Posada, Henry A., Esq.

Law Offces of Henry A. Posada

8280 Florence Avenue, Suite 220
Downey, CA 90240
Name: SOLIZ-VIGIL, DOLORES
U.S. Department of Justice
Executive Ofce fr Immigration Review
8oarao(IoogratonAppeals
uceo(t/eclerk
5 IO 7 /.ets/mrg Pike. S11ite 2000
F aJ., C111rc/1, lirgit1ia 2204 I
OHS/ICE Ofice of Chief Counsel - DAL
125 E. John Carpenter Fwy, Ste. 500
Irving, TX 75062-2324
A 077 -240-379
Date of this notice: 5/31/2013
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosure
Panel Members:
Guendelsberger, John
Manuel, Elise
Hofman, Sharon
Sincerely,
DC cD
Donna Carr
Chief Clerk
yungc
Userteam: Docket
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Cite as: Dolores Soliz-Vigil, A077 240 379 (BIA May 31, 2013)
\
U.S. Deparent of Justce
Exe Ofc fr Imgon Rve
Deon o t B of Im gon Ap
FalCu vs2201
File: A077 240 379 - Dallas, T
I re: DOLORES SOLI-VGI
I REMOVAL PROCEEIGS
APPEAL
Date:
ON BEHAF OF RSPONDENT: Hen A. Posada Esquire
APPLICATION: Reopening
AI
JJ /JI:
The responden a native and citizen of El Salvador, was ordere removed i absenta on
July 21, 1998. On Januar 30, 2012, the respondent fled a joint motion to repen procedings,
which the Immigation Judge denie on Aril 2, 2012. The respondent fled a tmely appel of
that deision. The appeal will be sustaine, proceings will be repene and the rerd will be
remande.
The Imigation Judge denie the respondent's joint motion to repen fnding that she
reeived proper notce fr her July 21, 1998, hearing and failed to establish exceptional
circumstances fr her nonappeaace at the hearing. However, the motion submitte to the
Immigation Judge did not address exceptional circumstances. I was a joint motion to allow the
respondent to pursue section 245(i) adjustment ba on an approve I-130 which was fle on
or befre April 30, 2001, which is not bar ed because it h been more than 10 yeas since the
enty of the in absenia order. Conseuently rescission is not ness and we will reverse the
denial of the joint motion and repen proceedings. See Mater oJ M-S-, 22 lN Dec. 349 (BIA
1998); secton 240(b)(7) of the Immigaion and Natonality Act, 8 U.S.C. 1229ab)(7); 8
C.F.R 1003.23(4Xiv).
ORER: The Immigation Judge's decision is reversed, the proceedings are repened, ad
the reord is remande to the Immigation Judge fr fher prceeings.
FT ORDER: On remand, venue shall be change to Los Ageles, Califra.
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Cite as: Dolores Soliz-Vigil, A077 240 379 (BIA May 31, 2013)

- :
POSAA, HENRY A.

o

UNITED STATES DEPATMENT OF JUSTICE
EXECUIVE OFFICE FOR 'IMIGRTION REVIEW
IMIGRTION COUT
1100 COMERCE ST., ROOM 404
DALLS, .TX 75242
8280 FLORENCE AVNUE, STE 220
DOWNEY, CA 90240
IN THE MTTER OF
SOLIS-VIGIL,' DOLORES
FILE A 077-240-379
UABLE TO FORWARD - NO ADRESS PROVIDED
DATE: Apr
-
.'

!
t 2012
TACHED IS
.
A COPY OF THE DECISION OF THE IMIGRATION JUGE. THIS DECISION
IS FINA ULESS A APPEAL IS FILED WITH THE BOARD OF IMMIGRATION APPEALS
WITHIN 30 CAENDA DAYS OF THE DATE OF THE MILING OF THIS WRITE DECISION.
SEE THE ENCLOSED. FORMS A INSTRUCTIONS FOR PROPERLY. PREPAING YOUR APPEAL.
YOU NOTICE OF APPEA, ATTACHED DOCUMENTS, A FEE OR FEE WAIVER REQUEST
MUST BE .. MILED TO: BOAD OF IMMIGRTION APPEALS
OFFICE OF THE CLERK
P.O. BOX 8530
FALLS CHURCH, VA 22041
ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUGE A THE RESULT
OF YOUR FAILUE TO APPEA AT YOUR SCHEDULED DEPORTATION OR REMOVAL HEARING .
. THIS DECISION IS FINAL ULESS A MOTION TO REOPEN IS FILED IN ACCORDACE
WITH SECTION 242B(c) (3) OF THE IMIGRATION A 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. IF YOU FILE A MOTION
TO REOPEN, YOUR MOTION MUST BE FILED WITH THIS COURT:
OTHER:
IMIGRTIO COURT
1100 COMMERCE ST., ROOM 404
DALAS, TX 75242
COURT CLERK
IMMIGRTION COUT
CC: GRIMES, DAWNITA
125 E. H 114, STE 500
IRVING, TX, 75062
FF
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UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRTION COURT
I THE MATIER OF:
SOLIS-VIGIL, DOLORES
RESPONDENT
CHARGES:
APPLICATION(Sl:
DALLAS, TEXAS
)
)
)
)
)
)
)
I REMOVAL
PROCEEDINGS
A 077-240-379
Section 212(a)(6)(A)(i) of the Immigration and Nationality
Act, as amended, in that you are an alien present in the
United States without being admitted or paroled, who
arrived in the United States at any time or place other than
as designated by the Attorey General
Motion to Reopen
ON BEHALF OF THE RESPONDENT: ON BEHALF OF THE
DEPARTMENT OF HOMELAND
SECURITY:
Henry A. Posada, Esq.
8280 Florence Ave., Ste. 220
Downey, CA 90240
Dawnita Grimes, Esq.
Assistant Chief Counsel - ICE
125 E. John Carpenter Fwy. Ste. 500
Irving, TX 75062
Order Denying Motion to Reopen
The parties have fled a joint Motion to Reopen in the above-captioned case. For
the fllowing reasons, the Motion will be DENIED.
FACTUAL AND PROCEDURL HISTORY
The Respondent is a female, native and citizen of El Salvador. Record of
Deportable/lnadmissible Alien (Form 1-213). On or about May 13, 1998 the Respondent
entered the United States at or near Brownsville, Texas without being inspected or
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admitted by an immigration ofcer. Id.
On May 17, 1998 the Immigration and Naturalization Service (INS or the
Goverent) personally served the Respondent with a Notice to Appear (NT A), setting
her initial master calendar hearing fr July 21, 1998 at the Dallas Imigration Court. See
Notice to Appear. The Respondent filed to provide an address when she was issued the
NTA. See id
The Respondent did not appear fr her hearing on July 21, 1998 and thus the
proceedings were conducted in absentia. Order of the Immigration Judge. On July 21,
1998 the Court ordered the Respondent removed to El Salvador afer fnding that any and
all claims fr relief were abandoned as the Respondent did not show good cause fr her
filure to appear. Id
On January 30, 2012 the parties submitted the present Joint Motion to Reopen.
LEGAL STANDARS
An in absentia order of removal may be rescinded if the Respondent can show his
filure to appear was caused by exceptional circumstances. INA 240(b)(5)(C)(i).
Section 240(e)( l ) of the Act provides: "[t]he term 'exceptional circumstances' refrs to
exceptional circumstances (such as battery or extreme cruelty to the alien or any child or
parent of the alien, serious illness of the alien, or serious illness or death of the spouse,
child, or parent of the alien, but not including less compelling circumstances) beyond te
control of the alien."
An Order of Removal entered in absentia may also be rescinded upon a Motion to
Reopen if the alien demonstates that he did not receive proper notice of the scheduled
hearing. INA 240(b)(5)(C)(ii); 8 C.F.R. 1003. 23(b)(4)(iii). Proper notice can be
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accomplished thfough personal service of the written notice, or if personal service is not
practicable, through service by mail to the Respondent. INA 239(a)(l). A Notice of
Hearing is properly served when it is personally delivered to the alien or his attorey, or
when it is mailed to the attorey or to the last address provided by the alien in accordance
with IA 239(a)(l)(F). INA 239(a)(l ), (c). Additionally, service by mail of a Notice
of Hearing is sufcient if there is proof of attempted delivery to the alien's most recently
provided address. INA 239(c).
When a Respondent's motion to rescind an in absentia order of removal is based
on a claim that a Notice to Appear or Notice of Hearing sent by regular mail to the most
recent address was not received, the burden is on the Respondent to provide proof that the
document was not received. See Matter of Ramirez-Sanchez, 17 I&N Dec. 503 (BIA
1980). In determining whether a respondent has rebutted the weaker presumption of
delivery, an Immigration Judge may consider a variety of fctors including, but not
limited to, the fllowing: (I) the respondent's afdavit; (2) affdavits fom family
members or other individuals who are knowledgeable about the fcts relevant to whether
notice was received; (3) the respondent's actions upon leaing of the in absentia order,
and whether due diligence was exercised in seeking to redress the situation; ( 4) any prior
afrmative application fr relief indicating that the respondent had an incentive to
appear; (5) any prior application fr relief fled with the Immigration Court or any prima
fcie evidence in the record or the respondent's motion of statutory eligibility fr relief,
indicating that the respondent had an incentive to appear; (6) the respondent's previous
attendance at Immigration Court hearings, if applicable; and (7) any other circumstances
or evidence indicating possible non-receipt of notice. However, Immigration Judges are
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neither required to deny reopening if such evidence is not provided nor obliged to grant a
motion even if every type of evidence is submitted. Each case must be evaluated based on
its own particular circumstances and evidence. Matter of M-R-A, 24 I. & N. Dec. at 674.
Statements by the respondent's counsel contained in the motion to reopen are not
evidence, and if unaccompanied by other evidence, do not carry respondent's burden of
proof. See Matter of Ramirez-Sanchez, 17 l&N Dec. 503 (BIA 1980).
A Motion to Reopen will not be granted unless the Respondent establishes a
prima facie case of eligibility fr the underlying relief. See INS v. Abudu, 485 U.S. 94,
I 04 ( 1988). A Motion to Reopen must also be accompanied by applications fr relief and
all supporting documents. INS v. Dohert, 502 U.S. 314 ( 1992).
Additionally, the Cour may exercise its sua sponte authority to reopen in "truly
exceptional situations" and where the interests of justice would be served. In Re G- D-,
22 I. & N. Dec. 1 132 (BIA 1999).
Finally, an immigration judge has broad authority to grant or deny a motion to
reopen. JNSv. Dohert, 502 U.S. 314, 322 (1992).
ANALYSIS
As an initial matter, the Court fnds that, because the Respondent submitted a
joint motion to reopen, her Motion is not subject to the 90-day deadline fr motions to
reopen. See 8 C.F.R. 1003.23(b)(4)(iv). However, a joint motion to reopen only
waives the time and numerical limitations that apply to all motions to reopen; it does not
waive the specifc substantive requirements fr reopening an in absentia order of
removal. See 8 C.F.R. 1003.23(b)(4)(iv). The statute govering rescission of in
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absentia orders in removal proceedings, Section 240(b)(5)(C) of the Act, states in
pertinent part that:
Such an order may be rescinded only -
(i) upon a motion to reopen fled within 180 days afer the date of the
order of removal if the alien demonstrates that the filure to appear was
because of exceptional circumstances (as defned in subsection (e)(l)), or
(ii) upon a motion to reopen fled at any time if the alien demonstrates that
the alien did not receive notice in accordance with paragraph (1) or (2) of
section 239(a) or the alien demonstrates that the alien was in Federal or
State custody and the filure to appear was through no fult of the alien.
The motion to reopen fils to specify under which subsection reopening of the absentia
order is sought-exceptional circumstances, or filure to receive notice. However,
respondent does not appear to qualify under either subsection.
Under the exceptional circumstance subsection, Respondent has filed to provide
any reason fr her filure to appear. As such, she has filed to meet the requirements
under Section 240(b)(5)(C)(i) of the Act. Additionally, the motion was not fled within
180 days and the 180 day requirement is not waived merely because the motion was fled
as a joint motion.
As noted above, under 8 C.F.R. 1003.23(b)(4)(iv) ajoint motion to reopen
waives the time and numerical limitations fr motions to reopen. However, 8 C.F.R.
1003.23(b)(4)(iv) only waives "the time and numerical limitations set forth in paragraph
()()-i.e. the 90-day time limitation fr ordinary motions to reopen. See 8 C.F.R.
1003 .23(b )( 1 ). The 180 day requirement is not fund in 8 C.F .R. 1003 .23(b )( 1 ),
however, but rather is fund in 8 C.F.R. 1003.23(b)(4)(ii).
Under the filure to receive notice provision, INA 240(b)(5)(ii), the Respondent
has filed to meet her burden to show that she did not receive notice. Indeed, she has not
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even made that argument. The Respondent was properly served with the Notice to
Appear and properly notifed of her master calendar hearing on July 21, 1998. The
Respondent was personally served with the NT A, which was confrmed by her signature
and fngerprint. See Notice to Appear. The Notice to Appear directly stated the date,
time and place of the hearing. The Respondent was also notifed in the Spanish language
of the time and place of her hearing and of the consequences of failing to appear. See id.
The Respondent was therefre properly served with the NTA and properly notifed of her
hearing date under INA 239(a)(l ). Furthermore, since Respondent never provided
notice of her address, she was not entitled to written notice of her hearing prior to the
entry of a removal order in her absence. INA 240(b)(5)(B).
The Court has considered all relevant fcts and circumstances in the record and
fnds, fr the reasons stated above, that the Respondent has filed to meet her burden to
reopen her in absentia removal order.
The Cou will also decline to exercise its power to reopen the Respondent's case
sua sponte as the Court does not fnd that this case presents a "truly exceptional
situation." See, e.g., Matter of G- D-, 22 l&N Dec. 1132 (BIA 1999). Becoming or
remaining eligible fr legal status or relief fom deportation does not, in itself, constitute
an exceptional circumstance warranting the Court's consideration of an untimely motion.
To hold otherwise would vitiate the statutory and regulatory deadlines, which are
designed to bring fnality to immigration proceedings. INS v. Dohert, 502 U.S. 314
(1992) (motions to reopen are especially disfvored in immigration proceedings because
every delay works to the advantage of the deportable alien). Wile the Respondent did
have TPS status fr some portion of the time in which the order of removal has been
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outstanding, she has made little attempt to account fr her actions over the past furteen
years, to present equities, or to present "afdavits and other evidentiary material" or "all
supporting documents." 8 CFR 1003.23(b)(3).
Accordingly, the fllowing Order will be entered:
IT IS HEREBY ORDERED that the Respondent's Motion to Reopen be
DENIED.
This day of April, 2012
7
Robert W. Kimball
Immigation Judge
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