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Iris Yessenia Reyes-Zavala, A206 775 262 (BIA March 22, 2016)
Iris Yessenia Reyes-Zavala, A206 775 262 (BIA March 22, 2016)
Iris Yessenia Reyes-Zavala, A206 775 262 (BIA March 22, 2016)
Department of Justice
A 206-775-262
Enclosed is a copy of the Board's decision and order in the above-referenced case.
Sincerely,
DOrutL Ca.,,vu
Donna Carr
Chief Clerk
Enclosure
Panel Members:
Grant, Edward R.
Guendelsberger, John
O'Leary, Brian M.
:.l., '
Pilsbury, Anne
Central American Legal Assistance
240 Hooper Street
Brooklyn, NY 11211
Date:
Cite as: Iris Yessenia Reyes-Zavala, A206 775 262 (BIA March 22, 2016)
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MAR 2 2 2015
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FILE A 206-775-262
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SECTION 1252B(c) { 3) IN DEPORTATION PROCEEDINGS OR Sl!CTI.ON 2 4 0 { c) (6) ,
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8 u.s.c. SECTION 1229a(c) (6) IN REMOVAL PROCEEDINGS.- YOU FILE A MOTI?.If'".,. '
TO REOPEN, YOUR MOTION MUST BE FILED WITH THIS COURT:
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IMMIGRATION COURT
1100 COMMERCE ST., SUITE 1060
DALLAS, TX 75242
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IMMIGR}\.l:ION COURT
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IN REMOVAL PROCEEDINGS
A 206-775-262
CHARGE:
APPLICATIONS:
The Respondent is a native and citizen of El Salvador. Exhibit 1. She entered the United
States at or near the Hidalgo, Texas, on June 25, 2014. Id. The Respondent did not then possess
or present a valid immigrant visa, reentry permit, border crossing identification card, or other
valid entry document and was not then admitted or paroled after inspection by an immigration
officer. Id. Soon thereafter, the Respondent was apprehended and detained by the Department
of Homeland Security (DHS or Government). She was subsequently served with a Notice to
Page I of 4
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Appear (NTA) on July 31 , 201 4, charging her with removability pursuant to section
21 2(a)(7)(A)(i)(l) of the Immigration and Nationality Act (INA or Act). Id.
The Respondent appeared before this Court on September 9, 2014, represented by
The Respondent's counsel admitted all the factual allegations and the charge of
removability contained in the NTA. Based on the admissions and concessions made on behalf of
the Respondent, the Court found that removability had been established as charged. The
Respondent declined to designate a country of removal thus, pursuant to the regulations the
Court designated El Salvador. The Respondent indicated that she would be seeking Asylum and
Withholding of Removal. The Court set a new hearing date of September 23, 2014, and
instructed the Respondent to submit her application for relief in court on that date. The Court
also advised both the Respondent and her attorney that the Respondent must be present at the
Dallas Court whether the Respondent is released from government custody or not and that failure
appear would result in a finding that she has abandoned any and all applications for relief and the
Court would order her removed to El Salvador.
Shortly thereafter, the Respondent was released from Government custody, and on
September 23, 201 4, she failed to appear. Her attorney was also not present. Therefore, the
proceedings were conducted in absentia pursuant to section 240(b)(5)(A) of the Act. At the
hearing, the Court concluded that the Respondent had adequate notice of the hearing. The Court
further noted that the Respondent had previously admitted the allegations set forth in the NTA
and conceded the charge of removability. Thus, the Court found that removability had been
established by clear and convincing evidence and ordered the Respondent removed to El
Salvador.
The Respondent appeared via video and her attorney via telephone.
Page 2 of 4
counsel. 1
On October 29, 2014, the Respondent filed a Motion to Reopen requesting that her in
absentia order be rescinded. The Government has not filed a response.
Applicable Law & Analysis
II.
alien or the alien's counsel of record, the alien will be ordered removed in absentia if the
Government establishes by clear, unequivocal, and convincing evidence that the written notice
was provided and that the alien is removable. INA 240(b)(5). An in absentia order may be
rescinded upon a motion to reopen filed 180 days after an administratively final order of removal
is entered if the Respondent shows "exceptional circumstances" leading to his or her absence
from the hearing.
"Exceptional
circumstances" are defined as "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)." INA 240(e) (emphasis added).
Initially, the Court notes that the Respondent has not filed a filing fee and fee receipt as
required.2 See 8 C.F.R. 1003.24(b). Thus, the Court does not have jurisdiction to consider this
motion.
Furthermore, the Court finds that the Respondent's failure to appear at her scheduled
hearing was not due to "exceptional circumstances" as contemplated by the statute and
regulations. After her release from DHS's custody, the Respondent moved to New York. She
2 In her motion, the Respondent c]aims she will seek Asylum and Withholding of Removal. The regulations provide
that a motion to reopen based exclusively on an application for relief such as asy]um does not require a fee. See 8
C.F.R. 1003.24(b)(2)(i). However, the Court finds that the Respondent's motion is not based on an application for
asy]um as no application was provided to the Court and instead is based on "exceptional circumstance." See 8
C.F.R. 1003.23(b)(3) (a motion to reopen submitted for the purpose of acting on an application for relief must be
accompanied by the appropriate application for relief and all supporting documents).
Page 3 of 4
If an alien does not attend a removal hearing after written notice has been provided to the
claims that she was advised that the hearing would be cancelled if she bonded out before the
September 23 court date. However, two days before the Respondent was released, on September
9, 2014, the Court specifically advised the Respondent in her native language that failure to
order of removal. The Respondent acknowledged that she understood the Court's warnings and
indicated that she did not have any questions. Thus, the Court is not persuaded that the
Respondent believed she did not have to be present at the Dallas Court after her release from
custody. Therefore, the Court finds that the Respondent's failure to attend her scheduled hearing
was not due to "exceptional circumstances" as contemplated by the Act. See INA 240(b)(5).
Finally, the Court declines to exercise its sua sponte authority to reopen the Respondent's
case as it does not find that this case presents a "truly exceptional situation." See Matter of G-D,
22 I&N 1132, 1135-36 (BIA 1999) (citing examples of when it is appropriate for the court to
exercise its sua sponte authority).
Accordingly, the following order will be entered:
ORDER
IT IS HEREBY ORDERED that the Respondent's Motion to Reopen and Stay of
Removal is DENIED.
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Date: - 7
Dallas, Texas
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Immigration Judge
Page 4 of 4
attend the hearing, for other than exceptional circumstances, would result in the issuance of an