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Department of Justice
A 099-679-349
Enclosed is a copy of the Board's decision and order in the above-referenced case.
Sincerely,
DonnL
f1/V'L)
Donna Carr
Chief Clerk
Enclosure
Panel Members:
Grant, Edward R.
Guendelsberger, John
Holiona, Hope Malia
Userteam: Docket
Date:
SEP - 3 2015
APPEAL
ON BEHALF OF RESPONDENT: Areg Kazaryan, Esquire
APPLICATION:
Reopening
This case was last before the Board on April 11, 2014, when we sustained the respondent's
appeal and remanded the record to the Im.migration Judge for the limited purpose of reissuing his
decision, mailed July 23, 2012, denying the respondent's motion to reopen. The respondent has
appealed the Immigration Judge's decision dated June 19, 2014, denying her motion to reopen.
The respondent had previously been ordered removed in absentia for her failure to appear for the
scheduled hearing on July 10, 2006. The appeal will be sustained, proceedings will be reopened,
and the record will be remanded.
The Board reviews an Immigration Judge's findings of fact, including credibility
determinations and the likelihood of future events, under a "clearly erroneous" standard.
8 C.F.R. 1003.l(d)(3)(i); Matter of Z-Z-0-, 26 l&N Dec. 586 (BIA 2015). We review all other
issues, including questions of law, judgment, or discretion, under a de novo standard. 8 C.F.R.
1003.l(d)(3)(ii).
The Board possesses discretion to reopen or reconsider cases sua sponte. See 8 C.F.R.
1003.2(a); see also Matter of G-D-, 22 l&N Dec. 1132 (BIA 1999); Matter of J-J-, 21 I&N
Dec. 976 (BIA 1997). Based on the totality of the circumstances in this case, we will grant the
respondent's motion to reopen to rescind her in absentia order pursuant to our sua sponte
authority. See 8 C.F.R. 1003.2(a); see also Matter of J-J-, supra. Accordingly, the following
order will be entered.
ORDER: The appeal is sustained, the in ab' ntia order of removal is rescinded, the
proceedings are reopened, and the record is remanded r further proceedings consistent with the
foregoing opinion.
The respondent indicates that her true name is Vilma Lopez Marroquin. See Respt. 's Appeal
Brief.
Cite as: Iris Jeanette Benites-Maurisio, A099 679 349 (BIA Sept. 3, 2015)
IN REMOVAL PROCEEDINGS
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FILE A 099-679-349
IN THE MATTER OF
BENITES-MAURISIO, IRIS JEANETTE
COURT/(2
IMMIGRATION COURT
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IN REMOVAL PROCEEDINGS
Motion to Reopen
reached during proceedings, then the Government shall not be required to provide you with the
J This is the original decision issued on July 23, 2012. It is being reissued pursuant to a remand from the Board of
Inunigration Appeals dated April 11, 20 J 4, to reissue and redate the decision so Respondent may pursue a timely
appeal.
IN THE MATTER OF
When notice has been satisfied or excused, as it has been here, a motion to reopen ordinarily
Hmust be filed within 90 days ofthe date ofentry ofa final administrative order of removal.. .." 8
C.F.R. I 003.23(b)( 1). Reopening and rescinding in absentia orders based on exceptional
circumstances are limited to within 180 days ofthe removal order. 8 C.F.R. 1003.23(b)(4). The Act
defines 'exceptional circumstances" as "exceptional circumstances (such as battery or extreme cruelty
to the alien or any child or parent ofthe alien, serious illness ofthe alien, or serious illness or death of
the spouse, child, or parent ofthe alien, but not including less compelling circumstances) beyond the
control ofthe alien." INA 240(e)(l). The respondent's motion to reopen was not filed within 180
days ofthe removal order, so even a demonstration ofexceptional circumstances would not meet the
requirements ofthe Act. 8 C.F.R. 1003.23(b)(4)(ii).
Beyond 180 days, an exception applies for motions to reopen based on an application for
asylum when country conditions have changed in the respondent's home country since the time ofthe
in absentia removal order. See 8 C.F.R. 1003.23(b)(4)(i). The respondent has included in her
motion to reopen an application for asylum as required by section 1003.23(b)(3) ofTitle 8 ofthe
Code ofFederal Regulations. The respondent states that her application for asylum is based on her
history ofabuse by her domestic partner and subsequent fear ofreturning to El Salvador. Since the
respondent's application for asylum is not based on changed country conditions in El Salvador, the
respondent fails to qualify for an exception to the filing deadline found in Title 8, Code ofFederal
Regulations, section 1003.23(b)(l). See 8 C.F.R. 1003.23(b)(4). As such, the respondent's motion
is untimely.
Finally, the Court concludes the circumstances ofthis case do not warrant the exercise ofthe
Court's limited discretion to reopen sua sponte. See Afatter ofJ-.J-, 21 l&N Dec. 976 (BIA 1997).
Accordingly, the following order will be entered:
ORDER: The respondent's motion to reopen is DENIED.
written notice ofyour hearing. Ifyou fail to attend the hearing ... a removal order may be made by the
immigration judge in your absence ...." Ex. 1. This warning correctly stated the law found in sections
239(a)(l)(F) and 239(a)(2)(B) ofthe Act. The respondent, however, failed to heed the warning, and
failed to provide the Court with her address. Ex. 2. Because the respondent did not provide an
address where she could be contacted respecting the proceedings, written notice was not required. See
INA 239(a)(l)(F), 239(a)(2)(B).