FINAL UNLESS AN APPEAL IS FILED WITH THE BOARD OF IMMIGRATION APPEALS

30

CALENDAR DAYS

OF THE DATE OF THE MAILING OF ATTACHED DOCUMENTS, AND FEE OR

THIS WRITTEN DECISION. FEE WAIVER REQUEST

SEE THE ENCLOSED FORMS AND INSTRUCTIONS FOR PROPERLY PREPARING YOUR APPEAL. YOUR NOTICE OF APPEAL, MUST BE MAILED TO: BOARD OF IMMIGRATION APPEALS OFFICE OF THE CLERK P.O. BOX

8530
VA

FALLS CHURCH,

22041
JUDGE AS THE RESULT

ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION THIS DECISION IS FINAL UNLESS WITH SECTION

OF YOUR FAILURE TO APPEAR AT YOUR SCHEDULED DEPORTATION OR REMOVAL HEARING. A MOTION TO REOPEN IS FILED IN ACCORDANCE

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

7850

METRO PARKWAY, MN

SUITE

BLOOMINGTON, OTHER:

55425

320

COURT CC: OFFICE OF CHIEF COUNSEL

CLERK FF

IMMIGRATION COURT

2901

METRO DR.,

BLOOMINGTON,

MN ,

STE.

100 55425


. .

DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT BLOOMINGTON, MN 55425 In The Matter Of: Fernando Placencia-Castellanos
I

7850 METRO PARKWAY, SUITE 320

Respondent.
File Number: A205-285-337

) ) ) ) ) ) )

Date: May 17, 2013

Immigrant & Refugee Appellate Center | www.irac.net

In Removal Proceedings **DETAINED ALIEN**

Application: Motion to Reopen On Behalf of the Respondent: On Behalf of the DHS:

Nana Amoako

Thomas S. Madison

MEMORANDUM AND ORDER

By written order dated April 4, 2013, the respondent was ordered removed from the United States to Mexico in absentia when he failed to appear for his master calendar hearing that day. 1 On May 2 6, 2013, the respondent filed a Motion to Reopen. The DHS filed a response on May 9, 2013, opposing the motion.3 Section 240(b)(5)(C) of the Immigration and Nationality Act ("fNA" or "the Act") sets forth the statutory authority for reopening proceedings. fNA § 240(b)(5)(C)(i) provides for the reopening of an in absentia removal order if exceptional circumstances precluded the respondent from appearing at the hearing and the motion is filed within 180 days of the date of the removal order. fNA § 240(b)(5)(C)(ii) provides for reopening at any time if the respondent demonstrates that he/she did not receive notice in accordance with paragraph (1) or (2) of fNA § 239(a) or that he/she was in federal or state custody and did not appear through no fault of his/her own. The Record of Proceeding ("ROP") shows that the respondent was served with the Notice to Appear ("NTA"), Exhibit 1, on or about July 23, 2012. The respondent appeared in Court for a master calendar hearing on October 25, 2012. At that hearing the respondent appeared pro se, the DHS was represented by Laura Trosen, and the Spanish in-court interpreter was Paul Johnston. The Court reset the case to a master calendar hearing for March 11, 2013, at 9:00 a.m. to give
1

2 3

The Court's in absentia order is marked as Exhibit 5. The Motion to Reopen filed May 6, 2013, is marked as Exhibit 6. The DHS' opposition is marked as Exhibit 7.

A205-285-337 - Page 1

respondent time to get an attorney. (Ex. 3 Notice of Hearing). The Court covered the consequences of failing to appear with the respondent. The Court's master calendar docket did not go forward on March 11, 2013, as this Judge was out of the office. Accordingly, the court clerks mailed a new hearing notice to the parties and reset the hearing to April 4, 2013, at 9:00 a.m. (Ex. 4-Notice of Hearing). When the respondent failed to appear for his hearing on April 4, 2013, the Court entered an in absentia removal order in his case. (Ex. 5).
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Respondent claims in the Motion to Reopen that he mixed up the immigration hearing date of April 4, 2013, with his criminal court hearing date of April 5, 2013. He claims that he came to the Immigration Court on April 5, 2013, and discovered he had mixed up the dates. He seeks to reopen proceedings so that he can file an application for cancellation of removal. The OHS opposes the motion stating that respondent has failed to establish exceptional circumstances for reopening. The respondent had proper notice of the April 4, 2013, 9:00 a.m. hearing. The respondent seeks to reopen the in absentia order claiming that he failed to appear due to exceptional -circumstances. The Act defines "exceptional circumstances" as "exceptional circumstances (such as serious illness of the alien or serious illness or death of the spouse, child, or parent of the alien, but not including less compelling circumstances) beyond the control of the alien." INA Section 240(e)(l). The
respondent's reason for failing to appear for his hearing does not rise to the level of "exceptional circumstances." The argument that he mixed up the dates of his immigration and

Immigrant & Refugee Appellate Center | www.irac.net

criminal court hearings does not establish "exceptional circumstances." Furthermore, if the respondent had mixed up the two court dates and gone to the criminal court hearing on April 4, 2013, at 9:00 a.m. instead of April 5, 2013, at 9:00 a.m., he would have discovered from the criminal court that he was there on the wrong day. The respondent then could have driven from St. Cloud to Bloomington, MN, on April 4, 2013, for his immigration hearing. Additionally, the respondent seeks to reopen proceedings so that he can apply for cancellation of removal. However, he has not attached an application, supporting documents, or paid the fee for such application. Accordingly, the Court enters the following order in this case:
ORDER IT IS HEREBY ORDERED that the respondent's Motion to Reopen and Rescind

Jn Absentia

Order is DENIED.

Dated: May 17, 2013
Kristin W. Olmanson

Immigration Judge

AlOS-285-337

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