U.S.

Department of Justice
. -

Executive Office for Immigration Review

Board ofImmigration Appeals

Office of the Clerk

5107 Leesburg Pike, Suite 2000

Falls Church, Virginia 22041

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Ramirez, Ricardo, Esq. OHS/ICE Office of Chief Counsel - HLG
Law Office of Ricardo Ramirez, PLLC 1717 Zoy Street
P.O. Box 1616 Harlingen, TX 78552
Pharr, TX 78577

Name: SERNA-ROJAS, FELIPE DE JES... A 205-634-861

Date of this notice: 5/26/2017

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

Sincerely,

Cynthia L. Crosby
Acting Chief Clerk

Enclosure

Panel Members:
Greer, Anne J.
O'Connor, Blair
Wendtland, Linda S.

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/

Cite as: Felipe de Jesus Serna-Rojas, A205 634 861 (BIA May 26, 2017)
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.. U.S. Department of Justice Decision of the Board of Immigration Appeals
Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A205 634 861 - Harlingen, TX Date:

In re: FELIPE DE JESUS SERNA-ROJAS

NAY 2 6 2017

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IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Ricardo Ramirez, Esquire

ON BEHALF OF OHS: Carolyn Abdenour

Assistant Chief Counsel

CHARGE:

Notice: Sec. 212(a)(6)(A)(i), I&N Act [8 U.S.C. 1182(a)(6)(A)(i)] -

Present without being admitted or paroled

APPLICATION: Reopening

The respondent, a native and citizen of Mexico, has appealed from the Immigration Judge's
decision dated October 11, 2016. In that decision, the Immigration Judge denied the respondent's
September 16, 2016, motion to reopen. For the following reasons, however, the respondent's
appeal will be sustained, and the record will be remanded for further proceedings.

Rather than deny the respondent's motion to reopen for the reasons set forth in the
October 11, 2016, decision, the Immigration Judge should have assessed the motion according to
the factors delineated in Matter of Hashmi, 24 I&N Dec. 785 (BIA 2009). 1 See also
Wu v. Holder, 571 F.3d 467, 468-70 (5th Cir. 2009) (setting forth Hashmi factors). Since the relief
sought by the respondent - a provisional unlawful presence waiver - can only be provided by
USCIS, this case may be appropriate for administrative closure, depending on the Immigration
Judge's assessment of the Hashmi factors. See Matter ofAvetisyan, 25 I&N Dec. 688 (BIA 2012).
See 8 C.F.R. 212.7(e)(4)(v); see also Matter ofW-Y-U-, 27 I&N Dec. 17 (BIA 2017). The parties
may supplement the record on remand. The following order will be entered.

ORDER: The respondent's appeal is sustained, and the record is remanded for further
proceedings.

1 Although the respondent represents on appeal that he has an approved I-130, Petition for Alien

Relative, the evidence only shows that the I-130 has been submitted to United States Citizenship
and Immigration Services ("USCIS") on May 2, 2016.

Cite as: Felipe de Jesus Serna-Rojas, A205 634 861 (BIA May 26, 2017)
' .'

/
,

UNITED STATES DEPARTMENT OF JUSTICE

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

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Law Office of Ricardo Ramirez, PLLC
Ramirez, Ricardo
P.O. Box 1616
Pharr, TX 78577

IN THE MATTER OF FILE A 205-634-861 DATE: Oct 11, 2016

SERNA-ROJAS, FELIPE DE JESUS

NABLE TO FORWARD - NO ADDRESS PROVIDED

J
.l{' 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:

IMMIGRATION COURT FF
CC: ASSISTANT CHIEF COUNSEL
1717 ZOY ST.
HARLINGEN, TX, 785520000
'

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
HARLINGEN IMMIGRATION COURT
2009 WEST JEFFERSON AVENUE, SUITE 300
HARLINGEN, TEXAS 785

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IN THE MATIER OF ) October\\ , 2016
)
FELIPE DE JESUS SERNA-ROJAS ) Case Number: A205-634-861
)
RESPONDENT ) In Removal Proceedings
)

APPLICATIONS: Motion to Reopen

ON BEHALF OF THE RESPONDENT ON BEHALF OF THE GOVERNMENT

Ricardo Ramirez, Esq. Assistant Chief Counsel
De La Garza & Ramirez U.S. Department of Homeland Security
P.O. Box 1616 1717 Zoy Street
Pharr, TX 78577 Harlingen, TX 78552

ORDER OF THE IMMIGRATION JUDGE

On August 31, 2016, the Court granted Respondent post-conclusion voluntary departure
pursuant to section 240B(b) of the Immigration and Nationality Act (INA or Act). Respondent
was given until September 30, 2016, to depart the United States, with an alternate order of
removal to Mexico if he failed to depart within the time allotted. On September 16, 2016, the
respondent, through counsel, filed a motion to reopen in order to seek rescission of the voluntary
departure order. Respondent seeks to reopen based on his counsel failing to appear at the
removal hearing and failure to file a timely application for relief with the C01.t. The
respondent's motion to reopen will be denied.

The record reflects that the respondent was granted six continuances throughout his
removal proceedings. At his February 11, 2013, removal hearing the respondent was granted a
continuance to obtain counsel. At his second removal hearing on August 28, 2013, the
respondent appeared in Court with counsel and received another continuance to allow for
preparation. At his third removal hearing on October 16, 2014, another continuance was granted
because the respondent's counsel did not attend the removal hearing. At his fourth removal
hearing on June 29, 2015, the respondent appeared without counsel and was granted another
continuance to obtain alternative counsel. At his fifth removal hearing on February 3, 2016, the
1
.. !

respondent appeared once again without counsel and was granted another continuance in order to
file an application for relief. At his sixth hearing on April 6, 2016, the respondent appeared in
Court with new counsel and was granted another continuance with the stipulation that an
application for relief would be filed and presented to the Court by the next hearing date on
August 31, 2016. At his seventh hearing on August 31, 2016, respondent appeared without his
counsel and the Court had no record of an application for relief as requested. Consequently, the
Court granted the respondent voluntary departure under section 240B(b) of the Act.

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The respondent's counsel argues in the motion to reopen, that his office had a technical
issue with their calendar and the hearing date was accidently deleted. Therefore, counsel was
unable to represent the respondent at the removal hearing and present an application for relief,
since another continuance was not granted. There is no indication why the application for relief
was not filed with the Court prior to the August 31, 2016, removal hearing.

The respondent has filed a timely motion to reopen under the Act and regulations. See
INA 240(c)(7)(C)(i) (stating that a motion to reopen shall be filed within 90 days of a final
administrative order); 8 C.F.R. 1003.23(b)(l). However, a motion to reopen for the purpose of
providing the alien an opportunity to apply for any form of discretionary relief will not be
granted if it appears that the alien's right to apply for such relief was fully explained to him or
her by the Immigration Judge and an opportunity to apply was afforded. See 8 C.F.R.
1003.23(b)(3). The respondent was given notice at his removal hearing on February 3, 2016, that
he would need to file an application for relief, with counsel or on his own initiative, by the next
removal hearing, due to the multiple continuances already granted to enable the respondent to
retain counsel. The Court granted the respondent one more continuance at the April 6, 2016,
removal hearing and the respondent still failed to provide the Court with an application for relief
at the August 31, 2016, removal hearing. The Court finds that the respondent's order for
voluntary departure will not be rescinded on this basis.

Further, an Immigration Judge may grant a motion for continuance only "for good cause
shown," within its sound discretion. See 8 C.F.R. 1003.29; In Re Villarreal-Zuniga, 23 I&N
Dec. 886, 891 (BIA 2006). Even if the respondent has an application for relief pending with the
United States Citizenship and Immigration Services (USCIS), the Court can consider the number
of prior continuances that have been provided as well as additional relevant considerations in
deciding whether a further continuance is warranted under the circumstances. See Matter of
Sanchez Sosa, 25 I&N Dec. 807, 815 (BIA 2012). The respondent had already been granted six
continuances in order to allow him to find counsel and file an application for relief. Therefore,
the respondent was not granted an additional continuance on August 31, 2016, when the
respondent presented himself in Court without counsel or an application for relief.

Moreover, clerical errors are an insufficient excuse for a respondent's delay in filing an
application for relief with the Court. See Matter ofJean, 17 I&N Dec. 100, 103-04 (BIA 1979).
The respondent has been in removal proceedings from February 11, 2013, until August 31, 2016.
He was provided ample time to file an application for relief with the Court by his seventh
rescheduled removal hearing on August 31, 2016, and no such application was presented to the

2
Court at the hearing. Therefore, the respondent's order of voluntary departure will not be
rescinded due to counsel's alleged administrative error.

Accordingly, the following orders shall be entered:

ORDER: The respondent's motion to reopen is DENIE .

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David Ayala
United States Immigration J e