U.S.

Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals
Office of the Clerk
5107 Leesburg Pike, Suite 2000
Falls Church, Virginia 2204/

DHS/ICE Office of Chief Counsel - HLG

1717 Zoy Street
Harlingen, TX 78552

Name: BENITES-MAURISIO, IRIS JEAN...

A 099-679-349

Date of this notice: 9/3/2015

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

Sincerely,

DonnL

f1/V'L)

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Grant, Edward R.
Guendelsberger, John
Holiona, Hope Malia

Userteam: Docket

For more unpublished BIA decisions, visit

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Cite as: Iris Jeanette Benites-Maurisio, A099 679 349 (BIA Sept. 3, 2015)

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Kazaryan, Areg, Esq.

200 N. Maryland Ave., Ste. 100
Glendale, CA 91203

U.S. Department of Justice

Decision of the Board of Immigration Appeals

Executive Office for Immigration Review

Falls Church, Virginia 20530

File: A099 679 349 - Harlingen, TX

Date:

In re: IRIS JEANETTE BENITES-MAURISI0 1

SEP - 3 2015

APPEAL
ON BEHALF OF RESPONDENT: Areg Kazaryan, Esquire
APPLICATION:

Reopening

This case was last before the Board on April 11, 2014, when we sustained the respondent's
appeal and remanded the record to the Im.migration Judge for the limited purpose of reissuing his
decision, mailed July 23, 2012, denying the respondent's motion to reopen. The respondent has
appealed the Immigration Judge's decision dated June 19, 2014, denying her motion to reopen.
The respondent had previously been ordered removed in absentia for her failure to appear for the
scheduled hearing on July 10, 2006. The appeal will be sustained, proceedings will be reopened,
and the record will be remanded.
The Board reviews an Immigration Judge's findings of fact, including credibility
determinations and the likelihood of future events, under a "clearly erroneous" standard.
8 C.F.R. 1003.l(d)(3)(i); Matter of Z-Z-0-, 26 l&N Dec. 586 (BIA 2015). We review all other
issues, including questions of law, judgment, or discretion, under a de novo standard. 8 C.F.R.
1003.l(d)(3)(ii).
The Board possesses discretion to reopen or reconsider cases sua sponte. See 8 C.F.R.
1003.2(a); see also Matter of G-D-, 22 l&N Dec. 1132 (BIA 1999); Matter of J-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 to rescind her in absentia order pursuant to our sua sponte
authority. See 8 C.F.R. 1003.2(a); see also Matter of J-J-, supra. Accordingly, the following
order will be entered.
ORDER: The appeal is sustained, the in ab' ntia order of removal is rescinded, the
proceedings are reopened, and the record is remanded r further proceedings consistent with the
foregoing opinion.

The respondent indicates that her true name is Vilma Lopez Marroquin. See Respt. 's Appeal
Brief.
Cite as: Iris Jeanette Benites-Maurisio, A099 679 349 (BIA Sept. 3, 2015)

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IN REMOVAL PROCEEDINGS

--

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
2009 W. JEFFERSON AVE, STE 300
HARLINGEN, TX 78550

FILE A 099-679-349
IN THE MATTER OF
BENITES-MAURISIO, IRIS JEANETTE

DATE: Jun 19, 2014

UNABLE TO FORWARD - NO ADDRESS PROVIDED

/AT'I'ACHED IS A COPY OF 'I'HE DECISION OF THE IMMIGRATION JUDGE. THIS DECISION
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
BOARD OF IMMIGRATION APPEALS
MOST BE MAILED TO:
OFFICE OF THE CLERK
5107 Leesburg Pike, Suite 2000
FALLS CHURCH, VA 20530
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 HEARING.
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 U.S.C.
SECTION 1252B(c} (3) IN DEPORTATION PROCEEDINGS OR SECTION 240(c) (6),
B U.S.C. SECTION 1229a(c} (6) IN REMOVAL PROCEEDINGS. IF YOU FILE A MOTION
TO REOPEN, YOUR MOTION MOST BE FILED WITH THIS COURT:
IMMIGRATION COUR'I'
2009 W. JEFFERSON AVE, STE 300
HARLINGEN, TX 78550
OTHER:

COURT/(2

CC: ASSISTANT CHIEF COUNSEL

1717 ZOY ST.
HARLINGEN, TX, 785520000

IMMIGRATION COURT

FF

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KAZARYAN, AREG, ESQ.

520 NORTH CENTRAL AVE. SUITE #660
GLENDALE, CA 91203

U ITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
HARLINGEN IMMIGRATION COURT
2009 WEST JEFFERSON AVENUE, SUITE 300
HARLINGEN, TEXAS 78550

Iris Jeanette Benites-Maurisio

aka Vilma Lopez Marroquin
RESPONDENT
APPLICATION:

June 19, 2014

)
)
)
)
)
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Case Number: 099-679-349

IN REMOVAL PROCEEDINGS

Motion to Reopen

ON BEHALF OF THE RESPONDENT

Areg Kazaryan
Law Office of Areg Kazaryan
520 N. Central Avenue, Suite 660
Glendale, CA 91203

ON BEI-IALF OF THE GOVERNMENT

Assistant Chief Counsel
U.S. Department ofHomeland Security
1 71 7 Zoy Street
Harlingen, TX 78552

WRlTTEN DECISION OF THE IMMIGRATION JUDGE'

On July 10, 2006, the Court ordered the respondent removed to El Salvador based upon a
hearing held in absentia on that same date pursuant to section 240(b)(5)(A) ofthe Immigration and
Nationality Act (INA or the Act). On June 4, 2012, the respondent, through counsel, filed a motion to
reopen arguing that her removal proceedings should be reopened because she did not receive notice of
the hearing. The respondent also seeks to reopen so that she may be pe1mitted to apply for asylum.
The respondent's motion to reopen will be denied.
The Court finds the respondent received proper notice ofher removal hearing in accordance
with section 239(a) ofthe Act because the Notice to Appear (NTA) was personally served on the
respondent. INA 239(a)(l), 240(b)(5)(C)(ii); Ex. 1. On May 5, 2006, the respondent was served
with the NTA, stating that she was ordered to appear before this Court to answer the charge of
removability. Ex. 1. The NTA was signed by the serving Supervising Border Patrol Agent, as well as
by the respondent. Id. Furthermore, oral notice was provided to the respondent in Spanish ofthe
time and place ofthe hearing and of the consequences of failing to appear at the hearing. Id.
The NTA served on the respondent included the following warning: "You are required to
provide the INS, in writing, with your full mailing address and telephone number.... Notices of
hearing will be mailed to this address. lfyou do not ... provide an address at which you may be

reached during proceedings, then the Government shall not be required to provide you with the
J This is the original decision issued on July 23, 2012. It is being reissued pursuant to a remand from the Board of
Inunigration Appeals dated April 11, 20 J 4, to reissue and redate the decision so Respondent may pursue a timely
appeal.

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IN THE MATTER OF

When notice has been satisfied or excused, as it has been here, a motion to reopen ordinarily
Hmust be filed within 90 days ofthe date ofentry ofa final administrative order of removal.. .." 8
C.F.R. I 003.23(b)( 1). Reopening and rescinding in absentia orders based on exceptional
circumstances are limited to within 180 days ofthe removal order. 8 C.F.R. 1003.23(b)(4). The Act
defines 'exceptional circumstances" as "exceptional circumstances (such as battery or extreme cruelty
to the alien or any child or parent ofthe alien, serious illness ofthe alien, or serious illness or death of
the spouse, child, or parent ofthe alien, but not including less compelling circumstances) beyond the
control ofthe alien." INA 240(e)(l). The respondent's motion to reopen was not filed within 180
days ofthe removal order, so even a demonstration ofexceptional circumstances would not meet the
requirements ofthe Act. 8 C.F.R. 1003.23(b)(4)(ii).
Beyond 180 days, an exception applies for motions to reopen based on an application for
asylum when country conditions have changed in the respondent's home country since the time ofthe
in absentia removal order. See 8 C.F.R. 1003.23(b)(4)(i). The respondent has included in her
motion to reopen an application for asylum as required by section 1003.23(b)(3) ofTitle 8 ofthe
Code ofFederal Regulations. The respondent states that her application for asylum is based on her
history ofabuse by her domestic partner and subsequent fear ofreturning to El Salvador. Since the
respondent's application for asylum is not based on changed country conditions in El Salvador, the
respondent fails to qualify for an exception to the filing deadline found in Title 8, Code ofFederal
Regulations, section 1003.23(b)(l). See 8 C.F.R. 1003.23(b)(4). As such, the respondent's motion
is untimely.
Finally, the Court concludes the circumstances ofthis case do not warrant the exercise ofthe
Court's limited discretion to reopen sua sponte. See Afatter ofJ-.J-, 21 l&N Dec. 976 (BIA 1997).
Accordingly, the following order will be entered:
ORDER: The respondent's motion to reopen is DENIED.

United States Immigration Judge

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written notice ofyour hearing. Ifyou fail to attend the hearing ... a removal order may be made by the
immigration judge in your absence ...." Ex. 1. This warning correctly stated the law found in sections
239(a)(l)(F) and 239(a)(2)(B) ofthe Act. The respondent, however, failed to heed the warning, and
failed to provide the Court with her address. Ex. 2. Because the respondent did not provide an
address where she could be contacted respecting the proceedings, written notice was not required. See
INA 239(a)(l)(F), 239(a)(2)(B).

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