U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office ofthe Clerk

5107 Leesburg Pike, Suite 2000

Falls Church. Vzrg1ma 22041

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Jobe, Robert Bradford OHS/ICE Office of Chief Counsel ATL
Law Office of Robert 8. Jobe 180 Ted Turner Dr., SW, Ste 332
550 Kearny Street Atlanta, GA 30303
Suite, 200
San Francisco, CA 94108

Name: SINGH, SUKHDEV A 209-154-612

Date of this notice: 8/25/2017

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:
Wendtland, Linda S.
Cole, Patricia A
Pauley, Roger

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index

Cite as: Sukhdev Singh, A209 154 612 (BIA Aug. 25, 2017)
 U.S. Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office ofthe Clerk

5107 Leesburg Pike, Suite 2000

Falls Church, Virginia 22041

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SINGH, SUKHDEV OHS/ICE Office of Chief Counsel - ATL
A209-154-612 180 Ted Turner Dr., SW, Ste 332
ACDC Atlanta, GA 30303
132 COTTON DR
OCILLA, GA 31774

Name: SINGH, SUKHDEV A 209-154-612

Date of this notice: 8/25/2017

Enclosed is a copy of the Board's decision in the above-referenced case. This copy is being
provided to you as a courtesy. Your attorney or representative has been served with this
decision pursuant to 8 C.F.R. 1292.S(a). If the attached decision orders that you be
removed from the United States or affirms an Immigration Judge's decision ordering that you
be removed, any petition for review of the attached decision must be filed with and received
by the appropriate court of appeals within 30 days of the date of the decision.

Sincerely,

/1
/
h J / l.lh..
ur v
A_; vw-o
Cynthia L. Crosby
Deputy Chief Clerk

Enclosure

Panel Members:
Wendtland, Linda S.
Cole, Patricia A
Pauley, Roger

Userteam:

Cite as: Sukhdev Singh, A209 154 612 (BIA Aug. 25, 2017)
' , U.S. Department of Justice Decision of the Board of Immigration Appeals
Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A209 154 612-Atlanta, GA Date:

AUG 2 5 2017
In re: Sukhdev SINGH

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IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Robert B. Jobe, Esquire

ON BEHALF OF OHS: Andrew J. Hewitt

Assistant Chief Counsel

APPLICATION: Reopening

The respondent, a native and citizen oflndia, was ordered removed in absentia on January 25,
2017. On March 6, 2017, the respondent filed a timely motion to reopen proceedings, which the
Immigration Judge denied on March 21, 2017. The respondent filed a timely appeal of that
decision. The Department of Homeland Security has filed a brief in opposition to the appeal. The
appeal will be sustained, and the record will be remanded.

We review findings of fact, including credibility findings, for clear error. See 8 C.F.R.
1003. l(d)(3)(i) (2017); see also Matter ofJ-Y-C-, 24l&N Dec. 260 (BIA 2007); Matter ofS-H-,
23 I&N Dec. 462 (BIA 2002). We review questions of law, discretion, or judgment, and all other
issues de novo. See 8 C.F.R. 1003. l(d)(3)(ii).

The respondent contends that his removal proceedings should be reopened because he arrived
about 30 minutes late to his hearing on his application for asylum, withholding of removal, and
protection under the Convention Against Torture (IJ at 1, 4; Respondent's Motion to Reopen at
4-6). He asserts that he arrived at the Atlanta Immigration Court approximately 1 hour before the
8:00 a.m. scheduled start time and was told by a security guard to sit in the court's waiting room
(IJ at 4; Respondent's Motion to Reopen at 3). Once his attorney arrived, he entered the courtroom
around 8:30 a.m. and discovered that the Immigration Judge had entered an in absentia removal
order against him (Respondent's Motion to Reopen at 3). He argues that his late arrival to his
removal proceeding does not constitute a failure to appear under section 240(b)(5) of the
Immigration and Nationality Act, 8 U.S.C. 1229a(b)(5) (Respondent's Motion to Reopen at 4-6;
Respondent's Br. at 13-24). Upon de novo review, we agree with the respondent that his removal
proceedings should be reopened.

As an initial matter, the Immigration Judge erred in construing the respondent's motion as an
untimely motion to reconsider the in absentia order of removal (U at 2-3). The fact that the
respondent cited to legal authority in support of his motion does not convert his motion to reopen
to a motion to reconsider.

Moreover, several circuit courts of appeals have held that a brief delay in arriving in the
courtroom is not a "failure to appear," when the Immigration Judge is still on the bench or recently

Cite as: Sukhdev Singh, A209 154 612 (BIA Aug. 25, 2017)
A209 154 62

retired and close by, or the delayed arrival is still during "business hours," and have ordered such
proceedings to be reopened. See, e.g., Perez v. Mukasey, 516 F.3d 770 (9th Cir. 2008); Abu
Hasirah v. DHS, 478 F.3d 474 (2d Cir. 2007); Cabrera-Perez v. Gonzales, 456 F.3d 109 (3d Cir.
2006); Alarcon-Chavez v. Gonzales, 403 F.3d 343 (5th Cir. 2005); Jerezano v. INS, 169 F.3d 613
(9th Cir. 1999).

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Given this persuasive authority, the specific circumstances presented in this matter, and the
evidence supporting the respondent's assertions, we find that the respondent's late appearance at
his hearing does not constitute a failure to appear within the meaning of section 240(b)(5) of the
Act. In support of his motion to reopen, the respondent submitted the Federal Protective Service
Visitor Access Log for the Atlanta Immigration Court reflecting that he was present at the
Immigration Court at the time of his hearing, as well as his own declaration and a declaration from
a friend regarding the respondent's timely arrival at the Immigration Court (Respondent's Motion
to Reopen, Tabs A, F, H). The respondent also submitted a letter from the attorney who appeared
with him on the day of his hearing describing the events that transpired upon the respondent's
arrival in the courtroom (Respondent's Motion to Reopen, Tab G). Regardless of the exact time
the respondent arrived in the courtroom, there is no dispute that the Immigration Judge was still
on the bench when the respondent arrived (U at 4; Respondent's Motion to Reopen, Tab A;
Respondent's Br. at 24). Thus, we find it appropriate to reopen the respondent's removal
proceedings and remand the record to the Immigration Judge to consider the respondent's
eligibility for asylum, withholding of removal, and protection under the Convention Against
Torture.

Accordingly, the following order will be entered.

ORDER: The respondent's appeal is sustained, proceedings are reopened, and the record is
remanded for further proceedings consistent with the foregoing opinion.

Board Member Roger A. Pauley concurs in the result and would hold that the respondent
demonstrated exceptional circumstances warranting reopening.

Cite as: Sukhdev Singh, A209 154 612 (BIA Aug. 25, 2017)
 ( '

.---

/ UNITED STATES DEPARTMENT OF JUSTICE

\ EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
180 TED TURNER DR SW, STE. 241
ATLANTA, GA 30303

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

Law Office of Robert B. Jobe
Jobe, Robert Bradford
550 Kearny Street
Suite, 200
San Francisco, CA 94108

Date: Mar 22, 2017

File A209-154-612

In the Matter of:

SINGH, SUKHDEV

Attached is a copy of the written decision of the Immigration Judge.

This decision is final unless an appeal is taken to the Board of
Immigration Appeals. The enclosed copies of FORM EOIR 26,
Notice of Appeal, and FORM EOIR 27, Notice of Entry as Attorney or
Representative, properly executed, must be filed with the Board of
Immigration Appeals on or before
The appeal must be accompanied by proof of paid fee ($110.00).

Enclosed is a copy of the oral decision.

Enclosed is a transcript of the testimony of record.

You are granted until to submit a brief

to this office in support of your appeal.

/ Opposing counsel is granted until

brief in opposition to the appeal.
to submit a

'
-
Enclosed is a copy of the order/decision of the Immigration Judge.

All papers filed with the Court shall be accompanied by proof

of service upon opposing counsel.

Sincerely,

Immigration Court Clerk UL

cc: OFFICE OF THE CHIEF COUNSEL
180 TED TURNER DR SW, STE 332
ATLANTA, GA 30303
 UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
Atlanta, Georgia

IN THE MATTER OF: ) IN REMOVAL PROCEEDINGS

)

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SINGH, Sukhdev ) File No. A# 209-154-612
)
Respondent )

CHARGE: Section 212(a)(7)(A)(i)(I) of the Act, in that Respondent was an applicant

for admission who was not in possession of a valid unexpired immigrant
visa, reentry pennit, border crossing card, or other valid entry document
required by the Act, or who was not in possession of a valid unexpired
passport, or other suitable document, or identity and nationality document
if such document was required by regulations issued by the Attorney
General pursuant to section 21 l(a) of the Act.

APPLICATION: Respondent's Motion to Reopen In Absentia Order

APPEARANCES

ON BEHALF OF RESPONDENT: ON BEHALF OF THE DEPARTMENT:

Robert B. Jobe, Esq. Assistant Chief Counsel

Law Office of Robert B. Jobe Department of Homeland Security
550 Kearny Street, Suite 200 180 Ted Turner Drive SW, Suite 332
San Francisco, California 94108 Atlanta, Georgia 30303

DECISION OF THE IMMIGRATION JUDGE

I. PROCEDURAL HISTORY

Sukhdev Singh ("Respondent") is an adult male native and citizen of India. Respondent
entered the United States at or near Calexico, California, on or about July 2, 2016, without being
admitted or paroled after inspection by an immigration officer. See NTA.

On July 21, 2016, the Department of Homeland Security ("Department") issued Respondent
a Form 1-862, Notice to Appear (''NTA''), charging him as removable under section
212(a)(7)(A)(i)(I) of the Immigration and Nationality Act, as amended ("INA" or "Act").
Respondent was served with his NTA by regular mail. See NTA.

On September 22, 2016, Respondent had a master calendar hearing before the Court, during
which he submitted a Form I-589, Application for Asylum and for Withholding of Removal
("asylum application").

Sukhdev Singh- 209-154-612 Page 1 ofS

 On October 14, 2016, the Court sent a Notice of Hearing in Removal Proceedings ("Notice
of Hearing") to Respondent informing him that he was scheduled to appear before the Court on
January 25, 2017, at 8:00 A.M. for his individual merits hearing.

On January 25, 2017, Respondent failed to appear before the Court and was ordered removed
to India in absentia on that date.

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On March 6, 2017, Respondent filed a Motion to Reopen In Absentia Order ("Motion to
'
Reopen" and "Motion to Reconsider'') with the Court. The Department filed a response on
March 15, 2017.

The Court has carefully reviewed the entire record before it. All evidence has been
considered, even if not specifically discussed further in this decision. For the reasons set forth
below, the Court will deny Respondent's Motions to Reconsider and Reopen.

II. STATEMENT OF LAW

Motions to reconsider and motions to reopen are separate and distinct motions with different
requirements. A motion to reconsider requests that the original decision be reexamined "'in light
of additional legal arguments, a change of law, or . . . an argument or aspect of the case that was
overlooked.'" Matter of Ramos, 23 I&N Dec. 336, 338 (BIA 2002) (quoting Matter of Cerna, 20
I&N Dec. 399, 402 n.2 (BIA 1991)). Only one motion to reconsider may be filed before the
Immigration Court, and such motion must be filed within 30 days of the date of entry of a final
administrative order of removal, deportation, or exclusion. INA 240(c)(6)(B); Matter of J-J-,
21 I&N Dec. 976, 977-78 (BIA 1997); 8 C.F.R. 1003.23(b)(l). In addition, a motion to
reconsider must specify the errors of law or fact in the previous order and must be supported by
pertinent authority. INA 240(c)(6)(C); Matter of 0-S-G-, 24 I&N Dec. 56, 56-57 (BIA 2006);
8 C.F.R. 1003.23(b)(2).

In contrast, a motion to reopen seeks a new hearing based on new or previously unavailable
evidence. 0-S-G-, 24 l&N Dec. at 57-58; Cerna, 20 l&N Dec. at 402-03. Only one motion to
reopen may be filed by an alien. 8 C.F.R. 1003.23(b)(4)(ii). Generally, motions to reopen for
the purpose of rescinding an in absentia removal order must be filed within 180 days of the date
of the removal order, and the respondent must demonstrate that her failure to appear was due to
exceptional circumstances. See INA 240(b)(5)(C)(i); 8 C.F.R. 1003.23(b)(4)(ii). The Code of
Federal Regulations also grants an Immigration Judge sua sponte authority to reopen, at any
time, any case in which he has made a decision. See 8 C.F.R. 1003.23(b)(l ). The Board of
Immigration Appeals ("Board") has explained that exercising sua sponte authority is "an
extraordinary remedy reserved for truly exceptional situations." Matter of G-D-, 22 I&N Dec.
1132, 1133-34 (BIA 1999) (citing J-J-, 21 l&N Dec. at 984).

Ill. DISCUSSION

Although titled a motion to reopen, Respondent's Motion not only asks the Court to reopen
his case sua sponte, but also asks the Court to reconsider his in absentia order due to legal

1 As discussed in detail below, Respondent's Motion, despite its title, it both a motion to reopen and a motion to

reconsider. As a result, the Court will consider each separately. See Part lll.

Sukhdev Singh - 209-154-612 Page 2of5

 ,.

authority that was allegedly overlooked. See Mot. at 1-6. Therefore, the Court will consider
Respondent's Motion as both a Motion to Reopen and a Motion to Reconsider.

A. Respondent's Motion to Reconsider will be denied

i. Respondent's Motion to Reconsider is untimely.

Respondent was ordered removed on January 25, 2017; he filed his Motion to Reconsider

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nearly two (2) months later, on March 6, 2017. Therefore, Respondent filed his Motion to
Reconsider more than thirty (30) days after the final administrative order of removal, and the
Motion is untimely. Because there is no exception to the time bar imposed on motions to
reconsider, Respondent's Motion to Reconsider must be denied in the absence of sua sponte
reconsideration. Matter of Yauri, 25 l&N Dec. 103, 104 (BIA 2009); G-D-, 22 I&N Dec. at
1132-33; J-J-, 21 I&N Dec. at 978.

ii. Respondent has not provided an adequate legal basis for his Motion to
Reconsider.

Assuming arguendo that Respondent's Motion to Reconsider was timely filed, the Court
would also deny the Motion because Respondent has not provided an adequate legal basis to
warrant the Court's reconsideration of his case.

A motion to reconsider must specify the errors of law or fact in the previous order and must
be supported by pertinent authority. INA 240(c)(6)(C); 0-S-G-, 24 l&N Dec. at 56-57; 8
C.F.R. 1003.23(b)(2). In this case, Respondent argues that his in absentia removal order should
be reconsidered because "brief tardiness" does not constitute a failure to appear. Mot. at 4-5. In
support of his argument, Respondent cites to a number of cases, including Perez v. Mukasey, 516
F.3d 770 (9th Cir. 2008); Abu Hasirah v. De.p't of Homeland Sec., 478 F.3d 474 (2d Cir. 2007);
Cabrera-Perez v. Gonzales, 456 F.3d 109 (3d Cir. 2006); and Alarcon-Chavez v. Gonzales, 403
F.3d 343 (5th Cir. 2005). See Mot. at 4-5. However, none of the cases cited by Respondent were
decided by the United States Court of Appeals for the Eleventh Circuit, the jurisdiction in which
this case arises. See Pineda v. U.S. Att'y Gen., 186 F. App'x 854 (11th Cir. 2006) (unpublished
and cited for persuasiveness) ("Other circuit courts have found that situations akin to [the
respondent's], in which a decision was entered in absentia when the alien was less than thirty
minutes late for the hearing, can constitute an abuse of discretion. However, we have never
previously made such a finding." (citations omitted)).

As a result, the Court will deny Respondent's Motion to Reconsider because it is untimely
and because it lacks sufficient legal authority to establish that reconsideration of Respondent's
case is proper.

B. Respondent's Motion to Reopen will be denied because he has failed to establish

that exceptional circumstances justif1.ed his failure to appear.

Respondent's Motion to Reopen is timely. He was ordered removed in absentia on January

25, 2017, and filed his Motion to Reopen less than two (2) months later, on March 6, 2017. Thus,
Respondent filed his Motion to Reopen less than 180 days after the final administrative order of
removal, and the Motion is timely.

Sukhdev Singh- 209-154-612 Page 3 ofS

 However, even a timely filed motion to reopen must demonstrate that the respondent's failure
to appear was due to exceptional circumstances. See INA 240(b)(5)(C)(i); 8 C.F.R.
1003.23(b)(4)(ii). The term "exceptional circumstances'' refers to "exceptional circumstances
(such as battery or extreme cruelty to the alien or any child or parent of the alien, or serious
illness or death of the spouse, child, or parent of the alien, but not including less compelling
circumstances) beyond the control of the alien." INA 240(e)(l).

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In an affidavit attached to his Motion to Reopen, Respondent asserts that he arrived at the
Atlanta Immigration Court on January 25, 2017, at 7:00 A.M., and was directed by the security
officers to wait in the waiting area because he was too early for his hearing. See Mot. Tab A, at
2. He further states that he remained in the waiting area until his attorney arrived, but when he
entered the courtroom, he was told that he had been ordered removed in absentia because he was
late to his scheduled hearing. Id. In support of his Motion to Reopen, Respondent has attached an
affidavit from Kembra L. Smith, Esquire ("Attorney Smith"). Id. Tab 0, at 26-28. In her
affidavit, Attorney Smith states that Respondent hired her to "attend court and observe
[Respondent's] hearing," and that she arrived at the Atlanta Immigration Court at 8:30 A.M. on
the date of Respondent's individual hearing. Id. Respondent has also attached the Federal
Protective Service Visitor Access Log for the Atlanta Immigration Court from January 25, 2017.
Id. Tab H, at 30. The log states that Respondent appeared at "8:00." Id.

By his own admission, Respondent was late to his January 25, 2017 hearing. Contrary to
Attorney Smith's statement that she and Respondent entered the courtroom at 8:30 A.M., the
recording of Respondent's January 25, 2017 hearing indicates that Respondent appeared at 9:05
A.M.-more than one (1) hour after his hearing was scheduled to begin. Moreover, the Court
correctly noted that Respondent appeared without his counsel of record. As acknowledged by
Respondent in his Motion to Reopen, the Court had not yet ruled on Respondent's Motion to
Withdraw as Counsel at the time of Respondent's January 25, 2017 hearing; as a result, his
attorney of record remained obligated to appear on Respondent's behalf at his hearing. As a
result, the Court finds that Respondent has not demonstrated that exceptional circumstances
justified his failure to appear at his January 25, 2017.

The Court also finds that Respondent has not established that his case is "truly exceptional"
such that sua sponte reopening is warranted. See 0-D-, 22 I&N Dec. at 1133-34. Respondent
admits that he appeared at his January 25, 2017 hearing late and without counsel. This is not an
exceptional circumstance that warrants use of the Court's discretionary authority to reopen sua
sponte. See J-J-, 21 I&N Dec. at 984 (holding that the Court's power to reopen a case sua sponte
"is not meant to be used as a general cure for filing defects or to otherwise circumvent the
regulations, where enforcing them might result in hardship").

Accordingly, the Court will enter the following orders:

Sukhdev Singh- 209-154-612 Page 4 of5

 ORDERS OF THE IMMIGRATION JUDGE

It is ordered that: Respondent's Motion to Reconsider is

hereby DENIED.

It is further ordered that: Respondent's Motion to Reopen is hereby

DENIE .

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Date William A. Cassidy
United States Immigration Judge
Atlanta, Georgia

Sukhdev Singh- 209-154-612 Page 5 of5