U.S.

Department of Justice
Executive Office for Immigration Review

Board of Immigration Appeals

Office of the Clerk
51071.eesburg Pike. Suite 2000
Falls Church. Virginia 20530

OHS/ICE Office of Chief Counsel - BUF

130 Delaware Avenue, Room 203
Buffalo, NY 14202

Name: FLORES-VELASQUEZ, GICELY ...

A 205-277-572

Date of this notice: 4/24/2015

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

Don.rtL ctVlA)
Donna Carr
Chief Clerk

Enclosure
Panel Members:
Grant. Edward R.
Adkins-Blanch, Charles K.
Guendelsberger, John

Use rte am: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index
Cite as: Gicely Sarai Flores-Velasquez, A205 277 572 (BIA April 24, 2015)

Immigrant & Refugee Appellate Center | www.irac.net

Shouan Zhoobin Riahi, Esquire

Central American Legal Assistance
240 Hooper Street
Brooklyn, NY 11211

. U.S. Department of Justice

Executive Office for Immigration Review

Decision of the Board oflnunigration Appeals

Falls Church, Virginia 20530

File:

A205 277 572 - Buffalo, NY

In re:

GICELY SARAI FLORES-VELASQUEZ

Date:

'

APR

2 4 2DfJ3

APPEAL
ON BEHALF OF RESPONDENT:

Shouan Zhoobin Riahi, Esquire

Michele Henriques

ON BEHALF OF DHS:

Assistant Chief CoWlsel

APPLICATION: Reopening
The respondent, a native and citizen of Honduras, has appealed from the decision of the
Immigration Judge dated September 20, 2013, denying the respondent's motion to reopen
proceedings after she was ordered removed in absentia when the respondent failed to appear for
her scheduled hearing on May 17, 2013. The Department of Homeland Security (DHS) opposes
the appeal. The appeal will be sustained and the record remanded for further proceedings.
The Board reviews findings of fact, including credibility determinations, under a "clearly
erroneous" standard.
1003.l(d)(3)(i).

See Matter of R-S-H-, 23 I&N Dec. 629 (BIA 2003); 8 C.F.R.

If the Board determines that an Immigration Judge's findings of fact are not

clearly erroneous, it may review de novo whether the facts are sufficient to meet an applicable
legal standard. See Matter ofA-S-B-, 24 I&N Dec. 493,497 (BIA 2008). In determining whether
established facts meet a particular legal standard, the Board may weigh the evidence in a manner
differently than the Immigration Judge, or conclude that the foundation for the Immigration
Judge's legal conclusions is insufficient or otherwise not supported by the evidence. Id at 496.
We review de novo determinations made in the exercise of discretion.

Id at 497. We have

conducted de novo review of the issues presented here.

The Immigration Judge denied the respondent's April 29, 2013, motion to change venue,
which was unopposed by the DHS. The decision to grant an alien's request to change venue is a
matter of discretion and is subject to demonstration of good cause, which is determined by
balancing relevant factors, including administrative convenience, expeditious treatment of the
cas e, location of witness es , cost of transporting witnesses or evidence to a new location, and

factors commonly associated with the alien's place of residence. See Matter ofRahman, 20 I&N
Dec. 480 (BIA 1992).
In this case, we find that the balance of such factors is in the respondent's favor. The DHS

did not oppose the motion to change venue, and there is little or no apparent inconvenience to the
government. Moreover, we agree with the respondent that there is no requirement that the
respondent include her asylum application, because she provided a description of the basis of her
for this relief.
See Immigration Court Practice Manual, Chapter
http://W\\rw.justice.gov/eoir/vll/OCIJPracManual/Practice Manual review.pdf#page=l 1.
eligibility

Cite as: Gicely Sarai Flores-Velasquez, A205 277 572 (BIA April 24, 2015)

5. IO(c).

Immigrant & Refugee Appellate Center | www.irac.net

IN REMOVAL PROCEEDINGS

f'

..

A2.05 277 572

'

Therefore, we conclude that the respondent's request for a change of venue should have been
granted. See Monter v. Gonzales, 430 F.3d 546 (2d Cir. 2005) (denial of alien's motion for
change of venue of removal proceedings to a location significantly closer both to his and his
principal witness' residence, that was also significantly closer to evidence bearing on only
contested issue in case, the bona fide nature of alien's marriage to United States citizen, was
order and remand for further proceedings).
In view of our determination that the Immigration Judge incorrectly denied the respondent's
motion to change venue, we find under the totality of the circumstances that the respondent has
presented exceptional circumstances to excuse her failure to appear for her May 17, 2013,
removal hearing.

See Romero-Morales

v.

INS, 25 F.3d 125, 129 (2d Cir. 1994) (requiring

Immigration Judges to examine the substance of a petitioner's motion for change of venue as
part of their obligation "to consider the record as a whole and issue a reasoned opinion" on a
motion to reopen).
ORDER: The appeal is sustained, the in absentia order is rescinded, and the proceedings are
reopened.
FURTHER ORDER: The record is remanded to the Immigration Court for further
proceedings consistent with the foregoing opinion and for issuance of a new decision.
FURTHER ORDER: Venue is changed from Buffalo, New York, to New York, New York.

FOR THE BOARD

Cite as: Gicely Sarai Flores-Velasquez, A205 277 572 (BIA April 24, 2015)

Immigrant & Refugee Appellate Center | www.irac.net

abuse of discretion that prejudiced alien's rights, and that necessitated vacation of the Board

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
BUFFALO, NEW YORK

In the Matter of:

IN REMOVAL PROCEEDINGS

A# 205-277-572
Respondent

CHARGES:

INA

MOTIONS:

Motion to Rescind an in Absentia Order and Reopen Proceedings

Present without Permission or Parole

212(a)(6)(A)(i)

ON BEHALF O F RESPONDENT
Rebecca R. Press, Esq.
Central American Legal Assistance
240 Hooper Street
Brooklyn, New York 11211

ON BEHAL F OF THE DHS

Denise C. Hochul, Esq.

Senior Attorney

13 0 Delaware Avenue, Suite 203

Buffalo, New York 14202

DECISION AND ORDER OF THE IMMIGRATION JUDGE

Respondent's motion to
I.

rescind an order and reopen proceedings is DENIED.

FACTS AND PROCEDURAL HISTORY

Gicely Sarai Flores-Velasquez ("Respondent") is a 27-year-old native and citizen

of Honduras. She is not a citizen or national of the United States. She arrived in the
United States at an unknown pl ac e on an unknown date. She was not then admitted or
paroled after inspection by an immigration officer.
On September

22, 2012, the Department of Homeland Security ("DHS") issued

a Notice to Appear ("NTA") (Exh. 1 ), c harg ing her as subject to removal
1
from the United States pursuant to INA 212(a)(6)(A)(i). Respondent was ordered to
appear before the Buffalo Immi gration Court ("Court") on May 17, 2013, at 9 a m See
Notice of Hearing in Removal Proceedings (Dec. 18, 2012)
Respondent

1 According to INA 212(a)(6)(A)(i), "An alien present in the United States without being admitted or
paroled, or who arrives in the United States at any time or place other than as designated by the Attorney
General, is inadmissible.',

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FLORES-VELASQUEZ, Gicely Sarai

On April

1 , 2013, Respondent filed a motion to change venue, asking the Court to

change the venue of her removal proceedings to the New York City Immigration Court.
See Motion to Change Venue (Apr.

1, 2013) (admitting the government's factual

allegations and conceding removability). The government opposed Respondent's motion

for its failure to comply with the Immigration Court Practice Manual ("Practice
Manual").

See DHS Memorandum in Response to the Motion (Apr.

Practice Manual Chapter 5.lO(c)).

On April

The Court denied the motion "based on the

23, 20 1 3.

See Order of the IJ (Apr.

23, 20 1 3).

29, 2013, Respondent filed a second motion to change venue. See

29, 20 1 3) (stating summarily, "I wish to apply for asylum

Motion to Change Venue (Apr.

withholding and CAT relief due to abuse from my partner in Honduras."). This time the
government did not oppose the motion; however, the Court denied the motion for failure
to demonstrate eligibility for the relief sought. See Order of the IJ (May

1 3, 2013) ("The
forth any grounds for relief, nor attached any relief applications to
said motion."); see also Practice Manual Chapter 5. 1 0(c).
Respondent has not set

Respondent failed to appear for her hearing in removal proceedings and the Court
ordered her removed to Honduras in absentia. See Order of the IJ (May
July

1 7, 20 1 3). On
3 1 , 2013, Respondent filed a motion to rescind the Court's order of removal and

reopen proceedings to allow Respondent an opportunity to apply for asylum and related
relief. See Motion to Reopen (Jul.

3 1 , 2013) (arguing that Respondent's failure to appear

was caused by exceptional circumstances) (citing 8 C.F.R. 1003.23(b)(4)(ii)). DHS
opposes Respondent's motion. See DHS Response to the Motion (Aug. 7, 2013).
II.

DOCUMENTARY EVIDENCE

The following documents are included in the record of proceedings:

Exhibit 1:

Notice to Appear, dated September

Exhibit 2:

Record of Deportable/Inadmissible Alien ("Form

September

22, 2012
I-2 1 3"), dated

22, 2013

Group
Exhibit 3:
3A:

Documents Submitted by Respondent on July

31, 20 1 3

Application for Asylum and for Withholding of Removal ("Form

1-589")
3B:

Respondent's Honduran Passport

3C:

Respondent's Statement

3D:

By Pure Miracle, Flores and Patiiio are Saved, LA PRENSA

27, 2011)

3E:

(Nov.

Assassin of Journalist David Meza Leaving in an Ambulance, EL

HERALDO (Sept.

21, 2010)

2
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Goverrunent's objection" on April

12, 2013) (citing


'

III.

j)

FINDINGS OF FACT AND CONCLUSIONS OF LAW

A.

Respondent's Motion to Rescind the Court's Order of Removal

An order

of removal entered in absentia may be rescinded only:

(ii) upon a motion to reopen filed at any time if the alien

demonstrates that the alien did not receive notice in
accordance with paragraph (1) or (2) of section 239(a) or
the alien demonstrates that the alien was in Federal or State
custody and the failure to appear was through no fault of
the alien.
INA 240(b)(5)(C). Respondent previously acknowledged receipt of the Notice to
Appear and notice of the date and location of her hearing in removal proceedings. See
Motion to Reopen (Apr. 29, 2013). She has not alleged that she did not receive notice in
accordance with INA 239(a)(l ), (2). Additionally, Respondent has not alleged that she
was in Federal or State custody at the time of her hearing. Therefore, she must
demonstrate that her failure to appear was because of "exceptional circumstances."
Respondent has alleged that her failure to appear was caused by: (1) her inability
to secure legal counsel in Buffalo, New York; (2) the cost of travelling to Buffalo, New
York; and (3) the distance between her home and Buffalo, New York. See Motion to
Reopen at 1 (Jul. 31, 2010) ("[R]equiring [Respondent] to travel to Buffalo when she
resides in New York City, where she has resided for the past five years and where there is
an Immigration Court, would cause undue hardship for reasons beyond her control.
Specifically, Respondent would be required to travel seven-to-nine hours from her home,
a trip that would cost approximately $450-more money than she earns in a week-and
would be forced into navigating a complicated and intimidating legal system alone, as she
has been unable to secure counsel to represent her in Buffalo.''). The Court finds that
these are not exceptional circumstances.
The term "exceptional circumstances" is defined by statute as referring 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." INA 240(e)(l). The circumstances described by Respondent may
be sympathetic, but they are not of the kind described by the statute.

3
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(i) upon a motion to reopen filed within 180 days after the
date of the order of removal if the alien demonstrates that
the failure to appear was because of exceptional
circumstances (as defined in subsection (e)(l))), or

An

alien in removal proceedings, which are civil in nature, does not have an

absolute right to counsel.

See Practice Manual Chapter 2.3(a)

("An alien in immigration

proceedings may be represented by an attorney of his or her choosing, at no cost to the

government. Unlike in criminal proceedings, the government is

legal counsel.");

not obligated to provide

see also 8 C.F.R. 1003.16(b). Therefore, Respondent's inability to

secure legal counsel in Buffalo did not excuse her appearance before the Court. Many

judge.

The Court also finds nothing exceptional about the distance and cost allegedly

involved in Respondent's travel from her home to the Court. Respondent filed two

motions to change venue, each of which was denied. The Court was under no obligation
to grant Respondent's motions.

See Matter of Rahman, 20 I&N Dec. 480, 483 (BIA

1992) ("[T)he presiding immigration judge should not order a change of venue without a

proper finding of good cause ..."). Good cause for a change of venue is determined by

the balancing of a variety of factors. Id. at

482-84. A respondent's place of residence is

relevant but not determinative of good cause. See id. Respondent was at liberty to seek

review of the Court's denials of her motions, but she was not free to miss her scheduled

hearing.

See Practice Manual Chapter 5 .10(c) ("The filing of a motion to change venue

does not excuse the appearance of an alien or representative at any scheduled hearing.").

The Court also notes that Respondent's claim that a trip to Buffalo would have

cost her

$450 is supported by no evidence apart from her own written statement.

Respondent has not explained how she calculated this figure. Respondent has likewise

not supported her claim that the "cost of travelling to Buffalo would be more than what I
earn in

a week'' with any evidence other than her own statement. (Exh.3C). In regards

to the distance between Respondent's home and Buffalo, the Court notes that Respondent
voluntarily entered the jurisdiction of the Court.

See (Exh. 3C at ,2). Respondent was

2) (stating that Respondent was

detained in Syracuse, New York. Id.; (Exh. 2 at

travelling west). The Court has jurisdiction over Syracuse, New York. The Court further
takes judicial notice of the fact that Syracuse is approximately
and approximately

245 miles from New York City.2

150 miles from Buffalo

It is not unusual for

detained in Syracuse to be ordered to appear before the Court.

an

alien

Accordingly, the Court finds that Respondent has failed to establish that her

failure to appear was because of exceptional circumstances.

See also DHS Response to

the Motion at 2 (Aug. 7, 2013). Her motion to rescind the Court's in absentia order must
therefore be denied.

See 8 C.F.R. 1003. l(d)(J)(iv) (permitting the Board of Immigration Appeals, and by implication the
Immigration Judges, to take "administrative notice of commonly known facts such as current events or the
contents of official documents").

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Immigrant & Refugee Appellate Center | www.irac.net

aliens in removal proceedings are required to represent themselves before an immigration

Respondent's Motion to Reopen Proceedings3

B.

A motion to reopen "shall state the new facts that will be proven at a hearing to be
held if the motion is granted and shall be supported by affidavits and other evidentiary
material." 8 C.F.R. 1003.23(b)(3). "A motion to reopen will not be granted unless the
Immigration Judge is satisfied that evidence sought to be offered is material and was not
available and could not have been discovered or presented at the former hearing." Id.

Based on the foregoing, Respondent's motion to reopen must be denied for failure
to satisfy the requirements of 8 C.F.R. 1003.23(b)(3); see also Practice Manual Chapter
5.7(b)(iii) ("A motion to reopen based on an application for relief will not be granted if it
appears the alien's right to apply for that relief was fully explained and the alien had an
opportunity to apply for that relief at an earlier stage in the proceedings (unless the relief
is sought on the basis of circumstances that have arisen subsequent to that stage of the
proceedings).")
The Court shall enter the following order:

ORDER

\:\-?..t-

Date
e

An alien need not seek rescission of an in absentia removal order prior to seeking reopening of
proceedings. See Matter ofJ-G-, 26 I&N Dec. 161 (BIA 2013). Unlike the respondent in Matter ofJ-G-,
Respondent does not need to establish that her application for asylum is based on changed country
conditions arising in her country of nationality because her motion was filed within 90 days of the date on
which the Court's order was entered. See id. at 163-64.

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All of the evidence that Respondent seeks to offer was available and could have
been presented to the Court on May 17, 2013. Respondent allegedly arrived in the
United States in December 2008. (Exh. 3A at 1). Respondent's passport was issued in
January 2013. (Exh. 3B). The news articles submitted by Respondent are from 2010 and
2011. (Exhs. 3D, 3E). The events described by Respondent in her Form 1-589 all took
place prior to May 2013. Seet e.g., (Exh. 3A at 5); see also Motion to Change Venue
(Apr. 29, 2013) (stating in April 2013 that Respondent wished to apply for asylum "due
to abuse from my partner in Honduras").