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U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals


Office of the Clerk

5107 Leesburg Pike, Sul/e 2000


Falls Church. Virginia 22041

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Collins-Romero, Mariana OHS/ICE Office of Chief Counsel - MEM
Law Office of Mariana Collins-Romero, Inc. 80 Monroe Ave., Ste 502
PO Box 239 Memphis, TN 38102
Dardanelle, AR 72834

Name: PALACIOS, FLOR DE MARIA A 070-910-219

Date of this notice: 9/27/2017

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:
Kelly, Edward F.
Grant, Edward R.
Adkins-Blanch, Charles K.

.,. ..

Userteam: Docket

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Cite as: Flor De Maria Palacios, A070 910 219 (BIA Sept. 27, 2017)
U.S. Departinent of Justice Decision of the Board of Immigration Appeals
Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A070 910 219 - Memphis, TN Date:


SEP 2 7 2017
In re: Flor De Maria PALACI OS

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IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Mariana Collins-Romero, Esquire

APPLICATION: Reopening

The respondent, a native and citizen of El Salvador, was ordered removed from the United
States in absentia on February 2, 1999, after not appearing at a hearing. She filed a motion to
reopen on March 30, 2000, which an Immigration Judge denied on May 2, 2000. On
April 19, 2017, the respondent filed a second motion to reopen, and appeals from the Immigration
Judge's decision dated May 4, 2017, denying the motion. The appeal will be sustained.

We review the findings of fact, including the determination of credibility, made by the
Immigration Judge under the "clearly erroneous" standard. 8 C.F.R. 1003. l(d)(3)(i). We review
all other issues, including issues of law, discretion, or judgment, under a de novo
standard. 8 C.F.R. 1003. l (d)(3)(ii).

On appeal, the respondent argues that she established an exceptional situation to reopen these
proceedings sua sponte. See Matter ofJ-J-, 21 l&N Dec. 976 (BIA 1997) (holding that the Board's
and the Immigration Judge's power to reopen or reconsider cases sua sponte is limited to
exceptional situations and is not meant to cure filing defects or circumvent the regulations, where
enforcing them might result in hardship). She states that she and her spouse have been married
since April 7, 1998, and he is now a United States citizen (Respondent's Br. at 1-2). She further
states that she was granted Temporary Protected Status (TPS) in 2000, is the mother of three United
States citizen children, and the beneficiary of an approved visa petition (Form 1-130) filed by her
spouse. See Matter of G-D-, 22 l&N Dec. 1132, 1137 (BIA 1999) (an alien's ability to become
eligible for adjustment of status due to the passage of time after a failure to voluntarily depart is
not by itself an exceptional situation). In light of the foregoing, with specific emphasis on her
long-term TPS status in the United States, we will reopen these proceedings sua sponte.

Accordingly, the following order will be entered.

ORDER: The appeal is sustained, the in absentia order of removal is vacated, and the
proceedings are reopened and remanded for proceedings consistent with the foregoing
proceedings.

Cite as: Flor De Maria Palacios, A070 910 219 (BIA Sept. 27, 2017)
UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
MEMPHIS TENNESSEE

IN THE MATTER OF IN REMOVAL PROCEEDINGS

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)
)
PALACIOS, Flor de Maria ) FILE NO.: A070-9 l 0-219
)
Respondent )
DATE: May ..1_, 2017
CHARGE: Section 212(a)(6)(A)(i) an alien, present in the United States without
being admitted or paroled, or who arrived in the United States at any
time or place other than as designated by the Attorney General

APPLICATION: Motion to Reopen In Absentia Removal Proceedings

ON BEHALF OF RESPONDENT: ON BEHALF OF DHS:


Mariana Collins-Romero, Esq. William A. Lund, Esq.
Mariana COLLINS-ROMERO, Inc. Assistant Chief Counsel
PO Box 239 80 Monroe Avenue, Suite 502
Dardanelle, AR 72834 Memphis, TN 38103

DECISION OF IMMIGRATION JUDGE

I. PROCEDURAL HISTORY

The Department of Homeland Security ("the Department") initiated the present removal
proceedings against Respondent on April 30, 1998, alleging that she is removable from the United
States pursuant to 212(a)(6)(A)(i) of the Immigration and Nationality Act ("INA" or "the Act").
Exh. I.

On August 14, 1998, this Court mailed Respondent a Notice of Hearing informing her that
her case had been scheduled for a Master Calendar hearing on February 2, 1999. Respondent failed
to appear in Court on February 2, 1999, and the Court ordered her removed in absentia.
Respondent filed a "Special NACARA Motion to Reopen," on March 30, 2000, which the
Department opposed on April 4, 2000. The Court denied Respondent's Motion to Reopen on May
3, 2000.

On April 19, 2017, Respondent filed a Motion to Reopen In Absentia Removal Proceedings
with the Court. The Department filed its opposition to Respondent's Motion on April 23, 2017.
The Court now issues this decision.

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II. DISCUSSION

According to the INA, as well as federal regulations, an order of removal entered in


absentia pursuant to INA 240(b)(5)(A) may be rescinded upon a motion to reopen filed in one
of the following ways: (i) within 180 days after the date of the order of removal if the alien shows
that the failure to appear was due to exceptional circumstances, or (ii) at any time if the alien

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demonstrates that he did not receive notice in accordance with INA 239(a)( l ) or (a)(2). INA
240(b)(5)(C); 8 C.F.R. 1003.23(b)(4)(ii) (2017). The filing of such a motion shall stay the
removal of the alien pending disposition of the motion by the Immigration Judge. INA
240(b)(5)(C); 8 C.F.R. 1003.23(b)(4)(ii) (2017). An alien may file only one such motion to
reopen. 8 C.F.R. 1003.23(b)( l ) (2017).

Respondent argues that her case should be reopened pursuant to Matter ofM-S-, 22 I&N
349 (BIA 1998), and in the alternative, requests the Court use its sua sponte authority to reopen
her case. Motion to Reopen at 2.

a. Reopening Pursuant to Matter ofM-S-, 22 I&N 349 (BIA 1998)

A motion to reopen an in absentia order of removal based on exceptional circumstances


must be filed within 180 days following the order of removal. INA 240(b){5)(C); 8 C.F .R.
1003.23(b)(4)(ii) (2017). The Court ordered Respondent removed on February 2, 1999. She filed
her Motion on April 19, 2017, well outside of the 180-day period. Therefore, Respondent's Motion
is now time-barred.

Additionally, Respondent's Motion to Reopen is also numerically barred, as she filed her
first Motion to Reopen on March 30, 2000, which the Court denied on May 3, 2000. Although
Respondent titled her first motion, "Special NACARA Motion to Reopen," the Court found in its
decision that the regulations governing a special NACARA motion to reopen did not apply to
Respondent's case. Thus, Respondent's Motion was analyzed under standards applicable to
"ordinary" motions to reopen. As Respondent has already filed one motion to reopen in her case,
she is now numerically barred from filing a second Motion to Reopen.

Respondent cites the Board of Immigration Appeals ("BIA" or "the Board") decision to
support the proposition that "proceedings may be 'reopened' and new relief applied for without
the necessity of rescinding the in absentia order." Motion to Reopen at 4. However, the Court
finds that Matter of M-S- is not controlling in her case because the facts in the current case are
distinguishable from those in Matter of M-S-. In Matter of M-S-, the respondent was ordered
removed in absentia, and her deportation proceedings were reopened by the Board because she
was not properly warned of the consequences of failing to appear for a scheduled deportation
hearing, not because she subsequently became eligible for discretionary relief from removal.

Additionally, the applicable statute in Matter of M-S- under INA 242B(c) for
consequences of failure to appear has since been repealed. In the current case, Respondent was
never placed in deportation proceedings; she was placed into removal proceedings on April 30,
1999 through the filing of her NT A with this Court. Exh. 1. Additionally, Respondent admits to
receiving Notice of her hearing in her first motion to reopen but said she decided not to attend the

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hearing after meeting with an attorney who advised her that she was not eligible for NACA RA.
Respondent's Special NACARA Motion to Reopen 12. Furthermore, the respondent in Matter
of M-S- was ordered removed on January 17, 1996, and she filed her first motion to reopen on
March 4, 1996 and her second motion on May 31, 1996. In contrast, Respondent in this case filed
the current Motion to Reopen more than eighteen years after the final order of removal was entered
in her case. Therefore, Respondent's Motion is untimely.

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b. The Court's Sua Sponte Authority

In the alternative, Respondent requests her case be reopened pursuant to the Court's use of
its sua sponte authority because "[a]djustment of status is a form of relief for respondent that was
not available at the time of her 1999 hearing." Motion to Reopen at 6. The Department opposes
reopening Respondent's case sua sponte, arguing that "sua sponre is limited to exceptional
circumstances and not when an alien's eligibility for relief has been changed by case law... . Sua
sponte authority has also generally not been extended to changes in personal circumstances." The
Department's Response to Respondent's Motion to Reopen at 2.

An Immigration Judge may, at any time, reopen any case in which he has rendered a
decision. 8 C.F.R. 1003.23(b)(l) (2017). A removal hearing is reopened sua sponte only in
"exceptional circumstances," and is not meant to cure filing defects or circumvent the regulations.
See Matter of J-J-, 21 l&N Dec. 976, 984 (BIA 1997) (stating that the Board of Immigration
Appeals may only reopen a case upon its own motion in exceptional circumstances).The BIA has
stated sua sponte reopening is warranted "in unique situations where it would serve the interest of
justice." Matter ofX-G-W-, 22 I&N Dec. 71, 73 (BIA 1998).

The term "exceptional circumstances" is defined as "circumstances (such as battery or


extreme cruelty to the alien or any child or parent of the alien, serious illness of the alien, or serious
illness or death of the spouse, child, or parent of the alien, but not including less compelling
circumstances) beyond the control of the alien." INA 240(e)(l). The Court considers the "totality
of the circumstances" when making a determination whether exceptional circumstances exist.
Denko v. INS, 351 F.3d 717, 723 (6th Cir. 2003) (citing Matter of J-P-, 22 I&N Dec. 33, 36 (BIA
1998)).

When looking at the totality of the circumstances in Respondent's case, the Court finds
that Respondent has failed to prove exceptional circumstances exist in her case warranting the
Court's use of its sua sponte authority. Respondent received Notice of her Master Calendar hearing
in 1999, but made a strategic decision not to attend after being advised that she was not eligible
for NACARA relief. Although Respondent has three United States citizen children, she has filed
federal tax returns from 1998 to 2015, she is a recipient of Temporary Protected Status, and her
husband's 1-130 Petition for Alien Relative on her behalf was approved on September 13, 2016,
these facts do not constitute exceptional circumstances warranting a reopening of her case. Motion
to Reopen, Tab page 2. Respondent has failed to prove that her situation is unique, or that
reopening her proceedings would serve the interest of justice. The Court then, will decline to use
its sua sponte authority to reopen Respondent's case.

A party seeking reopening bears a "heavy burden" as motions to reopen are disfavored.
Alizoti v. Gonzales, 4 77 F.3d 448, 451 (6th Cir.2007) (quoting Doherty v. INS, 502 U.S. 314, 323

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( 1992)). Respondent has not met this burden. In sum, Respondent's Motion to Reopen Jn Absentia
Removal Proceedings is denied as it is untimely and numerically barred. Additionally, Respondent
failed to demonstrate exceptional circumstances warranting the Court's use of its sua sponte
authority. For the foregoing reasons, Respondent's Motion must be denied.

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III. CONCLUSION

For the foregoing reasons, the following ORDER is HEREBY ENTERED:

It is HEREBY ORDERED that Respondent's Motion to Reopen In Absentia


Removal Proceedings be DENIED.

DATED this the 4 day of May 2017.