U.S.

Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals
Qffice of the Clerk
5107 Leesburg Pike, Suite 2000
Falls Church, Virginia 20530

OHS/ICE Office of Chief Counsel - LOS

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

Name: HERNANDEZ ZUNIGA, AGUSTIN

A 205-721-753
Date of this notice: 7/10/2015

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

bon.nL
Donna Carr
Chief Clerk

t1/lA)

Enclosure
Panel Members:
Grant, Edward R.
Guendelsberger, John
Mann, Ana

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/

Cite as: Agustin Hernandez Zuniga, A205 721 753 (BIA July 10, 2015)

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

Cifuentes, Claire
Cifuentes Knapp & Associates, P.C.
1301 W. 2nd Street #100
Los Angeles, CA 90026

U.S. Department of Justice

Decision of the Board of Immigration Appeals

Executive Office for Immigration Review

Falls Church, Virginia 20530

File: A205 721 753 - Los Angeles, CA

Date:

'JUL 10 2015

IN REMOVAL PROCEEDINGS
APPEAL
ON BEHALF OF RESPONDENT: Claire Cifuentes, Esquire
APPLICATION: Reopening
The respondent, a native and citizen of Mexico, appeals from an Immigration Judge's
decision dated September 19, 2014, denying his motion to reopen removal proceedings, which
had been conducted in absentia on August 29, 2014. The respondent filed a timely appeal from
that decision. The appeal will be sustained, the in absentia order will be vacated, proceedings
will be reopened, and the record will be remanded.
The Notice of Hearing for the respondent's hearing on August 29, 2014, clearly stated that it
would take place in Courtroom "U" on the 17th floor. In light of this unambiguous fact and the
totality of circumstances, including the respondent's diligence in filing his motion to reopen
proceedings, the affidavit from his former counsel, his prior appearance at a hearing and
potential eligibility for cancellation of removal, we find it appropriate to reopen these
proceedings to allow the respondent another opportunity to appear for a hearing before an
Immigration Judge. See Matter of M-R-A-, 24 I&N Dec. 665 (BIA 2008). In reaching this
conclusion, we note the absence of a response by the Department of Homeland Security to the
respondent's appeal.
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.

FOR THE BOARD

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

In re: AGUSTIN HERNANDEZ ZUNIGA a.k.a. Agustin Hernandez a.k.a. Agustine Hernandez
a.k.a. Agustin Zuniga Hernandez a.k.a. Agustin Zuniga

Cite as: Agustin Hernandez Zuniga, A205 721 753 (BIA July 10, 2015)
_;;;;:;

... ......... IX!J2%%JiffiM

.J!

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
LOS ANGELES, CALIFORNIA

IN THE MATTER OF
Agustin HERNANDEZ ZUNIGA,
Respondent.

)
)
)
)
)
)
)
)
)

Date: September 19, 2014

IN REMOVAL PROCEEDINGS

.)

CHARGE(S): Section 212(a)(6)(A)(i) of the Immigration and Nationality Act-present without

admission or parole.
APPLICATION(S): Respondent's Motion to Reopen.
ON BEHALF OF DHS:
Sirin Ozen Hallberg
Senior Attorney
Department of Homeland Security
606 South Olive Street, 8th Floor
Los Angeles, CA 90014

ON BEHALF OF RESPONDENT:
Claire Cifuentes
Attorney at Law
Cifuentes Knapp and Associates
1301 W. 2nd Street
Los Angeles, CA 90026

DECISION OF THE IMMIGRATION JUDGE

I.

INTRODUCTION AND PROCEDURAL SUMMARY

On December 11, 2013, the U.S. Department of Homeland Security (OHS) issued a Notice
to Appear (NTA) commencing removal proceedings against respondent under section 240 of the
Immigration and Nationality Act (INA). The NTA was personally served on respondent on
December 11, 2013. The NTA was filed with the immigration court on December 18, 2013. See
Exhibit 1.
The NTA alleged that respondent is not a citizen or national of the United States; that he is
a native and citizen of Mexico; that he entered the United States at an unknown place on an
unknown date; and that he was not then admitted or paroled after inspection by an immigration
officer. Respondent was charged with being inadmissible under INA 212(a)(6)(A)(i) for being
present without admission or parole. See Exhibit 1.

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

File No. A205-721-753

ii-

Respondent was detained and initially had a hearing before Immigration Judge Kevin
Riley on January 9, 2014. Respondent was granted a continuance for attorney preparation until
January 21, 2014. Respondent then bonded out of custody and the case was transferred to the
non-detained docket in Los Angeles, California. On March 19, 2013 the case was scheduled for a
hearing on June 11, 2014 at 8:30 a.m. at courtroom 17-U.

Respondent appeared for hearing on June 11, 2014 in courtroom 14-F. Respondent
admitted the allegations in the NTA, conceded removability and indicated that he wished to apply
for cancellation of removal for permanent residents under INA 240A(b)(l) (non-LPR
cancellation). The court reset the case to August 29, 2014 at 8:30 a.m.
Respondent failed to appear at the hearing on August 29, 2014. The court trailed the
matter to the end of the calendar, until 12:24 p.m., until it had completed all the court's regular
business. The court then proceeded with the case in respondent's absence and ordered respondent
removed in absentia.
On September 2, 2014, respondent filed a motion to reopen alleging that he did not receive
notice of the place of the hearing. Specifically, respondent contends that the hearing notice
indicated that the hearing would take place in courtroom 17-U rather than 14-F and therefore he
was not notified of the place of the hearing. Respondent contends that he appeared at courtroom
17-U on August 29, 2014 and that there was a sign on the door that indicated that the hearings that
day had been cancelled and would be reset by mail.
II.
STATEMENT OF THE LAW
To rescind an in absentia removal order the alien must demonstrate that the failure to
appear was because of exceptional circumstances, INA 240(b)(5)(C)(i), or that the alien did not
receive proper notice of the hearing or was in federal or state custody. INA 240(b)(5)(C)(ii).
A motion premised on exceptional circumstances must filed within 180 days after the date of the
removal order. INA 240(b)(5)(C)(i). A motion based on improper notice or the alien's
custody may be filed at any time. INA 240(b)(5)(C)(ii).
III.
DISCUSSION

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

On June 2, 2014, respondent filed a motion to continue the hearing on June 11, 2014 on the
ground that counsel had made vacation plans for June 11, 2014. Counsel made these plans on
May 5, 2014. The court issued an order dated June 3, 2014, denying the motion on the ground
that counsel for respondent did not explain why she made plans for June 11, 2014 after she knew
that the case was scheduled for that date. Since the undersigned's courtroom was changed on
May 5, 2014, the order also noted that the hearing would take place in courtroom 14-F, not
courtroom 17-U.

Respondent's motion to reopen will be denied. Respondent has not met his burden of
proving that he did not receive notice of the hearing. Respondent claims that he was not notified
of the place of the hearing because it took place in another courtroom than the one indicated on the
2

JJJ..&!..hl-.iiiii.&

J .4A444&

notice. However, the place of the hearing was at the Immigration Court in Los Angeles, 606
South Olive Street, Los Angeles, California 90026. Thus, respondent was properly notified of the
place of the hearing.

Respondent's claim that he appeared outside courtroom 17-U but that there was a sign
indicating that the hearings that day had been cancelled is not persuasive. Prominently displaced
outside courtroom 17-U is a sign which indicates that effective May 5, 2014 cases before Judge
O'Connor will be heard on the 14th floor courtroom F. As of the date of issuance of this decision,
the sign is still prominently displayed outside courtroom 17-U. If respondent indeed appeared at
courtroom 17-U, he would have observed the sign and known to proceed to courtroom 14-F, even
if he had forgotten that the previous hearing had been there. These factors demonstrate that
respondent was aware of the courtroom in which his hearing would be held.
Finally, respondent does not point to any efforts he made after seeing the sign that hearings
in courtroom 17-U had been cancelled. Significantly, counsel for respondent indicates that he
called the EOIR 800 number the morning of the hearing and learned that respondent's hearing was
still scheduled. In light of this, respondent does not explain why he did not go to the clerk's office
to inquire what had happened with his case. Likewise, respondent does not explain why he did
not call the 800 number again to double check whether his hearing had been cancelled.
Respondent did not act reasonably given that he verified the morning of the hearing that his case
was still scheduled, then ignored a clear posting outside courtroom 17-U that he should go to
courtroom 14-F, and then failed to make any additional inquiry to verify whether his hearing had
indeed been cancelled.
For the foregoing reasons, respondent's motion to reopen is denied and the court will enter
the following order:
ORDER
IT IS HEREBY ORDERED that respondent's Motion to Reopen be denied.

DATED: September 19, 2014.

I.:ee A. 0'Connor
Immigration Judge

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

Respondent was also well-aware that his hearing would take place in courtroom 14-F. He
was notified prior to the hearing on June 11, 2014, that it would take place in courtroom 14-F when
the court denied his motion to continue the hearing. Moreover, respondent was aware that his
case would take place in courtroom 14-F because he appeared in that courtroom on June 11, 2014.

-.

RE:
File:

HERNANDEZ ZUNIGA, AGUSTIN

A205-721-753

OHS
[ ]

Other

Cl

ES._

,,::KWw

l. .M.

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

CERTIFICATE OF SERVI
THIS DOCUMENT WAS SERVED BY: MAIL (
PER
( p)
Custodial Officen
'Hl' s ATT /REP
TO: [ ] ALIE
[ ]
COURT STAFF -.,...a=------:
DATE: --=--
0 --=----'IH----+[ ] EOIR-28

Claire Cifuentes, Attorney at Law

Cifuentes Knapp & Associates, P.C.
1301 W. 2nd Street Suite 100
Los Angeles, CA 90026
(212) 250-0250 Fax: (213) 250-8998
abogada@pacbell.net

In the Matter of:

Agustin Hernandez Zuniga
In removal proceedings

)
)
)
)
)
)

File No.: A205 721 753

MOTION TO REOPEN AN IN ABSENTIA ORDER

LAC..KOFNOTlC t;
INA Z.'tO(b)('S")(c)(i

. . !tt{\\ff;.,+:';'<'fytl
.
''ff;.;':
;.:'-'-"

l
,.,_,_,..'': :. - -:: : ..:.: : .

-tt<ORi,
IMt.n:-;i..1iON R(JIEW ./
llvir/,\;RAllOt COURT
L-OS AN?ELES. CALIFORNIA,

&.......---

_ ___..,.;_

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

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
LOS ANGELES, CALIFORNIA

MOTION TO REOPEN AN IN ABSENTIA ORDER

Attached as Exhibit A is a copy of respondent's August 29, 2014 Notice of Hearing provided by
Immigration Judge Lee O'Connor at respondent's June 11, 2014 master calendar hearing to attorney
Andrew Knapp (who made a limited appearance for respondent that day on behalf of respondent's
undersigned attorney of record, Claire Cifuentes), which Notice of Hearing lists the location for
respondent's continued August 29, 2014 master calendar hearing as Courtroom U on the 17th Floor.
Attached as Exhibit B the sworn affidavit from attorney Andrew Knapp detailing how he called the
EOIR toll free information line on August 29, 2014 at 7am and confirmed that respondent's August
29, 2014 hearing was still on calendar and scheduled before Judge O'Connor, that he received a cell
phone call from respondent at 7:35am and instructed respondent to meet him outside Courtroom U
on the 17th floor, that he then met respondent outside Courtroom U on the 17th floor before 8:00am
prepared to file a new limited appearance EOIRM28 with respondent's completed and fee paid EOIR42B application, with over 300 pages of supporting evidence, prepared by undersigned counsel, but
that a sign on the door indicated that the hearings for the day had been cancelled and would be reset
by mail, for which reason Attorney Knapp told respondent to go home and await further instructions.
Attached as Exhibit C is a print-out from the EOIR Los Angeles Immigration Court website which
continues to show Judge O'Connor's courtroom as "U" on the 17th Floor.
Attached as Exhibit Dis the fee paid EOIR-42B application for cancellation of removal with over
300 pages of supporting documentation that was to be filed in open court on August 29, 2014, but
for the mistaken notice provided as to the place of respondent's August 29, 2014 hearing.

FILING FEE
Respondent is seeking to rescind his in absentia order of removal, pursuant to INA
240(b)(5)(C)(ii), based on lack of notice. 8 C.F.R. 1003.24(b)(2) provides that
"[a] filing fee is not required in the following instances: ... (v) A motion to reopen a
. . . removal order entered in absentia if the motion is filed pursuant to ... section
240(b)(5)(C)(ii) of theAct". Therefore. this motion is beingfiledwithout a filingfee.

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

Respondent, through counsel, moves that these proceedings be reopened and the order of removal
entered in absentia rescinded, pursuant to INA 240(b)(5)(C)(ii) and 8 CFR 1003.23(b)(4)(ii), on
the basis that respondent was not provided proper notice of the "place" of his removal hearing, as
required by INA 239(a)(2), and that, furthermore, respondent did not fail to appear, because he in
fact timely reported to the courtroom listed on his notice of hearing, but a sign on the door indicated
that the hearings scheduled for that day had been cancelled and would be rescheduled by mail.

.QJ44.

_4&.,.._g

6...QlQlJ.3.S.J! --- .@

%.Ml44dz.4%lQGfow.\.,..,

ARGUMENT

Thus, the relevant and undisputed evidence in respondent's Record of Proceedings, including the
circumstantial evidence submitted in support of this motion to reopen, establishes that respondent
did not receive notice of the "place" of his August 29, 2014 master calendar hearing. In addition,
upon discovering that he had been ordered removed in absentia, respondent exercised due diligence
in promptly seeking to redress the situation by immediately filing this motion to reopen. Therefore,
respondent's in absentia order ofremoval should be rescinded on the basis that he lacked notice of
the place at which his proceedings were held.
In the alternative, respondent's failure to appear should be deemed to have resulted from
"exceptional circumstances" beyond his control, and/or that he did not actually "fail to appear," as
he appeared at the courthouse ready to proceed with his hearing while the Immigration Judge was
still on the bench. SeeJerezano v. INS, 169 F.3d 613 (9th Cir. 1999) andPerezv. Mukasey, 516 F.3d
770, 774 (9th Cir. 2008).
In addition, respondent had no motive to fail to appear, as he is prima facie eligible for INA
240A(b) cancellation of removal, and he went through great efforts and expense to pursue this relief,
including posting a $7,000 bond for his release from detention that he would never risk losing,
paying his counsel attorney thousands of dollars to prepare and present his EOIR-42B application,
and actively cooperating with his undersigned counsel to fully document his application.
The term "exceptional circumstances" refers to circumstances "beyond the control ofthe alien." INA
240(e)(1). The Ninth Circuit, the jurisdiction in which this case arises, has held that the reviewing
tribunal "must look to the particularized facts presented in each case in determining whether the
petitioner has established exceptional circumstances." Singhv. INS, 295 F.3d 1037, 1040 (9th Cir.
2002) (holding that the respondent established exceptional circumstances where he arrived late to
his hearing based on a misunderstanding, and had "no possible reason to try to delay the hearing"
because he was eligible for relief) . Chete Juarez v. Ashcroft, 376 F.3d 944, 948 (9th Cir. 2004)
(holding that the respondent established "exceptional circumstances" for her absence where she
appeared at all scheduled hearings but the last, had prevailed on appeal before the BIA, and had no
reason to delay or evade the hearing).

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

INA 240(b)(5)(C)(ii) provides that an in absentia order of removal may be rescinded ''upon a
motion to reopen.filed at any time if the alien demonstrates that the alien did not receive notice in
accordance with paragraph ... (2) of section 239(a)". Subsection 239(a) requires that the alien must
be served with written notice of "the time and place at which proceedings will be held." As
established by the attached Exhibits, respondent was not provided proper notice of the correct
courtroom at which his August 29, 2014 master calendar hearing took place.

In support of this Motion to Reopen, respondent, through counsel, asserts the following grounds:
a.

Respondent has new facts which bear on his case, namely the circumstances that
resulted in his being ordered removed in absentia on August 29, 201 4;

b.

These new facts materially affect respondent's eligibility for rescission of his in
absentia order;

c.

These new facts were unavailable at the time of respondent's removal hearing
because that hearing was conducted in absentia; and

d.

Respondent's removal order is fmal and is not the subject ofanyjudicial proceeding.

Respondent further states, through counsel, that he has not departed the United States, that he is not
subject to any criminal proceeding pursuant to section 276 or any other section of the Act, and that
he seeks to prove at a reopened hearing new facts material to his eligibility for rescission of his in
absentia order and for cancellation of removal.
WHEREFORE, respondent urges the Immigration Judge to reopen his removal proceedings,
rescind the order of removal entered in absentia, and schedule a new hearing as soon as possible.

Dated: September 2. 201 4

Clai ifuentes, Attorney at Law
Cifu s Knapp & Associates
1301 W. 2 nd Street, Suite #100
Los Angeles, CA 90026
(21 3) 250-0250 Fax: (21 3) 250-8998
abogada@Jpacbell.net
3

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

Furthermore, "exceptional circumstances" can be found from the erroneous advice respondent
received from his limited appearance attorney, who was misled by the incorrect courtroom listing
on respondent's Notice of Hearing and the court's web-site. In Mo njaraz-Muno z v. INS, 327 F.3d
892, 896 amended at 339 F.3d 1 0 12 (9th Cir. 2003), the respondent established that his failure to
appear at his hearing was due to his reasonable and justifiable reliance on the advice ofhis attorney's
agent, such that he was entitled to rescission of his in absentia order on basis of exceptional
circumstances, because "[w]hen an alien exercises his statutory right to retain counsel in a
deportation proceeding, it is reasonable for him to grant effective control ofthe case to his attorney...
It is therefore reasonable for an alien to trust and rely upon an attorney's advice to such an extent that
if an alien fails to show up to a hearing because of an attorney, we can say that this is an exceptional
circumstance 'beyond the control ofthe alien"' Id. at 897. See also L o v. Ashcroft, 341 F.3d 934, 939
(9th Cir. 2003).