U.S.

Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

Office of the Clerk

5107 Leesburg Pike, Suite 2000

Falls Church. Virginia 22041

Immigrant & Refugee Appellate Center, LLC | www.irac.net

Peterson, Scott Kelly OHS/ICE Office of Chief Counsel - SND
Law Office of Scott K. Peterson 880 Front St., Room 2246
4157 Donna Ave San Diego, CA 92101-8834
San Diego, CA 92115

Name: FLORES-LOPEZ, JESUS A 209-946-545

Riders:209-946-546

Date of this notice: 7/2/2020

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

Sincerely,

DCrutL CaNLJ
Donna Carr
Chief Clerk

Enclosure

Panel Members:
Kelly, Edward F.
Cassidy, William A.
Pepper, S. Kathleen

,
Userteam: Docket

For more unpublished decisions, visit

www.irac.net/unpublished/index

Cite as: Jesus Flores-Lopez, A209 946 545 (BIA July 2, 2020)
U.S. Department of Justice Decision of the Board of Immigration Appeals
Executive Office for Immigration Review

Falls Church, Virginia 22041

Files: A209-946-545 - San Diego, CA Date:

A209-946-546
JUL - 2 1071'\

Immigrant & Refugee Appellate Center, LLC | www.irac.net

In re: Jesus FLORES-LOPEZ a.k.a. Jesus Alberto Flores-Lopez a.k.a. Jesus Flores
Lester Leonardo FLORES-CAC

IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENTS: Scott K. Peterson, Esquire

APPLICATION: Reopening

The respondents have appealed the Immigration Judge's October 24, 2019, decision denying
the motion of the adult lead respondent (hereinafter respondent) to reopen the proceedings. The
respondents had previously been ordered removed in absentia for their failure to appear for an 8:00
am hearing on August 20, 2019. The appeal will be sustained, proceedings will be reopened, and
the record will be remanded.

We review the findings of fact of an Immigration Judge, including credibility determinations,

under the "clearly erroneous" standard. See 8 C.F .R. § 1003 .1 (d)(3 )(i). We review all other issues,
including issues of law, discretion, or judgment, under a de novo standard. See 8 C.F.R.
§ 1003.l(d)(3)(ii).

On appeal, the respondent contends that the Immigration Judge erred in entering an in absentia
order of removal because he merely arrived late, at 8:20 am, for his scheduled hearing when traffic
congestion caused the public transportation he was using to be delayed. The respondent argues
that the delay should be excused, and he indicates that he did not have the means to communicate
to his attorney or the Immigration Court that his arrival would be delayed.

The Immigration Judge issued an order denying the respondent's motion upon determining
that traffic congestion was not an exceptional circumstances that would excuse the respondent's
failure to appear (IJ at 2). 1

An alien who merely appears late for a hearing will not be found to have failed to appear, and
therefore need not establish lack of proper notice or exceptional circumstances to excuse a failure
to appear. See Perez v. Mukasey, 516 F.3d 770, 774 (9th Cir. 2008) (holding that alien who arrived
two hours late for his immigration hearing, but while Immigration Judge was still in the courtroom,
did not fail to appear for that hearing); Jerezano v. INS, 169 F.3d 613 (9th Cir. 1999) (holding that

1
The respondent's motion was supported by his sworn affidavit explaining that he took the same
bus which he had previously used to attend his immigration hearings. However, the bus did not
arrive at its stop near the Immigration Court until 8:10 am, and he was unable to walk to the
Immigration Court and clear security screening until 8 :20 am.

Cite as: Jesus Flores-Lopez, A209 946 545 (BIA July 2, 2020)
A209-946-545 et al.

while traffic delays are generally not considered exceptional circumstances, delayed appearances
are not nonappearances for purposes of reopening). It does not appear to be in dispute that the
respondent appeared, albeit late, while the Immigration Judge was still on the bench.
Consequently, we conclude that the respondent's late arrival does not constitute a failure to appear.

Immigrant & Refugee Appellate Center, LLC | www.irac.net

Accordingly, the following order will be entered.

ORDER: The appeal is sustained, the in absentia order of removal is rescinded, the proceedings
are reopened, and the record is remanded for further proceedings consistent with the foregoing
opm1on.

I
/FOR
L/

Cite as: Jesus Flores-Lopez, A209 946 545 (BIA July 2, 2020)