U.S.

Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

Office of the Clerk

5J()7 leesburg Pike, Suite 2000

Falls Church, Virginia 22041

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

DHS/ICE Office of Chief Counsel - LVG
3373 Pepper Lane
Las Vegas, NV 89120

Name: RIVAS-DIAZ, HIGINIO A 208-362-593

Date of this notice: 7/18/2017

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

Sincerely,

J"-"

Cynthia L. Crosby
Deputy Chief Clerk

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

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/

Cite as: Higinio Rivas-Diaz, A208 362 593 (BIA July 18, 2017)
, U.S. Department of Justice Decision of the Board of Immigration Appeals
Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A208 362 593 - Las Vegas, NV Date:

In re: Higinio RIVAS-DIAZ a.k.a. Isac Diaz-Ramirez JUL 1 8 2017

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

IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Pro se

APPLICATION: Reopening

The respondent, a native and citizen of Mexico, was ordered removed from the United States
in absentia on September 19, 2016, after not appearing at a hearing. He filed a motion to reopen
that same day, and appeals from the Immigration Judge's decision dated October 20, 2016,
denying the motion. The appeal will be sustained.

We review the findings of fact, including the determination of credibility, made by the
Immigration Judge under the "clearly erroneous" standard. 8 C.F.R. 1003.1 (d)(3)(i) (2017). We
review all other issues, including issues of law, discretion, or judgment, under a de novo
standard. 8 C.F.R. 1003.l(d)(3)(ii).

On appeal, the respondent argues that the Immigration Judge erred by denying his motion. The
United States Court of Appeals for the Ninth Circuit, the circuit where these proceedings arise, has
held that an alien has not necessarily failed to appear at a hearing when he or she arrives late. See
Perez v. Mukasey, 516 F .3d 770, 774-76 (9th Cir. 2008) (holding that an alien is not required to
demonstrate exceptional circumstances to reopen proceedings where an alien arrives two hours
late to a hearing and the Immigration Judge is still on the bench). The Immigration Court
scheduled the respondent's hearing for 9:00 a.m., and he arrived at 10:45 a.m., albeit after the
Immigration Judge had already left the bench. However, the respondept has submitted evidence
corroborating his assertion that his vehicle experienced mechanical failure while en route to the
Immigration Court. In addition, the respondent filed his motion to reopen with due diligence. In
light of the foregoing, including the holding in Perez v. Mukasey, the respondent did not fail to
appear at his hearing but rather was excusably late. We will therefore reopen these proceedings.

Accordingly, the following order will be entered.

ORDER: The appeal is sustained, the in absentia order of removal is rescinded, and these
proceedings are reopened and remanded for further proceedings consistent with the foregoing
opinion.

FOR THE BOARD

Cite as: Higinio Rivas-Diaz, A208 362 593 (BIA July 18, 2017)
 .
\

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
LAS VEGAS IMMIGRATION COURT

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

IN THE MATTER OF: In Removal Proceedings

Higinio Rivas-Diaz File No.: A208-362-593

Respondent

On Behalf of the Respondent: On Behalf of DHS:

Prose Assistant Chief Counsel
Immigration and Customs Enforcement

DECISION AND ORDER OF THE IMMIGRATION JUDGE

The respondent's motion to reopen will be denied. the respondent was ordered removed
from the United States in absentia based upon his failure to attend a removal hearing on
September 19, 2016. An in absentia order may be rescinded if an alien establishes that he failed
to appear because: 1) he was in state or federal custody and his failure to appear was through no
fault of his own; 2) he did not receive notice of the proceedings; or 3) his failure to appear was
due to "exceptional circumstances." INA 240(b)(5)(C); 8 C.F.R. 1003.23(b)(4)(ii).

The respondent contends in his motion that he failed to attend his hearing because his car
had mechanical problems. There is nothing in the record that corroborates his claim of
mechanical problems other than his affidavit and a failed smog test. 1 Although the respondent
presented himself at the Immigration Court the same day as his scheduled hearing, the Court had
already ordered him removed in absentia.

The Court of Appeals for the Ninth Circuit now holds that "a car's mechanical failure
does not alone compel granting a motion to reopen based on 'exceptional circumstances."'
Arredondo v. Lynch, 824 F.3d 801, 806 (9th Cir. 2016). In the instant case, there are no
documents supporting respondent's alleged vehicle failure the morning of his scheduled hearing.
Matter of J-P-, 22 I&N Dec. 33, 34-35 (BIA 1998) (denying respondent's motion to reopen
given the lack of corroborating evidence). Even if the respondent were to provide
documentation demonstrating mechanical failure, such failure, alone, is not sufficient to qualify
as exceptional circumstances. See Arredondo, 824 F.3d at 806 (emphasis added). Therefore,

1
While respondent provided proof of his vehicle's failed smog test, the test itself does not demonstrate that the
vehicle was unable to transport the respondent to his master calendar hearing.

1..fJt4.t& == h
..
Therefore, respondent's car problem is not an exceptional circumstance warranting this Court to
grant his motion to reopen. See id.

Lastly, the respondent did not contact the Court the morning or his hearing. See Matter
ol .1-P-, 22 I&N Dec. at 35 ("Giving such notice or one's unavailability is the minimal and
logical step that, i r not taken, is a !'actor which lends to undermine a claim or exceptional

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

circumstances."). Based on the foregoing, the respondent has not demonstrated "exceptional
circumstances" for his Cailurc lo appear for his removal hearing. Accordingly, the following
order will be entered.

ORDER: The respondent's Motion to Reopen is denied.

DATE: 0 c.,. la.e..,. :::,.t)

I ;)-0/ (._
Jeffrey L. Romig
Immigration Judge

APPEAL RIGHTS: Both parties have the right to appeal the decision in this case. Any appeal is
due in the hands of the Board of Immigration Appeals on or before 30 calendar days fi'om the
date of service ofthis decision.