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U.S.

Department of Justice

Executive Office for Immigration Review


Board of Immigration Appeals
Office of the Clerk
5107 leesburg Pike. Suite 2000
Falls Church, Virginia 2204 I

DHS/ICE Office of Chief Counsel - HLG


1717 Zoy Street
Harlingen, TX 78552

Name: AYALA-GUEVARA, MARIA NICO...

A 077-444-128
Date of this notice: 8/27/2015

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

bonrtL c

aftA)

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

Userteam: Docket

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Cite as: Maria Nicolasa Ayala-Guevara, A077 444 128 (BIA Aug. 27, 2015)

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Bocanegra, Maria J
Jakeman Shaklee Oliver, PS
823 3rd Ave, Suite 206
Seattle, WA 98104

U.S. Department of Justic

Decision of the Board of Immigration Appeals

Executive Office for immigration Review


Falls Cfmrch, Virginia 20530

File: A077 444 128 - Harlingen, TX

Date:

AUG 2 7 20,s

In re: MARIA NICOLASA AYALA-GUEVARA

APPEAL
ON BEHALF OF RESPONDENT: Maria J. Bocanegra, Esquire
APPLICATION: Reopening
The respondent has appealed from the Immigration Judge's decision dated February 6, 2014,
denying the respondent's motion to reopen proceedings in which she 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.
1003.1(d)(3)(i),(ii). The Department of Homeland Security has not responded to the appeal.
We have considered the totality of the circumstances presented in this case, and find that an
exceptional situation has been demonstrated warranting reopening to allow the respondent an
opportunity to apply for relief from removal. See 8 C.F.R. 1003.23(b)(l); Matter ofJ-J-,
21 I&N Dec. 976 (BIA 1997). Specifically, we note that, although notice of the respondent's
hearing was provided to her prior counsel, Thelma O. Garcia, the record does not contain a
Notice of Entry of Appearance as Attorney or Representative Before the Immigration Court
(Form EOIR-28) from Ms. Garcia so as to establish that she was qualified to represent the
respondent and receive notice of the respondent's hearing on her behalf. 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.

>

Cite as: Maria Nicolasa Ayala-Guevara, A077 444 128 (BIA Aug. 27, 2015)

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IN REMOVAL PROCEEDINGS

!,

UNITED STATES DEPARTMENT OF JUSTICE


EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
HARLINGEN IMMIGRATION COURT
HARLINGEN, TEXAS

MARIA NICOLASA AYALA-GUEVARA,


Respondent.
APPLICATIONS:

)
)
)
)
)

February

2014

File Number: A 077 444 128


In Removal Proceedings

Motion to Reopen

ON BEHALF OF THE RESPONDENT


Maria J. Bocanegra, Esq.
Jakeman Shaklee Oliver, PS
823 3rd Avenue, Suite 206
Seattle, WA 98104

ON BEHALF OF THE GOVERNMENT


Gabriel A. Couriel, Esq.
U.S. Department of Homeland Security
1717 Zoy St
Harlingen, TX 78552

DECISION OF THE IMMIGRATION JUDGE


On January 11, 1999, the Court ordered Respondent removed to El Salvador in absentia
pursuant to section 240(b)(S)(A) of the Immigration and Nationality Act (INA or Act). On January
10, 2014, Respondent filed a motion to reopen her removal proceeding arguing that (1) she did not
receive notice ofher January 11 hearing; (2) she is eligible for asylum, withholding ofremoval, and
voluntary departure; (3) exceptional circumstances excuse her failure to appear; and (4) the Court
should reopen the proceeding sua sponte. The government has since responded that it opposes
reopening. For the following reasons, the motion is DENIED.
The Court finds that notice was provided to Respondent in accordance with the Act. The
Notice To Appear (NTA), which was personally served on Respondent August 30, 1998, contained
everything required under 239(a)(1) except for the time and place of the hearing. Contrary to
Respondent's assertion, the time and place of the hearing need not be included in the NTA ifthat
information is later sent in a Notice of Hearing (NOH). See Gomez-Palacios, 560 F.3d 354, 359 (5th
Cir. 2009). Respondent received oral notice in Spanish ofthe consequences offailing to appear, and
the NTA bears her signature and fingerprint. Roughly one week after Respondent was served with
the NTA, an attorney, Thelma 0. Garcia, entered a notice ofappearance on behalfofRespondent. Ms.
Garcia moved the Court to have Respondent's bond reduced, and eventually, on September 29,
1998, Respondent was released from custody. She provided an address in Tenino, Washington.
On October 1, 1998, the Court sent an NOH regarding the January 11 hearing at which
Respondent failed to appear to her attorney of record. Her attorney, Ms. Garcia, appeared at the
January 11 hearing, but Respondent did not. When asked why Respondent was not present, Ms.
Garcia stated to the Court that she was in contact with the bonding company who provided the bond
for Respondent's release, and that they, in turn, spoke to Respondent's husband. It was relayed to
the Court that Respondent had a brain tumor and was receiving treatment, thus she could not
appear. However, no evidence was presented of the condition or treatment, so the Court ordere<;l

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IN THE MATTER OF

Respondent removed. It noted that if Respondent was receiving the treatment alleged, then she
could file a motion to reopen with evidence of such treatment. Ms. Garcia pied to the Court for a
continuance to provide the evidence, and did move to have venue transferred to Washington, but
the Court denied the motions. The Court sent a copy of the removal order to Ms. Garcia.

Respondent also argues that if the proceeding is reopened, she is eligible for asylum,
withholding of removal, and voluntary departure. An untimely motion to reopen seeking such relief
to file an application for asylum or withholding of removal must be based upon new and material
evidence of changed country conditions in the country to which removal has been ordered. See 8
C.F.R. 1003.23(b)(4)(i). In support of her claims, Respondent details how she was physically,
emotionally, and sexually abused as a child before coming to the United States. Further, that she was
subjected to the constant gang violence while she was there, she was a victim of an armed robbery,
and that her brother was murdered. While these events are tragic, the Court's authority to reopen to
allow for an asylum or withholding application is limited to evidence of changed country conditions
from the time of the removal hearing to the time the motion to reopen is filed. Respondent has
presented no evidence that conditions are worse now than they were in 1999. To the contrary, her
claims of abuse and victimization by the gangs in El Salvador predate her arrival in the United States
and were available for her to present at her 1999 hearing. Accordingly, the Court cannot reopen the
proceeding to allow Respondent to apply for asylum or withholding of removal.
Respondent is also ineligible for voluntary departure because at this point it would be post
conclusion voluntary departure, which requires that an alien be physically present in the United
States for one year prior to service of the NTA.See 8 C.F.R. 1240.26(c)(l)(i). Here, Respondent was
1 Respondent argues in her motion that she is not alleging at this juncture that Ms. Garcia provided ineffective
assistance of counsel, although the evidence provided shows that she has made that allegation to Ms. Garcia, to
which Ms. Garcia responded. (Respondent's motion, pp. 83-87.) In any event, if there is a contention of ineffective
assistance of counsel lurking in Respondent's motion, she has failed to comply with Mattera/Lozada, 19 I&N Dec.
637 (BIA 1998).

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Respondent contends that she never received either the notice of the January 11 hearing or
the order of removal from Ms. Garcia. Further, that the Court never sent her a notice of the hearing
or a copy of her removal order. However, for purposes of proper service, when an alien is
represented by an attorney in immigration proceedings, service on the attorney constitutes service
on the alien. See 8 C.F.R. 1292.S(a) (2013); Matter of Barocio, 19 I&N Dec. 255 (BIA 1985). And,
while there "may be circumstances where counsel's performance is so inadequate that notice to the
attorney ... should not be deemed to be notice to the alien," Matter ofRivera-Clara, 21 l&N Dec. 599,
602 (BIA 1996), Respondent has not presented such a case.The evidence presented by Respondent
shows that Ms. Garcia did attempt to notify Respondent by mail of her January 11 hearing.Although
the notice from Ms. Garcia to Respondent appears to be addressed with a post office box number
appended to the physical address, the evidence Respondent submitted has Ms. Garcia denying that
the letter was returned to her office or that there were any other indications that delivery was not
made. Moreover, Ms. Garcia appeared at the hearing and relayed to the Court that she tried to
contact Respondent through her bonding company and was told that she had a brain tumor for
which she was receiving treatment. Ms. Garcia moved for a continuance on this ground, and also
attempted to have venue changed. Thus, the Court finds that Ms. Garcia's performance was not so
inadequate to conclude that service on her was not service on Respondent.1

served with the NTA shortly after crossing the border, and well before accruing one year of physical
presence. Although not contained in the motion, Respondent stated in her affidavit that she would
like to apply for cancellation of removal because she has been in the country since 1998. However,
Respondent would not have the requisite ten years required for cancellation of removal because her
time stopped accruing when she was served with the NTA. See INA 240A(d)(1).

The Court will not reopen this proceeding sua sponte. The Court's sua sponte authority to
reopen a removal proceeding is an "extraordinary remedy reserved for truly exceptional situations."
Matter of G-D-, 22 l&N Dec. 1132, 1133-34 (BIA 1999). Further, "[t]he power to reopen on [the
Court's] own motion is not meant to be used ... to circumvent the regulations, where enforcing them
might result in hardship." Matter of]-}-, 21 l&N Dec. 976, 984 (BIA 1997). The Court recognizes the
hardships that Respondent has presented to the Court, and sympathizes with her circumstances.
However, as noted, this sparingly used remedy is not to be used to cure the hardships inherent in
being removed, including family separation. Further, although it is insinuated in her motion that
Respondent received ineffective assistance of counsel regarding the communications she had with
her attorney, she has not explicitly made the claim, nor has she complied with Matter of Lozada.
FinalJy, Respondent herself has not acted with due diligence to address her immigration case.
Although she alleges a shortcoming on her attorney's end regarding the notice sent, she waited
fifteen years to try addressing her situation. She has made no mention that she ever tried to call her
attorney, her bond company, or even the Court to ask about the status of her case. She knew she had
an immigration case pending-she was personally served an NTA that advised her of her
obligations, and she was detained for a week-and yet she did nothing.
Accordingly, the following orders shall be entered:
ORDER: Respondent's motion to reopen is DENIED.

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Although Respondent recognizes that the 180 deadline to assert that exceptional
circumstances played a part in her failure to appear has passed, see 8 C.F.R. 1003.23(b)(4)(ii), she
argues that the deadline should be equitable tolled because Respondent has suffered psychological
trauma in the past However, in the Fifth Circuit, an argument for equitable tolling of the time limits
for a motion to reopen is construed as an argument for the Court to exercise its sua sponte authority
to reopen. See Ramos-Bonilla v. Mukasey, 543 F.3d 216, 219-20 (5th Cir. 2008). Thus, the Court will
consider this argument in its decision whether to invoke its sua sponte authority.

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