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Executive Office for Immigration Review

Board ofImmigration Appeals

Office ofthe Clerk

5107 leesburg Pike, Suite 2000

Falls Church, Virginia 22041

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Goldenberg, Judith E., Esq. OHS/ICE Office of Chief Counsel - SNA
Judith E. Goldenberg, Esq. L.L.C. 8940 Fourwinds Drive, 5th Floor
3708 Bergenline Avenue San Antonio, TX 78239
2nd floor
Union City, NJ 07087

Name: BONILLA-MARTINEZ, OSMILDA A 077-670-908

Date of this notice: 5/15/2017

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

Sincerely,

Cynthia L. Crosby
Acting Chief Clerk

Enclosure

Panel Members:
Adkins-Blanch, Charles K.
Grant, Edward R.
Mann, Ana

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/

Cite as: Osmilda Bonilla-Martinez, A077 670 908 (BIA May 15, 2017)
u,s. Department of Justice Decision of the Board of Immigration Appeals
Executive Office for Immigration Review

Falls Church, Vuginia 22041

File: A077 670 908 - San Antonio, TX Date: MAY 1 5 2017

In re: OSMILDA BONILLA-MARTINEZ

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IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Judith E. Goldenberg, Esquire

APPLICATION: Reopening

The respondent, a native and citizen of Honduras, was ordered removed in absentia on
September 7, 2001. On August 15, 2016, the respondent filed a motion to reopen proceed ings,
which an Immigration Judge denied on October 5, 2016. The respondent filed a timely appeal of
that decision. The appeal will be sustained, proceedings will be reopened, and the record will be
remanded.

The Board reviews an Immigration Judge's findings of fact, including findings as to the
credibility of testimony, under the clearly erroneous standard. 8 C.F.R. 1003.l(d)(3)(i). The
Board reviews questions of law, discretion, and judgment and all other issues in appeals from
decisions of Immigration Judges de novo.

Upon de novo review of the record and in light of the totality of the circumstances presented
in this case, we conclude that the respondent demonstrated that reopening is warranted. 1 See
section 240(b)(5)(C)(ii) of the Immigration and Nationality Act, 8 U.S.C. 1229a(b)(5)(C)(ii);
Matter ofM-R-A-, 24 I&N Dec. 665 (BIA 2008); Matter ofC-R-C-, 25 I&N Dec. 677 (BIA 2008).
We will therefore sustain the respondent's appeal and remand the record for further proceedings.

ORDER: The respondent's appeal is sustained, the in absentia order is vacated, proceedings
are reopened and the record is remanded to Immigration Judge for further proceedings and for
the entry of a new decision.

1 Among other factors, we have considered that the respondent was served with the NTA in

December 1999, she filed an EOIR-33, change of address in January 2000, and the NTA was not
fded with the Court until February 2000.

Cite as: Osmilda Bonilla-Martinez, A077 670 908 (BIA May 15, 2017)
 UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
800 DOLOROSA STREET, SUITE 300
SAN ANTONIO, TX 78207

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Judith E. Goldenberg, Esq. L.L.C.
Goldenberg, Judith Elena
3708 Bergenline Avenue
2nd floor
Union City, NJ 07087

IN THE MATTER OF FILE A 077-670-908 DATE: Oct 6, 2016

BONILLA-MARTINEZ, OSMILDA

UNABLE TO FORWARD - NO ADDRESS PROVIDED

ATTACHED IS A COPY OF THE DECISIO ; 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
800 DOLOROSA STREET, SUITE 300
SAN ANTONIO, TX 78207

OTHER:

CC: JANE THOMSON

8940 FOURWINDS DR., STH FLOOR
COURT CLERK
IMMIGRATION co FF

SAN ANTONIO, TX, 78239

 /
I

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
800 DOLOROSA STREET, SUITE 300
SAN ANTONIO, TEXAS 78207

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In the Matter of )
)
BONILLA-MARTINEZ, OSMILDA ) Case No. A077-670-908
)
RESPONDENT )
)
In Removal Proceedings )
>

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

Act), as amended: 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.

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

ON BEHALF OF THE RESPONDENT ON BEHALF OF THE GOVERNMENT

Judith Elena Goldenberg, Esq. U.S. Immigration & Customs Enforcement
Judith E. Goldenberg, Esq. L.L.C. Office of the Chief Counsel
3708 Bergenline A venue, 2nd Floor 8940 Fourwinds Drive, 5th Floor
Union City, NJ 07087 San Antonio, TX 78297

WRITTEN DECISION & ORDER OF THE IMMIGRATION JUDGE

I. Procedural History

The respondent is a fifty-six-year-old female, native and citizen of Honduras, who

entered the United States at or near Eagle Pass, Texas, on or about December 18, 1999.

Respondent's Notice to Appear, Form 1-862; Respondent's Record of Deportable/Inadmissible

Alien, Form 1-213. On December 18, 1999, the Immigration and Naturalization Service (INS),

now the Department of Homeland Security (OHS), personally served the respondent with her

Notice to Appear (NTA), charging her as removable pursuant to section 212(a)(6)(A)(i) of the

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Immigration and Nationality Act (the Act), as amended, 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. Respondent's Notice to Appear, Form I-862.

The NT A contains a section titled "Failure to appear" that specifies, inter a/ia, the

consequences of failing to appear for any scheduled hearings. Id. The NT A reflects that the

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respondent was advised of the consequences of non-appearance in the Spanish language. Id.

On August 17, 2001, the respondent was not present for her hearing before this Court and

was unavailable for examination under oath. The Court proceeded in absentia pursuant to the

authority provided in section 240(b)(5)(A) of the Act and, on September 7, 2001, ordered the

respondent's removal from the United States to Honduras on the charge contained in her NT A.

On August 15, 2016, the respondent, through counsel, filed a motion to reopen her

removal proceedings. The DHS did not file a brief in opposition to the respondent's motion.

II. Motion to Reopen

An in absentia order of removal may be rescinded only (i) upon a motion to reopen filed

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

appear was because of exceptional circumstances, or (ii) upon a motion to reopen filed at any

time if the alien demonstrates that she did not receive notice in accordance with paragraph (1) or

(2) of section 239(a) of the Act or the alien demonstrates that she was in Federal or State custody

and the failure to appear was through no fault of her own. Section 240(b)(5)(C) of the

Immigration and Nationality Act (2016); 8 C.F.R. 1003.23(b)(4)(ii) (2016).

A. Exceptional Circumstances

Over fourteen years passed between the date the Court ordered the respondent removed in

absentia and the date the respondent filed her motion to reopen. Accordingly, any motion to

reopen based on exceptional circumstances is time-barred. See INA 240(b )(S)(C); see also 8

C.F.R. 1003.23(b)(4)(ii).

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B. Notice

The record reflects that immigration officials personally served the respondent with her

NTA on December 18, 1999. Respondent's Notice to Appear, Form I-862. As required by

section 239(a)( l ) of the Act, the NTA advised the respondent of her obligation to maintain a

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current mailing address with the Court and of the consequences of failing to appear for any

scheduled hearings. Id. The NTA also reflects that the respondent was advised of the

consequences of non-appearance and failure to apprise the Court of any changes to the

respondent's mailing address in the Spanish language. Id. Despite this, the respondent failed to

provide an address as required. Id.; Respondent's Record of Deportable/Inadmissible Alien,

Form I-213. The respondent has not explained her failure to notify the Court of her address prior

to her removal hearing on August 17, 2001, and for over fourteen years thereafter.

The NT A orders the respondent to appear before the San Antonio Immigration Court at a

date and time "to be set." Respondent's Notice to Appear, Form I-862. The Act specifically

prescribes, however, a method for notifying an alien of a change in the time or place of her

removal proceedings. INA 239(a)(2)(A). Because the respondent did not provide her address as

required, the Court was not required to mail a notice of hearing apprising her of the date and time

of her scheduled hearing. See INA 239(a)(2)(B). The respondent neglected to provide her

address, an obligation of which she received prior notice, and she therefore cannot show that her

failure to appear was through no fault of her own. See Gomez-Palacios v. Holder, 560 F.3d 354,

360-61 (5th Cir. 2009). Moreover, the record evinces that the respondent never updated her

address with the Court by submitting a Form EOIR 33. The Court acknowledges that the

respondent claims that she mailed a change of address form with her updated address

infonnation to the Court via "regular mail." Respondent's Motion to Reopen in Absentia at 6-7.

However, the Form EOIR 33 provided in her motion lacks any indication as to whether it was in

fact mailed prior to the respondent's hearing. Id. at 10. Therefore, the respondent failed to

establish that she properly updated her address with the Court prior to her removal hearing in

2001. Failure to receive notice of a scheduled hearing is not a ground for reopening removal

proceedings in the present case, and the Court will not rescind the respondent's in absentia

removal order or reopen the respondent's removal proceedings. See INA 240(b)(S)(C); see also

8 C.F.R. 1003.23(b)(4)(ii).

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C. Sua Sponte

An Immigration Judge may, upon his own motion, reopen any case in which he

previously made a decision. 8 C.F.R. 1003.23(b)(l ). Sua sponte reopening, however, is an

"extraordinary remedy reserved for truly exceptional situations" and is not "a general remedy for

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any hardships created by enforcement of the time and number limits in the motions regulations."

Matter of G-D-, 22 l&N Dec. 1132, 1133-34 (BIA 1999); see also Matter ofJ-J-, 21 l&N Dec.

976 (BIA 1997).

The respondent, through counsel, appears to argue that she is eligible for relief not

previously available at the time of her removal hearing in 2001. See Respondent's Motion to

Reopen In Absentia. Specifically, the respondent's counsel argues that the respondent "will be

eligible to adjust status through the 1-130 Petition filed on January 13, 1995 by her father,

Desiderio." Id. Section 245(a) of the Act allows an alien who has been inspected and admitted or

paroled into the United States to adjust her status to that of an alien lawfully admitted for

permanent residence. To be eligible for adjustment of status, an alien must make an application

for adjustment, be eligible to receive an immigrant visa, be admissible to the United States for

permanent residence, and have an immigrant visa immediately available to her at the time the

application was filed. INA 245(a); Matter ofEstrada, 26 I&N Dec. 180, 183 (BIA 2013). Such

an alien must also demonstrate that she merits adjustment of status in the exercise of discretion.

INA 245(a); Matter of Estrada, 26 l&N Dec. at 183 (citing Matter of Blas, 15 l&N Dec. 626

(BIA 1974; A.G. 1976); Matter of Arai, 13 I&N Dec. 494 (BIA 1970)). A motion to reopen

proceeding for the purpose of submitting an application for relief must be accompanied by the

appropriate application for relief and all supporting documentation. 8 C.F.R. 1003.2(c)( l );

Ramchandani v. Gonzales, 434 F.3d 337, 341 (5th Cir. 2005).

In the present case, the respondent appears to be the daughter of a United States citizen.

Respondent's Motion to Reopen In Absentia at 2, 9, and 12. On the face of the respondent's filed

and approved 1-130, Petition for Alien Relative, the respondent may be eligible for a visa.

Respondent's Motion to Reopen In Absentia at 9; INA 245(a). However, the respondent has

been unlawfully present in the United States since she entered in 1999, and accordingly, having

never been admitted or paroled, is ineligible to adjust status to that of a lawful permanent

resident. See INA 245(a). The respondent may be eligible for a provisional waiver of unlawful

presence, which would allow her to enter the United States through consular processing. See 8

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C.F.R. 212.7(e). Yet, the respondent has not yet filed, nonetheless been approved, for a

provisional waiver and has, therefore, not yet demonstrated exceptional circumstances that merit

sua sponte reopening. Thus, the Court, without prejudice, declines to sua sponte reopen the

respondent's removal proceedings.

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Accordingly, the following order is hereby entered:

ORDER

IT IS HEREBY ORDERED that the respondent's motion to reopen be DENIED.

Date: ) 0
__.,_ _, J
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...- _,, 2016