Sei sulla pagina 1di 5

U.S.

Department of Justice
Executive Office for Immigration Review
Board ofImmigration Appeals
Office ofthe Clerk
5107 Leesburg Pike, Suite 2000
Falls Church, Virginia 2204/

DHS/ICE Office of Chief Counsel - SNA


8940 Fourwinds Drive, 5th Floor
San Antonio, TX 78239

Name: LEMUS-SOLA, SERGIO AMILCAR

A 200-069-257
Date of this notice: 7/20/2016

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

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

Userteam: Docket

For more unpublished BIA decisions, visit


www.irac.net/unpublished/index/
Cite as: Sergio Amilcar Lemus-Sola, A200 069 257 (BIA July 20, 2016)

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

Rosa, Francisco J
Law Office of Francisco J. Rosa
1550 Middlesex Street
Lowell, MA 01851

U.'S. Department of Justice

Decision of the Board of Immigration Appeals

. Executive Office for Immigration Review


Falls Church, Virginia 22041

File: A200 069 257 - San Antonio, TX

Date:

JUL 2 0 2016

In re: SERGIO AMILCAR LEMUS-SOLA

APPEAL
ON BEHALF OF RESPONDENT: Francisco J. Rosa, Esquire
APPLICATION: Reopening
The respondent, a native and citizen of El Salvador, appeals from the Immigration
Judge's decision dated June 10, 2015, denying the respondent's motion to reconsider the motion
to reopen his removal proceedings and rescind the in absentia order of removal based on
exceptional circumstances and lack of notice. See sections 240(b)(5)(C), (e)(l) of the
Immigration and Nationality Act, 8 U.S.C. 1229a(b)(5)(C), (e)(l); 8 C.F.R. 1003.23(b)(4)(ii).
The Department of Homeland Security has not responded to the appeal or to the respondent's
underlying motions.
We have considered the totality of the circumstances presented in this case, including the
respondent's age at the time he was served with the Notice to Appear; the fact that the
respondent has been granted deferred action as a childhood arrival ("DACA"); that he has an
approved Special Immigrant Juvenile visa petition (Form 1-360) and an application for
adjustment for adjustment of status (Form 1-485) currently pending before the U.S. Citizenship
and Immigration Services; and the absence of any DHS opposition to the motions and the appeal,
and find that an exceptional situation has been demonstrated warranting reopening to allow the
respondent another opportunity to apply for relief from removal. See 8 C.F.R. 1003.23(b)(l);
Matter ofJ-J-, 21 l&N Dec. 976 (BIA 1997).
On remand, the Immigration Judge will consider whether good cause exists for a
continuance or whether administrative closure is appropriate pending the adjudication of the
respondent's adjustment of status application. See Matter of Hashmi, 24 l&N Dec. 785 (BIA
2009) (setting forth factors to consider in determining whether a continuance is warranted
pending adjudication by USCIS of a visa petition); 8 C.F.R. 1003.29. Accordingly, the
following orders will be entered.
ORDER: The appeal is sustained.
FURTHER ORDER: These proceedings are reopened, the in absentia order of removal is
vacated, and the record is remanded to the Immigration Court for further proceedings.

Cite as: Sergio Amilcar Lemus-Sola, A200 069 257 (BIA July 20, 2016)

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

IN REMOVAL PROCEEDINGS

UNITED STATES DEPARTMENT OF JUSTICE


EXECUTIVE OFFICE FOR IMMIGRATION REVItW
IMMIGRATION COURT
800 DOLOROSA STREET, SUITE 300
SAN ANTONIO, TX 78207

IN THE MATTER OF
LEMUS-SOLA, SERGIO AMILCAR

FILE A 200-069-257

DATE: Apr 21, 201.

UNABLE TO,FORWARD - NO ADDRESS PROVIDED


ATTACHED IS, A COPY OF THE DECISION OF THE IMMIGRATION JUDGE. THIS DECISION
IS FINAL UNI.,ESS Al-J APPEAL IS FILED WITH THE BOARD OF IMMIGRATIO,N APP_EALS
WITHIN 30 CALENDAR DAYS OF THE DATE OF THE MAILING OF THIS WRITTEN DECISION.
SEE THE ENCLOSED FORMS AND INSTRUCTIONS FOR PROPERLY PREPARtNGYOUR APPEAL.
YOUR :NOTI'CE OF APPEAL, ATTACHED DOCUMENTS, AND FEE OR FEE 'WAIVER._.REQUEST.
MUST BE MAILED TO:
BOARD OF IMIGRATION APPEALS
OFFICE OF THE CLERK
5107 Leesburg Pike, Suite 2000
FALLS CHURCH, VA 20530
ATTACHEDrsA COPY OF THE DECISION OF THE IMMIGRATION JUDGE AS THE RSULT
OF YOUR FAILURE TO APPEAR AT YOUR SCHEDULED DEPORTATION OR REMOVAL HEARING.
THIS DECISION IS FINAL UNLESS A MOTION TO REOPEN IS FILED IN ACCQRDANE
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.EOPEN, YOUR MOTION MUST BE FILED WITH THIS COURT:
IMMIGRATION COURT
800 DOLOROSA STREET, SUITE 300
SAN ANTONIO, TX 78207

THER:

(Yl Tfl lfr:iLJ--c

cc { DIS.TRICT COUNSEL
8940.FOURWINDS DR., 5TH FLOOR
SAN ANTONIO, TX, 782971939

COURT CLERK
IMMIGRATION COURT

FF

.:. ...

'

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

Law Office of Francisco J. Rosa


Rosa, Francisco J
1550 -!ddlesex Street
Lowell, MA 01851

UNITED STATES DEPARTMENT OF JUSTICE.

Executive Office for Immigration Review


Immigration Court

File A200 069 257

In the Matter of
Order of the Immigration Judge
Sergio Amilcar Lemus-Sola

The respondent in this case, who was ordered removed on November 4, 2005 in a proceeding
conducted in absentia, has moved to reopen the proceeding which resulted in his order of removal. The
motion will be denied.
The respondent states as grounds for reopening that he never received notice of his hearing. This is
correct. The respondent was apprehended accompanied by his mother, Santos Sola-Interiano (A200
069 23 7) and his sister, Rosa Guadalupe Lemus-Sola (A200 069 258). The Notice to appear for both
minor children was properly personally served upon their accompanying parent on August 30, 2005.
The Notice to Appear demonstrates that the respondent, through his mother, guardian and custodian,
was notified when he was apprehended of the requirement to provide a valid address for notice purposes
and informed that if no address was provided written notice of the hearing was not required. The
respondent did not provide an address for notice purposes at the time he received his Notice to Appear
as required by 239(a)(l )(F)(i) of the Act. The charging document and Court record make clear no
address was provided on August 30, 2005 when the respondent was apprehended and then released on
recognizance with his sister and in the custody of his mother
due to lack of detention funds.".
There is no record of the respondent, through his mother, ever complying with the relevant law or
regulations regarding providing an address to the Court, whose address was clearly specified on the
Notice to Appear. The respondent's mother and custodian, as well as his older sister, have never
provided any address to the court to this date, were ordered removed in the same proceeding as the
respondent, are not mentioned by the respondent or counsel in the motion to reopen and have never
been heard from by the court. It is found as fact that no address was provided at the time of
apprehension. The respondent has never provided current addresses to the Court through an
undetermined number of relocations. The law and regulations make clear that it is the respondent's
responsibility to provide an address for notice purposes and make any corrections or changes (including
the initial provision of an address) within 5 days. There is no record of the Court ever receiving any
11

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

In Removal Proceedings

The question arises as to whether this motion is governed by 240(b)(S)(C)(ii) of the Act. I find
it inconsistent with Congressional intent to conclude that the motion falls under 240(b)(S)(C)(ii) since it
is the statute itself which mandates that no notice is required in the circumstances presented here. To
subsequently hold that reopening can be had automatically for lack of notice would create contradiction
and inconsistency that can be avoided by holding that where no notice is required, reopening for lack of
notice is unavailable. See Gomez-Palacios v. Holder, 560 F. 3rd 354 (5th Cir. 2009). Where, as here, the
respondent did no provide an address, did not include any affidavit from his custodial parent, made no
mention of her or his accompanying sister, made no effort to contact the Court until seeking
subsequently developed benefits but simply continued with his life as he (and his mother, who brought
him to the United States) had intended on entering the United States, I conclude that there are no
exceptional circumstances that would cause the Court to reopen the case sua sponte. Any exercise of
any form of discretion by USICE can be accomplished prior to, during or subsequent to removal
proceedings, would not create any relief available before the Court and would not require reopening to
accomplish. The motion to reopen shall therefore be, and is hereby, DENIED. SO ORDERED.

Date: April 20, 2015


Place: San Antonio, Texas

CERTIFICATE OF SERVICE

THIS DOCUMENT WAS SERVED BY: MAllffMD

PERSONAL SERVICE1e.f}

TO: [ 1 ALIEN [ l ALIEN c/o Custodial Officer


IEN' ATT/REP DJ OHS
DATE:
: col1Rr STAFCTO 1
Attach ents: J EOIR-33 [ J EOIR-28
[ ] Legal Services List [ J Other

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

notice of address as required by 239(a)(l)(F)(ii) of the Act and Title 8 CFR 1003.1.S(d)(l) until an
address for the respondent was provided with the motion to reopen filed on April 6, 201 5, almost ten
years after the time allowed. The responsibility to provide an address is the respondent's by law and
regulation, as noted. With respect to the minority of the respondent, the mother had custody of him and was
responsible for providing an address and presenting herself and her children for hearing and did not do so. The
children cannot avoid consequences by lack of capacity where they are under the guardianship and control of their
parent. See Matter of Gomez-Gomez, 23 I & N Dec. 522 at 528 (BIA 2002) and cases cited therein. Where no
address for notice purposes is provided, the Court is required by the statutory scheme created by
Congress to proceed without notice to or participation by the respondent. See 239(a)(2)(B) and
240(b)(S)(B) of the Act. I find as fact that the respondent never provided an address to the Court as
required. The respondent, through his parent exercising custody, was personally served with his Notice
to Appear on August 30, 2005. There is no requirement that a Notice to Appear and the advisals
thereon be in any language other than English. See Cruz-Diaz v. Holder, 388 F. App'x. 429 (5th Cir.
201O; Chavez v. Holder, 343 F.. App'x. 955 (5th Cir 2009), Ojeda Calderon v Holder, 726 F3 669 (5th Cir.
2013). The respondent's responsibilities are not obviated by his ignorance of them or by his willfully
ignoring them. Therefore I find it clear that the respondent received the notice required in a case such
as this where he did not provide an address for notice purposes. The notice required is none.

d/____
.

lmm1grat1on Judge

Potrebbero piacerti anche