U.S.

Department of Justice
Executive Office for Immigration Review

Board of Immigration Appeals

Qffice of the Clerk
5107 Leesburg Pike, Suite 2000
Falls Church, Virgima 20530

DHS/ICE Office of Chief Counsel - SFR

P.O. Box 26449
San Francisco, CA 94126-6449

Name: ESCOBAR DIAZ, ESVIN

A 201-238-048

Date of this notice: 7/24/2015

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

DQnlu_,

t1/Vu

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Grant, Edward R.
Guendelsberger, John
Holiona, Hope Malia

Userteam: Docket

For more unpublished BIA decisions, visit

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Cite as: Esvin Escobar Diaz, A201 238 048 (BIA July 24, 2015)

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Coghlan, Stephen
Coghlan Law Office
615 Sansome
2nd Floor
San Fram;:isco, CA 94111

U.S... Denartment of Justice

Decision of the Board of Immigration Appeals

Execu_tive Office for Immigration Review

Falls Church, Virginia 20530

File: A201 238 048 - San Francisco, CA

Date:

In re: ESVIN ESCOBAR DIAZ

<JUL 2 4 2015

APPEAL
ON BEHALF OF RESPONDENT: Stephen Coghlan, Esquire
ON BEHALF OF DHS: Zina Spektor
Assistant Chief Counsel
APPLICATION: Reopening
The respondent, a native and citizen of Guatemala, appeals from the March 26, 2014,
Immigration Judge's decision denying the respondent's March 12, 2014, motion to reopen
removal proceedings, which had been conducted in absentia on February 4, 2014. The
respondent filed a timely appeal from that decision. The Department of Homeland Security
(OHS) has filed an opposition to the appeal. The appeal will be sustained, proceedings will be
reopened and the record will be remanded.
Upon de novo review, in light of the totality of circumstances presented in this case,
including the respondent's apparent eligibility for withholding of removal and lack of motive to
avoid the hearing, the respondent's appearance at previous hearings, and his diligence in filing a
motion to reopen, we will sustain the appeal and allow the respondent another opportunity to
appear for a hearing. See Chete Juarez v. Ashcroft, 376 F.3d 944, 948 (9th Cir. 2004), Singh v.
INS, 213 F.3d 1050, 1052 (9th Cir. 2000) (stating that "exceptional circumstances" determination
requires consideration of totality of circumstances and particularized facts presented in each
case).
ORDER: The appeal is sustained, the in absentia order is vacated, proceedings are reopened,
and the record is remanded to the Immigration Judge for further proceedings.

Cite as: Esvin Escobar Diaz, A201 238 048 (BIA July 24, 2015)

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IN REMOVAL PROCEEDINGS

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
100 MONTGOMERY ST., SUITE 800
SAN FRANCISCO, CA 94104

IN THE MATTER OF
ESCOBAR, ESVIN

,,.

FILE A 201-238-048

DATE: Mar 26, 2014

UNABLE TO FORWARD - NO ADDRESS PROVIDED

ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE. THIS DECISION
IS FINAL UNLESS AN APPEAL IS FILED WITH THE BOARD OF IMMIGRATION APPEALS
WITHIN 30 CALENDAR DAYS OF THE DATE OF THE MAILING OF THIS WRITTEN DECISION.
YOUR NOTICE OF APPEAL, ATTACHED DOCUMENTS, AND FEE OR FEE WAIVER REQUEST
MUST BE MAILED TO:
BOARD OF IMMIGRATION APPEALS
OFFICE OF THE CLERK
5107 Leesburg Pike, Suite 2000
FALLS CHURCH, VA 20530
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. IF YOU FILE A MOTION
TO REOPEN, YOUR MOTION MUST BE FILED WITH THIS COURT:
IMMIGRATION COURT
100 MONTGOMERY ST., SUITE 800
SAN FRANCISCO, CA 94104
OTHER:

'rl'

CC: WILDERMANN, NATHAN R.

100 MONTGOMERY ST, SUITE 200
SAN FRANCISCO, CA, 94104

COURT CLERK
IMMIGRATION COURT

FF

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Coghlan Law Office

Coghlan, Stephen
615 Sansome 2nd Floor
San Francisco, CA 94111

--.
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
SAN FRANCISCO, CALIFORNIA
Date: March 26, 2014

)
)
)
)
)

Esvin ESCOBAR
Respondent

File Number: A201 238 048

In Removal Proceedings

-)

On Behalf of the DHS:

Nathan R. Wildermann, Asst. Chief Counsel
Office of the Chief Counsel
120 Montgomery Street, Suite 200
San Francisco, California 94104

On Behalf of Respondent:
Stephen Coghlan, Esq.
615 Sansome Street, 2nd Floor
San Francisco, CA 94111

ORDER OF THE IMMIGRATION JUDGE

On January 15, 2013 and July 16, 2013, Respondent was present in court for master
calendar hearings. On each occasion he requested additional time to retain counsel. On July 16,
2013, he received oral notice in English and Spanish and written notice in English directing him
to return to court on February 4, 2014 at 8:30AM. He failed to appear for this hearing and was
ordered removed in absentia, as he had been warned that he would be if he failed to appear for a
hearing after receiving proper notice. On March 12, 2014, Respondent filed a motion to reopen,
explaining that while he had received proper notice of the hearing, he had erroneously believed
that the hearing date was February 20, 2014. He also expressed a desire to apply for asylum,
withholding of removal, and withholding of removal under the Convention Against Torture,
based on threatening letters sent to his sister twelve years ago and on high levels of crime and
violence in Guatemala. The Department of Homeland Security has filed an opposition to the
motion to reopen, arguing that Respondent has not shown that his failure to appear was the result
of exceptional circumstances.
The Court has reviewed the record to determine whether Respondent has established
exceptional circumstances for his failure to appear. See INA 240(b)(S){C) (setting forth bases
for rescinding in absentia orders of removal); INA 240(e)(l) (referring 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 the control of the alien"). In evaluating
such a claim of exceptional circumstances, the Court must '" look at the totality of the
circumstances to determine whether the alien could not reasonably have been expected to
appear."' Matter of W-F-, 21 l&N Dec. 503, 509 (BIA 1996) (quoting H.R. Conf. Rep. No. 955,
1

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Matter of:

Respondent also argues that the matter should be reopened because he may be eligible for
asylum and withholding of removal under INA 241(b)(3) or the Convention Against Torture.
This case does not come within the Ninth Circuit's directive that a motion to reopen an in
absentia order should not be denied "where the denial leads to the unconscionable result of
deporting an individual eligible for relief from deportation." Singh v. INS, 295 F.3d 1037, 103940 (9th Cir. 2002) (considering Singh's near-certainty of successful adjustment of status in the
reopened proceeding based on his U.S. citizen wife's approved visa petition, and contrasting
Sharma v. INS, 89 F.3d 545 (9th Cir. 1996), where the only form of relief forfeited by the failure
to appear was the possibility of a grant of asylum).
In light of the foregoing, the following order shall enter:
ORDER
IT IS HEREBY ORDERED that Respondent's motion to reopen is DENIED.

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10 l 5t Cong., 2"d Sess. 132 (1990)). Here, the only factor cited was that Respondent was confused
about the date of his hearing, despite receiving oral notice in English and Spanish and written
notice in English. After reviewing the totality of the circumstances, the Court must conclude
that Respondent's claim does not rise to the level of "exceptional circumstances" as that term is
used in the statute. See Valencia-Fragoso v. INS, 321 F.3d 1204 (9th Cir. 2003) (finding that
alien's who "misrecollected the time printed in the notice" and appeared at 1 :OOPM rather than
8:30AM had not established exceptional circumstances for her failure to appear).