calvo, maria del carmen MARIA CALVO LLC 4902 CANAL ST. STE 202 NEW ORLEANS, LA 70119

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals Qffice of the Clerk

5/07 leesburg Pike, Suite 2000 Falls Church, Virginia 2204/

OHS/ICE Office of Chief Counsel - NOL 1250 Poydras Street, Suite 325 New Orleans, LA 70113

Name: BATRES-ROMERO, JORGE ALB ... A 206-189-330

Date of this notice: 3/17/2016

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

Enclosure

Panel Members: O'Leary, Brian M.

Grant, Edward R. Guendelsberger, John

Sincerely,

DOrutL C wvu

Donna Carr Chief Clerk

Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished/index/

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Cite as: Jorge Alberto Batres-Romero, A206 189 330 (BIA March 17, 2016)

U.S. Departmtnt of Justice Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 22041

File: A206 189 330 - New Orleans, LA

In re: JORGE ALBERTO BATRES-ROMERO

IN REMOVAL PROCEEDINGS

APPEAL

Date:

ON BEHALF OF RESPONDENT: Maria Calvo, Esquire

APPLICATION: Reopening

MAR

The respondent, a native and citizen of El Salvador, was ordered removed from the United States in absentia on May 19, 2015, after his non-appearance at his hearing. He appeals from the Immigration Judge's decision dated September 4, 2105, denying his August 18, 2015, motion to reopen. The appeal will be sustained.

The Board defers to the factual findings of an Immigration Judge, unless they are clearly erroneous, but it retains independent judgment and discretion, subject to applicable governing standards, regarding questions of law and the application of a particular standard of law to those facts. 8 C.F.R. §§ 1003.l(d)(3)(i), (ii).

On appeal, the respondent argues that "exceptional circumstances" prevented him from appearing at his hearing. See section 240(e)(l) of the Immigration and Nationality Act, 8 U.S.C. § 1229a(e)(l) (stating that the term "exceptional circumstances" refers to exceptional 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). The respondent states that his former roommate received his hearing notice which was sent to their shared address by mail, and he did not bring it to the respondent's attention. The respondent's contention is corroborated by the affidavit of a witness who attests that the roommate admitted that he forgot to tell the respondent that he had received the Notice of Hearing. Although the respondent did not submit an affidavit from his roommate, we nonetheless conclude that the respondent provided sufficient evidence establishing that an "exceptional circumstance" prevented his appearance at the hearing.

Accordingly, the following order will be entered.

ORDER: The appeal is sustained, and these proceedings are reopened and remanded for further proceedings consistent with the foregoing opinion.

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Cite as: Jorge Alberto Batres-Romero, A206 189 330 (BIA March 17, 2016)

UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

IMMIGRATION COURT NEW ORLEANS, LOUISIANA

IN THE MATTER OF

BATRES-ROMERO, JORGE

Respondent

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IN REMOVAL PROCEEDINGS

File: A206-189-330

CHARGE: 212(a)(7)(A)(i) of the Immigration and Nationality Act

APPLICATION: Motion to Reopen In Absentia Order of Removal

ON BEHALF OF RESPONDENT: Maria Calvo Maria Calvo, LLC 4902 Canal St., Suite 202 New Orleans, LA 70119

ON BEHALF OF DHS: Robert Weir Department of Homeland Security U.S. Immigration & Customs Enforcement 1250 Poydras St., Suite 2100 New Orleans, LA 70113

DECISION OF THE IMMIGRATION JUDGE

Respondent is a native and citizen of El Salvador. Respondent was placed in removal proceedings after the Department of Homeland Security ("DHS") issued a Notice to Appear (NTA) charging him pursuant to section 212(a)(7)(A)(i)of the Immigration and Nationality· Act (INA) on September 25, 2013.

On May 4, 2015 a Notice of Hearing was mailed to the Respondent informing him of an initial Master Calendar Hearing before the New Orleans Immigration Court on May 19, 2015. The Respondent failed to appear for the May 19, 2015 hearing. Removability was established by clear and convincing evidence. See 8 C.F.R. § 1240.8(a); Woodby v. INS, 385 U.S. 276 (1966). Therefore, Respondent was ordered removed in absentia pursuant to the charge contained in the NTA.

On August 18, 2015, Respondent filed a Motion to Reopen the in absentia order of removal. The issue now before the Court is the merits of Respondent's Motions to Reopen.

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A#206-189-330 BATRES-ROMERO, Jorge Page2 of4

I. Statement of Law

An Immigration Judge may upon his or her own motion at any time, or upon motion of DHS or the Respondent, reopen or reconsider any case in which he or she has made a decision, unless jurisdiction is vested with the Board of Immigration Appeals. 8 C.F.R. § 1003.23(b)(l).

INA §240(b)(S)(A) provides that a Respondent who fails to attend a proceeding shall be ordered removed in absentia if DHS establishes by clear, unequivocal, and convincing evidence that written notice, as required under § 239(a)(l) or (2) of the Act, was provided and that the Respondent is removable. An order of removal issued following proceedings conducted in absentia may be rescinded only upon a motion to reopen filed before the Immigration Judge. INA §240(b )(S)(C).

An order of removal entered in absentia may be rescinded only upon a motion to reopen filed within 180 days after the order of removal if the Respondent demonstrates that "exceptional circumstances" prevented his appearance. 8 C.F.R. §1003.23(b)(4)(ii). The term "exceptional circumstances" refers to those beyond the Respondent's control, such as events of serious illness to the Respondent or his direct relatives or instances of a battery or violence against the alien or his parents, but not including less compelling circumstances. INA §240(e)(l).

An ordered entered in absentia may be rescinded upon a motion to reopen filed at any time if the Respondent demonstrates that he or she did not receive notice in accordance with INA 239(a){l) or (2), or if the Respondent demonstrates that he or she was in Federal or state custody and the failure to appear was through no fault of their own. 8 C.F.R. §1003.23(b)(4)(ii).

II. Respondent's Position

The Respondent states that although both the Notice of Hearing and Order of Removal were mailed to his address and actually received at his address, he was not given either until after learning from his present counsel he had been ordered removed on August 14, 2015. The Respondent therefore claims lack of notice and exceptional circumstances as reasons to reopen his case. The Respondent states in the motion to reopen that he failed to appear before the court due to a mistaken belief as to the court date.

III. DBS' Position

DHS opposes the motion to reopen stating there is no independent evidence the Respondent's roommate withheld the court's correspondence from the Respondent other than the Respondent's unsworn affidavit. DHS contends this constitutes neither a lack of notice nor an exceptional circumstance.

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A.#206-189-330 BATRES-ROMERO, Jorge Page 3 of 4

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IV. Analysis and Conclusions

The Respondent's cites to Kaweese v. Gonzalez; 450 F.2d 62 (151 Cir. 2006), for the proposition that exceptional circumstances where a Respondent representing herself pro se, inadvertently mistook the date of the hearing but promptly called the court and filed a motion to reopen. However, this is not the case in this matter. The Respondent has not stated he thought the hearing was on a different date, the Respondent is stating he did not know the date at all. Therefore, Kaweese is not applicable to the Respondent's case. The Respondent admits that the Notice of Hearing was delivered to his address of record. Therefore, the Respondent's claim of lack of notice fails. The Respondent has provided no sworn statement from the individual who alleged took the Respondent's mailed and withheld it from the Respondent. Based on the evidence of record, I do not find the Respondent to have demonstrated exceptional circumstances as set forth by the INA.

The Respondent also contends the case should be reopened because the Respondent is worthy of favorable discretion. However, a sua sponte reopening is not warranted simply because a Respondent is worthy of a favorable exercise of discretion, rather it is reserved for only truly exceptional situations for what the BIA has noted is an extraordinary remedy. See Matter of G-D-; 22 l&N Dec 1132, 1134 (BIA 1999). The Respondent claims he should have the opportunity to file an application for asylum or to apply for voluntary departure. The Respondent did not submit a copy of any application for asylum with the motion to reopen, and any application filed would be more than a year after the Respondent's arrival in the United States. Therefore he would not be eligible for asylum absent an exception to the one year filing deadline, which the Respondent does not claim at this point. The Respondent has not demonstrated an exceptional situation that would warrant reopening for him to apply for voluntary departure. Finally, the Respondent claims he is seeking a U visa and has submitted a copy of a Form 1-918 Supplement B. However, this Court has no jurisdiction to adjudicate a U visa request. See 8 C.F.R. §214.14(c)(l). Furthermore, if U.S. Citizenship and Immigration Services (USCIS) approved the application for a U visa, the order of removal is deemed cancelled by operation of law as of the date of the USCIS approval. See 8 C.F.R. §214.14(c)(S). Sua sponte reopening is not appropriate under these circumstances. See Matter of Yauri, 25 I&N Dec 103, 110 (BIA 2009) (sua sponte reopening of exclusion, deportation, or removal proceedings pending a third party's adjudication of an underlying application that is not itself within our jurisdiction ordinarily would not be warranted as a matter of discretion).

Based on the above and foregoing, the Court enters the following orders:

ORDER:

Date

IT IS HEREBY ORDERED Respondent's Motion to Reopen the in absentia order of removal be DENIED.

Joseph La Rocca Immigration Judge

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,A#206-189-330 BATRES-ROMERO, Jorge Page 4 of 4

CERTIFICATE OF SERVICE THIS DOCUMENT WAS SERVED BY: MAI� PERSONAL SERVI�E (P) TO: ( ) ALIEN ( ) ALIEN c/o Custodial O:fi 1ce r '11. ALIEN1s ATT /REP {"} DHS

DATE: /.!5 BY: COURT STAFF ------------------

Attachment(s): ( ) EOIR-33 ( ) EOIR-28 ) Legal Se rvices List ( ) Other

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