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U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals


Office of the Clerk

5107 Lee.rburg Pike, S1111e 2000


Falls Church, Virginia 2204 I

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Peterson, Abigail Marye OHS/ICE Office of Chief Counsel - NOL
Elmore & Peterson Law Firm, P.A. 1250 Poydras Street, Suite 2100
1867 Crane Ridge Drive New Orleans, LA 70113
Suite 150A
Jackson, MS 39216

Name: SINGH, RANJEET A 208-191-523

Date of this notice: 3/21/2017

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

Sincerely,

/ 1 J -L,
(; l_/ur
a
Cynthia L. Crosby
Acting Chief Clerk

Enclosure
Panel Members:
Adkins-Blanch, Charles K.
Grant, Edward R.
O'Connor, Blair

Userteam: Docket

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Cite as: Ranjeet Singh, A208 191 523 (BIA March 21, 2017)
U.S. Department of Justice Decision of the Board of Immigration Appeals
Executive Office for Immigration Review

Falls Chur Virginia 22041

File: A208 191 523 -New Orleans, LA Date:

Inre: RANJEET SINGH MAR 2 1 2017

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IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Abigail M. Peterson, Esquire

ON BEHALF OF DHS: Charlotte Marquez


Assistant Chief Counsel

APPLICATION: Reopening

The respondent, a native and citizen of India, was ordered removed in absentia on
March 23, 2016. On July 7, 2016, the respondent filed a motion to reopen proceedings. The
Immigration Judge denied that motion on August 3, 2016, and the respondent filed the instant
appeal. The appeal will be sustained, the Immigration Judge's order will be vacated,
proceedings will be reopened and the record will be remanded.

The Board reviews an Immigration Judge's findings of fact, including findings as to the
credibility of testimony, under the clearly erroneous standard. 8 C.F.R. 1003.l(d)(3)(i), (ii).
The Board reviews questions of law, discretion, and judgment and all other issues in appeals
from decisions of Immigration Judges de novo.

The Immigration Judge correctly determined that the respondent received proper notice for
his March 23, 2016, hearing. However, upon de novo review of the record and in light of the
totality of circumstances presented in this case, we conclude that the respondent demonstrated
that reopening is warranted. 1 See sections 240(b)(S)(C)(i), (e)(l) of the Immigration and
Nationality Act, 8 U.S.C. 1229a(b)(5)(C)(i), (e)(l). We will therefore sustain the
respondent's appeal and remand the record for further proceedings.

ORDER: The respondent's appeal is sustained, the in absentia order is vacated, proceedings
are reopened and the record is remanded to the Immigration Judge for further proceedings and
for the entry of a new decision.

-
BOARD

1
Among other factors, we have considered the respondent's affidavit as well as the
circumstances surrounding injuries to his family members in a recent automobile accident in
India.

Cite as: Ranjeet Singh, A208 191 523 (BIA March 21, 2017)
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT

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NEW ORLEANS, LOUISIANA

)
IN THE MATTER OF ) IN REMOVAL PROCEEDINGS
)
SINGH, Ranjeet ) File: A208-191-523
).
Respondent )

CHARGE: Section 212(a)(7)(A)(i)(I) of the Immigration and Nationality Act

APPLICATION: Motion to Reopen

ON BEHALF OF RESPONDENT: ON BEHALF OF DBS:


Abigail M. Peterson, Esq. Charlotte Marquez, Esq.
Elmore & Peterson Law Finn Department of Homeland Security
1867 Crane Ridge Drive, Suite 150A U.S. Immigration & Customs Enforcement
Jackson, MS 39216 1250 Poydras St., Suite 2100
New Orleans, LA 70113

DECISION OF THE IMMIGRATION JUDGE


Respondent is a native and citizen of India. Respondent was placed in removal
proceedings after the Department of Homeland Security (DHS) issued a Notice to Appear (NTA)
charging him pursuant to 212(a)(7)(A){i)(I) of the Immigration and Nationality Act (INA) on
July 29, 2015, as an alien who entered without inspection. Exh. 1A.

Respondent was personally served with the NTA informing him of immigration
proceedings. Exh. IA. Respondent was scheduled to appear before the New Orleans Immigration
Court on March 23, 2016. Respondent received a Notice of Hearing informing him of the date
and time of the hearing and the consequences of failing to appear. Exh. 2. Respondent
subsequently failed to appear for his Master Calendar hearing. Removability was established by
clear and convincing evidence. See 8 C.F.R. 1240.8(a); Woodby v. INS, 385 U.S. 276 (1966).
Therefore, Respondent was ordered removed in absentia pursuant to the charge contained in the
NTA. INA 240(b)(S)(A).
On July 7, 2016, Respondent filed the instant Motion to Reopen. OHS opposed the
motion. Now before the Court is the merit of Respondent's motion.
A#208-l 9 l-523
SINGH, Ranjeet
Page 2 of 4

' I. STATEMENTOFTHELAW

An Immigration Judge may upon his or her own motion at any time, or upon motion of
OHS or the Respondent, reopen or reconsider any case in which he or she has made a decision,
unless jurisdiction is vested with the Board of Immigration Appeals. 8 C.F.R. 1003.23(b)(l).

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INA 240(b)(5)(A) provides that a Respondent who fails to attend a proceeding shall be
ordered removed in absentia if DHS establishes by clear, unequivocal, and convincing evidence
that written notice, as required under 239(a)(l) or (2) of the Act, was provided and that the
Respondent is removable. An order of removal issued following proceedings conducted in
absentia may be rescinded only upon a motion to reopen filed before the Immigration Judge.
INA 240(b)(S)(C).
An order of removal entered in absentia may be rescinded only upon a motion to reopen
filed within 180 days after the order of removal if the Respondent demonstrates that "exceptional
circumstances" prevented his appearance. 8 C.F.R. 1003.23(b)(4)(ii). The term "exceptional
circumstances" refers to those beyond the Respondent's control, such as events of serious illness
of the Respondent or his direct relatives or instances of battery or violence against the alien or
his parents, but not including less compelling circwnstances. INA 240(e){l).
An Immigration Court's discretionary power to reopen proceedings sua sponte is limited
to exceptional circumstances. 8 C.F.R. 1003.23(b}{l); Matter of J-J-, 21 l&N Dec. 976, 984
(BIA 1997). This authority is not treated as a general remedy for hardship created by motions
regulations, but as an extraordinary remedy reserved for truly exceptional situations. Matter of
G-D-, 22 I&N Dec. 1132 (BIA 1999).
I I. RESPONDENT'S POSITION
Respondent argues that he has demonstrated sufficient extraordinary circumstances to
warrant reopening of proceedings. INA 240(e)(l); 8 C.F.R. 1003.23(b)(4)(ii). Several months
prior the Master Calendar hearing in this case, Respondent's wife and the nephew the couple
planned to adopt were involved in a car accident in India. Respondent's wife suffered a head
injury, and Respondent's nephew died. Although he remained in the United States for the
duration of these events, Respondent relates he was extremely distraught in the aftennath of the
accident and argues that for this reason, he was prevented from attending his Master Calendar
hearing. Respondent contends that these qualify as exceptional circumstances preventing his
appearance under INA 240(e)(l ), sufficient to warrant rescission of the order of removal and
reopening of proceedings. See generally Respondent's Motion to Reopen.
III. DHS' POSITION

OHS opposes Respondent's motion. DHS contends that Respondent has failed to
demonstrate exceptional circumstances prevented him from attending his hearing. Though
sympathetic to Respondent's circumstances, OHS maintains that the timing of the accident
several months prior to the scheduled master calendar hearing, combined with Respondent's
failure to contact the Court or appear in order to request a continuance, does not fall within the
meaning of exceptional circumstances as defined by INA 240(e)(l). Accordingly, DHS
A#208-19 l-523
SINGH, Ranjeet
Page3 of4

requests that the motion to reopen be denied. See DHS's Opposition to the Respondent's Motion.
IV. ANALYSIS AND CONCLUSIONS
Respondent timely filed the instant motion to reopen and rescind as it was filed within the
requisite 180-day filing period. 8 C.F.R. 1003.23(b)(4)(ii). Although "exceptional

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circumstances" refers to those beyond an applicant's control, such as events of serious illness,
battery, or violence of the applicant or direct relatives, these circumstances must be such that
they prevented Respondent's attendance at the hearing. Id.; see INA 240(e)(l). The exceptional
circumstances standard is a stringent one that will only be met in rare cases. See Georcely v.
Ashcroft, 375 F.3d 45, 51 (1st Cir. 2004); Herbert v. Ashcroft, 325 F.3d 68, 71 (1st Cir. 2003).

The Court is sympathetic to Respondent for his loss. In some cases, notice of death of an
immediate relative immediately prior to a hearing could constitute exceptional circumstances
excusing the failure to appear. INA 240(e)(l); see Kaggwa v. Gonzales, 132 Fed.Appx. 849,
851 (1st Cir. 2005). In this case, however, Respondent had notice of the death in his family
several months prior to his hearing. Respondent learned of the death on January 11, 2016.
Respondent's hearing was scheduled to occur over two months later on March 23, 2016. The
evidence does not demonstrate that Respondent was unable to call the Court to explain his
circumstances and request a continuance, should he have so needed, or appear in Court to request
a continuance. See generally Respondent's Motion to Reopen. Under these circumstances, where
Respondent had several months' notice of the death in his family, the Court cannot find that
exceptional circumstances prevented his appearance at his hearing. See Kaggwa, 132 Fed.Appx.
at 850-51 (upholding the denial of a motion to reopen where the petitioner's received notice of
her sister's death two days before the hearing at which petitioner was removed in absentia).
For these reasons, the circumstances presented by this case also do not merit exercise of
the Court's sua sponte authority. See Matter of J-J-, 21 I&N Dec. 976, 984 (BIA 1997); Matter
of G-D-, 22 l&N Dec. 1132 (BIA 1999).

Based on the above and foregoing, the Court enters the following orders:

ORDER: IT IS HEREBY ORDERED that Respondenf s Motion to


Reopen Proceedings be DENIED.


--------
Date .-ifon. Joseph La Rocca
U.S. Immigration Judge

Appeal date: Se pf e,,.. W


A#208-191-523
SINGH, R.anjeet
Page 4 of 4

CERTIFICATE OF SERVICE
THIS DOCUMENT WAS SERVED BY: MAIL ( PERSONAL SEI\V!CE (P)
TO: LIEN () ALIEN c/o Custodial Officer IEN' TT/REP )'}.OHS
DATE:&-?:,--\0 BY:COURT STAF __.,._------
Attachment(s): () EOIR-33 () EOIR-28 () Legal Services List () Other

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