U.S.

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

Name: R

-C

DHS/ICE Office of Chief Counsel - CHI

525 West Van Buren Street
Chicago, IL 60607

,E

...

-125

Date of this notice: 6/30/2016

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

DOY!ftL c

t1/VL)

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Kendall-Clark, Molly
Greer, Anne J.
O'Herron, Margaret M

Usertea m: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/
Cite as: E-A-R-C-, AXXX XXX 125 (BIA June 30, 2016)

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

Lime, Jeremy
Law Office of Jeremy Lime
900 North Lake Street
Suite 200
Aurora, IL 60506

U.S. Dpartment of Justice

Decision of the Board of Immigration Appeals

Executive Office for immigration Review

Falls Church, Virginia 22041

File:
In re: E

Date:

125 - Chicago, IL
A

-C

JUN 3 0 2016

APPEAL
ON BEHALF OF RESPONDENT: Jeremy Lime, Esquire
ON BEHALF OF OHS: Ellen J. Krupp
Assistant Chief Counsel
APPLICATION: Reopening
The respondent has appealed an Immigration Judge's January 7, 2016, decision, denying her
motion to reopen seeking to rescind the removal order entered against her in absentia on
December 16, 2015.

Considering the totality of the circumstances presented in this case,

including the respondent's age, we conclude that rescission of the in absentia order and
reopening of removal proceedings are warranted in order to provide the respondent with a
renewed opportunity to appear before the Immigration Judge.

ORDER: The respondent's appeal is sustained, proceedings are reopened, and the record is
remanded to the Immigration Judge for further proceedings.

Cite as: E-A-R-C-, AXXX XXX 125 (BIA June 30, 2016)

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

IN REMOVAL PROCEEDINGS

0.,:,

,.

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
525 W. VAN BUREN, SUITE 500
CHICAGO, IL 60607

IN THE MATTER OF
R
-C
, E

FILE A

-125

DATE: Jan 12, 2016

UNABLE TO FORWARD - NO ADDRESS PROVIDED

X 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.
1SEE 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 22041
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.
i 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
525 W. VAN BUREN, SUITE 500
CHICAGO, IL 60607
OTHER:
COURT CLERK
IMMIGRATION COURT
CC: ELLEN J. KRUPP, ASST. CHIEF COUNSEt
,...525 W. VAN BUREN, SUITE 701
,.. CHICAO, IL, 60607

FF

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

Law Office of Jeremy Lime

Lime, Jeremy
900 North Lake Street
Suite 200
Aurora, IL 60506

.-
.....

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
CIDCAGO, ILLINOIS
A

Date: January 7, 2016

-125

In the Matter of:

E

A. R

-C

Respondent.

)
).
)
)
)

IN REMOVAL PROCEEDINGS

Charge: Section 212(a)(6)(A)(i) of the Immigration and Nationality Act (INA or Act) -alien
present in the United States without having been admitted or paroled.
Application: Motion to Reopen In Absentia Removal Order.
ON BEHALF OF THE GOVERNMENT:
Ellen J. Krupp, Asst. Chief Counsel
525 W. Van Buren St., Suite 701
Chicago, Illinois 60607

ON BEHALF OF THE RESPONDENT:

Jeremy Lime, Esq.
900 N. Lake Street
Aurora, IL 60506

DECISION OF THE IMMIGRATION JUDGE

The respondent, a female native and citizen of Honduras born on December 27, 1999,
was placed in removal proceedings by the OHS on April 30, 2014. She was personally served
with a Notice to Appear (NTA) which charges her with removability under the above-cited
section of the Act. See Exhibit 1 (Notice to Appear - "NTA"). Service of the NTA was
accomplished through personal service as reflected on the certificate of service section on the
second page of the NTA. The NTA provides the respondent with written advisals as to the
consequences for failing to appear at any future removal hearings and of the obligation to inform
the court of any change of address.
On August 25, 2014, the respondent and her father appeared before the court for an initial
master calendar hearing. The respondent and her father were explained the charges on the NTA
and a respondent's rights and obligations while under removal proceedings. The respondent's
father thereupon requested a continuance in the hopes of hiring an attorney for his daughter. The
court granted the request and continued the case to November 4, 2014. At that second hearing,
the respondent and her father again requested a continuance in order to hire counsel. The request
was granted and the case was continued. On July 27, 2015, the respondent and her father
returned to court with counsel, Jeremy Lime. During that hearing, the respondent's counsel
mitted that the respondent is removable as charged and then requested a continuance in order
I

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

File:

On December 16, 2015, neither the respondent nor her attorney appeared for the hearing.
The DHS then moved that an order of removal be entered in the respondent's absence based
upon counsel's prior admissions and concession of removability and the court's designation of
Honduras as the country of removal. The court granted the motion and ordered the respondent
removed, in absentia, to Honduras.
On December 29, 2015, the respondent's attorney filed a motion to reopen "based on lack
of notice." The motion explains that the Spanish interpreter erroneously stated that the
respondent's next hearing date would be December 17, 2015, as opposed to December 16, 2015.
Counsel adds that the respondent would not have forgotten the December 17th hearing because it
is the date of her birthday.1 Based on this alleged interpretation error, counsel urges the court to
reopen because the interpreter's error constitutes a lack of proper notice by the court.
On January 5, 2016, the DHS filed its response in opposition to reopening, stating that the
court provided proper notice of the hearing and that no basis for reopening has been set forth by
the respondent. The DHS asserts that the court complied with the notice requirements of INA
Section 239(a)(2)(A) when the court served respondent's counsel with the hearing notice in
person and explained to him the new hearing date on the record. The DHS also argues that no
exceptional circumstances have been set forth that would justify reopening under INA Section
240(a)(5)(C).
Analysis
Under the INA240(b)(S)(C), an order of removal that was entered in absentia may be
rescinded under limited circumstances:
Any alien who, after written notice ... has been provided to ... counsel of record,
does not attend a proceeding under this section, shall be ordered removed in
absentia if it is established that written notice was provided and the alien is
removable. Such an order may be rescindd if the alien files a motion to reopen
and establishes that [s]he did not receive proper notice or that the failure to appear
was because of exceptional circumstances. Mailing notice of a removal
proceeding to the alien's attorney of record at the correct address constitutes
It bears noting that the NTA lists the respondent's birth date as being December 27, 1999, not December 17th .
This information is typically provided by a respondent (or an adult relative if the respondent is of tender years) to the
QHS upon apprehension.
1

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

to pursue Special Immigrant Juvenile status for the respondent. The court granted the request
and continued the matter to December 16, 2015 at 1:00 p.m. The court stated on the record to the
respondent's attorney what the new hearing date would be and the court clerk served the notice
of hearing upon counsel at the conclusion of the hearing that day. The hearing notice clearly
states that the next hearing would be held on December 16, 2016. See Exhibit 2 (Notice of
Hearing).

notice to the alien. Marinov v. Holder, 687 F.3d 365, 368 (th Cir. 2012)(intemal
citations omitted).

Based on the foregoing, the respondent's motion to rescind and reopen is hereby
DENIED.

NNIE L. GIAMBASTIANI
MIGRATION JUDGE

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

In the present case, respondent's counsel argues lack of notice as a basis for rescinding
the order of removal but he bases his entire argument on a purported interpretation error at the
hearing. However, he fails to address the fact that the hearing notice served on him indicated the
proper date and that he also inexplicably failed to appear for the hearing on December 16, 2015.
Even if the interpreter misstated the hearing date to the respondent in the Spanish language,
respondent's counsel was advised both verbally and in writing of the correct date at that hearing.
The record simply fails to support the respondent's assertion of a lack of notice. The respondent
has failed to cite any other basis that would demonstrate exceptional circumstances that would
excuse her failure to appear.