U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals
Q[fice <?{the Clerk
5 /07 lee.rb11rg Pike, Suite 2000
Falls Church, Virginia 20530

Name: M

-L

DHS/ICE Office of Chief Counsel - LOS

606 S. Olive Street, 8th Floor
Los Angeles, CA 90014

351

Date of this notice: 5/26/2015

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

Don.ttL c

t2/vL)

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Guendelsberger, John

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/
Cite as: O-M-L-, AXXX XXX 351 (BIA May 26, 2015)

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Bolour, Ally
Law Offices of Ally Bolour
5670 Wilshire Blvd
Suite 1400
Los Angeles, CA 90036

:u.s. Department of Justice

Decision of the Board of Immigration Appeals

Executive Office for Immigr_ation Review

Falls Church. Virginia 20530

File:
In re: O

351 - Los Angeles, CA

-L

Date:

MAY 182015

a.k.a.

APPEAL
ON BEHALF OF RESPONDENT: Ally Bolour, Esquire
APPLICATION: Reopening
The respondent, a native and citizen of Mexico, appeals from a decision dated November 19,
2013, by the Immigration Judge in which she denied the respondent's September 27, 2013,
motion to reopen removal proceedings, which had been conducted in absentia on September 23,
2013. The respondent filed a timely appeal from that decision. The Department of Homeland
Security (OHS) has filed no reply to the appeal. The appeal will be sustained, proceedings will
be reopened and the record will be remanded.
Upon de novo review, in light of the totality of circumstances presented in this case,
including the respondent's apparent eligibility for asylum and lack of motive to avoid the hearing,
the respondent's apparent late arrival at his hearing, 1 his diligence in filing a motion to reopen,
and the absence of DHS opposition to both the motion and appeal, we will sustain the appeal and
allow the respondent another opportunity to appear for a hearing. See Chere Juarez v. Ashcroft,
376 F.3d 944, 948 (9th Cir. 2004), Singh v. INS, 213 F.3d 1050, 1052 (9th Cir. 2000) (stating
,
that "exceptional circumstances ' determination requires consideration of totality of
circumstances and particularized facts presented in each case).
ORDER: The appeal is sustained, the in absentia order is vacated, proceedings are reopened,
and the record is remanded to the Immigration Judge for further proceedings.

The respondent correctly noted that the Immigration Judge mistakenly noted that the hearing
was set for 9:00 a.m. when it was set for I :00 p.m.. Further, although the Immigration Judge
indicated that the respondent's counsel informed the Court in the morning that the respondent
was en route, it was actually in the afternoon. See I.J. at 1.
Cite as: O-M-L-, AXXX XXX 351 (BIA May 26, 2015)

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IN REMOVAL PROCEEDINGS

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
LOS ANGELES, CALIFORNIA

File No. A

-351

ORDER OF THE IMMIGRATION JUDGE

Upon consideration of the respondent's Motion to Rescind In Absentia Order & Reopen Proceedings,
it is HEREBY ORDERED that the motion be o GRANTED x{>ENIED because:
o OHS does not oppose the motion.
o The respondent does not oppose the motion.
o A response to the motion has not been filed with the court.
o Good cause has been established for the motion.
o The court agrees with the reasons stated in the opposition to the motion.

o The motion is untimely per

.
I)
!
.XOther:

u.ZJ.if tLl

Deadlines:

. n
o
Immigration Judge

Certificate of Service
.
This document was served by: bd' Mail [ ] Personal Service
To: [ ] Alien [ ] Alien c/o Cusdial Officer )(Alien's Atty/Rep OHS
Date:

/.J - J-,JtJJ..3

By: Court Staff

,A ,, , __

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In the matter of: M

{___
_

(le;,

File No.: A

351

In the Matter of
M

-L

Respondent,

)
)
)
)
)

IN REMOVAL PROCEEDINGS
ORDER DENYING MOTION
TO REOPEN PROCEEDINGS

CHARGE:

Section 212(a)(06)(A))(i) - Present without having been admitted

or paroled
Section 212(a)(7)(A)(i) - Immigrant without valid immigrant visa or
entry documents

APPLICATION:

Motion to Reopen Proceedings

ON BEHALF OF RESPONDENT:

ON BEHALF OF GOVERNMENT:

Ally Bolour, Esq.

5670 Wilshire Blvd., Suite 1400
Los Angeles, CA 90036

Asst. Chief Counsel, DHS/ICE

606 S. Olive St., 8th Floor
Los Angeles, CA 90014

WRITTEN ORDER OF THE IMMIGRATION JUDGE

The respondent is a native and citizen of Mexico. On September 23, 2013,
Respondent did not appear for his Court Proceedings scheduled for 9:00 a.m. This Court
issued an in absentia order of removal at the end of the Court's afternoon Master Calendar
hearing at 3:10 p.m., because counsel said in the morning that he contacted Respondent to
appear by 1:00 p.m.
On September 27, 2013, Respondent filed a Motion to Reopen the proceedings
contending that Respondent mistakenly thought September 23, 2013 was Wednesday
instead of Monday. Respondent's counsel informed the Court in the morning that
Respondent was traveling to Los Angeles. Respondent never appeared in court by the end
of the Court's afternoon docket.

Immigrant & Refugee Appellate Center, LLC | www.irac.net

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
Los Angeles, California

STATEMENT OF LAW

An order of removal in absentia may be rescinded only upon (1) a motion to reopen
filed within 180 days after the date of the order of removal if the alien demonstrates that
the failure to appear was because of exceptional circumstances (as defined in subsection
(e)(l), or (ii) upon a motion to reopen filed at any time if the alien demonstrates that the
alien did not receive notice in accordance with paragraph (1) [no written notice] or (2) [no
notice of change in time or place of proceedings] of section 239(a) or the alien demonstrates
that alien was in Federal or State custody and the failure to appear was through no fault
of the alien.
ANALYSIS OF FACI'S AND LAW
Respondent's explanation for his failure to attend the court hearing was because
Respondent was confused that the hearing was Wednesday instead of Monday. However,
he was informed of the time and date by his attorney. Furthermore, on the day of the
hearing, the attorney called Respondent who promptly informed his attorney that he was
on his way to Court. This Court held the case until the end of the afternoon cases.
Respondent's mistake and failure to appear form the morning until the afternoon after
given notice by his attorney is not "exceptional circumstances" beyond Respondent's
control. Especially in this case, where Respondent was contacted by his attorney in the
morning and represented to the Court that Respondent was coming. The Court held the
case until the end of the afternoon docket and Respondent never showed up.
The Department of Homeland Security Immigration and Customs Services
established deportability by clear, unequivocal and convincing evidence that the
respondent is removable. Respondent did not dispute that he was properly served with
the Notice of Hearing. Respondent did not show up because he was confused, but even
after being informed of the case and representing to the Court that he was traveling to
court and he still did not show up is not "exceptional circumstances" and is within "his
control."
Therefore, the following orders shall be entered:
2

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Section 240(b)(S)(A) - Any alien who, after written notice required under paragraph
(1) or (2) of section 239(a) has been provided to the alien, does not attend a proceeding
under this section, shall be ordered removed in absentia if the Service establishes by clear,
unequivocal, and convincing evidence that the written notice was so provided and that the
alien is removable (as defined in subsection (e)(2)).

ORDERS
IT IS HEREBY ORDERED that the respondent's Motion to Reopen be DENIED.

oA

ed to Mexico as charged

r1{W0

Immigration Judge

:
CERTIRCATE Of SERVICE
1H1S DOCUMENT WAS SERVED
( J FRSONAL SERVICE (P)
)(MAit. CM)
I J ALIEN c/o Custodial Officer
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Immigrant & Refugee Appellate Center, LLC | www.irac.net

IT IS FURTHER ORDERED that the respondent be rem

in the Notice to Appear.