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Justice
A 097-739-329
Enclosed is a copy of the Board's decision and order in the above-referenced case.
Sincerely,
Donna Carr
Chief Clerk
Enclosure
Panel Members:
Neal, David L
Greer, Anne J.
O'Herron, Margaret M
Userteam:
Docket
Date:
JA.N - B 2016
APPEAL
ON BEHALF OF RESPONDENT: Liliana L. Quiroz, Esquire
APPLICATION: Reconsideration; reopening
The respondent has appealed from the Immigration Judge's decision dated April 16, 2015,
denying the respondent's motion to reconsider the March 10, 2015, decision denying the
respondent's motion reopen proceedings in which she was ordered removed in absentia. The
Department of Homeland Security has not responded to the appeal. The appeal will be
sustained.
We review an Immigration Judge's findings of fact for clear error, but questions of law,
discretion, and judgment, and all other issues in appeals, are reviewed de novo. 8 C.F.R.
1003.l(d)(3)(i),(ii).
We have considered the totality of the circumstances presented in this case, and find that an
exceptional situation has been demonstrated based on the respondent's status as a minor when
she was released from the custody of United States immigration authorities to her father who
provided an incorrect address on her behalf. These circumstances warrant reopening to allow the
respondent an opportunity to have a hearing and apply for relief from removal. See 8 C.F.R.
1003.23(b)(l); Matter of J-J-, 21 I&N Dec. 976 (BIA 1997). Accordingly, the following
orders will be entered.
ORDER: The respondent's appeal from the Immigration Judge's denial of the motion to
reconsider the denial of reopening is sustained.
FURTHER ORDER: The respondent's motion to reopen is granted and the record is
remanded for further proceedings consistent with the foregoing opinion and for the issuance of a
new decision.
Cite as: Juana Esperanza Romero-Gonzalez, A097 739 329 (BIA Jan. 8, 2016)
IN REMOVAL PROCEEDINGS
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Motions to Reconsider
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and because she did not learn of her father's negligent conduct until the Court's March 10, 2015
written decision denying her motion to reopen. Finally,the respondent seeks reconsideration as her
children have recently been diagnosed with ADHD and developmental delays.
The Court also finds that the respondent failed to raise any arguments in the motion to
reconsider that establishes error in the Court's March 10, 2015 decision. The Court expressly
considered the respondent's age at the time she was placed into proceedings and ordered removed,
and concluded that her motion to reopen based on exceptional circumstances was untimely. The
Court also considered her argument for equitable tolling in that the Court explicitly declined to
exercise its sua sponte authority to reopen. See Ramos-Bonilla v. Mukasey, 543 F.3d 216,218 (5th
Cir. 2008) (recognizing that the Fifth Circuit has not recognized the doctrine of equitable tolling in
the motion to reopen context, and held that a request for equitable tolling of an untimely motion to
reopen on the basis of ineffective assistance of counsel is "in essence an argument that the BIA
should have sua sponte reopened the proceeding based upon the doctrine of equitable tolling"). The
respondent has also failed to cite support for her claim that a parent's negligence should be treated as
ineffective assistance of counsel under section 240(b )(5)(C)(i) of the Act, and the Court rejects such
an argument. Based on all of the above, the Court finds that the respondent has not established an
error of law or fact in its decision not to reopen the respondent's removal proceedings.
The motion also requests that the respondent's removal proceedings be reopened in light of
newly discovered evidence. The respondent has provided evidence that her two minor children have
been diagnosed with ADHD and some developmental delays. The Court finds that this new evidence
is beyond the scope of the motion to reconsider, which only seeks to assess the Court's prior decision
based on the record of proceeding at that time the decision was made. Insofar as the respondent
seeks further consideration of this newly-submitted evidence, such a request is in the nature of a new
motion to reopen, which is number-barred. See 8 C.F.R. 1003.23(b)(4)(ii) (providing that only one
motion to reopen seeking rescission of an in absentia order entered in removal proceedings may be
filed).
Accordingly, the following orders shall be entered:
ORDER: The respondent's motion to reconsider is DENIED.
David Ayala
United States Immigration Judge
The Court finds the respondent's motion to reconsider is timely as it was filed within 30 days
of the date the Court denied her motion to reopen.