U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office ofthe Clerk
5107 lee.rburg Pike. Suite 2000
Falls Church, Virginia 22041

OHS/ICE Office of Chief Counsel - HLG

1717 Zoy Street
Harlingen, TX 78552

Name: MARTINEZ-CRUZ, KEWIN ARCE...

A 077-794-158
Date of this notice: 7/15/2016

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

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

Userteam: Docket

For more unpublished BIA decisions, visit

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Cite as: Kewin Arcenio Martinez-Cruz, A077 794 158 (BIA July 15, 2016)

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Munoz, Kevin Cooper

Kevin Munoz, Attorney at Law
120 E. Market Street, Suite 1200
Indianapolis, IN 46204

U.S. Department of Justice

Executive Office for Im.migration Review

Decision of the Board of Im.migration Appeals

Falls Church, Virginia 22041

File: A077 794 158 -Harlingen, TX

Date:

JUL 1 5 2016

In re: KEWIN ARCENIO MARTINEZ-CRUZ

APPEAL
ON BEHALF OF RESPONDENT: Kevin C. Munoz, Esquire
ON BEHALF OF DHS: Iris Guerra Bravo
Assistant Chief Counsel
APPLICATION: Reopening
The respondent has appealed from the Immigration Judge's decision dated June 23, 2015,
denying the respondent's motion to reconsider the denial of a previously filed motion to reopen.
The Department of Homeland Security (DHS) has filed an opposition to the appeal. The appeal
will be sustained.
We have considered the totality ofthe circumstances presented in this case, including the
respondent's age at the time he was served with the Notice to Appear, the fact that the
respondent has been granted deferred action as a childhood arrival ("DACA"), and the absence
ofDHS's opposition to the motions, and find that an exceptional situation has been demonstrated
warrantinr reopening to allow the respondent another opportunity to apply for relief from
removal. See 8 C.F.R. I003.23(b)(l); Matter ofJ-J-, 21 I&N Dec. 976 (BIA 1997).
We find that administrative closure is warranted in light of the respondent's grant of
DACA. If either party to this case wishes to reinstate the proceedings, a written request to
reinstate the proceedings may be made to the Board. The Board will take no further action in
this case unless a request is received from one of the parties. The request must be submitted
directly to the Clerk's Office, without fee, but with certification of service on the opposing party.
Accordingly, the following orders will be entered.
ORDER: The appeal is sustained, the Immigration Judge's decision dated June 23, 2015,
is vacated and proceedings are reopened.

The respondent provided evidence that his mother is a lawful permanent resident.
Cite as: Kewin Arcenio Martinez-Cruz, A077 794 158 (BIA July 15, 2016)

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IN REMOVAL PROCEEDINGS

A077 794 158

FURTHER ORDER: The proceedings before the Board of Immigration Appeals in this
case are administratively closed.

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F
Board Member Ana L. Mann respe

2
Cite as: Kewin Arcenio Martinez-Cruz, A077 794 158 (BIA July 15, 2016)

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
2009 W. JEFFERSON AVE, STE 300
HARLINGEN, TX 78550

IN THE MATTER OF
MARTINEZ-CRUZ, KEWIN

FILE A 077-794-158

DATE: Jun 24, 2015

J!NABLE TO FORWARD - NO ADDRESS PROVIDED

/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.
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 DEPORTATION 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
2009 W. JEFFERSON AVE, STE 300
HARLINGEN, TX 78550
OTHER:

CC: ASSISTANT CHIEF COUNSEL

1717 ZOY ST.
HARLINGEN, TX, 785520000

COURT CLERK
IMMIGRATION COURT

FF

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Kevin Munoz, Attorney at Law

Munoz, Kevin Cooper
120 E. Market Street, Suite 1200
Indianapolis, IN 46204

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
HARLINGEN IMMIGRATION COURT
HARLINGEN, TEXA

KEWIN MARTINEZ-CRUZ
RESPONDENT
APPLICATIONS:

)
)
)
)
)
)

Jun
Case Number: A 077 794 158
In Removal Proceedings

Motion to Reconsider

ON BEHALF OF THE RESPONDENT

Kevin Munoz, Esq.
120 E. Market Street, Suite 1200
Indianapolis, IN 46204

ON BEHALF OF THE GOVERNMENT

Assistant Chief Counsel
U.S. Department ofHomeland Security
1717 Zoy Street
Harlingen, TX 78552

ORDER OF THE IMMIGRATION JUDGE

On June 23, 1999, the Court ordered the respondent removed to Honduras in absentia
pursuant to section 240(b)(S)(A) of the Immigration and Nationality Act (INA or Act). The Court
denied respondent's motion to reopen in a written decision dated May 19,2015. On June 19, 2015,
the respondent filed the instant motion to reconsider. The motion will be denied.
A motion to reconsider must be filed within thirty days of the dates of entry of the final
administrative order ofremoval. INA 240(c)(6)(B). It must also state the reasons for the motion
by specifying the errors of fact or law in a prior decision removal order,and it must be supported by
pertinent authority. INA 240(c)(6); 8 C.F.R. 1003.23(b)(2); Matter o/0-S-G-, 24 I&N Dec. 56
(BIA 2006). A motion to reconsider requests that the original decision be reexamined in light of
additional legal arguments, a change of law, or an argument or aspect of the case that was
overlooked. Mattero/Ramos,23 l&N Dec. 336,338 (BIA2002);MatterofCerna,20I&NDec. 399
(BIA 1991).
The motion to reconsider urges the Court to reconsider its decision denying the motion to
reopen in light of additional facts and legal arguments. The respondent now states that the Notice to
Appear was not properly served because it was served upon and signed by a stranger who
volunteered to sign as the respondent's biological mother. In an affidavit submitted in support of the
motion to reconsider, the respondent's biological mother contends that she entered the United States
three years prior to the respondent and therefore did not sign her son's Notice to Appear.

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IN THE MATIER OF

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). In any event, the respondent has not demonstrated
that evidence that a stranger signed his Notice to Appear in 1999 as his biological mother was
unavailable or could not have been discovered previously. 8 C.F.R. 1003.23(b)(3). The Court
finds that the respondent's misrepresentation or omission to immigration officials concerning his
relationship with the woman he claims signed his documents as his biological mother further weighs
against reopening. Finally, the respondent only seeks reopening in order to administratively close
proceedings in light of his approved application for deferred action. The Court reiterates that the
existence of a removal order does not affect the respondent's continued eligibility for deferred action
with the Department of Homeland Security.
Accordingly, the following orders shall be entered:
ORDER: The respondent's motion to reconsider is DENIED.

David Ayala
United States Immigration Judge

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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. INA 240(c)(6)(B). However, the Court finds
that the respondent failed to raise any arguments in the motion to reconsider that establishes error in
the Court's May 19, 2015 decision. Rather, the respondent has submitted "new" evidence to support
additional legal arguments not raised in the motion to reopen. As the Court noted in its written
decision, the respondent's motion to reopen made no mention, and thus did not challenge the
validity, of service of the Notice to Appear upon his mother. 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. As such, the Court concludes reconsideration is
not appropriate.