Professional Documents
Culture Documents
Department of Justice
Enclosed is a copy of the Board's decision and order in the above-referenced case.
Sincerely,
Cynthia L. Crosby
Deputy Chief Clerk
Enclosure
Panel Members:
Adkins-Blanch, Charles K.
Grant, Edward R.
Mann, Ana
Userteam: Docket
Cite as: Naually Silva-Santos Martins, A098 350 369 (BIA June 23, 2017)
U.S. Department of Justice Decision of the Board of Immigration Appeals
, Executive .Office for Immigration Review
APPEAL
APPLICATION: Reopening
The respondent appeals the Immigration Judge's decision dated January 26, 2017, denying her
motion to reopen. The respondent was ordered removed in absentia in 2005 when she was 10
years old for failing to appear for a scheduled hearing. The Notice to Appear was personally served
on her when she was 9 years old. The appeal will be sustained, proceedings will be reopened, and
the record will be remanded.
We review an Immigration Judge's findings of fact for clear error, but questions of law,
discretion, and judgment, and all other issues in appeals, are reviewed de novo. 8 C.F.R.
1003.l(d)(3)(i), (ii).
The Board possesses discretion to reopen or reconsider cases sua sponte. See 8 C.F .R.
1003.2(a); see also Matter ofG-D-, 22 I&N Dec. 1132 (BIA 1999); Matter ofJ-J-, 21 I&N Dec.
976 {BIA 1997). Based on the totality of the circumstances in this case, we will grant the
respondent's motion to reopen, and we will rescind her in absentia order pursuant to our sua sponte
authority. See 8 C.F.R. 1003.2(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ORDER: The appeal is sustained, the in absentia order of removal is rescinded, the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 for further proceedings consistent with the
foregoing opinion.
Cite as: Naually Silva-Santos Martins, A098 350 369 (BIA June 23, 2017)
,,. I
( 't$'
c-.:.
l .....-
xxx ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE. THIS DECISlON
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
,W,
MUST BE MAILED TO: BOARD OF IMMIGRATION APPEALS
OFFICE OF THE CLERK
5107 Leesburg Pike, Suite 2000
FALLS CHURCH, VA 22041
,-..,J:,
i
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 HEARINGJ::.
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 D,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
180 TED TURNER DR SW, STE. 241
ATLANTA, GA 30303
OTHER:
COURT CLERK
IMMIGRATION COURT FF
CC: OFFICE OF THE CHIEF COUNSEL
180 TED TURNER DRIVE SW, SUITE 332
ATLANTA, GA 30303
( (
__________________ )
Respondent
)
Only one motion to reopen may be filed by an alien. 8 C.F.R. 1003.23(b)(4)(ii). Generally,
motions to reopen for the purpose of rescinding an in absentia removal order must be filed
Page 1 of3
( (
within 180 days after the date of the removal order, and the respondent must demonstrate that the
failure to appear was due to exceptional circumstances. See INA 240(b)(5)(C)(i); 8 C.F.R.
1003.23(b)(4)(ii). However, motions to reopen for the purpose of rescinding an in absentia
removal order may be filed at any time, including after the 180-day deadline, if the alien
demonstrates that she did not receive notice of the hearing or that she was in Federal or State
custody and the failure to appear was through no fault of her own. See INA 240(b)(5)(C)(ii); 8
Respondent has not demonstrated that the case should be reopened pursuant to the
Court's sua sponte authority.
The Court may sua sponte reopen a case over which it has jurisdiction at any time. 8 C.F.R.
1003.23(b)(l); see also Matter of J-J-, 21 I&N Dec. 976. However, such power should only be
exercised in cases of "exceptional situations." Id. at 984. The respondent has the burden to show
that an exceptional situation exists. Matter of Beckford, 22 I&N Dec. 1216, 1218-19 (BIA 2000).
Moreover, the power to reopen a case sua sponte "is not meant to be used as a general cure for
filing defects or to otherwise circumvent the regulations, where enforcing may result in
hardship." Matter of J-J-, 21 I&N Dec. at 984. As a general matter, the Court "invokes [its] sua
sponte authority sparingly, treating it not as a general remedy for any hardships created by
enforcement of the time and number limits in the motions regulations, but as an extraordinary
Page 2 of3
..
remedy reserved for truly exceptional situations." Matter of G-D-, 22 l&N Dec. 1132, 1133-34
(BIA 1999) (citing Matter of J-J-, supra). Finally, the Eleventh Circuit has held that the Board's
discretion to reopen proceedings sua sponte is exceptionally broad and not subject to judicial
revie'v\'., Lenis v. U.S. Atty. Gen., 525 F.3d 1291, 1293 (11th Cir. 2008).
The Court has read carefully read the affidavits submitted by Respondent and her husband.
While the Court is sympathetic to the difficulty Respondent now faces because of the entry of the
ir/2k'/ I 7
Date Earle B. Wilson
United States Immi gration Judge
Atlanta, Georgia
NOTICE OF THE RIGHT TO APPEAL: You are hereby notified that both parties have the right to
appeal the Immigration Judge's decision in this case to the Board of Immigration Appeals
("Board"). 8 C.F.R. 1003.38(a). A Notice of Appeal (Form EOIR-26) must be submitted to the
Board within 30 calendar days from the issuance or mailing of this decision. 8 C.FR.
I003. 38(b). If the final date for filing falls on a Saturday, Sunday, or legal holiday, the filing
date is extended to the next business day. Id. If no appeal has been taken within the time allotted
to appeal, the Immigration Judge's decision becomes final. Id. By failing to timelyfile an appeal,
a party irrevocably relinquishes the opportunity to obtain review of the Immigration Judge's
decision and challenge the ruling.
Page 3 of 3