U.S.

Department of Justice
Executive Office for Immigration Review

Board of Immigration Appeals

Office of the Clerk
5/07 Leesburg Pike. Suite 2000
Falls Church, Virginia 2204/

DHS/ICE Office of Chief Counsel - HLG

1717 Zoy Street
Harlingen, TX 78552

Name: LARA-MERINO, JESSICA LISSE ...

A 097-318-914

Date of this notice: 7/12/2016

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

DorutL C!

t1AA)

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Adkins-Blanch, Charles K.
Grant, Edward R.
O'Leary, Brian M.

Userteam: Docket

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Cite as: Jessica Lisseth Lara-Merino, A097 318 914 (BIA July 12, 2016)

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Cortez, Jocelyn A.
De Castroverde Law Group
1149 S. Maryland Pkwy.
Las Vegas, NV 89104

. U.S. Department of Justice

Decision of the Board of Immigration Appeals

. Executiv Office for Immigration Review

Falls Church, Virginia 22041

File: A097 318 914 - Harlingen, TX

Date:

JUL 1 2 2016

In re: JESSICA LISSETH LARA-MERINO

APPEAL
ON BEHALF OF RESPONDENT: Jocelyn Cortez, Esquire
APPLICATION: Reopening
The respondent, a native and citizen of El Salvador, has appealed the Immigration Judge's
February 3, 2016, decision denying the respondent's motion to reopen proceedings in which she
was ordered removed in absentia on May 18, 2004. The Department of Homeland Security
(DHS) has not filed a reply to the appeal. The appeal will be sustained.
We have considered the totality of the circumstances presented in this case, including the fact
that the respondent has been granted deferred action as a childhood arrival ("DACA"), and find
that reopening is warranted. We also find that administrative closure is warranted in light of the
respondent's grant of DACA. If either party to this case wishes to reinstate the proceedings, a
written request to reinstate the proceedings may be made to the Board. The Board will take no
further action in this case unless a request is received from one of the parties. The request must
be submitted directly to the Clerk's Office, without fee, but with certification of service on the
opposing party.
Accordingly, the following orders will be entered.
ORDER: The appeal is sustained, the Immigration Judge's decision dated February 3, 2016,
is vacated and proceedings are reopened.
FURTHER ORDER: The proceedings before the Board of Immigration Appeals in this case
are administratively closed.

Cite as: Jessica Lisseth Lara-Merino, A097 318 914 (BIA July 12, 2016)

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IN REMOVAL PROCEEDINGS

'

,i',

UNITED STATES DEPARTMENT OF JUSTICE

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

IN THE MATTER OF
LARA-MERINO, JESSICA LISSETH

FILE A 097-318-914

DATE: Feb 4, 2016

UNABLE TO FORWARD - NO ADDRESS PROVIDED

ATTACHED IS A COPY OF THE 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
MUST BE MAILED TO:
BOARD OF IMMIGRATION APPEALS
OFFICE OF THE CLERK
5107 Leesburg Pike, Suite 2000
FALLS CHURCH, VA 22041
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),
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
2009 W. JEFFERSON AVE, STE 300
HARLINGEN, TX 78550
OTHER:

CC: ASSISTANT CHIEF COUNSEL

1717 ZOY ST.
HARLINGEN, TX, 785520000

COLERK
IMMIGRATION COURT

FF

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

De Castroverde Law Group

Cortez, Jocelyn A.
1149 S. Maryland Pkwy.
Las Vegas, NV 89104

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
HARLINGEN IMMIGRATION COURT
HARLINGEN, TEXAS

IN THE MATTER OF

APPLICATIONS:

Feb

, 2016

Case Number: A 097-318-914

IN REMOVAL PROCEEDINGS

Motion to Reopen

ON BEHALF OF THE RESPONDENT

Jocelyn Cortez, Esq
1149 South Maryland Parkway
Las Vegas, Nevada 89104

ON BEHALF OF THE GOVERNMENT

Liviu Lungu, Assistant Chief Counsel
U.S. Department of Homeland Security
1717 Zoy Street
Harlingen, TX 78552

DECISION OF THE IMMIGRATION JUDGE

On May 18, 2004, the Court ordered the respondent removed to El Salvador in absentia
pursuant to section 240(b)(5)(A) of the Immigration and Nationality Act (INA or Act). On
January 20, 2016, the respondent, through counsel, filed a motion to reopen. The government
filed a timely response in opposition to the motion to reopen. The respondent's motion to reopen
will be denied.
The instant motion seeks reopening based on lack of notice. In her statement submitted
in support of the motion to reopen, the respondent claims that she was thirteen years old when
she was apprehended by immigration officials. She asserts that she was given a paper but claims
that she ''had no idea [that she] was supposed to go to court or when or where." The respondent
contends that she did not realize that she was required to attend a hearing in Harlingen, Texas
and that she only recently learned of her removal order through her attorney.
The record reflects that, because the respondent was thirteen years old at the time; her
aunt was personally served with the Notice to Appear (NTA) on February 3, 2004. Exh. #1
(NTA) (Form I-862); Exh. #2 (Record of Deportable/Inadmissible Alien) (Form 1-213). The
Notice to Appear included the date, time, and location information for the respondent's May 18,
2004, removal hearing in Harlingen, Texas. Exh. #1. When the respondent failed to appear on
that date, the Court proceeded in absentia pursuant to section 240(b)(5)(A) of the Act.
The Court finds that the respondent has not demonstrated that she did not have proper
written notice of her hearing in accordance with section 239(a)(l) of the Act. In the case of a
minor under the age of fourteen, the regulations require service of a notice to appear upon a
parent, guardian or conservator. 8 C.F.R. 1236.2(a); see Lopez-Dubon v. Holder, 609 F.3d
642, 646 (5th Cir. 2010); Matter ofMejia-Andino, 23 I. & N. Dec. 533, 535 (BIA 2002). As the

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)
)
LARA-MERINO, JESSICA LISSETH )
)
)
)
RESPONDENT

'.

To the extent the respondent requests reopening based on exceptional circumstances

under section 240(b)(5)(C)(i) of the Act, the Court finds the motion untimely. Such motions
must be filed within 180 days of the date of entry of the final administrative order of removal.
INA 240(b)(5)(C)(i). Here, the respondent's motion was filed more than ten years after she
was ordered removed in absentia.
The respondent also seeks reopening her removal proceedings in order to apply for
adjustment of status. The Court finds that the request to reopen to apply for new relief is
untimely, as the motion was filed well outside the 90-day deadline. INA 240(c)(7)(C)(i); see
also Matter of Velarde-Pacheco, 23 I&N Dec. 253, 256 (BIA 2002). As such, the respondent's
removal proceedings should not be reopened on this basis.
Finally, the Court concludes the circumstances of this case do not warrant an exercise of
its limited discretion to reopen these proceedings sua sponte. See Matter of J-J-, 21 I&N Dec.
976 (BIA 1997). The existence of a removal order does not affect the respondent's continued
eligibility for protection under DACA.
Accordingly, the following orders shall be entered:
ORDER: The respondent's motion to reopen his removal proceedings is DENIED.

David Ayala
United States Immigration Judge

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respondent was thirteen at the time she was apprehended, personal service of the charging
document upon her parent, guardian, or conservator was mandatory. Contrary to the motion's
contention, the Notice to Appear does not have to be served upon the minor respondent and his
or her parent, guardian or conservator; it need only be served upon an individual in the latter
group. 8 C.F.R. 103.8(C)(2)(ii). The record indicates that the Notice to Appear was properly
served on the respondent's aunt. Exh. #1. Because the Notice to Appear also contained the
hearing notice for the respondent's May 18, 2004, hearing, service of the Notice to Appear upon
the respondent's aunt satisfied the requirements of section 239(a)(l) of the Act with respect to
the charging document and hearing notice. Based on all of the above, the Court concludes that
the respondent has not demonstrated that her removal proceedings should be reopened under
section 240(b)(5)(C)(ii) of the Act.

CERTIFICATE OF SERVICE
THIS DOCUMENT WAS SERVED BY: MAIL) PERSONAL SERVI
TO: ( ) ALIEN ( )ALIEN C/0 CUSTODIAN LI
TY/REP HS
:
DATE:
'-<,/b BY: COURT STAFF_
"--------
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ATTACHMENTS: () EOIR-33 () EOIR-28 () LEGAL SERVICES LIST WtOTHER

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