U.S.

Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
Qffice of the Clerk
5/07 leesburg Pike, Suire 2000
Falls Church, Virginia 22041

DHS/ICE Office of Chief Counsel - HLG

1717 Zoy Street
Harlingen, TX 78552

Name: AYALA-MEJIA, RONALD

A 098-885-532
Date of this notice: 10/27/2016

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

DonrtL C

t1/v'L)

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Guendelsberger, John
Kendall-Clark, Molly
Holiona, Hope Malia

Userteam: Docket

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Cite as: Ronald Ayala-Mejia, A098 885 532 (BIA Oct. 27, 2016)

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Nader, Eliana Christina

Magaletta & McCarthy, PC
225 Friend Street
Suite 501
Boston, MA 02114

U.S. Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals
Office of the Clerk
5/07 leesburg Pike, Suite 2000
Falls Church. Virginia 2204/

DHS/ICE Office of Chief Counsel - HLG

1717 Zoy Street
Harlingen, TX 78552

Name: AYALA-MEJIA, RONALD

A 098-885-532
Date of this notice: 10/27/2016

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,

DorutL C

t1/V'L)

Donna Carr
Chief Clerk
Enclosure
Panel Members:

Guendelsberger, John
Kendall-Clark, Molly
Holiona, Hope Malia

Userteam:

Cite as: Ronald Ayala-Mejia, A098 885 532 (BIA Oct. 27, 2016)

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AYALA-MEJIA, RONALD
A098-885-532
C/0 BRISTOL CO HOUSE OF CORREC
400 FAUNCE CORNER ROAD
N. DARTHMOUTH, MA 02747

U.S. Department of Justice

Decision of the Board of Immigration Appeals

Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A098 885 532 - Harlingen, TX

Date:

OCT 2 7 2016

In re: RONALD AYALA-MEJIA

APPEAL
ON BEHALF OF RESPONDENT: Eliana C. Nader, Esquire
APPLICATION:

Reopening

The respondent, a native and citizen of El Salvador, appeals from the Immigration
Judge's July 14, 2016, decision denying his motion to reopen proceedings and rescind the in
absentia order of removal entered on April 20, 2005. The Department of Homeland Security
(DHS) has not replied to the appeal. The appeal will be sustained.
We review findings of fact, including credibility findings, under the "clearly erroneous"
standard. See 8 C.F.R. 1003.l(d)(3)(i); Matter of Z-Z-0-, 26 I&N Dec. 586 (BIA 2015);
Matter of S-H-, 23 I&N .Dec. 462 (BIA 2002). We review questions of law, discretion, or
judgment, and all other issues de novo. See 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. I003.2(a); see also Matter of
G-D-, 22 I&N Dec. 1132 (BIA 1999); Matter ofJ-J-, 21 l&N Dec. 976 (BIA 1997).
Based on the totality of the circumstances in this case, including the respondent's young
age at the time of the in absentia hearing, we will grant the respondent's motion to reopen and
rescind the in absentia order pursuant to our sua sponte authority. See 8 C.F.R. I003.2(a); see
also Matter ofJ-J-, supra. Accordingly, the following order will be entered.
ORDER: The appeal is sustained, the in absentia order of removal is rescinded, the
proceedings are reopened, and the record is remanded to the Immigration Judge for further
proceedings consistent with the foregoing opinion.

OR THE BOARD
u__

Cite as: Ronald Ayala-Mejia, A098 885 532 (BIA Oct. 27, 2016)

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IN REMOVAL PROCEEDINGS

#'

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
2009 WEST JEFFERSON AVENUE, SUITE 300
HARLINGEN, TEXAS 78550

RONALD AYALA-MEJIA

CASE NO. A098 885 532

RESPONDENT
IN REMOVAL PROCEEDINGS
MEMORANDUM AND ORDER
On June 23, 2016, Respondent filed a motion to reopen this removal
proceeding. The removal order in this case was issued on April 20, 2005 based
upon a removal hearing held in absentia on that same date pursuant to section
240(b)(5)(A) of the Immigration and Nationality Act (the Act). The Department of
Homeland Security filed a timely response in opposition to the motion to
reopen.
On March 7, 2005, Respondent's Notice to Appear was personally served
on Respondent's mother Yolanda Mejia-Lopez. (Exh. #1). The Notice to Appear
contained the hearing notice for Respondent's April 20, 2005 removal hearing.
The Court concludes that the Notice to Appear was properly served on
Respondent's mother because Respondent was eleven years old at the time.
(Exh. #2). See Section 239(a)(l) of the Act; 8 C.F.R. 1239. l(b); 8 C.F.R.
1236.2(a); 8 C.F.R. 103.5a(c)(2)(ii)(2005); Matter of Mejia-Andino, 23 I&N Dec.
533 (BIA 2002); Matter of Gomez-Gomez, 23 I&N Dec. 522, 527-29 (BIA 2002).
As stated in Respondent's affidavit submitted with his motion to reopen,
Respondent was accompanied by his mother when Respondent entered the
United States. See also the Record of Deportable/Inadmissible Alien, Form 1213 (Exh. #2). Respondent also states in that affidavit that, when he and his
mother were released from detention after entering the United States, he and
his mother traveled to his aunt's home in Texas where they lived for about a
year before moving to Massachusetts. Respondent is not claiming that he did
not live with his mother after their release from detention. In Respondent's
affidavit, he states that he did not know he was in removal proceedings
because his mother never told him that he was.
The Court concludes that, since Respondent's mother was properly
served with Respondent's Notice to Appear which contained the hearing notice
1

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IN THE MATTER OF:

.,.
;

If Respondent is contending that his mother's failure to have Respondent

attend Respondent's April 20, 2005 removal hearing is an exceptional
circumstance for Respondent's failure to appear at that hearing within the
meaning of section 240(b)(5)(C)(i) and 240(e)(l) of the Act, the Court concludes
that the motion to rescind Respondent's removal order on this basis is
untimely. Thus, the motion to reopen was not filed within 180 days after the
date of the order of removal as required by section 240(b)(5)(C)(i) of the Act.
See also 8 C.F.R. 1003.23(b)(4)(ii). Accordingly, the Court concludes that
Respondent's removal order should not be rescinded under section
240(b)(5)(C)(i) of the Act.
Respondent also requests reopening because he has applied for Deferred
Action for Childhood Arrivals and also because Respondent plans to marry his
United States citizen fiancee after which she can petition for him and he can
"seek a provisional waiver". With respect to these requests, the Court
concludes that the motion to reopen is untimely because it was not filed within
90 days of the date of entry of the final administrative order of removal.
Section 240(c)(7)(C)(i) of the Act; 8 C.F.R. 1003.23(b)(l).
Respondent has submitted an Application for Asylum and for
Withholding of Removal (Form I-589) with his motion. Respondent's counsel
states in the motion to reopen that Respondent seeks withholding of removal.
The Court finds that Respondent's motion to reopen to apply for withholding of
removal under section 241(b)(3) of the Act and withholding of removal pursuant
to the Convention Against Torture is untimely because it was not filed within
90 days of the date of entry of the final administrative order of removal. Section
240(c)(7)(C)(i) of the Act; 8 C.F.R. 1003.23(b)(l). Respondent has not shown, or
even contended, that his motion to reopen to apply for withholding of removal
under section 24l(b)(3) of the Act and withholding of removal pursuant to the
Convention Against Torture is exempt from this time limitation because it is
based on changed country conditions arising in El Salvador since the date of
his removal order. Section 240(c)(7)(C)(ii) of the Act; 8 C.F.R. 1003.23(b)(4)(i);
2

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for Respondent's April 20, 2005 removal hearing, Respondent was given and
received proper notice of that removal hearing pursuant to section 239(a)(l) of
the Act. See also 8 C.F.R. 1003.lB(b). Therefore, the Court concludes that
Respondent has not demonstrated that he did not receive notice of his April 20,
2005 removal hearing in accordance with section 239(a)(l) of the Act. The
Board of Immigration Appeals has held that a removal order is properly issued
in absentia with respect to an alien who is under 14 years of age where proper
notice of the hearing was provided to the alien's parent and the alien's parent
fails to have the minor alien attend the removal hearing. See Matter of Gomez
Gomez, supra, at 528-29. Accordingly, the Court concludes that Respondent's
removal order should not be rescinded under section 240(b)(5)(C)(ii) of the Act.
See also 8 C.F.R. 1003.23(b)(4)(ii).

,.
Matter of S-Y-G-, 24 l&N Dec. 247, 253 (BIA 2007), aff'd, 546 F.3d 138 (2d Cir.

2008).

WHEREFORE, it is hereby Ordered that Respondent's motion to reopen

be denied.
DATED THIS

. -rday
"' of July, 2016.

JL/

HOWARD ACHTSAM
IMMIGRATION JUDGE
HEA/bjr

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Respondent is also requesting that the Court reopen the removal

proceeding on the Court's own motion. The Court concludes that Respondent
has not demonstrated that his case involves an exceptional situation which
warrants reopening on the Court's own motion. Matter of G-D-, 22 I&N Dec.
1132 (BIA 1999); Matter of J-J-, 21 I&N Dec. 976, 984-85 (BIA 1997).