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Esvin Escobar Diaz, A201 238 048 (BIA July 24, 2015)
Esvin Escobar Diaz, A201 238 048 (BIA July 24, 2015)
Esvin Escobar Diaz, A201 238 048 (BIA July 24, 2015)
Department of Justice
Executive Office for Immigration Review
A 201-238-048
Enclosed is a copy of the Board's decision and order in the above-referenced case.
Sincerely,
DQnlu_,
t1/Vu
Donna Carr
Chief Clerk
Enclosure
Panel Members:
Grant, Edward R.
Guendelsberger, John
Holiona, Hope Malia
Userteam: Docket
Coghlan, Stephen
Coghlan Law Office
615 Sansome
2nd Floor
San Fram;:isco, CA 94111
Date:
<JUL 2 4 2015
APPEAL
ON BEHALF OF RESPONDENT: Stephen Coghlan, Esquire
ON BEHALF OF DHS: Zina Spektor
Assistant Chief Counsel
APPLICATION: Reopening
The respondent, a native and citizen of Guatemala, appeals from the March 26, 2014,
Immigration Judge's decision denying the respondent's March 12, 2014, motion to reopen
removal proceedings, which had been conducted in absentia on February 4, 2014. The
respondent filed a timely appeal from that decision. The Department of Homeland Security
(OHS) has filed an opposition to the appeal. The appeal will be sustained, proceedings will be
reopened and the record will be remanded.
Upon de novo review, in light of the totality of circumstances presented in this case,
including the respondent's apparent eligibility for withholding of removal and lack of motive to
avoid the hearing, the respondent's appearance at previous hearings, and his diligence in filing a
motion to reopen, we will sustain the appeal and allow the respondent another opportunity to
appear for a hearing. See Chete Juarez v. Ashcroft, 376 F.3d 944, 948 (9th Cir. 2004), Singh v.
INS, 213 F.3d 1050, 1052 (9th Cir. 2000) (stating that "exceptional circumstances" determination
requires consideration of totality of circumstances and particularized facts presented in each
case).
ORDER: The appeal is sustained, the in absentia order is vacated, proceedings are reopened,
and the record is remanded to the Immigration Judge for further proceedings.
Cite as: Esvin Escobar Diaz, A201 238 048 (BIA July 24, 2015)
IN REMOVAL PROCEEDINGS
IN THE MATTER OF
ESCOBAR, ESVIN
,,.
FILE A 201-238-048
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COURT CLERK
IMMIGRATION COURT
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UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
SAN FRANCISCO, CALIFORNIA
Date: March 26, 2014
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Esvin ESCOBAR
Respondent
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On Behalf of Respondent:
Stephen Coghlan, Esq.
615 Sansome Street, 2nd Floor
San Francisco, CA 94111
Matter of:
Respondent also argues that the matter should be reopened because he may be eligible for
asylum and withholding of removal under INA 241(b)(3) or the Convention Against Torture.
This case does not come within the Ninth Circuit's directive that a motion to reopen an in
absentia order should not be denied "where the denial leads to the unconscionable result of
deporting an individual eligible for relief from deportation." Singh v. INS, 295 F.3d 1037, 103940 (9th Cir. 2002) (considering Singh's near-certainty of successful adjustment of status in the
reopened proceeding based on his U.S. citizen wife's approved visa petition, and contrasting
Sharma v. INS, 89 F.3d 545 (9th Cir. 1996), where the only form of relief forfeited by the failure
to appear was the possibility of a grant of asylum).
In light of the foregoing, the following order shall enter:
ORDER
IT IS HEREBY ORDERED that Respondent's motion to reopen is DENIED.
10 l 5t Cong., 2"d Sess. 132 (1990)). Here, the only factor cited was that Respondent was confused
about the date of his hearing, despite receiving oral notice in English and Spanish and written
notice in English. After reviewing the totality of the circumstances, the Court must conclude
that Respondent's claim does not rise to the level of "exceptional circumstances" as that term is
used in the statute. See Valencia-Fragoso v. INS, 321 F.3d 1204 (9th Cir. 2003) (finding that
alien's who "misrecollected the time printed in the notice" and appeared at 1 :OOPM rather than
8:30AM had not established exceptional circumstances for her failure to appear).