U.S.

Department of Justice
Executive Office for Immigration Review
Board ofImmigration Appeals
Office ofthe Clerk
5107 leesburg Pike, Suite 2000
Falls Church, Virginia 2204/

DHS/ICE Office of Chief Counsel - SNA

8940 Fourwinds Drive, 5th Floor
San Antonio, TX 78239

Name: JUAREZ-ESCOBAR, RENE

A 205-850-513
Date of this notice: 8/5/2015

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

DOrutL c

t1AA)

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

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/
Cite as: Rene Juarez-Escobar, A205 850 513 (BIA Aug. 5, 2015)

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

Gannon, Brian Vincent

Abod & Caruso, LLC
2200-A University Boulevard West
Wheaton, MD 20902

U.S. Department of Justice

Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 20530

File: A205 850 513 -San Antonio, TX

Date:

AUG

5 2015

In re: RENE WAREZ-ESCOBAR

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

IN REMOVAL PROCEEDINGS
APPEAL
ON BEHALF OF RESPONDENT: Brian V. Gannon, Esquire
ON BEHALF OF DHS: Clay Martin
Senior Attorney
APPLICATION: Reopening

The respondent, a native and citizen of Guatemala, was ordered removed in absentia on
March 5, 2014. On June 19, 2014, the respondent filed a motion to reopen proceedings, which
the Immigration Judge denied on August 12, 2014. The respondent filed a timely appeal of that
decision. The appeal will be sustained, the in absentia order will be vacated, proceedings will be
reopened, and the record will be remanded.
The record reflects that the notice for the March 5, 2014, hearing was returned as
undeliverable and marked "attempted-not known" and "does not live here, return to sender."
The Immigration Judge concluded that the return of the notice indicated that the respondent had
moved without updating his address with the Court. However, in his sworn statement the
respondent claimed he did not receive the Notice to Appear which was mailed to the detention
center a few days before his release from custody. He also stated that he continued to live at the
address he provided upon release from detention and that he also reported as directed to the
Immigration and Customs Enforcement office on several occasions, at the last of which he was
informed that he had failed to appear for a hearing and had been ordered removed in absentia.
Upon learning of the in absentia order, the respondent diligently obtained counsel and filed his
motion to reopen proceedings.
Upon review of this record and in light of the totality of circumstances presented in this case
we find it appropriate to reopen these proceedings and allow the respondent another opportunity
to appear for a hearing before an Immigration Judge. In reaching this conclusion, we agree with
the respondent that there is no indication that he sought to elude service of the notice of his
hearing or proceedings and that his nonappearance was more likely an innocent mistake. Section
240(e)(l) of the Act; 8 U.S.C. 1229(e)(l) see also, e.g., Singh v. INS, 295 F.3d 1037 (9th Cir.
2002) (the Court found exceptional circumstances where the alien misunderstood

Cite as: Rene Juarez-Escobar, A205 850 513 (BIA Aug. 5, 2015)
a. .42% U&.4M44M

..

gz ___.G.4#MiA

A205 850 513

the hearing time and could have presented a valid claim for relief from deportation).
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.

2
Cite as: Rene Juarez-Escobar, A205 850 513 (BIA Aug. 5, 2015)

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

OR THE BOARD

(
\......--
., ,

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
800 DOLOROSA STREET, SUITE 300
SAN ANTONIO, TX 78207

FILE A 205-850-513

AR, RENE

DATE: Aug 12, 2014

E TO FORWARD - NO ADDRESS PROVIDED

TTACHED IS A COPY 0-F 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.
SEE 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
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 DEPORTAT.ION 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
) 800 DOLOROSA STREET, SUITE 300
SA(OORJJ82

ER:
1"'

FF

CC: JANE THOMSON

t\cWJ Eo

MD.

4 ...9-:....l

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

Abad & Caruso, LLC

Gannon, Brian Vincent
2200-A University Boulevard West
Wheaton, MD 20902

' 'if.:[fif;j;
.," '

..

..............

..

)
)
)
)
)
)
)

IN THE MATTER OF
JUAREZ-ESCOBAR, RENE
RESPONDENT
IN REMOVAL PROCEEDINGS

Case No. A205-850-513

CHARGE:

Section 212(a)(7)(A)(i)(I) of the Immigration and Nationality Act, as

amended: An immigrant who, at the time of application for admission,
does not possess a valid entry or travel document.

APPLICATION:

8 C.F.R. 1003.23(b): Motion to Reopen.

ON BEHALF OF THE RESPONDENT

Brian V. Gannon, Esq.
Abod & Caruso, LLC
2200-A University Blvd. West
Wheaton, MD 20902

ON BEHALF OF THE GOVERNMENT

U.S. Immigration & Customs Enforcement
Office of the Chief Counsel
8940 Fourwinds Dr., 5th Fl.
San Antonio, TX 78239

WRITTEN DECISION & ORDER OF THE IMMIGRATION JUDGE

I. Procedural History
The respondent is a twenty-two-year-old male, native and citizen of Guatemala, who
entered the United States at or near Hidalgo, Texas, on January 17, 2013. See Exhibits #1 & 3.
On February 12, 2013, the Department of Homeland Security (DHS) served the respondent by
regular mail with a Notice to Appear (NTA), charging him as removable pursuant to section
212(a)(7)(A)(i)(I) of the Immigration and Nationality Act (the Act), as amended, as an
immigrant without a valid entry or travel document at the time of application for admission. See
Exhibit # 1. The NTA contains a section titled "Failure to appear" that specifies, inter alia, the
consequences of failing to appear for any scheduled hearings. Id.
On March 5, 2014, the respondent was not present for his hearing before the Court and
was unavailable for examination under oath. Pursuant to the authority provided in section

... J ..

.. '

...u . .

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

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
800 DOLOROSA STREET, SUITE 300
SAN ANTONIO, TX 78207

240(b)(5)(A) of the Act, the Court proceeded in absentia and ordered the respondent removed
from the United States to Guatemala on the charge contained in the NT A.
On June 19, 20 14, the respondent, through counsel, filed a motion to reopen his removal
respondent's motion.
II. Motion to Reopen

An in absentia order of removal may be rescinded only (i) upon a motion to reopen filed
within 180 days after the date of the order of removal if the alien demonstrates that the failure to
appear was because of exceptional circumstances, or (ii) upon a motion to reopen filed at any
time if the alien demonstrates that he did not receive notice in accordance with paragraph ( 1) or
(2) of section 239(a) of the Act, or the alien demonstrates that he was in Federal or State custody
and the failure to appear was through no fault of his own. See Section 240(b)(5)(C) of the Act;
see also 8 C.F.R. 1003.23(b)(4)(ii).
A.

Exceptional Circumstances

Less than 180 days have passed between the date the respondent was ordered removed in
absentia and the date the respondent filed his motion to reopen. The respondent has failed,
however, to assert that, or provide any evidence that, his failure to appear was because of
exceptional circumstances. See Respondent's Motion to Reopen. Accordingly, the respondent's
motion to reopen based on exceptional circumstances is denied. See Section 240(b)(5)(C) of the
Act; see also 8 C.F.R. 1003.23(b)(4)(ii).
B.

Notice

On March 7, 20 13, the Court mailed a notice of hearing to the respondent at 8900
Glennville Rd, Silver Spring, MD 20901. See Record of Proceedings. The respondent provided
this address to immigration officials upon his release from U.S. Immigration & Customs
Enforcement (ICE) custody on February 20, 20 13, but he claims that he never received the notice
of hearing. Id.; see also Respondent's Motion to Reopen. Indeed, the record reveals that the
postal service returned the notice of hearing to the Court marked "attempted-not known" and
"does not live here return to sender." See Record of Proceedings.
The respondent claims that he "lived at the same address in Maryland with my brother in
Silver Spring, Maryland, since being released from detention." See Respondent's Motion to
Reopen. However, the respondent has not advised where he lived when the Court sent him the
2

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

proceedings and rescind his in absentia removal order. The DHS has not filed a response to the

__

\..

notice of hearing. Id. In addition, the respondent has neither explained why the address he
provided to immigration officials was incorrect nor why he did not provide a correct or updated
address as required. Id. The respondent was advised of his requirement to notify the Court of
Exhibit # 1. Because the respondent neglected an obligation of which he was notified, failure to
receive notice of his hearing is not a ground for reopening his removal proceedings, and the
respondent did not fail to appear to appear through no fault of his own. See Section 240(b)(5)(C)
of the Act; see also Gomez-Palacios v. Holder, 560 F.3d 354, 360-6 1 (5th Cir. 2009); see also 8
C.F.R. 1003.23(b)(4)(ii).
Accordingly, the following order shall be entered:
ORDER
IT IS HEREBY ORDERED that the respondent's motion to reopen is DENIED.

Date:__fr_t/_6_. _/)
__, 20 14

Glenn P. McPhaul
United States Immigration Judge

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

his address and therefore neglected an obligation of which he was notified in the NT A. See