U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office of the Clerk

5107 Leesburg Pike, Suite 2000

Falls Church, Virginia 220-1 I

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Dominici, Jennifer Batista DHS/ICE Office of Chief Counsel - LOU
Carman & Fullerton, PLLC 80 Monroe Ave., Suite 502
271 W Short Street, Suite 101 Memphis, TN 38103
Lexington, KY 40507

Name: HERNANDEZ PASQUAL, MANU... A 206-026-422

Date of this notice: 6/7/2017

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:
Pauley, Roger
Grant, Edward R.
Mann, Ana

Userteam: Docket

For more unpublished BIA decisions, visit

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Cite as: Manuela Hernandez-Pasqual, A206 026 422 (BIA June 7, 2017)
U.S. Department of Justice Decision of the Board of Immigration Appeals
Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A206 026 422 - Memphis, TN Date: JUN - 7 2017

In re: MANUELA HERNANDEZ-PASQUAL

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IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Jennifer B. Dominici, Esquire

ON BEHALF OF DHS: William A. Lund

Assistant Chief Counsel

APPLICATION: Reopening

The respondent, a native and citizen of Guatemala, was ordered removed in absentia on
April 18, 2016. On October 13, 2016, the respondent filed a motion to reopen proceedings, which
an Immigration Judge denied on October 20, 2016. The respondent filed a timely appeal of that
decision. The appeal will be sustained, the Immigration Judge's order will be vacated, 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. The Board reviews questions of
law, discretion, and judgment and all other issues in appeals from decisions of Immigration Judges
de novo. 8 C.F.R. 1003.l(d)(3)(i), (ii).

The Immigration Judge determined that the respondent received proper notice for her
March 22, 2016, hearing. However, upon de novo review of the record and in light of the totality
of circumstances presented in this case, we conclude that the respondent demonstrated that
reopening is warranted. 1 See sections 240(b)(5)(C)(i), (e)(l) of the Immigration and Nationality
Act, 8 U.S.C. 1229a(b)(5)(C)(i), (e)(l). 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 the Immigration Judge for further proceedings and for

L
the entry of a new decision.

F /:,

1 Among other factors, we have considered the respondent's affidavi4 as well as the evidence
regarding the residual disability associated with her emergency cesarean section prior to the
hearing.

Cite as: Manuela Hernandez-Pasqual, A206 026 422 (BIA June 7, 2017)
 UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
MEMPHIS TENNESSEE

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IN THE MATTER OF ) IN REMOVAL PROCEEDINGS
)
HERNANDEZ-PASCUAL, Manuela ) FILE NO.: A206-026-422
)
Respondent ) DATE: October 2016

CHARGE: Section 2 l 2{a)(7)(A)(i)(I) of the Act, as amended, as immigrant

who, at the time of application for admission, is not in possession
of a valid unexpired immigrant visa, reentry permit, border
crossing card, or other valid entry document required by the Act,
and a valid unexpired passport, or other suitable travel document,
or document of identity and nationality as required under the
regulations issued by the Attorney General under section 21l(a) of
the Act.

APPLICATION: Motion to Reopen an In Absentia Order

ON BEHALF OF RESPONDENT: ON BEHALF OF DBS:

Jennifer B. Dominici, Esq. William A. Lund, Esq.
Carman & Fullerton, PLLC Assistant Chief Counsel
271 W. Short St., Suite 101 80 Monroe Avenue, Suite 502
Lexington, KY 40507 Memphis, TN 3 8103

DECISION OF IMMIGRATION JUDGE

I. PROCEDURAL HISTORY

The Department of Homeland Security ("DHS") initiated the present removal

proceedings against Manuela Hernandez-Pascual (" Respondent") on July 15, 2013, alleging that
she is removable from the United States pursuant to INA 212(a)(7)(A)(i)(I). Respondent was
personally served with a Notice to Appear ("NTA") on July 9, 2013. Exh. 1.

On July 8, 2013, Respondent was relea&ed from DHS custody on an order of

recognizance. Upon release, Respondent listed her new address in Lexington, Kentucky.
Therefore, on March 19, 2014, Respondent, through counsel, filed a Motion to Change Venue,
requesting venue in Respondent's case be transferred to the Louisville, Kentucky Immigration
Court. Exh. 2. Respondent's Motion to Change Venue was granted on March 19, 2014, and
venue in Respondent's case was transferred to the Louisville Immigration Court. Exh. 3.
 On June 6, 2014, Respondent's counsel was mailed a Notice of Hearing, notifying her of
her April 18, 2016 Master Calendar hearing. Exh. 4. Respondent's counsel appeared at
Respondent's April 18, 2016 Master Calendar hearing, but Respondent failed to appear and was
ordered removed in absentia.

On October 13, 2016, Respondent filed a Motion to Reopen an In Absentia Order. DHS

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filed its opposition to Respondent's Motion on October 17, 2016. The Court now issues its
decision.

II. DISCUSSION

According to the Immigration and Nationality Act ("INA"), as well as federal

regulations, an order of removal entered in absentia pursuant to INA 240(b)(S)(A) may be
rescinded upon a motion to reopen filed in only one of the following ways: (i) within 180 days
after the date of the order of removal if the alien shows that the failure to appear was due to
exceptional circumstances, or (ii) at any time if the alien demonstrates that he or she did not
receive notice in accordance with INA 239(a)(l) or (a)(2). INA 240(b)(5)(C); 8 C.F.R.
1003.23(b)(4)(ii) (2016). The filing of said motion shall stay the removal of the alien pending
disposition of the motion by the Immigration Judge. INA 240(b)(5)(C); 8 C.F.R.
1003.23(b)(4)(ii). An alien may file only one such motion to reopen. 8 C.F.R.
1003.23(b)(4)(ii).

Respondent argues that she missed her April 18, 2016 Master Calendar hearing due to
exceptional circumstances. Respondent's Motion to Reopen at 2. Motions to Reopen based on
exceptional circumstances must be filed within 180 days from the date the in absentia order of
removal was entered. Respondent was ordered removed on April 18, 2016. She filed her
Motion to Reopen on October 13, 2016. Thus, Respondent's Motion to Reopen is timely.

The term "exceptional circumstances" is defined as "circumstances (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) beyond the control of the alien." INA 240(e)(l ). The Court
considers the "totality of the circumstances" when making a determination whether exceptional
circumstances exist. Denko v. INS, 351 F.3d 717, 723 (6th Cir.2003) (citing Matter ofJ-P-, 22
l&N Dec.33, 36 (BIA 1998)).

Respondent's affidavit provides that "(o]n or around March 10, 2016, I was admitted to
the UK hospital for an emergency C-section... .The doctor told me that I could go home on
March 13, 2016, but he warned me that I needed to recuperate from the surgery and told me that
I could not drive or move a lot for at least 6 weeks, in order to heal from the surgery. On April
18, 2016 . . . I felt like I could not withstand a 3 hour drive to and from the Immigration Court
along with my newborn baby of 5 weeks." Respondent's Motion to Reopen at Tab A. To
support her claim, Respondent provided medical documents dated March 11, 2016 which
indicate "it can take as long as 6 weeks for a C-section incision to heal .... Don't drive until
your healthcare provider says its OK." Id. at Tab B. Respondent also included her son's birth
certificate, which shows that he was born on March 10, 2016. Id. at Tab C. The Department

2
argues that "[w]hile the respondent has provided a medical document indicating that it could take
up to six weeks for her to heal, she has provided no evidence other than a self-serving statement
that she could not travel on the date of her hearing." Department's Response to Respondent's
Motion at 2.

The Court finds that Respondent has not provided sufficient evidence of circumstances

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beyond her control that reach the exceptional circumstances threshold. While Respondent
provided evidence that she gave birth on March 10, 2016, approximately five weeks before her
hearing, and that she did not feel like she could withstand a three hour drive to Court and back on
the day of her hearing, these circumstances do not qualify as exceptional as defined by the Act.
INA 240(e )(1) ("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"). Respondent's attorney, who entered his appearance in Respondent's case on March 17,
2014, was at Respondent's April 18, 2016 Master Calendar hearing. At this hearing,
Respondent's counsel informed the Court that he had not had contact with his client since 2014,
that he mailed her notice of the hearing the day after his office received it, and that he called
Respondent several times, but was unable to get in contact with her. Respondent's Motion to
Reopen and accompanying affidavit are completely void of any explanation as to why
Respondent did not have any contact with her attorney since 2014. It is Respondent's
responsibility to keep in contact with her attorney, and her Motion fails to provide any
justification or explanation as to why she failed to do so. For instance, Respondent does not
explain why she did not simply ask her attorney to request a continuance of her hearing
(scheduled almost two years in advance) since it was around the time she would give birth.
Thus, Respondent failed to provide evidence of circumstances beyond her control reaching the
threshold of exceptional circumstances that prevented her from attending her hearing.

Additionally, the Court notes that Respondent did not indicate in her Motion any relief
she would be seeking before the Court if her case was reopened.

A party seeking reopening bears a "heavy burden," as motions to reopen are disfavored.
Alizoti v. Gonzales, 477 F.3d 448, 451 (6th Cir. 2007) (quoting Doherty v. INS, 502 U.S. 314,
323 (1992)). Respondent has failed to meet this burden since she was unable to prove
exceptional circumstances prevented her from attending her hearing. For the foregoing reasons,
Respondent's Motion to Reopen is denied.

III. CONCLUSION

For the foregoing reasons, the following ORDER is HEREBY ENTERED:

It is HEREBY ORDERED that Respondent's Motion to Reopen an In Absentia Order

be DENIED.

DATE D this the ot::sh.day of October 2016.

Honorable Richard J.
Immigration Judge