U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office ofthe Clerk

5107 Leesburg Pike. Suite 2000

Falls Church. Virginia 22041

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OHS/ ICE Office of Chief Counsel - SNA
1015 Jackson-Keller Rd,Suite 100
San Antonio, TX 78213

Name: JIMENEZ-SANTOS,HECTOR AN... A 098-489-385

Date of this notice: 6/27/2017

Enclosed is a copy of the Board's decision in the above-referenced case. This copy is being
provided to you as a courtesy. Your attorney or representative has been served with this
decision pursuant to 8 C.F.R. 1292.S(a). If the attached decision orders that you be
removed from the United States or affirms an Immigration Judge's decision ordering that you
be removed, any petition for review of the attached decision must be filed with and received
by the appropriate court of appeals within 30 days of the date of the decision.

Sincerely,

, 7
u
Cynthia L. Crosby
Deputy Chief Clerk

Enclosure

Panel Members:
Grant, Edward R.
Mann, Ana
Adkins-Blanch, Charles K.

Userteam:
For more unpublished BIA decisions, visit
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Cite as: Hector Antonio Jimenez-Santos, A098 489 385 (BIA June 27, 2017)
U.S. Department of Justice Decision of the Board ofhnmigration Appeals
Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A098 489 385 - San Antonio, TX Date:

JUN 2 7 2017
In re: HECTOR ANTONIO JIMENEZ-SANTOS

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IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Francisco J. Hernandez, Esquire

APPLICATION: Reopening

The respondent, a native and citizen of Honduras, was ordered removed in absentia on
November 22, 2004. On September 23, 2016, the respondent filed a motion to reopen proceedings
which an Immigration Judge denied on October 19, 2016. The respondent filed a timely appeal of
that decision. The appeal 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.

Upon de novo review of the record and in light of the totality of the circumstances presented
in this case, we conclude that the respondent demonstrated that reopening is warranted. 1 See
section 240(b)(5)(C)(i) of the Immigration and Nationality Act, 8 U.S.C. 1229a(b)(5)(C)(i).
We will therefore sustain the respondent's appeal and remand the record for further proceedings.

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.

1 Among other factors, we have considered that the respondent was 16 years old at the time of the
hearing, attempted to provide an address to the Border Patrol and he is the beneficiary of an
approved I-130.

Cite as: Hector Antonio Jimenez-Santos, A098 489 385 (BIA June 27, 2017)


UNITED STATES DEPARTMENT OF JUSTICE

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

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IN THE MATIER OF )
)
Hector Antonio Jimenez-Santos ) Case No. A098 489 385
)
RESPONDENT )
)
IN REMOVAL PROCEEDINGS )

CHARGE: Section 212(a)(6)(A)(i) of the Immigration and Nationality Act, as

amended: Alien present in the United States without admision or

APPLICATION: 8 C.F.R. 1003.23(b): Motion to Reopen.

ON BEHALF OF THE RESPONDENT ON BEHALF OF THE GOVERNMENT

Francisco J. Hernandez, Esq. U.S. Immigration & Customs Enforcement
1732 Great Neck Road Office of the Chief Counsel
Copiague, NY 11726 8940 Fourwinds Dr., 5th Fl.
San Antonio, TX 78239

WRITTEN DECISION & ORDER OF THE IMMIGRATION JUDGE

I. Procedural History

The respondent is a twenty-eight-year-old male, native and citizen of Honduras, who

arrived in the United States at or near Eagle Pass, Texas, on or about September 14, 2004. See

Exhibit #1; see also Exhibit #3. On September 14, 2004, the Department of Homeland Security

(OHS) personally served the respondent with a Notice to Appear (NTA), charging him as

removable pursuant to section 212(a)(6)(A)(i) of the Immigration and Nationality Act (the Act),

as amended, as an alien present in the United States without admission or parole. See Exhibit #1.

The NTA contains a section titled "Failure to appear" that specifies, inter alia, the

consequences of failing to appear for any scheduled hearings. Id. The NT A reflects that the

respondent was advised of the consequences of non-appearance in the Spanish language. Id.

On November 22, 2004, the respondent was not present for his hearing before this Court

and was unavailable for examination under oath. Pursuant to the authority provided in section

240(b)(5)(A) of the Act, the Court proceeded in absentia and ordered the respondent removed

from the United States to Honduras on the charge contained in the NTA.

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On September 23, 2016, the respondent, through counsel, filed a motion to reopen his

removal proceedings. OHS has not filed a response in opposition to the respondent's motion.

II. Motion to Reopen

An in absentia order of removal may be rescinded only (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, or (ii) upon a motion to reopen filed at any

time if the alien demonstrates that he did not receive notice in accordance with paragraph (1) or

(2) of section 239(a) of the Act or the alien demonstrates that he was in Federal or State custody

and the failure to appear was through no fault of his own. See Section 240(b)(5)(C) of the Act;

see also 8 C.F.R. 1003.23(b)(4)(ii).

A. Exceptional Circumstances

Over eleven years passed between the date the Court ordered the respondent removed in

absentia and the date the respondent filed his motion to reopen. Accordingly, his motion to

reopen based on exceptional circumstances is time-barred. See Section 240(b)(5)(C) of the Act;

see also 8 C.F.R. 1003.23(b)(4)(ii).

B. Notice

On September 14, 2004, immigration officials personally served the respondent with an

NTA. See Exhibit #1. As required by section 239(a)(l) of the Act, the NTA advised the

respondent of his obligation to provide an address to the Immigration Court and of the

consequences of failing to appear before the Court. See id. The respondent was also orally

advised of the consequences of non-appearance in the Spanish language. See id. Despite this,

the respondent failed to provide an address as required. See id; see also Exhibit #2.

The NTA orders the respondent to appear before the San Antonio Immigration Court at a

ate and time "to be set." See Exhibit #1. The Act specifically prescribes, however, a method

for notifying aliens of a change in the time or place of removal proceedings. See Section

239(a)(2) of the Act. Because the respondent did not provide his address as required, the Court

was not obligated to mail him a notice of hearing apprising him of the date and time of his

scheduled hearing. See Section 239(a)(2)(B) of the Act. When an address in the NTA is

incorrect (or in this case, none is provided), the respondent has a duty to provide the Court within

five days of service of the NTA, a written notice of an address where he can be contacted. See 8

C.F.R. 1003.lS(d)(l). There is no indication that within five days after being served the NTA,

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the respondent filed a change of address with the Court. Moreover, the Court notes that the

respondent has not explained why he failed to provide his address to the Court.

Because the respondent neglected an obligation of which he was notified in the NTA, the

respondent cannot show that he failed to appear through no fault of his own. See Gomez

Palacios v. Holder, 560 F.3d 354, 360-61 (5th Cir. 2009). In the present case, failure to receive

notice of hearing is not a ground for reopening removal proceedings, and the Court will not

rescind the respondent's in absentia removal order or reopen his removal proceedings. See

Section 240(b)(5)(C) of the Act; see also 8 C.F.R. 1003.23(b)(4)(ii).

C. Sua Sponte

An Immigration Judge may, upon his or her own motion, reopen any case in which he

previously made a decision. See 8 C.F.R. 1003.23(a). Sua sponte reopening, however, is an
"extraordinary remedy reserved for truly exceptional situations" and is not "a general remedy for

any hardships created by enforcement of the time and number limits in the motions regulations."

See Matter ofG-D-, 22 I&N Dec. 1132, 1133-34 (BIA 1999).

The Court declines to sua sponte reopen the respondent's removal proceedings. The

respondent did not contact the Court regarding his removal proceedings for over eleven years.

Moreover, the respondent offered no explanation for his failure to provide his address to the

Court during this time. While the respondent has presented evidence that he is the beneficiary of

an approved 1-130 petition, he has failed to establish that he is eligible for adjustment of status

before the Court pursuant to section 245(i) of the Act. Finally, the Court notes that becoming

eligible for relief from removal after a final administrative order has been entered is common and

does not, in itself, constitute an exceptional circumstance warranting the consideration of an

untimely motion. See INSv. Doherty, 502 U.S. 314, 724-25 (1992).

Accordingly, the following order shall be entered:

ORDER

IT IS HEREBY ORDERED that the respondent's motion to reopen is DENIED.

Date: I0 I '2016 C-_ c_ r

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-

Craig A. Harlow
United States Immigration Judge