U.S.

Department of Justice Executive Office for Immigration Review

Board ofImmigration Appeals Office ofthe Clerk

5/07 Leesburg Pike, Suite 2000 Falls Church. Virginia 2204/

R. Joel Hatch Smith, Gardner, Slusky, Lazer, Pohren & Rogers LLP 8712 W. Dodge Road, Suite 400 Omaha, NE 68114

OHS/ICE Office of Chief Counsel - HLG 1717 Zoy Street Harlingen, TX 78552

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Name: PORTILLO-MUNOZ,CARMEN AN

..

A 077-793-500

Date of this notice: 5/10/2013

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

Doruu- Ca.NLJ
Donna Carr Chief Clerk

Enclosure
Panel Members: Adkins-Blanch, Charles K. Guendelsberger, John Hoffman, Sharon

Trane Userteam: Docket

Cite as: Carmen Anayanci Portillo-Munoz, A077 793 500 (BIA May 10, 2013)

U.S. Department of Justice

Executive Office for Iipmigration Review Falls Church, Virginia 2204 I

Decision of the Board of Immigration Appeals

File:

A077 793 500

Harlingen, TX

Date:

MAY
In re: CARMEN ANA YANCI PORTILLO-MUNOZ IN REMOVAL PROCEEDINGS APPEAL ON BEHALF OF RESPONDENT: ON BEHALF OF DHS: R. Joel Hatch, Esquire

1 0 2013

Immigrant & Refugee Appellate Center | www.irac.net

David Delgado Assistant Chief Counsel

APPLICATION: Reopening ORDER:

Based upon the totality of the circumstances presented in this matter, the respondent's appeal of the decision of the Immigration Judge, dated November 2, 2011, denying the parties' joint motion to reopen is sustained, these removal proceedings are reopened, and the record is remanded to the Immigration Judge for further proceedings and for the entry of a new decision.

See Matter of Yewondwosen,

21 l&N Dec. 1025, 1026 (BIA 1997) ("We believe the

parties. have an important role to play in these administrative proceedings, and that their agreement on an issue or proper course of action should, in most instances, be determinative.").

While we conclude that these removal proceedings should be reopened, we express no opinion regarding the ultimate outcome of these proceedings at the present time.

Cite as: Carmen Anayanci Portillo-Munoz, A077 793 500 (BIA May 10, 2013)

UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT 2009 W. JEFFERSON AVE, STE 300 HARLINGEN, TX 78550

DWYER, SMITH, GARDNER, LAZER, POHREN & ROGERS, LLP FINCH, JASON M., ESQ. , 8712 WEST DODGE ROAD, SUITE 400 OMAHA, NE 68114 FILE A 077-793-500 IN THE MATTER OF PORTILLO-MUNOZ, CARMEN ANAYANCI DATE: November 3, 2011

Immigrant & Refugee Appellate Center | www.irac.net

UNABLE TO FORWARD - NO ADDRESS PROVIDED TACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE. THIS DECISION FINAL UNLESS AN APPEAL IS FILED WITH THE BOARD OF IMMIGRATION APPEALS THIN 30 CALENDAR DAYS OF THE DATE OF THE MAILING OF THIS WRITTEN DECISION. E THE ENCLOSED FORMS AND INSTRUCTIONS FOR PROPERLY PREPARING YOUR APPEAL. YOUR NOTICE OF APPEAL, ATTACHED DOCUMENTS, AND FEE OR FEE WAIVER REQUEST MUST BE MAILED TO: BOARD OF IMMIGRATION APPEALS OFFICE OF THE CLERK P.O. BOX 8530 FALLS CHURCH, VA 22041 ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE AS THE RESULT OF YOUR FAILURE TO APPEAR AT YOUR SCHEDULED DEPORTATION OR REMOVAL HEARING. THIS DECISION IS FINAL UNLESS A MOTION TO REOPEN IS FILED IN ACCORDANCE WITH SECTION 242B(c)(3) OF THE IMMIGRATION AND NATIONALITY ACT, 8 U.S.C. SECTION 1252B(c)(3) IN DEPORTATION PROCEEDINGS OR SECTION 240(c)(6), 8 u.s.c. SECTION 1229a(c)(6) IN REMOVAL PROCEEDINGS. TO REOPEN, YOUR MOTION MUST BE FILED WITH THIS COURT: IMMIGRATION COURT 2009 W. JEFFERSON AVE, HARLINGEN, TX 78550 OTHER: IF YOU FILE A MOTION

STE 300

COURT K IMMIGRATION COURT CC: ASSISTANT CHIEF COUNSEL P.O. BOX 1711 785510000 HARLINGEN, TX,

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UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT 2009 WEST JEFFERSON AVENUE, SUITE 300 HARLINGEN, TEXAS 78550

Immigrant & Refugee Appellate Center | www.irac.net

IN THE MATIER OF CARMEN ANAYANCI PORTILLO-MUNOZ RESPONDENT IN REMOVAL PROCEEDINGS

) ) ) ) ) ) CASE NUMBER: A077 793 500

MEMORANDUM AND ORDER

On October 24, 2011, Respondent and the Department of Homeland Security jointly filed a motion to reopen this removal proceeding. The motion to reopen states that the parties request that the Court rescind the removal order entered in absentia, and that the motion to reopen is filed pursuant to 8 C.F.R. 1 003.23(b)(4)(iv). The motion to reopen does not state the basis for the requested rescission of the removal order and it does not state that Respondent is requesting reopening in order to apply for any relief from removal. The removal order in this case was issued on March 8, 2000 based upon a removal hearing conducted in absentia on that same date pursuant to section 240{b)(5)(A) of the Immigration and Nationality Act (the Act). The Court provided Respondent with proper notice of her March 8, 2000 removal hearing as the notice was mailed to Respondent at the most recent address provided by her at that time, which was contained in a Change of Address Form (Form EOIR-33 ) (Exh. #2 and 3). Section 239(a)(2)(A) of the Act; 8 C.F.R. 1003.1 8(b); 8 C.F.R. 1 003.26(c) and (d). The regulatory provision at 8 C.F.R. 1 003.23(b)(4)(iv) states that "the time and numerical limitations set forth in paragraph (b)(l) of this section shall not apply to a motion to reopen agreed upon by all parties and jointly filed." Since the motion to reopen does not state that Respondent did not receive notice of her March 8, 2000 removal hearing and she is not requesting reopening to apply for relief from removal, the applicable regulation in deciding on whether reopening is warranted is 8 C.F.R. 1 003.23(b)(4)(ii) with respect to rescinding an order of removal due to exceptional circumstances for failure to appear. However, a motion to rescind an in absentia removal order for that reason must be filed within 1 80 days after the date of the order of removal, and that time limitation is not rendered inapplicable by a motion to reopen

jointly filed pursuant to 8 C.F.R. 1003.23(b)(4)(iv). Therefore, the joint motion to reopen is untimely under 8 C.F.R. 1 003.23(b)(4)(ii). WHEREFORE, it is hereby Ordered that the joint motion to reopen be denied. Dated this

"' n J.

day of November, 201 1

Immigrant & Refugee Appellate Center | www.irac.net

HOWARD ACHTSAM IMMIGRATION JUDGE