U.S.

Department of ,Justice
Executive Office for Immigration Review
Board ofImmigration Appeals
Office ofthe Clerk
5107 !.eesburg Pike. S11i1e 2000
Falls Church, l'irginia 20530

DHS/ICE Office of Chief Counsel - MIA

333 South Miami Ave.,Suite 200
Miami, FL 33130

Name: STEPHENSON,ANTONIO

A 041-457-044
Date of this notice: 5/28/2015

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

Sincerely,

DOYl.ltL

t1IVu

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Holmes, David B.

Userteam:

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/
Cite as: Antonio Stephenson, A041 457 044 (BIA May 28, 2015)

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

KENNETH PANZER,ESQ
LAW OFFICES OF KENNETH PANZER
12000 BISCAYNE BLVD, SUITE 803
NORTH MIAMI,FL 33181

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals
Office ofthe Clerk
5107 leesburg Pike. Suite 2000
Falls Church. Virginia 20530

DHSllCE Office of Chief Counsel - MIA

333 South Miami Ave., Suite 200
Miami, FL 33130

Name: STEPHENSON, ANTONIO

A 041-457-044
Date of this notice: 5/28/2015

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

DOWUL {!

a.AA)

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Holmes, David B.

Userteam: Docket

Cite as: Antonio Stephenson, A041 457 044 (BIA May 28, 2015)

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

STEPHENSON,ANTONIO
A041-457-044
KROME SPC
18201 SW 12 STREET
MIAMI, FL 33194

U.S. Department of Justice

Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 20530

File: A041 457 044 - Miami, FL

Date:

MAY J82015

In re: ANTONIO STEPHENSON

MOTION
ON BEHALF OF RESPONDENT: Pro se 1
APPLICATION: Reopening
This matter was last before us on September 12, 2014, when we granted the respondent's
motion to reopen proceedings based on an intervening change in law and remanded this matter to
the Immigration Judge. On April 20, 2015, the Immigration Judge certified this matter back to
the Board to address issues presented by the Department of Homeland Security (OHS) on
remand. The respondent has submitted a memorandum of law. The OHS has not submitted any
reply to the certification.
On remand, OHS presented evidence that the respondent was removed from the United
States on the same day that his motion to reopen was received at the Board. 2 Before the
Immigration Judge, OHS counsel argued that the Board's decision to reopen proceedings was
void because the Board lacked jurisdiction under the departure bar in 8 C.F.R. 1003.2(d). The
Immigration Judge certified the case to the Board, seeking guidance on whether the Board had
jurisdiction to reopen proceedings.
Under the law of the United States Court of Appeals for the Eleventh Circuit, within whose
jurisdiction this case arises, 8 C.F.R. 1003.2(d) does not serve to bar jurisdiction over
statutorily authorized motions to reopen filed by an alien subsequent to his or her removal, nor
serve to automatically withdraw such motions. Lin v. United States Atty. Gen., 681 F.3d 1236
(11th Cir. 2012). Therefore, in this circuit we construe 8 C.F.R. 1003.2(d) as a limitation on
the Board's use of our discretionary authority to reopen proceedings sua sponte rather than a bar
on the Board's jurisdiction over motions to reopen. Any erroneous exercise of that discretionary
authority would not constitute an unlawful assumption of jurisdiction, but a mistake of fact or
law subject to the ordinary requirements for reconsideration. 8 C.F.R. 1003.2(b)(l); Matter of
0-S-G-, 24 l&N Dec. 56 (BIA 2006).
I

Though the respondent has filed a response via attorney Kenneth Panzer, Attorney Panzer has
not submitted a Notice of Entry of Appearance (Form EOIR-27) as required. Therefore, the
respondent is considered to be proceeding pro se. A courtesy copy of this decision will be sent
to Attorney Panzer.
2

The removal was undertaken approximately two days after OHS counsel was served with the
motion to reopen.
Cite as: Antonio Stephenson, A041 457 044 (BIA May 28, 2015)

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

IN REMOVAL PROCEEDINGS

A041 457 044

ORDER: The record is remanded to the Immigration Judge for further proceedings
consistent with the foregoing opinion and for the entry of a new decision.

FOR THE BOARD

2
Cite as: Antonio Stephenson, A041 457 044 (BIA May 28, 2015)

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

We note that DHS did not submit any opposition to the motion or provide any indication that,
subsequent to the mailing of the motion but prior to its adjudication, the respondent had been
removed. Therefore, Board's decision was not in error based on the evidence in the record at
that time. At present, the respondent is actively in removal proceedings. We will therefore
remand this matter to provide the Immigration Judge with an opportunity to address the
respondent's removability as charged.