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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
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
APPEAL
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
)
IN THE MATTER OF ) IN REMOVAL PROCEEDINGS
)
SINGH, Ranjeet ) File: A208-191-523
).
Respondent )
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).
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
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:
--------
Date .-ifon. Joseph La Rocca
U.S. Immigration Judge
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