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U.S.

Department of Justice

Executive Office for Immigration Review


Board ofImmigration Appeals
Qffice of the Clerk
5107 Leesburg Pike, Suite 2000
Falls Church, Virginia 22041

DHS/ICE Office of Chief Counsel - LOU


80 Monroe Ave., Suite 502
Memphis, TN 38103

Name: VRICIC, AJLA

A 071-727-572
Date of this notice: 6/22/2016

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

DOrutL c

t1/IA)

Donna Carr
Chief Clerk
Enclosure
Panel Members:
O'Leary, Brian M.
Grant, Edward R.
Mann, Ana

Userteam: Docket

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Cite as: Ajla Vricic, A071 727 572 (BIA June 22, 2016)

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Funke, David
David E. Funke, PLLC
455 S. Fourth Street, Starks Bldg. #1221
Louisville, KY 40202

U.S. Department of Justice

Executive Office for Immigration Review


Board ofImmigration Appeals
Office of the Clerk
5107 Leesburg Pike, Suite 2000
Falls Church, Virginia 22041

DHS/ICE Office of Chief Counsel - LOU


80 Monroe Ave., Suite 502
Memphis, TN 38103

Name: VRICIC, AJLA

A 071-727-572
Date of this notice: 6/22/2016

Enclosed is a copy of the Board's decision in the above-referenced case. This copy is being
provided to you as a courtesy. Your attorney or representative has been served with this
decision pursuant to 8 C.F.R. 1292.S(a). If the attached decision orders that you be
removed from the United States or affirms an Immigration Judge's decision ordering that you
be removed, any petition for review of the attached decision must be filed with and received
by the appropriate court of appeals within 30 days of the date of the decision.
Sincerely,

DOWtL C

t1AA)

Donna Carr
Chief Clerk
Enclosure
Panel Members:
O'Leary, Brian M.
Grant, Edward R.
Mann, Ana

Userteam:

Cite as: Ajla Vricic, A071 727 572 (BIA June 22, 2016)

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VRICIC, AJLA
A071-727-572
KENOSHA COUNTY DET. CENTER
4777 88TH AVENUE
KENOSHA, WI 53144

'

U.S. Department of Justice

Decision of the Board of Immigration Appeals

Executive Office for Immigration Review


Falls Church, Virginia 22041

File: A071 727 572 - Memphis, TN

Date:

In re: AJLA VRICIC

JUN 2 2 2016

APPEAL
ON BEHALF OF RESPONDENT: David Funke, Esquire
APPLICATION: Reopening
The respondent, a native of Croatia and a citizen of Bosnia-Herzegovina, who was ordered
removed from the United States in absentia on July 6, 2015, appeals the decision of the
Immigration Judge, dated February 11, 2016, denying her motion to reopen, which was timely
filed on January 4, 2016.
We review Immigration Judges' findings of fact for clear error, but questions of law,
discretion, and judgment, and all other issues in appeals, de novo. 8 C.F.R. I003.l(d)(3)(i),
(ii).
Considering the totality of the circumstances presented in this case, we conclude that an
exceptional situation has been demonstrated warranting reopening of the proceedings to allow
the respondent a renewed opportunity to appear before an Immigration Judge to demonstrate
why she should not be removed from this country. See 8 C.F.R. 1003.23(b)(l); Matter ofJ-J-,
21 I&N Dec. 976 (BIA 1997). At the present time, we express no opinion regarding the ultimate
outcome of these proceedings.
Accordingly, the following order is entered.
ORDER: The respondent's appeal is sustained, the proceedings are reopened, and the record
is remanded to the Immigration Court for further proceedings.
FOR%EB9

Cite as: Ajla Vricic, A071 727 572 (BIA June 22, 2016)

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IN REMOVAL PROCEEDINGS

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UNITED STATES DEPARTMENT OF JUSTICE


EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
MEMPHIS, TENNESSEE

VRJCIC, Ajla
A071-727-572
RESPONDENT

ON BEHALF OF RESPONDENT
David E. Funke, Esq.
Counsel for Respondent
455 S. 4th Street #1221
Louisville, KY 40202

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Februaryil, 2016
IN REMOVAL PROCEEDINGS

ON BEHALF OF DHS
The Department of r.J:omeland S&ty r-'
80 Monroe Ave., Smte 502
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Memphis, TN 3 8103

DECISION ON MOTION BY THE IMMIGRATION JUDGE


I.

PROCEDURAL HISTORY

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Ajla Vricic (Respondent), a native of Croatia and a citizen of Bosnia-HerzegoU,Ja, wai1
admitted to the United States at or near New York, New York on or about November 261
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a refugee. xh. 1. Respondent adjusted her status to that of Legal Permanent Resident o ''1U11jrh
22, 2001 pursuant to 209 of the INA. On June 18, 2012, the Department of Homeland
unty
(DHS) personally served Respondent with a Notice to Appear (NTA), which charge er as
removable under INA 237(a)(2)(A)(iii) (conviction of an aggravated felony as define , in
10l(a)(43)(G) of the Act) and 237(a)(2)(B)(i) (conviction of a law relating to a controlled
substance). Id. Respondent was ordered to appear before the Memphis Immigration Court at a
date and time to be set. Id

On August 23, 2012, the Court mailed Respondent a Notice of Hearing of her September
10, 2012 Master Calendar hearing in Louisville, Kentucky. Exh. 2. The Louisville Immigration
Court is conducted via televideo by Judges in the Memphis, Tennessee Immigration Court.
Respondent failed to appear for her Removal hearing on September 10, 2012, and the Court
ordered her removed in absentia on that date. Exh. 5. Respondent filed a Motion to Rescind In
Absentia Order and Reopen Proceedings on March 8, 2013. DHS filed its Opposition to the
Motion to Reopen, requesting additional evidence on March 13, 2013. On April 10, 2013,
Respondent filed its Response to DHS's Opposition to Reopen. The Court granted Respondent's
Motion on April 15, 2013. Exh. 6.

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IN THE MATTER OF:

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On January 4, 2016, Respondent, now through Counsel Funke, filed a Motion to Reopen
In Absentia Order/ Motion for Termination of Proceedings. Respondent filed Additional Exhibit
for Motion to Reopen on January 7, 2016 and a Notice of Filing Change in Custody Status on
January 29, 2016 (indicating Respondent was taken into custody in January 28, 2016 by
immigration officials, presumably as a "final order" of removal). The Court now issues this
written decision.
II.

ANALYSIS

According to the Immigration and Nationality Act (INA), as well as federal regulations,
an order of removal entered in absentia pursuant to INA 240(b)(5)(A) may be rescinded upon a
motion to reopen filed in only one of the following ways: (i) within 180 days after the date of the
order of removal if the alien shows that the failure to appear was due to exceptional
circumstances, or (ii) at any time if the alien demonstrates that he or she did not receive notice in
accordance with INA 239(a)(l) or (a)(2). INA 240(b)(5)(C); 8 C.F.R. 1003.23(b)(4)(ii)
(2016). Furthermore, the filing of said motion shall stay the removal of the alien pending
disposition of the motion by the Immigration Judge. INA 240(b)(5)(C); 8 C.F.R.
1003.23(b)(4)(ii) (2016). In an in absentia case, an alien may only file one such motion to reopen
absent a Joint Motion from both parties. 8 C.F.R. 1003.23(b)(4)(ii) (2016) (emphasis added).
Respondent was ordered removed in absentia on July 6, 2015, and her motion was filed
with the Court on January 4, 2016. Respondent is required to show that she failed to appear in
Court due to exceptional circumstances and must file her motion within 180 days of the in
absentia order of removal. 8 C.F.R. 1003.23(b)(4)(ii) (2016). The Court will find that
Respondent's motion is timely filed within the 180 day time period.

Though Respondent admitted the factual allegations, she alleged that in regard to allegation five, her sentence was
lowered by ten days, and in regard to allegation seven, the charge was lowered to a paraphernalia charge.

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On April 16, 2013, the Court mailed Respondent a Notice of Hearing notifying her that
her case had been reopened and scheduled for a Master Calendar hearing on July 15, 2013.
Respondent appeared for Court via televideo in Louisville, Kentucky on July 15, 2013, prose,
and admitted the factual allegations against her. 1 At that hearing, DHS withdrew the aggravated
felony charge under INA 237(a)(2)(A)(iii) and the Immigration Judge sustained the charge of
removability under 237(a)(2)(B)(i) and found Respondent removable. Exh. 4. The Court then
reset Respondent's case to July 6, 2015 at 2:00 PM in order to allow her time to find
representation, informed Respondent of the next hearing date (Respondent repeated the new
hearing date back to the Judge on the record, in English), and advised her (in a group hearing that
day) as to the consequences of failing to appear at her next hearing. Also, on July 15, 2013, the
Court mailed Respondent a Notice of Hearing concerning her reset date of July 6, 2015 which
also contained warnings to Respondent as to the consequences of failing to appear for her next
hearing. Respondent then (again) failed to appear for Court on July 6, 2015 and was ordered
removed in absentia for a second time.

However, even if Respondent was not numerically barred from filing her Motion to
Reopen, she has failed to demonstrate that "exceptional circumstances" exist in her case that
would warrant reopening. The term "exceptional circumstances" is defined as "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." INA 240(e)(l). The
Court considers the ''totality of the circumstances" when making a determination whether
exceptional circumstances exist. Denko v. INS, 351 F.3d 717, 723 (6th Cir. 2003) (citing In re J
P-, 22 l&N Dec. 33, 36 (BIA 1998)).
In addition to finding this second Motionto Reopen is numerically barred, the Court
finds that Respondent has not demonstrated that "exceptional circumstances" exist in her case
which would warrant reopening. In her second Motion to Reopen, Respondent states that there
were five factors that accounted for her absence in Court on July 6, 2015: troubles with her
brother who suffers from schizophrenia, her husband's disability caused by a stroke, her
appointment at a methadone clinic, moving to a new residence, and the demands of being a
working mother with three small children. Respondent's Motion to Reopen at 3. Respondent has
provided insufficient evidence to corroborate her claim that her husband's disability and her
appointment at a methadone clinic kept her from attending her July 6, 2015 hearing. Respondent
has not provided any evidence such as declarations or affidavits to describe her husband's
medical problems, his diagnosis, or the medications he may be taking. Additionally, other than
her own affidavit, Respondent has provided no evidence to prove that she was at a methadone
clinic on July 6, 2015. However, even if Respondent had corroborated these claims, the Court
would still find that she has not met her burden to prove that exceptional circumstances existed
in her case that would warrant reopening. While the circumstances in Respondent's life may be
inconvenient and harsh, they do not rise to the level of "exceptional."
Respondent also requests that the Court reopen her case sua sponte. An Immigration
Judge may, at any time, reopen any case in which he has rendered a decision. 8 C.F.R.
1003.23(b){l) (2016). A removal hearing is reopened sua sponte only in "exceptional
circumstances," and is not meant to cure filing defects or circumvent the regulations. See Matter
of J-J-, 21 I&N Dec. 976, 984 (BIA 1997) (Board of Immigration Appeals may only reopen a
case upon its own motion in exceptional circumstances). The Board of Immigration Appeals has
stated sua sponte reopening is warranted "in unique situations where it would serve the interest
of justice." Matter ofX-G-W-, 22 l&N Dec. 71, 73 (BIA 1998).
3

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However, Respondent's (Second) Motion to Reopen in her Removal Proceeding is


numerically barred, as she had previously filed a Motion to Rescind In Abstenia Order and
Reopen Proceedings on March 8, 2013, after she was ordered removed in absentia on September
10, 2012. Exh. 7. The Regulations are clear that a Respondent is limited to only one motion to
reopen, except in limited circumstances, which are inapplicable in Respondent's case. See 8
C.F.R. 1003.23(b)(4) (2016). As this Court is bound to following the Code of Federal
Regulations as written, the Court therefore must deny this second Motion to Reopen on this
ground.

A party seeking reopening bears a "heavy burden." Alizoti v. Gonzales, 477 F.3d 448,
451 (6th Cir. 2007) (quoting Doherty v. INS, 502 U.S. 314, 323 (1992)). Respondent has in no
way met this burden. In sum, Respondent's Motion to Reopen In Absentia Order/Motion to
Terminate Proceedings is denied as her Motion is numerically barred, she failed to prove that
"exceptional circumstances" exist which would warrant reopening of her case, and has failed to
prove exceptional circumstances exist which would warrant the use of this Court's exercise of
sua sponte authority.
For the foregoing reasons, Respondent's Motion to Reopen In Absentia Order and
Motion to Terminate Proceedings is hereby DENIED.
III.

ORDER
For the foregoing reasons, the following ORDER is HEREBY ENTERED:
It -is HEREBY ORDERED that Respondent's Motion to Reopen In Absentia
Order/Motion to Terminate Proceedings be DENIED.

DATED this 1.iy of February, 2016.

C-e leue )

Honorable Richar J. Averwate()


Immigration Judge
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Respondent urges the Court to reopen her case sua sponte because she has no reason to
avoid immigration court because she is eligible for relief and had already attended one hearing.
Motion to Reopen at 5. However, as described above, the authority to reopen a case sua sponte is
reserved for "exceptional circumstances." Respondent has not proved that opening her case
would serve the interest of justice, and has provided no evidence to prove that exceptional
circumstances exist in her case to warrant the Court's use of its sua sponte authority. The Court,
after reviewing all evidence of record, hereby declines to exercise its "sua sponte" authority to
reopen Respondent's case and thus will deny Respondent's second Motion to Reopen. I do not
find any "unique" situation where it would serve the interest of justice by granting this Motion.

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