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U.S.

Department of Justice
Executive Office for Immigration Review
Board ofImmigration Appeals
Office ofthe Clerk
5107 Leesburg Pike, Suite 2000
Fa/ls Church, Virginia 22041

DHS/ICE Office of Chief Counsel - ATL


180 Ted Turner Dr., SW, Ste 332
Atlanta, GA 30303

Name: PEREZ-SANDOVAL, SALVADOR

A 205-131-868
Date of this notice: 8/20/2015

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

DorutL

l1ftA)

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Holiona, Hope Malia
Grant, Edward R.
Guendelsberger, John

Userteam: Docket

For more unpublished BIA decisions, visit


www.irac.net/unpublished/index/
Cite as: Salvador Perez-Sandoval, A205 131 868 (BIA Aug. 20, 2015)

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

Echols, Eli A.
Socheat Chea, P.C.
3500 Duluth Park Lane, Bldg. 300
Duluth, GA 30096

tJ.S. Department of Justice


Executive Offic,e for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 20530

File: A205 131 868 - Atlanta, GA

Date:

In re: SALVADOR PEREZ-SANDOVAL

AUG 2 0 2015

APPEAL
ON BEHALF OF RESPONDENT: Eli A Echols, Esquire
Gene P. Hamilton
Assistant Chief Counsel

ON BEHALF OF OHS:
APPLICATION: Reopening
ORDER:

The respondent has appealed the Immigration Judge's denial of a motion to reopen
proceedings in which the respondent was ordered removed in absentia.

We review an

Immigration Judge's findings of fact for clear error, but questions of law, discretion, and
judgment, and all other issues in appeals, are reviewed de novo. 8 C.F.R 1003.l(d)(J)(i), (ii).
On review, in light of the totality of the circumstances presented in this case we will reopen
proceedings and allow the respondent another opportunity to appear for a hearing.
Accordingly, the appeal is sustained, the proceedings are reopened, and the record is
remanded to the Immigration Court for further proceedings consistent with the foregoing opinion
and the entry of a new decision.

FOR THE BOARD

Cite as: Salvador Perez-Sandoval, A205 131 868 (BIA Aug. 20, 2015)

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

IN REMOVAL PROCEEDINGS

C'
.

IJ!

UNITED STATES DEPARTMENT OF JUSTICE


EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
ATLANTA, GEORGIA
)

PEREZ-SANDOVAL, Salvador

In Removal Proceedings
File No. A#205-131-868

)
)
)
)

Respondent

________________________ )
APPLICATION:

Respondent's Motion to Reopen


APPEARANCES

ON BEHALF OF THE RESPONDENT:

ON BEHALF OF THE GOVERNMENT:

G. Josh Arcila, Esq.


Arcilia Law Office, LLC
5C HwTicane Shoals Road
Lawrenceville, GA 30046

Assistant Chief Counsel


Department of Homeland Security
180 Spring Street SW, Suite 332
Atlanta, Georgia 30303

DECISION AND ORDER OF THE IMMIGRATION JUDGE


I.

PROCEDURAL AND FACTUAL HISTORY

The Respondent, Salvador Perez-Sandoval, is a native and citizen of Mexico.


On August 8, 2013, the Respondent was removed in absentia to Mexico.
On August 9, 2013, the Respondent filed a Motion to Reopen, arguing that his case should be
reopened because his failure to appear was due to exceptional circumstances.
On August 19, 2013, the Department of Homeland Security filed its opposition to the
Respondent's motion, arguing that the Respondent's explanation for missing court did not
constitute an exceptional circumstance.
The Court has carefully reviewed the arguments of both parties and the entire record before
it. All evidence has been considered, even if not specifically discussed further in this decision.
For the reasons set forth below, the Court will deny Respondent's Motion to Reopen.
II.

APPLICABLE LAW

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IN THE MATTER OF:

C'
.

In Matter of G-D-, the Board explained that "motions rules respond directly to the legislative
interest in setting meaningful and effective limits on motions and ultimately in achieving finality
in immigration case adjudications." 22 I. & N. Dec. 1132, 1134 (BIA 1999).
As with all motions to reopen, the applicant 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
material. 8 C.F.R. 1003.23(b)(3); see also INS v. Abudu, 485 U.S. 94 (1988). Any motion to
reopen for the purpose of acting on an application for relief must be accompanied by the
appropriate application for relief and supporting documentation. Id. Finally, if the ultimate
relief is discretionary, the Immigration Judge may deny a motion to reopen even if the moving
party demonstrates primafacie eligibility for relief. Id.; see Abudu, 485 U.S. 94.
III.

DISCUSSION

A. The Respondent 's Motion to Reopen is timely.


Generally, motions to reopen for purposes of rescinding an in absentia removal order must
be filed within 180 days after the date of the removal order if the alien demonstrates that the
failure to appear was because of exceptional circumstances. See INA 240(b)(5)(C)(ii); 8
C.F.R. 1003.23(b)(4)(ii). Here, the Respondent was ordered removed in absentia on August 8,
2013 and filed his Motion to Reopen the next day, on August 9, 2013. Therefore, the Respondent
filed his motion within the 180-day deadline for such motions and his motion shall be deemed
timely.
B. The Respondent has not demonstrated that his failure to appear was due to
exceptional circumstances.
An in absentia order of removal may be rescinded upon a motion to reopen filed within 180
days after the date of the order of removal if the alien demonstrates that the failure to appear was
because of exceptional circumstances (as defined in 240(e)(l)). INA 240(b)(5)(C)(i). "The
term "exceptional circumstances' refers to exceptional circumstances (such as battery or extreme
cmelty to the alien or any child or parent 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 240(e)(l ).
Here, the Respondent has not demonstrated that his failure to appear was because of
exceptional circumstances. The Respondent offers the following explanation for his failure to

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Generally, motions to reopen for purposes of rescinding an in absentia removal order must
be filed within 180 days after the date of the removal order if the alien demonstrates that the
failure to appear was because of exceptional circumstances. See INA 240(b)(5)(C)(ii); 8
C.F.R. 1003.23(b)(4)(ii). However, if the alien argues that he did not receive notice of the
hearing or asserts that he was in Federal or state custody and the failure to appear was through
not fault of his own, an order entered in absentia pursuant to section 240(b)(5) may be rescinded
upon a motion to reopen filed at any time. 8 C.F.R. I003.23(b)(4)(ii). Only one such motion
may be filed by the alien. Id.

. i

In light of the foregoing, the Court will enter the following order:
ORDER OF THE IMMIGRATION JUDGE
It is ordered that:

The Respondent's Motion to Reopen


is hereby DENIED.

an Pelletier
ited States Immigration Judge
Atlanta, Georgia

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appear at his hearing in August 2013: "I was under the impression that my court date was in
October and I had been in the process[] of collecting documents to complete my NVC process
and intended to meet with my attorney in September so that we could proceed with our hearing
in October. My wife was also under the impression that Court was in October. I believe this was
a simple error and misunderstanding." Resp't's Aff. at 1. The record shows that the Court
personally served the Respondent with the Notice of Hearing notifying him of his August 8,
2013 hearing. See Notice of Hearing, dated November 15, 20 12 (notice that a hearing is
scheduled in the Respondent's case on August 8, 2013, indicating that it was personally served
on Respondent by court staff). Thus, it appears that the Respondent personally received the
Notice of Hearing with the correct date and then failed to appear to Court due to a simple error
where he mistakenly believed that his hearing was in October. This simple misunderstanding
does not rise to the level of battery, serious illness or death that defines exceptional
circumstances, as quoted above. Therefore, the Court finds that the Respondent has not
demonstrated that his failure to appear was due to exceptional circumstances.