Baldini-Potermin, Maria Theresa Maria Baldini-Potermin & Associates, P .C. 1 N. LaSalle, Suite 2150 Chicago, IL 60602

Name: RINCON-VELASQUEZ, OTONIEL

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 20530

OHS/ICE Office of Chief Counsel - CHI 525 West Van Buren Street Chicago, IL 60607

A 089-284-279

Date of this notice: 8/27/2014

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

Enclosure

Panel Members: Malphrus, Garry D.

Sincerely,

Donna Carr Chief Clerk

Usertea m: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished

Imm

igrant & Refugee A

ppellate Center | w

ww

.irac.net

Cite as: Otoniel Rincon-Velasquez, A089 284 279 (BIA Aug. 27, 2014)

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

Decision of the Board of Immigration Appeals

Falls Church, Vilginia 20530

File: A089 284 279 - Chicago, IDinois

In re: OTONIEL RINCON .. VELASQUEZ

IN REMOVAL PROCEEDINGS

APPEAL

Date:

ON BEHALF OF RESPONDENT: Maria Baldini-Potermin, Esquire

ON BEHALF OF DHS:

APPLICATION: Reopening

Seth B. Fitter Senior Attorney

AUG 2 7 2014

This case was last before the Board on May 1, 2013, when we dismissed the respondent's appeal of an Immigration Judge's January 7, 2013, decision which denied his motion to rescind his in absentia removal order. The United States Court of Appeals for the Seventh Circuit has granted the Government's unopposed motion to remand the case to the Board. The record will be remanded to the Immigration Judge.

We review an Immigration Judge's findings of fact, including the credibility determination, under the "clearly erroneous'' standard. 8 C.F.R. § 1003.l(d)(3Xi). We review all other issues, including whether the parties have met the relevant burden of proof, and issues involving questions of law, judgment and discretion, under a de novo standard. 8 C.F.R. § 1003.l(d)(J)(ii). The respondent's case is governed by the REAL ID Act of 2005. Matter of S-B-, 24 I&N Dec. 42 (BIA 2006).

On May 1, 2013, we dismissed the respondent's appeal of an Immigration Judge's January 7, 2013, decision which denied his motion to rescind his in absentia removal order. The Immigration Judge determined that the respondent's mental state caused by his brothers' kidnapping and his father's death in Mexico did not constitute exceptional circumstances beyond bis control to excuse his failure to appear for his 2012 hearing. She further found that these events did not constitute changed country conditions because they had occurred prior to the 2012 hearing, and were not previously unavailable information. Finally, the Immigration Judge declined to reopen the respondent's case on her own authority.

On September 18, 2013, the United States Court of Appeals for the Seventh Circuit granted the Government's unopposed motion to remand. The matter was remanded to the Board to clarify whether the totality of the circumstances test for assessing a motion to rescind an in absentia removal order based upon exceptional circumstances, as set forth in Matter of W-F-, 21 I&N Dec. 503 (BIA 1996), involves consideration of the merits of the alien's underlying claim for relief. In addition, the case was remanded to address the respondent's claim that the Immigration Judge committed legal error in denying his request for reopening on her own authority.

Imm

igrant & Refugee A

ppellate Center | w

ww

.irac.net

Cite as: Otoniel Rincon-Velasquez, A089 284 279 (BIA Aug. 27, 2014)

· A089 284 279

Because the remand raises significant evidentiary and legal issues which warrant further elaboration and possible fact-finding, and given our limited fact-finding ability, we will remand the case to the Immigration Judge to address the issues discussed in the Seventh Circuit's remand. The Immigration Judge also may hold a hearing to evaluate the credibility of the respondent's assertions in his asylum application attached to the motion to rescind his in absentia removal order.

Accordingly, the following order will be entered.

ORDER: The record is remanded for the entry of a new decision in accordance with the preceding order.

FOR THE BOARD

2

Imm

igrant & Refugee A

ppellate Center | w

ww

.irac.net

Cite as: Otoniel Rincon-Velasquez, A089 284 279 (BIA Aug. 27, 2014)