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U.S.

Department of Justice

Executive Office for Immigration Review


Board ofImmigration Appeals
Office of the Clerk
5107 Leesburg Pike. Suite 2000
Falls Church. Virginia 2204/

DHS/ICE Office of Chief Counsel - LOS


606 S. Olive Street, 8th Floor
Los Angeles, CA 90014

Name: RAMOS-PEREZ, MANUEL

A 205-711-051
Date of this notice: 4/19/2016

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

Doruu.. Ca.;vu
Donna Carr
Chief Clerk
Enclosure
Panel Members:
O'Leary, Brian M.
Guendelsberger, John
Grant, Edward R.

Userteam: Docket

For more unpublished BIA decisions, visit


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Cite as: Manuel Ramos Perez, A205 711 051 (BIA April 19, 2016)

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Valencia, Fermin
Valencia & Associates APC
116 W. 4th Street Unit A
Santa Ana, CA 92701

U.S. Department of Justice

Executiv..e Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 22041

File: A205 711 051 - Los Angeles, CA

Date:

In re: MANUEL RAMOS-PEREZ

APR 1 9 2016

APPEAL
ON BEHALF OF RESPONDENT: Fermin Valencia, Esquire
CHARGE:
Notice: Sec.

212(a)(6)(A)(i), l&N Act [8 U.S.C. 1182(a)(6)(A)(i)] Present without being admitted or paroled

APPLICATION: Reopening
The respondent, a native and citizen of Mexico, was ordered removed in absentia on
December 17, 2014. On December 24, 2014, the respondent filed a motion to reopen
proceedings, which the Immigration Judge denied on April 24, 2015. The respondent filed a
timely appeal of that decision. The Department of Homeland Security ("OHS") has not
submitted a response. The appeal will be sustained.
We review for clear error the findings of fact, including the determination of credibility,
made by the Immigration Judge. 8 C.F.R. 1003.1(d)(3)(i). We review de novo all other issues,
including whether the parties have met the relevant burden of proof, and issues of discretion.
8 C.F.R. 1003.1(d)(3)(ii).
The Board must look to the totality of the circumstances in evaluating exceptional
circumstances. See Singh v. INS, 213 F.3d 1050, 1052 (9th Cir. 2000) (requiring an examination
of the particularized facts and the totality of the circumstances presented in each case); Matter of
W-F-, 21 l&N Dec. 503, 509 (BIA 1996) ("We note that one must look to the "totality of
circumstances" to resolve this issue of exceptional circumstances.").
In his motion to reopen, the respondent acknowledged that he received his notice of hearing,
but maintained that he misheard the date in court as December 19, 2014, rather than
December I 7, 2014, and both he and his attorney misread the date on the notice (LJ. at 3; Exh. 3;
Resp. 's Brief at 2-3). We agree with the respondent that the notice of hearing contains a
handwritten date that is unclear (Exh. 3). In addition, the respondent appeared for his prior
hearings and he attempted to remedy his mistake immediately. See Singh v. INS, 295 F.3d I 037
(9th Cir. 2002), cert. denied, Ashcroft v. Singh, 539 U.S. 941 (2003) (considering the
respondent's motivation to appear for the hearing and diligence in appearing for all previous
hearings and holding that reopening of an in absentia order should not be denied where such
denial would lead to the unconscionable result of deporting an individual who was eligible for
relief at the time of the in absentia hearing), citing Chowdhury v. INS, 241 F.3d 848, 853
(7th Cir. 2001) (holding that immigration regulations "should not be so strictly interpreted as to
Cite as: Manuel Ramos Perez, A205 711 051 (BIA April 19, 2016)

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

IN REMOVAL PROCEEDINGS

,A205 7.11 051

Accordingly, the following order will be entered.


ORDER: The appeal is sustained, the in absentia order of removal is rescinded, the
proceedings are reopened, and the record is remanded for further proceedings consistent with the
foregoing opinion.

FORTHE1\.

2
Cite as: Manuel Ramos Perez, A205 711 051 (BIA April 19, 2016)

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provide unreasonable, unfair, and absurd results"). Although the Immigration Judge concluded
that it was not clear if the respondent was eligible for cancellation of removal because such relief
is discretionary in nature, the respondent also claimed that he was eligible for voluntary
departure or prosecutorial discretion. Therefore, based upon the totality of circumstances, we
find that the respondent has met his burden of demonstrating exceptional circumstances under
the statute. See section 240(e)(l) of the Immigration and Nationality Act, 8 U.S.C.
1229a(e)(l).

UNITED STATES DEPARTMENT OF JUSTICE


EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
LOS ANGELES, CALIFORNIA
)
)
)

In the Matter of:

RAMOS-PEREZ, Manuel, )

)
)

Respondent

IN REMOVAL PROCEEDINGS

CHARGE:

Section 212(a)(6)(A)(i) of the Immigration and Nationality Act (INA)


(2013) -present without_ being admitted or paroled

APPLICATION:

Motion to Reopen

ON BEHALF OF RESPONDENT:
Fermin Valencia, Esquire
: , .. :
Valencia & Associates, APC
116 West Fourth Street, Unit A
Santa Ana, California 92701

.'

ON BEHALF OF THE DEPARTMENT:


Assistant Chief Counsel
U.S. Department of Homeland Security
606 South Olive Street, Eighth Floor
Los Angeles, California 90014

DECISION AND ORDER OF THE IMMIGRATION JUDGE


I. Procedural History
Manuel Ramos-Perez (Respondent) is a native and citizen of Mexico. See Ex. 1. On
November 12, 2013, the U.S. Department of Homeland Security (Department) personally served
Respondent with a Notice to Appear (NTA). Id. Therein, the Department alleged that:
1.
2.
3.
4.

Respondent is not a citizen'or natibnal of the United


,1. ' States;
He is a native and citizen.6:f Meifdb("'j,;
He entered the United States. at an unknown place, on an unknown date; and
He was not then admitted or paroled after inspection by an immigration officer.

Id. Based on these factual allegations, the Department charged Respondent with inadmissibility
pursuant to section 212(a)(6)(A)(i) oftheINA. Id. Jurisdiction vested and removal proceedings
commenced upon the filing of the NTA with this Court on November 15, 2013. See 8 C.F.R.
1003.14(a) (2013).

On April 21, 2014, Respondent appeared in court without counsel and the Court
continued his proceedings until September 8, 2014, to allow him to secure representation. On
September 8, 2014, Respondent appeared in court, again without counsel, and the Court

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A205 711 051

File Number:

(.
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continued his proceedings once more so tha i could ecure representation. During the hearing,
the Court told Respondent that he had until Decemoer 17, 2014, the date of his next scheduled
hearing, to secure representation and personally served him with a Notice of Hearing (NOH)
indicating the same. See Ex. 3.
n

On December 24, 2014, Respondent filed the pending motion to reopen. Therein,
Respondent claims that he did not appear for his hearing due to exceptional circumstances.
Specifically, Respondent claims that he believed his hearing was scheduled for December 19,
2014, rather than December 17, 2014. See Resp't Mot. at 4.
For the following reasons, the Court will deny Respondent's motion.
I.. Law and Aalysis
The Court may rescind an in apentiai};,fdr,pf removal upon a motion filed within 180
days of the date of the order if the alie'n demosrats that he failed to appear because of
exceptional circumstances beyond his c_ontrol. \ 8 C.F.R. 1003.23(b)(4)(ii). Exceptional
circumstances include the serious illness ofthe respondent or the serious illness or death of the
respondent's spouse, child, or parent. INAi 240(e)(l). Exceptional circumstances do not
include less compelling circumstancesJd. :In determining whether a respondent's motion raises
exceptional circumstances, the Court must examine the "totality of the circumstances." Matter
of W-F-, 21 I&N Dec. 503, 509 (BIA 1996); Matter of Shaar, 21 I&N Dec. 541, 550 (BIA 1996).
Respondent asserts that he did not attend his scheduled hearing on December 17, 2014,
due a "confluence of circumstances," which amount to exceptional circumstances. See Resp't
Mot. at 4. Specifically, Respondent alleges that:
(I) he heard the interpreter say the date of his next hearing was December 19,
rather than December 17, 2014;
(2) he read the handwritten date on the notice as December 19, rather than
December 17, 2014;
(3) his counsel, after inspecting the NOH,
that the date of his hearing
confirmed

was December 19, 2014; and


(4) an Immigration and Custois Enf 9r,.ent (ICE) agent confirmed, through his
4duled
December 19, 2014.'
silence, that Respondent's'hearingws'skh
.. ' .' ...

for

See id. at 3-4.


.J1.

Respondent alleges that ICE agents visited him at his home on December 6, 2914. During that visit, Respondent
claims that an ICE agent asked him ifhe knew his next hearing date. When Respondent stated "December 19," the
agent remained silent and Respondent took that silence as an affirmation. See Resp't Mot. at 3.
1

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On December 17, 2014, Respondent failed to appear for his scheduled hearing. The
Court, proceeding in absentia, found that inadmissibility had been established by clear,
convincing, and unequivocal evidence based on documentary evidence submitted by the
Department. Accordingly, the Court ordered Respondent removed to Mexico.

.,

The Court recognizes that an alien's entitlement to relief may be a factor when
determining whether his misunderstanding regarding the time of a scheduled removal hearing
amounts to an exceptional circumstance. See Singh v. INS. 295 F.3d 1037, 1040 (9th Cir. 2002).
However, Respondent's case does not come under the narrow umbrella of Singh because he is
not clearly entitled to relief. The alien in Singh possessed an approved immediate relative
immigrant petition, had attended several hearings, and "apart from a few formalities that needed
to be carried out, if the hearing had been held, [he] would not have been ordered deported." Id.
at I 039. In contrast, in the instant matter, Respondent has only requested cancellation of
removal for certain non-permanent residents, a discretionary form of relief. See INA 240A(b).
Unlike in Singh, it is far from certain that Respondent would be granted the relief that he seeks.
proceedings on the
Based on the foregoing, the Gqtjrt declip to reopel) Resporient's
.
basis of exceptional circumstances. )'. ..
r
'1

r;if/ ;. . . \ :. .
ORDER

..,, l'

IT IS HEREBY ORDERED th.at


R,e'
pondent's motion to reopen be DENIED.
c.. l . .
;I,
. 'ii': ;:

DATE:

#()-//J
APPEAL RIGHTS

Both parties have the right to appeaJ the. deci$iop in this case. Any appeal is due in the
hands of the Board of Immigration Apeals :Jfqr::before thirt;y (30) calendar days from the date
., :f!! .--:. .. :,_
of this decision.
I

,r t'

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. Despite these claims, Respondent acknowledges personal receipt of the NOH, on which
the date reads December 17, 2014. See Ex. 3. Further, a review of the audio recording from the
September 8, 2014 hearing establishes that the Court stated that December 17, 2014, was the
next hearing date. Under such circumstances, His clear that Respondent's understanding of his
hearing date was firmly within his control; no" r only was he provided with oral notice of his
hearing, but.he.also coul have carely rey.i1}e NOr,clled the Court's automated
system at any time. He did no such thmg anq8:!sJt 1reslt, the Couq finds that Respondent's
claims do not amount to exceptional circumstancesufficient to excuse his absence and warrant
reopening of his proceedings. See INA 2:4-0()(1); Valencia-Fragoso v. INS, 321 F.3d 1204,
1205 (9th Cir. 2003) (per curiam) (concluding that typical daily occurrences that cause mishaps,
delays, and oversight, such as losing th he'aring notice or forgetting the scheduled time of the
hearing, do not constitute exceptional circumstances).