Documenti di Didattica
Documenti di Professioni
Documenti di Cultura
Department of Justice
A 095-084-205
Date of this notice: 9/18/2015
Enclosed is a copy of the Board's decision and order in the above-referenced case.
Sincerely,
DoYUU- c
tYv\J
Donna Carr
Chief Clerk
Enclosure
Panel Members:
Guendelsberger, John
Usertea m: Docket
Dubove, Fernando A
Law Office of Fernando Dubove
400 South Zang Boulevard
Suite 600
Dallas, TX 75208
Date:
SEP 18 2015
APPEAL
ON BEHALF OF RESPONDENT: Fernando Dubove, Esquire
APPLICATION: Reopening
The respondent, a native and citizen of El Salvador, has filed a timely appeal of the
Immigration Judge's decision dated June 18, 2014, denying a joint motion to reopen filed by the
parties. The Department of Homeland Secwity (DHS) has not tiled an opposition to the appeal.
Due to the circumstances presented in this case, the following orders will be entered.
ORDER: The appeal is sustained.
FURTHER ORDER: The record is remanded for reopened proceedings to consider the
respondent's application for special rule cancellation of removal relief under the Nicaraguan
Adjustment and Central American Relief Act (NACARA).
IN REMOVAL PROCEEDINGS
IN REMOVAL PROCEEDINGS
A 095-084-205
CHARGE:
APPLICATION:
Page I of 4
--
(NACARA) and cancellation of removal for certain non-permanent residents under Section
240A(b) of the Act. The Court ordered the Respondent to submit his applications for relief and
corresponding filing fee receipts on or before January 29, 2013. The Court also advised the
Page 2 of 4
Respondent and his counsel of the consequences of failure to timely file the application and
----
is satisfied that the evidence sought to be offered is material and was not available and could not
have been discovered or presented at the former hearing. Id. The Respondent seeks reopening in
order to apply for NACARA relief, a form of relief which was available to the Respondent and
NACARA was pretermitted due to his failure to timely file a fee receipt. Thus, the Respondent
has articulated no new, previously unavailable relief.
Respondent's counsel contends that the Respondent failed to timely file the fee receipt
because as of January 29, 20 13, he had still not received said receipt from USCIS. However, this
information is not a "new fact." As noted in this Court's removal order, the Respondent had the
opportunity to file a motion with the Court to extend the filing deadline upon realization that he
would not receive the fee receipt before that date. No such motion was filed. Thus, while the
receipt is "material" and may not have been physically "available" on the date of the filing
deadline, the fact that the Respondent did not receive the receipt until after the filing deadline
"could have been discovered or presented at a former hearing." Id. Therefore, the Respondent
has failed to meet the requirements for a motion to reopen.
The Court will decline to exercise its sua sponte authority to reopen as the Respondent
has not demonstrated a "truly exceptional situation" where the interests of justice would be
served by reopening. Matter of G-D-, 22 l&N Dec. 1132 (BIA 1999). The Respondent was
given approximately 120 days to file his NACARA application and fee receipt. The record
reflects that the Respondent wrote checks for the application fees on January 23, 2013, a mere
six days before the filing deadline. See 1-881 Supplemental Exhibits, pg. 2. This made it unlikely
that he would timely receive the fee receipt. Not only did the Respondent delay in filing the
application fee, but as stated above, the Respondent failed to request an extension to submit his
Page 3 of 4
he was seeking before this Court prior to his order of removal. The Respondent's application for
application and fee receipt. The Respondent was given ample time to file his application and fee
receipt and had means of avoiding the removal order, but neglected to use them. The Court does
not find this to be a ''truly exceptional situation" warranting sua sponte reopening. Further, the
ordered removed on February 19, 2013. The Respondent waited over a year before filing this
motion to reopen. The Respondent's delay in addressing his outstanding removal order also does
not compel the Court to exercise its sua sponte authority.
Accordingly, the following Order will be entered:
ORDER
IT IS HEREBY ORDERED that the Respondent's Motion to Reopen i
J.{ )l
Date:
1f
Dallas, Texas
Deitrich H. Sims
Immigration Judge
Page 4 of 4
Respondent's fee receipt is dated January 28, 2013. See Motion to Reopen, pg. 10. He was