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U.S.

Department of Justice
Executive Office for Immigration Review
Board ofImmigration Appeals
Office of the Clerk
5 /07 Leesburg Pike. Suite 2000
Falls Church, Virginia 2204/

DHS/ICE Office of Chief Counsel - CLE


1240 E. 9th St., Room 585
Cleveland, OH 44199

Name: OCAMPO-ULLOA, NANCY

A 205-227-706
Date of this notice: 4/5/2016

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

DoYUtL CaAAJ
Donna Carr
Chief Clerk
Enclosure
Panel Members:
O'Leary, Brian M.
Mann, Ana
Grant, Edward R.

Userteam: Docket

For more unpublished BIA decisions, visit


www.irac.net/unpublished/index/
Cite as: Nancy Ocampo-Ulloa, A205 227 706 (BIA April 5, 2016)

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

Difranco, Brian C., Esq


DiFanco Law Office, LLC
6797 N. High Street., Suite 236
Worthington, OH 43085

U.S. Department of Justice


E_xecutive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 22041

File: A205 227 706 - Cleveland, OH

Date:

In re: NANCY OCAMPO-ULLOA

APR - 5 2016

APPEAL
ON BEHALF OF RESPONDENT: Brian C. Difranco, Esquire
ON BEHALF OF DHS: Jeremy Santoro
Assistant Chief Counsel
APPLICATION: Reopening
The respondent, a native and citizen of Honduras, was ordered removed in absentia on
February 6, 2013. On July 23, 2014, the respondent filed a motion to reopen proceedings, which
an Immigration Judge denied on December 18, 2014. The respondent filed a timely appeal of
that decision. The appeal will be sustained, the in absentia order will be vacated, proceedings
will be reopened, and the record will be remanded.
The Board reviews an Immigration Judge's findings of fact, including findings as to the
credibility of testimony, under the clearly erroneous standard. 8 C.F.R. 1003.l(d)(3)(i). The
Board reviews questions of law, discretion, and judgment and all other issues in appeals from
decisions oflmmigration Judges de novo. 8 C.F.R. 1003.l(d)(3)(ii).
Upon de novo review of the record and in light of the totality of circumstances presented in
this case, we conclude that the respondent demonstrated that reopening is warranted. 1 See
sections 240(b)(5)(C)(i), (e)(l) of the Immigration and Nationality Act, 8 U.S.C.A.
1229a(b)(5)(C)(i), (e)(l). We will therefore sustain the respondent's appeal and remand the
record for further proceedings.
ORDER: The respondent's appeal is sustained, the in absentia order is vacated, proceedings
are reopened and the record is remanded to the Immigration Judge for further proceedings and
for the entry ofa new decision.

Among other factors, we have considered that the respondent is the beneficiary of an approved
I-360 and she has filed for adjustment of status.

Cite as: Nancy Ocampo-Ulloa, A205 227 706 (BIA April 5, 2016)

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

IN REMOVAL PROCEEDINGS

C'

'

DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
801 WEST SUPERIOR AVENUE, SUITE 13-100
CLEVELAND, OH 44113
)

Nancy OCAMPO-ULLOA,

)
)

)
)
)
)

Respondent.
File Number:

A205-227-706

Date:

DEC l 8 2014

In Removal Proceedings

RE: The Respondent,s Motion to Reopen


ON BEHALF OF THE RESPONDENT:
Brian C. Difranco, Esq.
6797 North High Street
Suite 236
Worthington, Ohio 43085

ON BEHALF OF THE DHS:


Victoria Christian, Deputy Chief Counsel
Office of the Chief Counsel
Immigration & Customs Enforcement
1240 East Ninth Street, Suite 519
Cleveland, Ohio 44199

MEMORANDUM AND ORDER


On October 10, 2012, the Department of Homeland Security ("DHS") issued a Notice to Appear
("NTA"), charging the Respondent with removability under section 212(a)(6)(A)(i) of the
Immigration and Nationality Act ("INA") as an alien present in the United States without having
been admitted or paroled.
On December 18, 2012, the Court sent the Respondent a notice of hearing instructing her to
appear at a master calendar hearing scheduled for February 6, 2013. When the Respondent
failed to appear for the hearing, the Court entered an in absentia order of removal.
On July 23, 2014, the Respondent filed a motion to reopen her removal proceedings. The DHS
has not filed a response.
For the reasons set forth below, the Court will DENY the Respondent's motion to reopen.

Order AlOS-227-706

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In The Matter Of:

C'
DISCUSSION
I.

In Absentia Order of Removal

In her motion, the Respondent makes no claim to lack of notice or to the existence of an
exceptional circumstance that prevented her from appearing at the February 6, 2013, hearing.
Accordingly, the Respondent has failed to demonstrate that her in absentia order should be
rescinded and that her proceedings should be reopened.
II.

Motion to Reopen Based on VAWA Approval

The Respondent requests that her removal proceedings be reopened so that she may continue
with her application for adjustment of status based on the approval of an 1-360 due to the abuse
she suffered at the hands of her former U.S. citizen spouse. Respondent's Motion to Reopen at
1 1 (July 23, 2014).
The INA and the regulations provide that a motion to reopen must generally be filed within
ninety days of the date of entry of a final administrative order of removal. INA
240(c)(7)(C)(i); 8 C.F.R. 1003.23(b)(l ). The Respondent's motion to reopen was filed on July
23, 2014, more than one year after her removal order was entered on February 6, 2013; her
motion therefore does not comply with the general ninety day filing deadline.
There are, however, several exceptions to this filing deadline. INA 240(c)(7)(C)(ii)-(iv); 8
C.F.R. 1003.23(b)(4). The Respondent's motion does not meet the changed country conditions
exception, as she is not claiming asylum based on changed country conditions. INA
240(c)(7)(C)(ii); 8 C.F.R. 1003.23(b)(4)(i). It also does not meet either of the exceptions
pertaining to in absentia orders, as she is not claiming that she failed to receive notice of her
hearing or that her failure to appear was due to exceptional circumstances. INA 240(b)(5)(C);
8 C.F.R. 1003.23(b)(4)(ii). Nor has the DHS joined in the motion. See 8 C.F.R.
1003.23(b)(4)(iv). Thus, the only remaining exception is that available to battered spouses,
children, and parents. See INA 240(c)(7)(C)(iv).
The Respondent argues that her motion to reopen is not untimely because it was filed in
accordance with this battered spouse exception. Respondent's Motion to Reopen at 2 (July 23,
1

The Respondent's motion is not paginated. The page numbers referenced in this decision are
based on the Court's counting of the pages in its copy of the motion, excluding the cover page.
All submissions to the Court must be paginated. See Immigration Court Practice Manual,
Chapter 3.3(c)(iii) (Dec. 3, 2013) (" All documents, including briefs, motions, and exhibits,
should always be paginated by consecutive numbers placed at the bottom center or bottom right
hand corner of each page.").
Order A205-227-706

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The INA provides that an in absentia order of removal may be rescinded and proceedings
reopened in two circumstances: (I) if the Respondent files a motion to reopen within 180 days of
the entry of the order and demonstrates that her failure to appear was due to exceptional
circumstances, or (2) at any time if she demonstrates that she did not receive notice in
accordance with INA 239(a). INA 240(b)(S)(C).

2014 ). However, the Respondent has not demonstrated that she meets all the requirements for
this exception; she does not address the second and third requirements. The relevant statutory
language is as follows:

INA 240(c)(7)(C)(iv).
The Respondent has submitted evidence that her I-360 self-petition has been approved by the
U.S. Citizenship and Immigration Services ("USCIS"). Respondent's Motion to Reopen, Tab C.
She has submitted only a copy of the approval notice; she has not submitted a copy of the self
petition that was filed with USCIS. It is therefore questionable whether she has satisfied the
second requirement for reopening under this exception. Moreover, the Respondent has clearly
not filed this motion within one year of the entry of her final order of removal, as required by
INA 240(c)(7)(C)(iv)(III). This time limitation can be waived only if the respondent
demonstrates extraordinary circumstances or extreme hardship to her child.
The Respondent has not submitted any evidence of extreme hardship to her child. She argues
that because her I-360 had been pending for a year at the time of her removal order, the I-360
constitutes exceptional circumstances. Respondent's Motion to Reopen at 2 (July 23, 2014).
The Court disagrees. Under INA 240(e), exceptional circumstances are defined as
circumstances "beyond the control of the alien," such as battery, extreme cruelty, serious illness,
and death involving the alien or immediate family, "but not including less compelling
circumstances." The Board of Immigration Appeals employs a "totality of the circumstances"
test to determine exceptional circumstances. Matter of W-F-, 21 l&N Dec. 503, 509 (BIA 1996).
The Respondent's argument does not constitute such an exceptional circumstance. Her motion
therefore does not qualify for the abused spouse exception found at INA 240(c)(7)(C)(iv).
Accordingly, the Respondent's motion to reopen her proceedings is DENIED.

Order A205-227-706

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Any limitation under this section on the deadlines for filing such
motions shall not apply(!) if the basis for the motion is to apply for relief under clause (iii)
or (iv) of section 204(a)(l )(A), clause (ii) or (iii) of section
204(a)(l )(B), section 240A(b), or section 244(a)(3) (as in effect on
March 31, 1997);
(II) if the motion is accompanied by a cancellation of removal
application to be filed with the Attorney General or by a copy of
the self-petition that has been or will be filed with the Immigration
and Naturalization Service upon the granting of the motion to
reopen;
(III) if the motion to reopen is filed within 1 year of the entry of
the final order of removal, except that the Attorney General may,
in the Attorney General's discretion, waive this time limitation in
the case of an alien who demonstrates extraordinary circumstances
or extreme hardship to the alien's child; and
(IV) 'if the alien is physically present in the United States at the
time of filing the motion.

r
'

ORDERS
1.

The Respondent's motion to reopen her removal proceedings is DENIED.

2.

The Respondent is ordered removed to Honduras.

Date:

DEC 1 8 2014

D. William Evans, JE
Immigration Judge

Appeal Rights: This decision is final unless an appeal is filed on Form EOIR-26, Notice of

Appeal, with the Board of Immigration Appeals within thirty (30) calendar days of the date of
the mailing of this written decision. Enclosed with this decision are copies of the forms and
instructions for properly preparing your appeal. Your notice of appeal, attached documents, and
filing fee or a fee waiver request must be mailed to:
Board of Immigration Appeals
Office of the Clerk
5107 Leesburg Pike, Suite 2000
Falls Church, VA 20530
Appeal forms are also available in electronic format at http://www.justice.gov/eoir/formslist.htm.
The fees are listed at http://www.justice.gov/eoir/appealtypes.htm.
Consequences of Failing to Depart: You have been ordered removed from the United States. If
you willfully fail or refuse to depart the United States, to timely apply for travel or other
documents necessary for departure, or to present yourself for removal as instructed by the
government, you may be subject to a civil monetary penalty under INA 274D.

Order A205-227-706

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So Ordered