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Department of Justice
OHS/ICE Office of Chief Counsel - BLM 2901 Metro Drive, Suite 100 Bloomington, MN 55425
A 205-285-337
Enclosed is a copy of the Board's decision and order in the above-referenced case. Sincerely,
DonrtL ctVlA)
Donna Carr Chief Clerk
Enclosure
Panel Members: Kendall-Clark, Molly Neal, David L Adkins-Blanch, Charles K.
Cite as: Fernando Placencia Castellanos, A205 285 337 (BIA Sept. 16, 2013)
File:
Date:
SEP 1 6 2013
APPEAL ON BEHALF OF RESPONDENT: Nana Amoako, Esquire ON BEHALF OF DHS: Thomas S. Madison Assistant Chief Counsel APPLICATION: Reopening
The respondent is a native and citizen of Mexico. On April 4, 2013, he was ordered removed from the United States, following his failure to appear at his hearing. On May 6, 2013, he filed a motion to reopen under section 240(b)(S)(C) of the Immigration and Nationality Act, 8 U.S.C.
1229a(b)(5)(C).
The motion was denied and this appeal followed. sustained and the record will be remanded for further proceedings.
Upon review, and considering the totality of the circumstances presented, we find that there were exceptional circumstances in this case within the meaning of section 240(e)(1) of the Act and that reopening is appropriate. See 8 C.F.R. 1003. l (d)(3)(ii) (except for factual findings under the clear error standard, the Board reviews questions of law, discretion, and judgment and all other issues in appeals from decisions of Immigration Judges de novo). We note that the respondent filed this motion well within the statutory 180 days after the date of the removal order and has previously appeared for scheduled hearings, as directed. He also went to the immigration court when he thought his hearing was scheduled, albeit one day late (Br. at 3; Tab "C" (Affidavit)). In light of the foregoing and his lengthy residence here in the United States since 1994, as reflected in the Notice to Appear, we conclude that the respondent should be afforded an opportunity to apply for cancellation of removal. ORDER: The appeal is sustained. FURTHER ORDER: The record is remanded for further proceedings consistent with this decision.
Cite as: Fernando Placencia Castellanos, A205 285 337 (BIA Sept. 16, 2013)
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UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT
7850
MN
SUITE
320 55425
AMOAKO,
NANA
2500
HIGHWAY
88,
MN
SUITE
MINNEAPOLIS,
55418
107-109
FILE A FERNANDO
205-285-337
DATE:
May
17, 2013
'1._
30
CALENDAR DAYS
SEE THE ENCLOSED FORMS AND INSTRUCTIONS FOR PROPERLY PREPARING YOUR APPEAL. YOUR NOTICE OF APPEAL, MUST BE MAILED TO: BOARD OF IMMIGRATION APPEALS OFFICE OF THE CLERK P.O. BOX
8530
VA
FALLS CHURCH,
22041
JUDGE AS THE RESULT
ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION THIS DECISION IS FINAL UNLESS WITH SECTION
OF YOUR FAILURE TO APPEAR AT YOUR SCHEDULED DEPORTATION OR REMOVAL HEARING. A MOTION TO REOPEN IS FILED IN ACCORDANCE
242B(c) (3) OF THE IMMIGRATION AND NATIONALITY ACT, 8 U.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
7850
METRO PARKWAY, MN
SUITE
BLOOMINGTON, OTHER:
55425
320
CLERK FF
IMMIGRATION COURT
2901
METRO DR.,
BLOOMINGTON,
MN ,
STE.
100 55425
. .
DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT BLOOMINGTON, MN 55425 In The Matter Of: Fernando Placencia-Castellanos
I
Respondent.
File Number: A205-285-337
) ) ) ) ) ) )
Nana Amoako
Thomas S. Madison
By written order dated April 4, 2013, the respondent was ordered removed from the United States to Mexico in absentia when he failed to appear for his master calendar hearing that day. 1 On May 2 6, 2013, the respondent filed a Motion to Reopen. The DHS filed a response on May 9, 2013, opposing the motion.3 Section 240(b)(5)(C) of the Immigration and Nationality Act ("fNA" or "the Act") sets forth the statutory authority for reopening proceedings. fNA 240(b)(5)(C)(i) provides for the reopening of an in absentia removal order if exceptional circumstances precluded the respondent from appearing at the hearing and the motion is filed within 180 days of the date of the removal order. fNA 240(b)(5)(C)(ii) provides for reopening at any time if the respondent demonstrates that he/she did not receive notice in accordance with paragraph (1) or (2) of fNA 239(a) or that he/she was in federal or state custody and did not appear through no fault of his/her own. The Record of Proceeding ("ROP") shows that the respondent was served with the Notice to Appear ("NTA"), Exhibit 1, on or about July 23, 2012. The respondent appeared in Court for a master calendar hearing on October 25, 2012. At that hearing the respondent appeared pro se, the DHS was represented by Laura Trosen, and the Spanish in-court interpreter was Paul Johnston. The Court reset the case to a master calendar hearing for March 11, 2013, at 9:00 a.m. to give
1
2 3
The Court's in absentia order is marked as Exhibit 5. The Motion to Reopen filed May 6, 2013, is marked as Exhibit 6. The DHS' opposition is marked as Exhibit 7.
A205-285-337 - Page 1
respondent time to get an attorney. (Ex. 3 Notice of Hearing). The Court covered the consequences of failing to appear with the respondent. The Court's master calendar docket did not go forward on March 11, 2013, as this Judge was out of the office. Accordingly, the court clerks mailed a new hearing notice to the parties and reset the hearing to April 4, 2013, at 9:00 a.m. (Ex. 4-Notice of Hearing). When the respondent failed to appear for his hearing on April 4, 2013, the Court entered an in absentia removal order in his case. (Ex. 5).
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Respondent claims in the Motion to Reopen that he mixed up the immigration hearing date of April 4, 2013, with his criminal court hearing date of April 5, 2013. He claims that he came to the Immigration Court on April 5, 2013, and discovered he had mixed up the dates. He seeks to reopen proceedings so that he can file an application for cancellation of removal. The OHS opposes the motion stating that respondent has failed to establish exceptional circumstances for reopening. The respondent had proper notice of the April 4, 2013, 9:00 a.m. hearing. The respondent seeks to reopen the in absentia order claiming that he failed to appear due to exceptional -circumstances. The Act defines "exceptional circumstances" as "exceptional circumstances (such as 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 Section 240(e)(l). The
respondent's reason for failing to appear for his hearing does not rise to the level of "exceptional circumstances." The argument that he mixed up the dates of his immigration and
criminal court hearings does not establish "exceptional circumstances." Furthermore, if the respondent had mixed up the two court dates and gone to the criminal court hearing on April 4, 2013, at 9:00 a.m. instead of April 5, 2013, at 9:00 a.m., he would have discovered from the criminal court that he was there on the wrong day. The respondent then could have driven from St. Cloud to Bloomington, MN, on April 4, 2013, for his immigration hearing. Additionally, the respondent seeks to reopen proceedings so that he can apply for cancellation of removal. However, he has not attached an application, supporting documents, or paid the fee for such application. Accordingly, the Court enters the following order in this case:
ORDER IT IS HEREBY ORDERED that the respondent's Motion to Reopen and Rescind
Jn Absentia
Order is DENIED.
Immigration Judge
AlOS-285-337
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