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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, Virg1ma 22041

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


Sofia, Fairuze OHS/ICE Office of Chief Counsel - MIA
The Sofia Law Firm 333 South Miami Ave., Suite 200
912 S Andrews Ave Miami, FL 33130
Fort Lauderdale, FL 33316

Name: SUFIYAN, ABU A 088-003-019

Date of this notice: 10/20/2017

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

Sincerely,

Donna Carr
Chief Clerk

Enclosure

Panel Members:
Grant, Edward R.
Kelly, Edward F.
Adkins-Blanch, Charles K.

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Cite as: Abu Sufiyan, A088 003 019 (BIA Oct. 20, 2017)
U.S. Department of Justice Decision of the Board of Immigration Appeals
Execut rvOffice for Immigration Review

Falls Church, Virginia 22041

File: A088 003 019 - Miami, FL Date:


OCT 2 0 2017
In re: Abu SUFIYAN a.k.a Mohammed Sufiyan

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


IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Fairuze Sofia, Esquire

ON BEHALF OF OHS: Kyung Auh


Assistant Chief Counsel

APPLICATION: Reopening

The respondent has appealed the Immigration Judge's March 3, 2017, decision denying his
motion to reopen. The respondent had previously been ordered removed in absentia for his failure
to appear for the hearing on September 27, 2016. The appeal will be sustained, proceedings will
be reopened, and the record will be remanded.

We review the findings of fact; including the determination of credibility, made by the
Immigration Judge under the "clearly erroneous" standard. 8 C.F.R. 1003.l(d)(3)(i). We review
all other issues, including issues of law, discretion, or judgment, under a de novo standard. 8 C.F.R.
1003.l(d)(J)(ii).

On appeal the respondent contends that his late arrival for the master calendar hearing does not
constitute a failure to appear. He states that he arrived late for his hearing due to traffic delays.
The respondent asserts that court was still in session when he arrived. The respondent also seeks
reopening to apply for adjustment of status based on his marriage to a United States citizen.

The record reflects that the respondent's hearing was scheduled for 8:00 a.m. on September 27,
2016. In his motion to reopen, the respondent indicates that he arrived late for the master calendar
hearing at approximately 9:30 a.m. On appeal the respondent states that his attorney was also
delayed due to traffic, and he arrived prior to 9:00 am. (Respondent's Appeal Brief, at 1).
However, the respondent indicates that the Immigration Judge informed his attorney that she
would not hear the respondent's case that day and continued with her morning docket. The
respondent submitted an affidavit with his motion to reopen discussing his late arrival in the
courtroom.

The Immigration Judge denied the respondent's motion to reopen, finding that the respondent
failed to establish exceptional circumstances for his failure to appear due to traffic delays, and the
respondent failed to allocate sufficient t for predictable traffic delays. See Matter of S-A-,
21 l&N Dec. 1050 (BIA 1997). Howeve , an alien who merely appears late for a hearing may be
found to not have failed to appear, an erefore, need not establish lack of proper notice or
exceptional circumstances for a failure to appear. While we recognize that the U.S. Court of
Appeals for the Eleventh Circuit has not issued a precedent decision on this issue, we note that
Cite as: Abu Sufiyan, A088 003 019 (BIA Oct. 20, 2017)
A088!)03 019

several other circuits have found that a late arrival does not constitute a failure to appear in certain
circumstances. See e.g. Perez v. Mukasey, 516 F.3d 770, 774 (9th Cir. 2008) (court found that an
alien who arrived two hours late for his immigration hearing, but while Immigration Judge was
still in the courtroom, did not fail to appear for that hearing); see also Abu Hasirah v. Department
ofHomeland Security, 478 F.3d 474 (2d Cir. 2007) (court held an alien's brief and unintentional
lateness to the removal proceedings did not constitute a failure to appear within the meaning of

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


section 240(b)(5) of the Immigration and Nationality Act, 8 U.S.C. 1220a(b)(5); Alarcon-Chavez
v. Gonzales, 403 F.3d 343 (5th Cir. 2005) (alien's arrival at courtroom 20 minutes late for asylum
hearing was not failure to attend warranting removal in absentia); Jerezano v. INS, 169 F.3d 613
(9th Cir. 1999) (while traffic delays are generally not considered exceptional circumstances,
delayed appearances are not nonappearances for purposes of reopening). The respondent avers
that the Immigration Judge was still on the bench for master calendar hearings when he arrived
and joined his attorney in the courtroom. Consequently, we find that the respondent's late arrival
does not constitute a failure to appear.

Accordingly, the following order will be ent

ORDER: The appeal is sustained, the in ab tia order of removal is rescinded, the
proceedings are reopened, and the record is remanded fo er proceedings consistent with the
foregoing opinion.

Cite as: Abu Sufiyan, A088 003 019 (BIA Oct. 20, 2017)
D STATES DEPARTMENT OF J
U ICE
EXEC'tl ..'VE OFFICE FOR IMMIGRATte1, VIEW
IMMIGRATION COURT
MIAMI, FLORIDA

IN THE MATIER OF: FILE: A088-003-019

SUFIYAN, Abu
IN [REMOVAL] PROCEEDINGS
Fairuze Sofia, Esq. [ x]

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


ORDER OF THE IMMIGRATION JUDGE

Upon consideration of the Respondent's MOTION TO REOPEN AN IN ABSENTIA

IT IS HEREBY ORDERED that the Motion be [ ] GRANTED* [ @ENIED because:

__ OHS does not oppose the Motion.

__ The respondent does not oppose the Motion.

__ A response to the Motion has not been filed with the Court.

Good cause has been established for the Motion.

_L The Court agrees with the reasons stated in the opposition to the Motion.
__ The Motion i untimely per --------
-- That the Venue is changed to the Immigration Court at: ------- .-
The Alien's current address is: ________________

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The application(s) for relief must be fided by . I

__

__ The Respondent must comply with OHS biometric instructions by ____


_

Date: 3f3> /n
nri""Q-
Immigration Judge

This document was


To: [ x] Alien [ x] OHS