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Sukhdev Singh, A209 154 612 (BIA Aug. 25, 2017)
Sukhdev Singh, A209 154 612 (BIA Aug. 25, 2017)
Sukhdev Singh, A209 154 612 (BIA Aug. 25, 2017)
Department of Justice
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:
Wendtland, Linda S.
Cole, Patricia A
Pauley, Roger
Userteam: Docket
Cite as: Sukhdev Singh, A209 154 612 (BIA Aug. 25, 2017)
U.S. Department of Justice
Enclosed is a copy of the Board's decision in the above-referenced case. This copy is being
provided to you as a courtesy. Your attorney or representative has been served with this
decision pursuant to 8 C.F.R. 1292.S(a). If the attached decision orders that you be
removed from the United States or affirms an Immigration Judge's decision ordering that you
be removed, any petition for review of the attached decision must be filed with and received
by the appropriate court of appeals within 30 days of the date of the decision.
Sincerely,
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Cynthia L. Crosby
Deputy Chief Clerk
Enclosure
Panel Members:
Wendtland, Linda S.
Cole, Patricia A
Pauley, Roger
Userteam:
Cite as: Sukhdev Singh, A209 154 612 (BIA Aug. 25, 2017)
' , U.S. Department of Justice Decision of the Board of Immigration Appeals
Executive Office for Immigration Review
APPEAL
APPLICATION: Reopening
The respondent, a native and citizen oflndia, was ordered removed in absentia on January 25,
2017. On March 6, 2017, the respondent filed a timely motion to reopen proceedings, which the
Immigration Judge denied on March 21, 2017. The respondent filed a timely appeal of that
decision. The Department of Homeland Security has filed a brief in opposition to the appeal. The
appeal will be sustained, and the record will be remanded.
We review findings of fact, including credibility findings, for clear error. See 8 C.F.R.
1003. l(d)(3)(i) (2017); see also Matter ofJ-Y-C-, 24l&N Dec. 260 (BIA 2007); Matter ofS-H-,
23 I&N Dec. 462 (BIA 2002). We review questions of law, discretion, or judgment, and all other
issues de novo. See 8 C.F.R. 1003. l(d)(3)(ii).
The respondent contends that his removal proceedings should be reopened because he arrived
about 30 minutes late to his hearing on his application for asylum, withholding of removal, and
protection under the Convention Against Torture (IJ at 1, 4; Respondent's Motion to Reopen at
4-6). He asserts that he arrived at the Atlanta Immigration Court approximately 1 hour before the
8:00 a.m. scheduled start time and was told by a security guard to sit in the court's waiting room
(IJ at 4; Respondent's Motion to Reopen at 3). Once his attorney arrived, he entered the courtroom
around 8:30 a.m. and discovered that the Immigration Judge had entered an in absentia removal
order against him (Respondent's Motion to Reopen at 3). He argues that his late arrival to his
removal proceeding does not constitute a failure to appear under section 240(b)(5) of the
Immigration and Nationality Act, 8 U.S.C. 1229a(b)(5) (Respondent's Motion to Reopen at 4-6;
Respondent's Br. at 13-24). Upon de novo review, we agree with the respondent that his removal
proceedings should be reopened.
As an initial matter, the Immigration Judge erred in construing the respondent's motion as an
untimely motion to reconsider the in absentia order of removal (U at 2-3). The fact that the
respondent cited to legal authority in support of his motion does not convert his motion to reopen
to a motion to reconsider.
Moreover, several circuit courts of appeals have held that a brief delay in arriving in the
courtroom is not a "failure to appear," when the Immigration Judge is still on the bench or recently
Cite as: Sukhdev Singh, A209 154 612 (BIA Aug. 25, 2017)
A209 154 62
retired and close by, or the delayed arrival is still during "business hours," and have ordered such
proceedings to be reopened. See, e.g., Perez v. Mukasey, 516 F.3d 770 (9th Cir. 2008); Abu
Hasirah v. DHS, 478 F.3d 474 (2d Cir. 2007); Cabrera-Perez v. Gonzales, 456 F.3d 109 (3d Cir.
2006); Alarcon-Chavez v. Gonzales, 403 F.3d 343 (5th Cir. 2005); Jerezano v. INS, 169 F.3d 613
(9th Cir. 1999).
ORDER: The respondent's appeal is sustained, proceedings are reopened, and the record is
remanded for further proceedings consistent with the foregoing opinion.
Board Member Roger A. Pauley concurs in the result and would hold that the respondent
demonstrated exceptional circumstances warranting reopening.
Cite as: Sukhdev Singh, A209 154 612 (BIA Aug. 25, 2017)
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File A209-154-612
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Enclosed is a copy of the order/decision of the Immigration Judge.
Sincerely,
APPEARANCES
I. PROCEDURAL HISTORY
Sukhdev Singh ("Respondent") is an adult male native and citizen of India. Respondent
entered the United States at or near Calexico, California, on or about July 2, 2016, without being
admitted or paroled after inspection by an immigration officer. See NTA.
On July 21, 2016, the Department of Homeland Security ("Department") issued Respondent
a Form 1-862, Notice to Appear (''NTA''), charging him as removable under section
212(a)(7)(A)(i)(I) of the Immigration and Nationality Act, as amended ("INA" or "Act").
Respondent was served with his NTA by regular mail. See NTA.
On September 22, 2016, Respondent had a master calendar hearing before the Court, during
which he submitted a Form I-589, Application for Asylum and for Withholding of Removal
("asylum application").
On January 25, 2017, Respondent failed to appear before the Court and was ordered removed
to India in absentia on that date.
The Court has carefully reviewed the entire record before it. All evidence has been
considered, even if not specifically discussed further in this decision. For the reasons set forth
below, the Court will deny Respondent's Motions to Reconsider and Reopen.
Motions to reconsider and motions to reopen are separate and distinct motions with different
requirements. A motion to reconsider requests that the original decision be reexamined "'in light
of additional legal arguments, a change of law, or . . . an argument or aspect of the case that was
overlooked.'" Matter of Ramos, 23 I&N Dec. 336, 338 (BIA 2002) (quoting Matter of Cerna, 20
I&N Dec. 399, 402 n.2 (BIA 1991)). Only one motion to reconsider may be filed before the
Immigration Court, and such motion must be filed within 30 days of the date of entry of a final
administrative order of removal, deportation, or exclusion. INA 240(c)(6)(B); Matter of J-J-,
21 I&N Dec. 976, 977-78 (BIA 1997); 8 C.F.R. 1003.23(b)(l). In addition, a motion to
reconsider must specify the errors of law or fact in the previous order and must be supported by
pertinent authority. INA 240(c)(6)(C); Matter of 0-S-G-, 24 I&N Dec. 56, 56-57 (BIA 2006);
8 C.F.R. 1003.23(b)(2).
In contrast, a motion to reopen seeks a new hearing based on new or previously unavailable
evidence. 0-S-G-, 24 l&N Dec. at 57-58; Cerna, 20 l&N Dec. at 402-03. Only one motion to
reopen may be filed by an alien. 8 C.F.R. 1003.23(b)(4)(ii). Generally, motions to reopen for
the purpose of rescinding an in absentia removal order must be filed within 180 days of the date
of the removal order, and the respondent must demonstrate that her failure to appear was due to
exceptional circumstances. See INA 240(b)(5)(C)(i); 8 C.F.R. 1003.23(b)(4)(ii). The Code of
Federal Regulations also grants an Immigration Judge sua sponte authority to reopen, at any
time, any case in which he has made a decision. See 8 C.F.R. 1003.23(b)(l ). The Board of
Immigration Appeals ("Board") has explained that exercising sua sponte authority is "an
extraordinary remedy reserved for truly exceptional situations." Matter of G-D-, 22 I&N Dec.
1132, 1133-34 (BIA 1999) (citing J-J-, 21 l&N Dec. at 984).
Ill. DISCUSSION
Although titled a motion to reopen, Respondent's Motion not only asks the Court to reopen
his case sua sponte, but also asks the Court to reconsider his in absentia order due to legal
1 As discussed in detail below, Respondent's Motion, despite its title, it both a motion to reopen and a motion to
reconsider. As a result, the Court will consider each separately. See Part lll.
authority that was allegedly overlooked. See Mot. at 1-6. Therefore, the Court will consider
Respondent's Motion as both a Motion to Reopen and a Motion to Reconsider.
Respondent was ordered removed on January 25, 2017; he filed his Motion to Reconsider
ii. Respondent has not provided an adequate legal basis for his Motion to
Reconsider.
Assuming arguendo that Respondent's Motion to Reconsider was timely filed, the Court
would also deny the Motion because Respondent has not provided an adequate legal basis to
warrant the Court's reconsideration of his case.
A motion to reconsider must specify the errors of law or fact in the previous order and must
be supported by pertinent authority. INA 240(c)(6)(C); 0-S-G-, 24 l&N Dec. at 56-57; 8
C.F.R. 1003.23(b)(2). In this case, Respondent argues that his in absentia removal order should
be reconsidered because "brief tardiness" does not constitute a failure to appear. Mot. at 4-5. In
support of his argument, Respondent cites to a number of cases, including Perez v. Mukasey, 516
F.3d 770 (9th Cir. 2008); Abu Hasirah v. De.p't of Homeland Sec., 478 F.3d 474 (2d Cir. 2007);
Cabrera-Perez v. Gonzales, 456 F.3d 109 (3d Cir. 2006); and Alarcon-Chavez v. Gonzales, 403
F.3d 343 (5th Cir. 2005). See Mot. at 4-5. However, none of the cases cited by Respondent were
decided by the United States Court of Appeals for the Eleventh Circuit, the jurisdiction in which
this case arises. See Pineda v. U.S. Att'y Gen., 186 F. App'x 854 (11th Cir. 2006) (unpublished
and cited for persuasiveness) ("Other circuit courts have found that situations akin to [the
respondent's], in which a decision was entered in absentia when the alien was less than thirty
minutes late for the hearing, can constitute an abuse of discretion. However, we have never
previously made such a finding." (citations omitted)).
As a result, the Court will deny Respondent's Motion to Reconsider because it is untimely
and because it lacks sufficient legal authority to establish that reconsideration of Respondent's
case is proper.
By his own admission, Respondent was late to his January 25, 2017 hearing. Contrary to
Attorney Smith's statement that she and Respondent entered the courtroom at 8:30 A.M., the
recording of Respondent's January 25, 2017 hearing indicates that Respondent appeared at 9:05
A.M.-more than one (1) hour after his hearing was scheduled to begin. Moreover, the Court
correctly noted that Respondent appeared without his counsel of record. As acknowledged by
Respondent in his Motion to Reopen, the Court had not yet ruled on Respondent's Motion to
Withdraw as Counsel at the time of Respondent's January 25, 2017 hearing; as a result, his
attorney of record remained obligated to appear on Respondent's behalf at his hearing. As a
result, the Court finds that Respondent has not demonstrated that exceptional circumstances
justified his failure to appear at his January 25, 2017.
The Court also finds that Respondent has not established that his case is "truly exceptional"
such that sua sponte reopening is warranted. See 0-D-, 22 I&N Dec. at 1133-34. Respondent
admits that he appeared at his January 25, 2017 hearing late and without counsel. This is not an
exceptional circumstance that warrants use of the Court's discretionary authority to reopen sua
sponte. See J-J-, 21 I&N Dec. at 984 (holding that the Court's power to reopen a case sua sponte
"is not meant to be used as a general cure for filing defects or to otherwise circumvent the
regulations, where enforcing them might result in hardship").