Serrato, Fabian C., Esq.

Law Ofices of Fabian C. Serrato

3701 West McFadden Ave., Suite L
Santa Ana, CA 92704-0000
Name: ORTIS-UMANAS,ERIKA ZULEMA
U.S. Department of Justice
Executive Ofce fr Immigation Review
Board of Immigration Appeals
Ofce of the Clerk
5107 Leebur Pike. Sui1e 2000
Fals Church, Vrinia 2204/
OHS/ICE Ofice of Chief Counsel - LOS
606 S. Olive Street, 8th Floor
Los Angeles, CA 90014
A078-324-001
Date of this notice: 3/23/2011
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosure
Panel Members:
Adkins-Blanch, Charles K.
Guendelsberger, Joh
King, Carol
Sincerely,
Donna Carr
Chief Clerk
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Cite as: Erika Zulema Ortis-Umanas, A078 324 001 (BIA March 23, 2011)
For more unpublished BIA decisions, visit www.irac.net/unpublished
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File: A078 324 001 -Los Angeles, CA
I re: E ZORTIS-UAS
I RMOVAL PROCEEDIGS
APEA
Date:
ON BE OF RSPONDET: Fabian C. Serrato, Esquire
APLICATION: Repening
HAR 2 3 /!I
I a decision date Aprl 29, 2010, the Immigaton Judge denied the respondent's moton to
reopen her removal proceedings, which had been conducted in absentia on April 30, 2002. ee
secton 240(b)(5) of the Immigton ad Natonaty Ac, 8 U.S.C. 1229a(b)(5); 8 C.F.R.
1003.23()(4)(ii). Te respondent fled a timely appeal fom that decision. The appeal wbe
m procegs wbe repened and the c wbe rmade.
The Immigaton Judge denied the respondent's motion to reopen fding that she was properly
sete with the notce fr her Aprl 30, 2002, heng. However, upon reve, we fd 0in ligt
of the totaity of circaces presente in this case including the appaent confsion surounding
the reet dae fr her heang fom June 12, 2002 to Arl 30, 2002, her pror attendac at herings
her afdavit a well as her potential eligibility fr relief fom removal based on her marriage to a
Unite State cite we wallow the rspondent aother opportunit to appear fr a hering. cc
m0erof m-K--,24 l&N Dec. 665 (BIA 2008).
ORE: Te appea is sustane, procegs are reopene ad the record is remade to the
Immigation Judge fr frther proceedings.
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Cite as: Erika Zulema Ortis-Umanas, A078 324 001 (BIA March 23, 2011)
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UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION RVIE'"1
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UNITED STATES IMMIGRATION COURT

LOS ANGELES, CALIFORNIA
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File No.: A78 324 001 )
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In the Matter of
ORTIS-UMANAS, Erika Zulema
Respondent.
ON BEHALF OF RESPONDENT:
Fabian C. Serato, Esquire
3 70 I W. McFadden Ave., Suite L
Santa Ana, Califria 92704
IN REMOVAL PROCEEDINGS
ON BEHALF OF THE GOVERMENT:
Rubab Z. Razvi
Assistant Chief Counsel
U.S. Department of Homeland Security
606 South Olive Street, Eighth Floor
Los Angeles, Califria 90014
CHARGE: Section 212(a)(6)(A)(i) of the Immigration and Nationality Act ("Act")
-Present in the United States without being admitted or paroled.
APPLICATION: Motion to Reopen.
DECISION AND ORDER OF THE IMMIGRATION JUDGE
I. Procedural Histor
On April 12, 2001, the Goverment personally served Respondent with a Notice to
Appear ("NT A"). See Exh. |. In the NT A, the Goverent alleged that Respondent, a native
and citizen of El Salvador, arrived in the United States at or near Brownsville, Texas, on or about
April 9, 2001, and was not then admitted or paroled afer inspection by an immigration ofcer.
Accordingly, the Goverent charged Respondent wit removability pursuat to section
212(a)(6)(A)(i) of the Act. Jurisdiction vested with the Court and proceedings were commenced
on April 30, 2001, when the Goverment fled the NTA with the Court. See 8 C.F.R. 1003.14
(2001 ).
Respondent subsequently fled a Motion fr Change of Venue fom Harlingen, Texas to
Los Angeles, Califria, which was granted on July 12, 2001. Respondent appeared fr her
August 24, 2001, removal hearing at the Los Angeles Immigration Court and was granted a
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Cite as: Erika Zulema Ortis-Umanas, A078 324 001 (BIA March 23, 2011)
continuance in order fr her to obtain counsel. 1
On April 10, 2002, Respondent appeared befre the Court prose. She admitted the
allegations and conceded the charge of removability contained in the NT A. The Court
deterined that Respondent appeared ineligible fr Temporar Protected Status, and Respondent
stated that she would not seek asylum. The Court set over Respondent's hearing to April 30,
2002. The Court provided Respondent with both oral and written notice of this hearing date, and
waed her of the consequences of filing to appear.
On April 30, 2002, Respondent filed to appear at her scheduled removal hearing. The
Court proceeded in absentia and fund Respondent removable as charged in the NT A.
Accordingly, Respondent was ordered removed to El Salvador.
On November 5, 2009, Respondent fled the instant Motion to Reopen ("Motion"). In her
Motion, Respondent assers that she received improper notice of the date of her removal hearing.
The Goverment fled its opposition on November 10, 2009.
For the fllowing reasons, Respondent's Motion is DENIED:
A. Notice
II. Law and Analysis
The Court may reopen and rescind an order entered in absentia in removal proceedings
where the alien demonstrates within 180 days of the order that her filure to appear was because
of exceptional circumstances beyond her control. See 8 C.F.R. 1003.23(b)(4)(ii). The Court
may also reopen and rescind an order entered in absentia in removal proceedings at any time if
the alien demonstrates that she did not receive notice of the proceedings. Id.
Here, Respondent asserts that she received improper notice fom the Court regarding her
hearing date. Respondent states in a swor afdavit that at her hearing on April I 0, 2002, she
was told to retur to Court on June 12, 2002. See Respondent's Motion. Ordinarily, the Court
gives strong weight to the afdavits of respondents in motions to reopen. See Marouf v. fS,
772 F.2d 597, 600 (9th Cir.1985) (recognizing that in a motion to reopen the agency "must accept
the fcts in an alien's afdavit as true unless inherently unbelievable"). However, Respondent's
claim is contradicted by the record.
Upon review of the record, it is evident that at the hearing on April I 0, 2002, the Court
initially considered continuing Respondent's case until June 12, 2002. However, given
Respondent's apparent ineligibility fr any frm of relief, the Court instead decided to grant a
shorter continuance and scheduled her hearing fr April 30, 2002. The Cour gave Respondent
1 This case was previously befre Immigration Judge Darlene R. Seligman and was assigned to this Cour fr
consideration of the instant Motion to Reopen.
2
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oral notice of this date on the record. In addition, Respondent was personally served with written
notice.
2
See Exh. 2. Respondent had sufcient notice of her April 30, 2002, removal hearing,
and therefre the Court properly proceeded in absentia when she filed to appear. INA
240(b)(5).
Thus, Respondent's request to reopen proceedings on the basis of lack of notice is denied.
B. 5ue5enIe Reopening
A Immigration Judge may upon his or her own motion at any time, or upon motion of
the Serice or alien, reopen or reconsider any case in which he or she has made a decision. 8
C.F.R. 1003.23(b)(l). The decision to grant or deny a motion to reopen is within the discretion
of the Immigration Judge. 8 C.F.R. 1003.23(b)(l)(iv). Nevertheless, the Boad has stated that
"the power to reopen on our own motion is not meant to be used as a general cure fr fling
defects or to otherise circumvent the regulations, where enfrcing them might result in
hardship." Matter of J-J-, 21 I&N Dec. 976, 984 (BIA 1997). Proceedings should be reopened
sua sponte only under "exceptional" circumstances. Id. at 984.
The Court fnds this case inappropriate fr the Court's discretionar exercise of sua
sponte reopening. 8 C.F.R. 1003.23(b)(l). Respondent filed to appear at her April 30, 2002,
removal hearing afer being advised by the Court of her next hearing date and the consequences
of her failure to appear. Respondent's assertion of improper notice is unsupported by the record,
and is being brought eight years afer her last hearing. Moreover, her motion fils to establish
primafacie eligibility fr relief fom removal. The Court recognizes that Respondent has a
United States husband whom she maried more than five years afer the fnal order of removal.
See Respondent's Motion. However, this afer-acquired equity does not mitigate the lengthy
period of time during which Respondent avoided immigration authorities. See Caruncho v.
l.N.S., 68 F.3d 356, 362 (9th Cir. 1995) (holding that equities fowing fom an alien's marriage
were entitled to little weight because marriage took place three months afer a final order of
deportation). The Court fnds that the equities that have accrued over the past eight years were
only possible due to Respondent's disregard of her immigration hearing. Respondent has filed
to demonstrate "exceptional circumstances" warranting the exercise of this Court's sua sponte
authority to reopen. 8 C.F .R. |003 .23(b )(|)(iv); J-J-, 21 I&N at 984.
Accordingly, the fllowing order wiJJ be entered:
2 Respondent cites to Salta v. l.N.S., 314 F.3d 1076, 1079 (9th Cir. 2002), as suppor fr the contention that her
swor afdavit is sufcient to overcome the presumption of deliver of the NT A. However, Salta involved the
lesser presumption of service by regular mail. Here, Respondent received actual service in person. Thus, the instant
matter is readily distinguishable fom Salta.
3
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ORDER
IT IS HERBY ORDERED that Respondent's Motion to Reopen be DENIED.
DATE: April 29, 2010 (-);
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Rodin Rooyani
Immigration Judge
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