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U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals


Office ofthe Clerk

5107 leesburg Pike, Suite 2000


Falls Church. Virgm1a 22041

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Klein, Bart OHS/ICE Office of Chief Counsel - SNA
Law Offices of Bart Klein 1015 Jackson-Keller Rd, Suite 100
605 First Avenue San Antonio, TX 78213
Suite 500
Seattle, WA 98104

Name: ALVARADO-ALVARADO, REYNA A 077-531-518

Date of this notice: 8/23/2017

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

Sincerely,

Cynthia L. Crosby
Deputy Chief Clerk

Enclosure

Panel Members:
Mann, Ana
Adkins-Blanch, Charles K.
Kelly, Edward F.

Userteam: Docket

For more unpublished BIA decisions, visit


www.irac.net/unpublished/index

Cite as: Reyna Alvarado-Alvarado, A077 531 518 (BIA Aug. 23, 2017)
. ,,

U.S. Department of Justice Decision of the Board oflmmigration Appeals


Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A077 531 518 - San Antonio, TX Date:

AUG 2 3 2017

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In re: Reyna ALVARADO-ALVARADO

IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Bart Klein, Esquire

ON BEHALF OF OHS: Grace Garza


Assistant Chief Counsel

APPLICATION: Reopening

The respondent appeals from an Immigration Judge's decision dated February 16, 2017,
denying the respondent's motion to reopen her removal proceedings which had been conducted in
absentia on August 16, 2000. The Department of Homeland Security (DHS) asks that the decision
below be summarily affirmed. The appeal will be sustained.

At the outset, we agree with the Immigration Judge that the respondent was properly served
with the Notice To Appear and was provided with oral notice in her native Spanish language of
the consequences of her failure to appear under section 240(b)(7) of the Immigration and
Nationality Act, 8 U.S.C. l 229a(b )(7). In addition, the respondent does not contest the fact that
she failed to inform the court of her change of address when she moved to Seattle on March 29,
2000, near in time to when the Notice of Hearing (NOH) was mailed to the respondent.

However, the record suggests that the respondent's understanding of her legal situation was
influenced by a statement made by a border patrol agent at the time of the respondent's entry that
she would be "covered" by Temporary Protected Status (TPS) under section 244 of the Act,
8 U.S.C. 1254a. Later, when the respondent tried to "follow-up" on her status, a representative
at a legal assistance center in Los Angeles told the respondent to wait until she heard more about
TPS for El Salvadoran nationals. See Declaration at 3-4. We have considered these events and
also, the fact that the respondent now has TPS status. In addition, the respondent has resided in
the United States for over 18 years, is married to a United States citizen, and has three United
States citizen children. The respondent also has no criminal record.

Hence, under the particular circumstances presented in this case, we find that reopening is
appropriate to allow the respondent to proceed to a hearing and to apply for relief from removal.
Matter of J-J-, 21 l&N Dec. 976 (BIA 1997); see also Matter of Jean, 23 l&N Dec. 373 (A.G.
2002).

Cite as: Reyna Alvarado-Alvarado, A077 531 518 (BIA Aug. 23, 2017)
A077 531 518

Accordingly, the following order will be entered.

ORDER: The appeal is sustained, the proceedings are reopened, and the record is remanded
to the Immigration Court for further proceedings.

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FO

Cite as: Reyna Alvarado-Alvarado, A077 531 518 (BIA Aug. 23, 2017)
UNITED STATES DEPARTMENT dF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
800 DOLOROSA STREET, SUITE 300
SAN ANTONIO, TX 78207

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IN THE MATIER OF )
)
ALVARADO-ALVARADO , REYNA ) Case No. A077-531-518
)
RESPONDENT )
)
IN REMOVAL PROCEEDINGS )

CHARGE: Section 212(a)(6)(A)(i) of the Immigration and Nationality Act, as


amended: Alien present in the United States without being admitted or
paroled

APPLICATION: 8 C.F.R. 1003.23(b): Motion to Reopen

ON BEHALF OF THE RESPONDENT ONBEHALF OF THE GOVERNMENT


Bart Klein, Esq. U.S. Immigration & Customs Enforcement
Law Offices of Bart Klein Office of the Chief Counsel
605 First Avenue, Suite 500 8940 Fourwinds Drive, 5th Floor
Seattle, Washington 98104 San Antonio, Texas 78239

WRITTEN DECISION & ORDER OF THE IMMIGRATION JUDGE

I. Procedural History

Reyna Alvarado-Alvarado (Respondent) is a thirty-eight-year-old female, native and

citizen of El Salvador, who arrived in the United States at or near Eagle Pass, Texas, on or about

February 18, 1999 without admission or parole after inspection by an Immigration Officer. Exh.

1; Exh. 4. On February 18, 1999, the Department of Homeland Security (OHS) personally

served on Respondent a Notice to Appear (NT A) charging her as removable subject to Section

212(a)(6)(A)(i) of the Immigration and Nationality Act (INA), as "an alien present in the United

States without being admitted or paroled, or who arrived in the United States at any time or place

other than as designated by the Attorney General." Exh. 1. Respondent told OHS that she was

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enroute to Los Angeles, California and she provided OHS with a residential address in Los

Angeles, which appears on her NT A. Id; Exh. 4.

On March 23, 2000, this Court mailed a Notice of Hearing (NOH) to Respondent at her

Los Angeles address, informing her that her case had been scheduled for a master hearing before

the Court on August 16, 2000. Exh. 2; Exh. 3. The NOH was stamped ''Not Deliverable" and

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returned to the Court on or around April 6, 2000. Exh. 3. On August 16, 2000, Respondent was

not present for her hearing and she was unavailable for examination under oath. The Court

proceeded in absentia and ordered Respondent removed from the United States to El Salvador on

the charges contained in her NTA.

On or around January 20, 2017, Respondent, through counsel, moved to reopen her

removal proceedings and rescind her in absentia order of removal. OHS has not filed a response

to Respondent's Motion to Reopen.

III. Motion to Reopen

An in absentia order of removal may be rescinded upon a motion to reopen filed within

180 days after the date of the order of removal if the respondent demonstrates that the failure to

appear was because of exceptional circumstances. See INA 240(b)(5)(C)(i). An in absentia

removal order may be rescinded upon a motion to reopen filed at any time if the respondent

demonstrates that she did not receive notice in accordance with INA 239(a) or if the respondent

was in Federal or State custody at the time and the failure to appear was through no fault of her

own. See INA 240(b)(5)(C)(ii). Additionally, a motion to reopen may be filed at any time to

apply for asylum or withholding of removal based on "changed country conditions arising in the

country of nationality or the country to which removal has been ordered, if such evidence is

material and was not available and would not have been discovered or presented at the previous

proceeding." INA 240(c)(7)(C)(ii). Finally, in exceptional situations, the Court may reopen a

case in which it previously made a decision sua sponte. See 8 C.F.R. 1003.23(a); Matter of G

D-, 22 l&N Dec. 1132, 1133-34 (BIA 1999); Matter ofJ-J-, 21 l&N Dec. 976, 984 (BIA 1997).

A. Notice

Respondent moves to reopen for lack of notice. See Respondent's Motion to Reopen at

1. Respondent argues that she received insufficient notice because her NTA, including the

paragraph addressing the consequences of failing to appear before this Court, is written in

English and she did not speak English at the time of service. Id. However, Respondent signed

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the Certificate of Service on the NTA, certifying that she "was provided oral notice in the

Spanish language of the time and place of [her] hearing and of the consequences of failure to

appear as provided in [INA] 240(b)(7)." Exh 1. In a sworn affidavit enclosed with her motion,

Respondent confirms that Border Patrol Agents spoke to her in Spanish when she entered the

United States. Respondent's Motion to Reopen at 8. If Respondent received oral notice in her

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native language, the Court cannot find that Respondent lacked notice, regardless of Respondent's

proficiency in English at the time of service.

In her affidavit, Respondent also alleges that Border Patrol Agents told her that she was

eligible for Temporary Protective Status and gave her a permit before releasing her. See id. at 8.

Later, Respondent sought immigration advice in Los Angeles and was told to "wait until [she]

heard more about Temporary Protected Status for people from El Salvador." Id. at 9.

Respondent "thought at the time that that was all that [she] needed to do." Id. Regardless of any

misunderstanding on Respondent s part, the record shows that Respondent was read and then

signed a NTA that clearly set out what the Court required of her and the consequences for

noncompliance. See Exh. 1. Respondent's NTA orders her to appear before the San Antonio

Immigration Court "on a date to be set at a time to be set" and informs her that a NOH will be

mailed to the Los Angeles address that she provided. Id. The NTA states: "If you fail to attend

the hearing at the time and place designated on this notice, or any date and time later directed by

the Immigration Court, a removal order may be made by the immigration judge in your

absence." Id. As such, the Court cannot find that Respondent's confusion was due to lack of

notice or insufficient notice.

The NTA also informs Respondent that she "must notify the Immigration Court and the

Department of Homeland Security immediately by using Form EOIR-33 whenever [she]

change[s her] address or telephone number during the course of this proceeding." Id. Despite

this, Respondent, by her own admission, moved from Los Angeles to Seattle approximately

thirteen months after entering the United States and never submitted Form EOIR-33 to the Court.

See Respondent's Motion to Reopen at 9. The Court only learned of Respondent's address

change when she moved to reopen her case seventeen years later. See id. Because Respondent

never notified the Court of her change of address, the Court could not and was not obligated to

mail a NOH to the Seattle address. See INA 239(a)(2)(B); Gomez-Palacios v. Holder, 560

F.3d 354, 360-61 (5th Cir. 2009).

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B. Exceptional Circumstances

The term "exceptional circumstances" refers to exceptional circumstances beyond the

respondent's control, such as serious illness, battery or extreme cruelty to the respondent or the

respondent's child or parent, or serious illness or death of the respondent's spouse, child, or

parent. See INA 240(e)(l). In any given case, the Court looks at the totality of circumstances

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to determine whether exceptional circumstances are present. See Matter of W-F-, 21 I&N Dec.

503, 509 (BIA 1996).

An exceptional circumstance that courts have recognized for purposes of rescinding an in

absentia removal order is ineffective assistance of counsel. See Galvez-Vergara v. Gonzalez,

484 F.3d 798, 801-02 (5th Cir. 2007); see also Matter of Grijalva-Barrera, 21 l&N Dec. 472,

473-74 (BIA 1996). While clients are generally bound by the conduct of their attorneys, an

erroneous instruction by counsel that a respondent need not appear at an immigration hearing can

constitute an exceptional circumstance that warrants reopening the respondent's proceedings.

See id. The Board of Immigration Appeals has held that a motion to reopen may be granted on

the basis of a claim of ineffective assistance of counsel if it is supported by: ( 1) an affidavit

setting forth in detail the actions that were to be taken by the respondent's former counsel and the

representations made by former counsel in that regard; (2) evidence that the respondent's former

counsel was notified of the allegations and given an opportunity to respond; and (3) evidence as

to whether a complaint was filed with appropriate disciplinary authorities, and if not, why not.

Matter of Lozada, 19 I&N Dec. 637, 639 (BIA 1988); see also Matter of Compean, 25 I&N Dec.

1 (A.G. 2009), vacating, 24 I&N Dec. 710 (A.G. 2009).

Respondent alleges that she "went to an alien assistance office in Los Angeles" and was

told that she "needed to wait until [she] heard more about Temporary Protected Status" before

contacting the Government about her immigration status and her removal proceedings.

Respondent's Motion to Reopen at 9. To the extent that these allegations amount to an

ineffective assistance of counsel claim, the Court cannot grant reopening on this basis because

Respondent has not provided evidence that the office was notified of Respondent's allegations

and that a complaint was filed with appropriate disciplinary authorities. See Lozada, 19 I&N

Dec. at 639. Moreover, over sixteen years have passed since Respondent was ordered removed,

so a motion to reopen based on exceptional circumstances is time-barred. Respondent also

alleges that her former attorney was aware of Respondent's removal order, but neither informed

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(

Respondent that she was subject to removal, nor properly assisted with her situation. See

Respondent's Motion to Reopen at 12-13. While these allegations help explain why Respondent
did not contact the Court sooner, they do no warrant reopening because Respondent did not
retain this attorney until after she had been ordered removed. Any misconduct on the part of
Respondent's former attorney had no effect on Respondent being ordered removed. Thus, the

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Court cannot reopen Respondent's proceeding based on her allegations against the alien
assistance office or her former attorney.
C. Sua Sponte

Finally, the Court considers whether Respondent's removal proceedings warrant sua
sponte reopening. Respondent's Motion to Reopen at 2. The Court may, upon its own motion,
reopen any case in which it previously made a decision. 8 C.F.R. 1003.23(a). Sua sponte
reopening is an "extraordinary remedy reserved for truly exceptional situations" and is not "a
general remedy for any hardships created by enforcement of the time and number limits in the
motions regulations." G-D-, 22 I&N Dec. at 1133-34 (citing J-J-, 21 I&N Dec. 976).
Respondent alleges that if she is removed to El Salvador, it will be very difficult for her husband
to raise their three U.S. citizen children alone. Respondent's Motion to Reopen at 13.
Respondent urges the Court to consider that she presently has Temporary Protective Status, she
is married to a U.S. citizen, her children are between the ages of eleven and fifteen, she has been
in the United States for eighteen years, she has no criminal record, and that there are high levels
of violence and crime in El Salvador. Id. at 2, 13. While hardship to U.S. citizen children can
warrant sua sponte reopening in exceptional situations, Respondent has offered no evidence that
her situation is exceptional; she has merely alleged that "it would be incredibly hard" for her
husband to raise their children if she is removed. Id. at 13. Without additional evidence, the
Court cannot reopen sua sponte on this basis.
Accordingly, the following order is hereby entered:

ORDER

' IT IS HEREBY ORDERED that Respondent's


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