Berg, Royal F

Law Ofices of Royal F. Berg

33 N. LaSalle St., Suite 2300
Chicago, IL 60602
Name: GOMEZ-ALONZO, FELIPE
U.S. Department of Justice
Executive Ofce for Immigration Review
8cadcf!ooga/cnJppea/s
uJncecfi|et/erk
5107 l.eeshurg Pike. Sui le :oo
Falls Church. 1"1rgi111a .0530
OHS/ICE Ofice of Chief Counsel - CHI
525 West Van Buren Street
Chicago, IL 60607
A 200-144-055
Date of this notice:
3/2
6/2014
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosure
Panel Members:
Hofman, Sharon
Manuel, Elise
Guendelsberger, John
Sincerely,
DC c a
Donna Carr
Chief Clerk
Userteam: Docket
For more unpublished BIA decisions, visit www.irac.net/unpublished
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Cite as: Felipe Gomez-Alonzo, A200 144 055 (BIA Mar. 26, 2014)
U.S. Deparment of Justce
. Exeive Ofc fr Igton Review
Decsion of te Boad of Imgton Apps
Fal s Chuch Vi 20530
File: A200 144 055 Chicago, I
I re: FLIE G-ALONZO
I REMOVA PROCEEDIGS
APEA
Date:
ON BEHAF OF RESPONDENT:
R
oyal F. Berg, Esquire
ON BEHF OF DHS:
APPLICATION: Reopening
Colleen Peppad
Assistant Chief Counsel
"^| SG 2014
The respondent, a native and citizen of Gatemala, has appealed fom the Immigation
Judge's decision dated November 21, 2013. The Immigration Judge denied as untimely the
respondent's motion to reopen proceedings in which he was ordere removed in absentia. On
appeal, the respondent urges that hs motion was timely, ad frther that he esablished
exceptional circumstances fr his failure to appear at his hearing. The Deparment of Homelad
Security submitted a response to the respondent's appeal, agreeing wth the responden's
appellate argument that his motion was timely, ad indicating its non-opposition to a remad fr
the Immigation Jdge to consider whether the respondent established exceptional circumstances.
The DHS fher urged that the respondent had not established exceptional circumstances. We
will sustain the appeal and remand the record to the Immigration Jdge fr frher fct-fnding.
The Immigation Judge denied the respondent's motion as untimely, inasmuch as he fund
that the motion was fled more than 180 days afer his in absentia order. However, the recrd
refects that the respondent's motion to reopen was fled on Ocober 31, 2013, less than 180 days
afer his May 7, 2013, in absentia order, and he raised a claim of exceptional circumstaces fr
hs filure to appea. See 8 C.F.R. 1003.23(b)(4)(i). Accordingly, we conclude that the
respondent's motion is timely, and we will vacate the I igation Judge's decision fnding
otherwise.
Wle the respondent demonstraed that he timely fled te present motion to repen ad
rescind hs in absentia removal order, he must also demonstrate that hs filure to appea at his
heang was because of exceptional circumstances, which may include inefecve assistance of
counsel. See id. The respondent assered in his motion that his atorey
1
received the Notice of
Heaing of the May 7, 2013, heaing date; however, his atorey did not inorm hm of his
1 I this regad, we note that the record does not contan a Notice of Entry of Appeaance as
Atorey or Representative Befre the Immigration Cour (or EOI-28) fom the
respondet's atorey befre the Immigration Judge so as to estalish that notice of the heaing
was propery sered on the respondent's atorey of record.
MP
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Cite as: Felipe Gomez-Alonzo, A200 144 055 (BIA Mar. 26, 2014)
APO 144 055
.
hearing date. 2 The Immigaton Judge, however, did not make any fndings of fact with respet
to whether the respondent established exceptional circumstaces. Gven our limited fct-fnding
aility on appeal, we will remand the reord to the Imigation Judge fr consideration of
whether the respondent established exceptional circumstances to explain his filure to appear at
his May 7, 2013, hearing. SeeMaaerafM-P-, 20 I&N Dec. 786 (IA 1994) (fnding that an
Immigation Judge must flly explain the reasons fr denying a motion in order to alow the
respondent a fair opporunity to contes the decision and te Boad a opporunity fr meaningfl
appellate review); seea/saMattera]A-P-,22 I&N Dec. 468, 477 (IA 1999). Accordingly, the
fllowing orders will be entered.
ORER: The respondent's appeal ts sustained ad the Immigration Judge's
November 21, 2013, decision is vacated.
FRTR ORER: These removal proceedings are reopened and the record is remanded
to the Immigation Cour fr frther consideration of the respondent's motion to repen
consistent with the fregoing opinion and fr the entry of a new decision.
2 We also note tha the respondent did not comply with the procedural requirements set frth in
MatterafLaxd,19 I&N Dec. 637 (BIA 1988), so as to establish his inefective assistance of
counsel claim.
2
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Cite as: Felipe Gomez-Alonzo, A200 144 055 (BIA Mar. 26, 2014)
!
BERG, ROYAL F.
. :
UITED STATES DEPARTMENT OF JUSTICE
EXECUTIV OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
525 W. VA BURN, SUITE 500
CHICAGO, IL 60607
33 N. LSALLE, STE. 2300
CHICAGO, IL 60602
IN THE MTTER OF
GOMEZ-ALONZO, FELIPE
FILE A 200-144-055 DATE: Nov 21, 2013
*
UNABLE TO FORWARD - NO ADRESS PROVIDED
X ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE. THIS DECISION
~
IS FINAL ULESS A APPEAL IS FILED WITH THE BOARD OF IMMIGRATION APPEALS
WITHIN 30 CALENDAR DAYS OF THE DATE OF THE MAILING OF THIS WRITTEN DECISION.
SEE THE ENCLOSED FORMS AD INSTRUCTIONS FOR PROPERLY PREPARING YOu APPEA.
YOU NOTICE OF APPEAL, ATTACHED DOCUETS, A FEE OR FEE WAIVER REQUEST
MUST BE MAILED TO: BOAR OF IMIGRTION APELS
OFFICE OF THE CLER
5107 Leesburg Pike, Suite 2000
FALS CHUCH, VA 20530
ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRTION JUGE AS THE RESULT
OF YOUR FAILUE TO APPEAR AT YOUR SCHEDULED DEPORTATION OR REMOVAL HEAING.
THIS DECISION IS FINAL ULESS A MOTION TO REOPEN IS FILED IN ACCORDACE
WITH SECTION 242B(c) {3) OF THE IMMIGRTION A NATIONALITY ACT, 8 U. S.C.
SECTIOi 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:
IMMIGRATION COUT
525 W. VA BUREN, SUITE 500
CHICAGO, IL 60607
COURT CLERK
IMMIGRATION COUT
CC: COLLEEN PEPPAR

525 W. VA BUREN ST. , STE. 701

CHICAGO, IL, 60607
W rc? W % . W %
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lf.S. Department of Justice
Ex eel!' i \'C Offce fr Immigration Review
Tmmigration Cout Chicago
In the Matter of: Case No.: A200 144 055
Felipe Gomez-Alonzo
Docket:

Respondent/ App1 irnnt I Removal Proceedings
ORDER <) F THE lMMl GRT ION JDGE
Upon consideration of respondent's/applicant's
Motion to Reconsider n I 111111 igration Judge's decision
_X_ Motion to Reopen proceedings
fled in the above entitled r:ttcr. it is HEH.EBY ORDERD that the motion
x
be granted.
be denied fr the reasons i11,.::,:lJ bdow.
.
J
Robert D. Vinikoor
Immigration Judge
Date: November 21, 2013
_11 The respondcnrs motion to r('(>11cn to was fled on October 31, 2013 more than six monts
aer the ;nabsentia order ofr emoval becmne fna on May 7, 2013. Under Section 240(b)(5)(C)
a motion to reopen based 011 c:-: \ ' : "11d cirumstac1.s must be fed within 180 days afer te
date of the order ofremoval. Whi ' inclTective assistance of counsel may, under some
circumstances, be a basis to equit:l.ly toll the 180 day limitation, the respondent has not fled an
affdavit or any other evidence exl'1,i11i11g the circums1rnccs of his cse or even when he became
aware that he had missed hi: heai 1.: :' l vr Lhcse reasons, the motion must be denied .
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To:
U.S. DEPARTMENT OF JUSTICE
Executive Office for Immigration Review
Immigration Court
525 W. VA BUREN, SUITE 500
CHICAGO, IL 60607
COLLEEN PEPPARD
525 W. VA BUREN ST., STE. 701
CHICAGO, IL 60607
Date: Nov 4, 2013
File: A200-144-055
IN THE MATTER OF:
GOMEZ-AONZO, FELIPE
V) On oc 3 I 0. \ : ' a Motion to Reopen/Reconsider
l
Deporation ProceeJngs was filed in the ab

ove referenced case (s).

On , a Motion for Change of Venue was
filed in the above referenced case(s).

.
_
c
'
due within
( (Q
days, on or before
W
,(
The Motion is scheduled to be heard before IJ ROBERT D. VINIKOOR
on at at
-
The Motion is scheduled for a telephonic hearing at
cc:

Pl. ease report to the local DHS office.
BERG, ROYAL F.
33 N. LASALLE, STE. 2300
CHICAGO, IL 60602

-
Sincerely,
a
Immigration Court
.W
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NP
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