U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals
Q[fice of the Clerk
5107 Leesburg Pike. Suite 2000
Falls Church. Virginia 2204 I

OHS/ICE Office of Chief Counsel - DAL

125 E. John Carpenter Fwy, Ste. 500
Irving, TX 75062-2324

Name: OLIVA-RAMIREZ, JOSE MANUEL

A 206-700-849
Date of this notice: 12/22/2015

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

DOW1.L Cwvu
Donna Carr
Chief Clerk
Enclosure
Panel Members:
Holmes, David B.
Neal, David L
O'Herron, Margaret M

Userteam: Docket

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Cite as: Jose Manuel Oliva-Ramirez, A206 700 849 (BIA Dec. 22, 2015)

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Htun, June Jasmine

Law Offices of June J. Htun
3236 N. Elston Avenue, Suite G
Chicago, IL 60618

Decision of the Board of Immigration Appeals

U.S. Department of Justice

Executive Office for Immion Review
/!, Falls Church, Vnginia22041

Date:

File: A206 700 849 - Dallas, TX

DEC 2 2 2015

In re: JOSE MANUEL OLNA-RAMJREZ

APPEAL
ON BEHALF OF RESPONDENT: June J. Htun, Esquire
APPLICATION: Reopening
The respondent has filed an appeal from the Immigration Judge's decision denying the
respondent's timely and unopposed motion to reopen following an in absentia order of removal.
The appeal will be sustained and the record will be remanded.
The Board reviews an Immigration Judge's findings of fact under a "clearly erroneous"
standard. 8 C.F.R 1003. l(d)(3)(i); Matter of Z-Z-0-, 26 I&N Dec. 586 (BIA 2015). We
review all other issues, including questions of law, judgment, or discretion, under a de novo
standard. 8 C.F.R. 1003. l(d)(J)(ti).
The respondent's motion to reopen included the respondent's notarized affidavit. The
affidavit established the circumstances of the respondent's arrival in the United States as a
minor, his detention in a Washington state facility for juveniles following his arrival in Texas,
his subsequent placement with extended family members in Oklahoma, the respondent's
relocation from Oklahoma to Illinois, his unsuccessful attempts to find transportation to Texas
for his hearing, and his actions to determine the status of his case and then to file a motion to
reopen in a timely manner. Given the record as a whole, we conclude that the respondent
established exceptional circumstances for his failure to appear at his April 20, 2015, hearing. See
8 C.F.R 1003.23(b)(4)(iii)(A)(i).. Accordingly, we sustain the respondent's appeal and
remand the record to the Immigration Judge for further proceedings. On remand, the respondent
may wish to file a motion for a change of venue.
ORDER: The appeal is sustained.
FURTHER ORDER: The record is remanded to the Immigration Judge for further
proceedings consistent with the foregoing opinion.

FOR THE BOARD

Cite as: Jose Manuel Oliva-Ramirez, A206 700 849 (BIA Dec. 22, 2015)

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IN REMOVAL PROCEEDINGS

. ..

'- flf'..

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
1100 COMMERCE ST., SUITE 1060
DALLAS, TX 75242

IN THE MATTER OF
OLIVA-RAMIREZ, JOSE MANUEL

FILE A 206-700-849

DATE: Aug 21, 2015

UNABLE TO FORWARD - NO ADDRESS PROVIDED

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
1100 COMMERCE ST., SUITE 1060
DALLAS, TX 75242
)Q_oTHER:

CC: WARBURTON, MELISSA

125 E. HWY 114, STE 500
IRVING, TX, 75062

CO
LERK
IMMIG TION COURT
<. :....., . - ',

FF

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Law Offices of June J. Htun

Htun, June Jasmine
3236 N. Elston Avenue, Suite G
Chicago, IL 60618

UNITED STArEs DE.,ARTMENT OF JUSTICE

EXECUTIVE OFFICE OF IMIGRATIQN REVIEW
UNITED STATES IMMIGRATION COURT
DALLAS, TEXAS

ORDER
This matter is before the Court pursuant to the Respondent's July 16, 2015, Motion to
Reopen. For the reasons set forth below, the motion will be DENIED.
The Respondent is an 18 year old male, native and citizen of Honduras. Exhibit 1. He
arrived in the United State at or near Hidalgo, Texas on or about April 11, 2014 and was not then
admitted or paroled after inspection by an Immigration Officer. Id.
On April 20, 2014, the Department of Homeland Security personally served the
Respondent with a Notice to Appear {NTA), charging him with removability pursuant to Section
212(a)(6)(A)(i) of the Act. Id. The Respondent does not dispute receipt of this notice. Thus, the
Respondent was on notice of the initiation of removal proceedings, his obligation to update the
Immigration Court with any change of address, and the consequences of failing to appear as
required by Section 239(a)(l) of the Act. See Matter ofG-Y-R-, 23 I&N Dec. 181, 186 (BIA
2001).
On May 9, 2014, the Respondent was released from Government detention and into the
care of his uncle, Cesar Martinez. See Exhibit 3. His uncle's address was represented as 2628
SW 44th OKC, OK 73119. Id. On April 9, 2015, the Dallas Immigration Court mailed the
Respondent a Notice of Hearing (NOH) to that address, advising him of the time and date of his
hearing. It was not returned by the United States Postal Service.
The Respondent did not appear for his removal hearing on April 20, 2015, and the
proceedings were conducted in absentia. At the hearing, the Government submitted documentary
evidence establishing the truth of the factual allegations contained in the NTA. See Exhibit 2.
Based on the Government's evidence, the Court concluded that removability had been
established by clear, unequivocal, and convincing evidence. See 8 C.F.R. 1003.26(c).
Accordingly, the Court designated Honduras as the Respondent's country of removal and
ordered him removed in absentia.
On July 16, 2015, the Respondent, through counsel, filed a Motion to Reopen and
Rescind based on exceptional circumstances. See INA 240(b )(S)(C)(i). The Respondent asserts
that he moved from his uncle's home in Oklahoma to Illinois to live with his aunt in November
2014. See Motion to Reopen, pg. Tab A. He states that on April 10, 2015 his uncle's wife called
and informed him that she had received the hearing notice. Id. She only told him the hearing date
and provided no other information. Id. The Respondent asked his uncle's wife to forward the
notice. It arrived April 15, 2015, approximately five days before the hearing. The Respondent
Page 1 of2

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Case No. 206-700-849

In Re: Jose Manuel Oliva-Ramirez

---said that his aunt and uncle were unable to help him arrange travel to court in Dallas, Texas
because they had to work.

The Respondent has not demonstrated "exceptional circumstances" within the meaning of
the Act. "Exceptional circumstances" include circumstances beyond the control of the alien, such
as battery or extreme cruelty to the alien or any child or parent of the alien, serious illness of the
alien, or serious illness or death of the spouse, child, or parent of the alien, but not including less
compelling circumstances. See INA 240(e)(l). Given this relatively high standard, the Court
finds that the circumstances described by the Respondent are indeed less compelling than those
contemplated by the statute. The Respondent concedes that he knew about his court date, though
he did not appear. Moreover, he did not file a change of address form as required. The Court also
notes that the Respondent made no effort to contact the lmiigration Court when his aunt called
and informed him of his court date ten days prior to the hearing. These factors weigh against his
claim of "exceptional circumstances" leading to his failure to appear.
The fact that the Respondent was a minor at the time he entered the United States does
not persuade the Court to find otherwise. "[A]n adult relative who receives notice on behalf of a
minor alien bears the responsibility to assure that the minor appears for the hearing as required."
Matter ofGomez-Gomez, 23 I&N Dec. 522, 528 (BIA 2002). A juvenile is properly ordered
removed in absentia if proper notice is provided to the guardian and the juvenile fails to appear.
Id. In light of the foregoing, the Court does not find that the Respondent's failure to appear was
based on an "exceptional circumstance" as defined by the Act.
Accordingly, the Respondent's Motion to Reopen will be denied.
On this day of August 2015.

Michael P. Baird
United States Immigration Judge

Copy to:
Chief Counsel, DRS/ICE

Page 2 of2

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The Court notes that the Respondent had proper notice his hearing date. The last address
the Respondent provided in accordance with Section 239(a)(l)(F) of the Act was the address
listed on his NTA. See Exhibit 1. The NOH was mailed to the Respondent at this address.
Service by mail of the NOH to the last address provided by the Respondent in accordance with
Section 239(a)(l)(F) of the Act is proper. See INA 239(c). Once the Respondent moved it was
his obligation to notify the Immigration Court of his new address through the filing of a Form
EOIR-33. See 8 C.F.R. 1003.15(d)(2). He failed to do so.