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

DHS/ICE Office of Chief Counsel - SNA

8940 Fourwinds Drive, 5th Floor
San Antonio, TX 78239

Name: WILSON, HOWARD ALEXANDER

A 205-165-410
Date of this notice: 4/5/2016

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

bonnL CWl/1.)
Donna Carr
Chief Clerk
Enclosure
Panel Members:
Mann, Ana
O'Leary, Brian M.
Grant, Edward R.

Userteam: Docket

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Cite as: Howard Alexander Wilson, A205 165 410 (BIA April 5, 2016)

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WILSON, HOWARD ALEXANDER

124 NE 14TH ST
MIAMI, FL 33132

U.S. Department of Justice

Executjve Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 22041

File: A205 165 410 - San Antonio, TX

In re: HOWARD ALEXANDER WILSON

Date:

APR. - 5 2016

APPEAL
ON BEHALF OF RESPONDENT: Pro se
APPLICATION: Reopening
The respondent, an alleged native and citizen of Cuba, was ordered removed in absentia on
April 28, 2014. On September 26, 2014, the respondent filed a motion to reopen proceedings,
which an Immigration Judge denied on October 24, 2014. The respondent filed a timely appeal
of that decision. The appeal will be sustained, the in absentia order will be vacated, proceedings
will be reopened, and the record will be remanded.
The Board reviews an Immigration Judge's findings of fact, including findings as to the
credibility of testimony, under the clearly erroneous standard. 8 C.F.R. 1003.l(d)(3)(i). The
Board reviews questions of law, discretion, and judgment and all other issues in appeals from
decisions oflmmigration Judges de novo. 8 C.F.R. 1003.l(d)(3)(ii).
Upon de novo review of the record and in light of the totality of circumstances presented in
this case, we conclude that the respondent demonstrated that reopening is warranted. 1 See
sections 240(b)(5)(C)(i), (e)(l) of the Immigration and Nationality Act, 8 U.S.C.A.
1229a(b)(5)(C)(i), (e)(l). We will therefore sustain the respondent's appeal and remand the
record for further proceedings and change venue to Miami, Florida.
ORDER: The respondent's appeal is sustained, the in absentia order is vacated, proceedings
are reopened and the record is remanded to the Immigration Judge for further proceedings and
for the entry of a new decision.
FURTHER ORDER: Venue is changed to the Miami, Florida Immigration Court.

Among other factors, we have considered that the respondent is homeless and lacked financial
means to attend the hearing in San Antonio. Moreover, he appears to be eligible for adjustment
of status.
Cite as: Howard Alexander Wilson, A205 165 410 (BIA April 5, 2016)

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

IN REMOVAL PROCEEDINGS

r-

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
800 DOLOROSA STREET, SUITE 300
SAN ANTONIO, TX 78207

IN THE MATTER OF
WILSON, HOWARD ALEXANDER

FILE A 205-165-410

DATE: Oct 27, 2014

UNABLE TO FORWARD - NO ADDRESS PROVIDED

TACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE. THIS DECISION
-i,r;
FINAL UNLESS AN APPEAL IS FILED WITH THE BOARD OF IMMIGRATION APPEALS
WITHIN 30 CALENDAR DAYS OF THE DATE OF THE MAILING OF THIS WRITTEN DECISION.
SEE THE
ENCLOSED FORMS AND INSTRUCTIONS FOR PROPERLY PREPARING YOUR APPEAL.

YOUR .NOTICE OF APPEAL, ATTACHED DOCUMENTS, AND FEE OR FEE WAIVER REQUEST
MUST BE MAILED TO:
BOARD OF IMMIGRATION APPEALS
OFFICE OF THE CLERK
5107 Leesburg Pike, Suite 2000
FALLS CHURCH, VA 20530

ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE AS THE RESULT

OF YOUR FAILURE TO APPEAR AT YOUR SCHEDULED DEPORTATION OR REMOVAL HEARING.
THIS DECISION IS FINAL UNLESS A MOTION TO REOPEN IS FILED IN ACCORDANCE
WITH SECTION 242B(c) (3} OF THE IMMIGRATION AND NATIONALITY ACT, 8 U.S.C.
SECTION 1252B{c} (3) IN DEPORTATION PROCEEDINGS OR SECTION 240(c} (6),
8 U.S.C. SECTION 1229a(c)(6) IN REMOVAL PROCEEDINGS. IF YOU FILE A MOTION
TO REOPEN, YOUR MOTION MUST BE FILED WITH THIS COURT:
IMMIGRATION COURT
800 DOLOROSA STREET, SUITE 300
SAN ANTONIO, TX 78207
OTHER:

COURT CLERK (

CC: OHS I ASSISTANT CHIEF COUNSEL

8940 FOURWINDS DR. Room 5045
SAN ANTONIO, TX, 78239

IMMIGRATION COURT

FF

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Fi Ie A205 165 410

In Removal Proceedings

Order of the Immigration Judge

The respondent in the above captioned case was ordered deported from the United States on April 28, 2014
following a hearing held in absentia when he did not appear for the proceeding. The respondent received actual
notice of the scheduled hearing as evidenced by the court's record and respondent's acknowledgment of notice
contained in his subsequent motion.
On September 26, 2014 the respondent, prose, filed a motion to reopen the proceeding, alleging that he did not
appear because he had left Texas to reside in a homeless shelter in Florida and had no means and in any event had
made no arrangements to attend. This is the only ground offered for the respondent failing to appear for the
hearing. Since the respondent had actual notice of the scheduled hearing, he is required by 240(b)(S)(C)(i) of the
Immigration & Nationality Act to establish "exceptional circumstances" which caused his failure to appear. See also
Title 8 CFR 1003.23(b)(4)(ii). The controlling law for this court is that of the 5th Circuit Court of Appeals. The
excuse of a pending but not granted motion has been previously held by the Board of Immigration Appeals to be
inadequate to establish "reasonable cause" for failure to appear and would clearly not constitute "exceptional
circumstances". See Matter of Patel, 19 l&N Dec. 260 (BIA 1985), affd, 803 F.2d 804 (5th Cir. 1986): Matter of
Rivera, 19 l&N Dec. 688, (BIA 1988). The respondent would not be entitled to reopening on the grounds asserted.
Inconvenience of traveling to court after relocation would not constitute an exceptional circumstance "beyond the
control of the alien". See 240(e)(l) of the Act. There is no dispute of fact in the record. The respondent made no
arrangements to attend his hearing and had difficulties because of his choice of where to reside in attending his
hearing.
As the respondent has not met his burden of demonstrating that the case should be reopened for the reasons
cited, the motion shall therefore be, and is hereby, DENIED. SO ORDERED.

Date: October 24, 2014

Place: San Antonio, Texas

Immigration Judge

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In the Matter of

U.S. DEPARTMENT OF JUSTICE

Executive Office for Immigration Review
_office of the lmmig_ration Judge