U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office ofthe Clerk

5107 Leesburg Pike. Suite 2000

Falls Church. V1rgm1a 22041

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GUPTA, VINEY KUMAR OHS/ICE Office of Chief Counsel ATL
IMMIGRATION LAW OFFICE 180 Ted Turner Dr., SW, Ste 332
P.0. BOX 6801 Atlanta, GA 30303
ORANGE, CA 92863-61

Name: BAINS, SUNIL KUMAR A 209-154-541

Date of this notice: 10/10/2017

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

Sincerely,

Donna Carr
Chief Clerk

Enclosure

Panel Members:
Grant, Edward R.
Guendelsberger, John
Mann, Ana

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index

Cite as: Sunil Kumar Bains, A209 154 541 (BIA Oct. 10, 2017)
 U.S. ,Pepartment of Justice Decision of the Board oflmmigration Appeals
' Executive Office for lmmigration Review

Falls Church, Virginia 22041

File: A209 154 541 - Atlanta, GA Date:

OCT to 2817
In re: Sunil Kumar BAINS

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IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Viney K. Gupta, Esquire

ON BEHALF OF OHS: Sheila E. Gallow

Assistant Chief Counsel

APPLICATION: Reopening

The respondent, a native and citizen of India, was ordered removed from the United States in
absentia on February 1, 2017, after not appearing at a hearing. He filed a motion to reopen on
February 21, 2017, and appeals from the Immigration Judge's decision dated April 4, 2017,
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 "exceptional circumstances" prevented his appearance
at the hearing. See section 240(e)(l) of the Immigration and Nationality Act, 8 U.S.C.
1229a(e)(l) (2017) (stating that the term "exceptional circumstances" refers 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). He states that
he was unable to travel to his hearing in Atlanta because he was under an order of supervision in
Fresno (Respondent's Br. at 6). The record contains the January 20, 2017, Order of Release on
Recognizance, which requires that the respondent appear, on February 6, 2017, before an
immigration officer in Los Angeles. In light of the respondent's conflicting obligations before the
Immigration Court and the Department of Homeland Security, we will reopen these proceedings
based on "exceptional circumstances." We also direct that venue in these proceedings be changed
to San Francisco, which was requested by the respondent in the motion to change venue.
Accordingly, the following order will be entered.

ORDER: The appeal is sustained, the in a entia order of removal is vacated, and these
proceedings are reopened and remanded for furtn proceedings consistent with the foregoing
opinion.

Cite as: Sunil Kumar Bains, A209 154 541 (BIA Oct. 10, 2017)
 UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
Atlanta, Georgia

IN THE MATTER OF: ) IN REMOVAL PROCEEDINGS

)

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BAINS, Sunil Kumar ) File No. A# 209-154-541
)
Respondent )

CHARGE: Section 212(a)(7)(A)(i)(I) of the Act, in that Respondent was an applicant

for admission who was not in possession of a valid unexpired immigrant
visa, reentry permit, border crossing card, or other valid entry document
required by the Act, or who was not in possession of a valid unexpired
passport, or other suitable document, or identity and nationality document
if such document was required by regulations issued by the Attorney
General pursuant to section 21 l(a) of the Act.

APPLICATION: Respondent's Motion to Reopen In Absentia Order

APPEARANCES

ON BEHALF OF RESPONDENT: ON BEHALF OF THE DEPARTMENT:

Viney K. Gupta, Esq. Assistant Chief Counsel

P.O. Box 6801 Department of Homeland Security
Orange, California 92863 180 Ted Turner Drive SW, Suite 332
Atlanta, Georgia 30303

DECISION OF THE IMMIGRATION JUDGE

I. PROCEDURAL HISTORY

Sunil Kumar Bains ("Respondent") is an adult male native and citizen of India. Respondent
entered the United States at or near Calexico, California, on or about June 28, 2016, without
being admitted or paroled after inspection by an immigration officer. See NTA.

On July 28, 2016, the Department of Homeland Security ("Department") issued Respondent
a Form 1-862, Notice to Appear ("NTA"), charging him as removable under section
212(a)(7)(A)(i)(I) of the Immigration and Nationality Act, as amended ("INA" or "Act").
Respondent was served with his NTA by regular mail. See NT A.

On September 22, 2016, Respondent had a master calendar hearing before the Court, during
which he submitted a Form 1-589, Application for Asylum and for Withholding of Removal
("asylum application").

Sunil Kumar Bains -209-154-541 Page 1of4

 On December 1, 2016, the Court sent a Notice of Hearing in Removal Proceedings ("Notice
of Hearing") to Respondent informing him that he was scheduled to appear before the Atlanta
Immigration Court on February 1, 2017, for his individual merits hearing.

On February 1, 2017, Respondent failed to appear before the Court and was ordered removed
to India in absentia on that date.

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On February 27, 2017, Respondent filed a Motion to Reopen (1-589), Motion to Stay
Removal ("Motion to Reopen"), with the Board ofImmigration Appeals ("Board").

On March 16, 2017, the Board issued an order returning the record to the Court for it to rule
on Respondent's Motion to Reopen, because the Motion was improperly filed as an appeal with
the Board, rather than a motion to reopen proceedings with the Court. See Sunil Kumar Bains,
A209 154 541 (BIA Mar. 16, 2017) (citing 240(b)(S)(C)).

The Court has carefully reviewed the entire record before it. All evidence has been
considered, even if not specifically discussed further in this decision. For the reasons set forth
below, the Court will deny Respondent's Motion to Reopen.

II. STATEMENT OF LAW

Only one motion to reopen may be filed by an alien. 8 C.F.R. 1003.23(b)(4)(ii). Generally,
motions to reopen for the purpose of rescinding an in absentia removal order must be filed
within 180 days of the date of the removal order, and the respondent must demonstrate that his
failure to appear was due to exceptional circumstances. See INA 240(b)(5)(C)(i); 8 C.F.R.
1003.23(b)(4)(ii). All motions to reopen must also state new facts that will be proven at a
hearing if the motion is granted and must "be supported by affidavits and other evidentiary
material." 8 C.F.R. 1003.23(b)(3); see also INS v. Abudu, 485 U.S. 94, 97 (1988).

Moreover, the Supreme Court has held that "motions to reopen are disfavored" and "(t]here
is a strong public interest in bringing litigation to a close as promptly as is consistent with the
interest in giving the adversaries a fair opportunity to develop and present their respective cases."
Abudu, 485 U.S. at 107. "This is especially true in a deportation proceeding, where, as a general
matter, every delay works to the advantage of the deportable alien who wishes merely to remain
in the United States." INS v. Doherty, 502 U.S. 314, 323 (1992).

Ill. DISCUSSION

Respondent's Motion to Reopen is timely. Respondent was ordered removed in absentia on

February 1, 2017; he filed his Motion to Reopen less than one (1) month later, on February 27,
2017. Therefore, Respondent filed his Motion to Reopen less than 180 days after the final
administrative order of removal, and the Motion is timely.

However, even a timely filed motion to reopen must demonstrate that the respondent's failure
to appear was due to exceptional circumstances. See INA 240(b)(S)(C)(i); 8 C.F.R.
1003.23(b)(4)(ii). The term "exceptional circumstances" refers to "exceptional circumstances
(such as battery or extreme cruelty to the alien or any child or parent 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).

Sunil Kumar Bains-209-154-541 Page 2of4

 In his Motion to Reopen, Respondent claims that he did not attend his February 1, 2017
hearing because he moved. The Court notes that unsworn attorney statements in briefs or
motions do not constitute evidence and are not entitled to any evidentiary weight. See INS v.
Phinpathy 464 U.S. 183, 188-89 n.6 (1984); Matter of S-M-. 22 I&N Dec. 49, 51 (BIA 1998);
Matter of Obaigbenil, 19 I&N Dec. 533, 534 n.2 (BIA 1988); Matter of Ramirez-Sanchez, 17
l&N Dec. 503, 505-06 (BIA 1980). Respondent's Motion to Reopen purports to state the belief,
claim, and knowledge of Respondent, but contains no affidavit to support those statements.

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Respondent's Motion to Reopen states that he was released from custody on January 20,
2017, at which point he filed a Form EOIR-33, Alien's Change of Address Form ("EOIR-33"),
indicating that his new address was "3661 West Shields Ave., Apt. 279, Fresno, CA 93722," and
a Motion for Change of Venue to the San Francisco Immigration Court, along with a Motion to
Substitute Counsel; these Motions were not adjudicated prior to Respondent's February 1, 2017
hearing. See Mot. to Reopen, at 1-2. His Motion to Reopen further states that upon his release,
Respondent was instructed to report to an Immigration and Customs Enforcement ("ICE") field
office in Fresno, California, and that he did so report prior to his February l, 2017 hearing. Id. at
2.

Respondent appears to argue that the Immigration Judge erred in ordering him removed in
absentia because his Motions for Change of Venue and to Substitute Counsel should have been
not only granted, but granted prior to his hearing on February l, 2017. He argues that his
removal was in error because ICE was responsible for filing a Motion for Change of Venue due
to Respondent's relocation and that, regardless, his hearing should have been continued because
he posted bond one week prior to his February 1, 2017 hearing.

To the extent Respondent claims that these were errors committed by the Immigration Judge,
they are not grounds upon which to reopen. Compare Matter of 0-S-G-, 24 l&N Dec. 56, 57-58
(BIA 2006) ("[A motion to reopen] does not contest the correctness of (or simply request a
reevaluation of) the prior decision on the previous factual record. Rather, a motion to reopen
proceedings seeks to reopen proceedings so that new evidence can be presented and so that a
new decision can be entered, normally after a further evidentiary hearing."), with Matter of
Ramos, 23 l&N Dec. 336, 338 (BIA 2002) ("A motion to reconsider is a 'request that the [Court]
reexamine its decision in light of additional legal arguments, a change of law, or . .. an argument
or aspect of the case that was overlooked."' (quoting Matter of Cernil, 20 l&N Dec. 399, 402 n.2
(BIA 1991))). To the extent Respondent claims that these errors are grounds upon which to
reconsider, he has not supported his arguments with pertinent authority. See INA 240(c)(6)(C);
0-S-G-, 24 l&N Dec. at 56-57; 8 C.F.R. 1003.23(b)(2). Indeed, Respondent's two (2) case
citations refer only to cases in the United States Court of Appeals for the Second and Ninth
Circuits-one of which is unpublished, and neither of which is binding on this Court, which sits
in the jurisdiction of the United States Court of Appeals for the Eleventh Circuit.

Respondent's Motions for Change of Venue and to Substitute Counsel were received by the
Court on January 30, 2017-two (2) days prior to Respondent's February 1, 2017 hearing. The
Court was under no obligation to grant Respondent's Motion for Change of Venue. See Matter of
Rahman, 20 l&N Dec. 480, 482-83 (BIA 1992) (stating that an Immigration Judge may change
venue only "for good cause"). Further, the Court was under no obligation to rule on
Respondent's Motions prior to his February 1, 2017 hearing, although it did so at his hearing. In
addition, the mere filing of a Motion for Change of Venue did not relieve Respondent of his

Sunil Kumar Bains - 209-154-541 Page 3of4

responsibility to appear at the Atlanta Immigration Court for his scheduled hearing, regardless of
his relocation to California, his filing of an EOIR-33, or his release from custody twelve (12)
days prior to the hearing. See Matter of River 19 I&N Dec. 688, 690 (BIA 1988); Matter of
Patel, 19 I&N Dec. 260, 262 (BIA 1985).

Moreover, Respondent's assertions are not supported by the record. Although Respondent
claims that he reported to an ICE office in Fresno, California, prior to his February 1, 2017

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hearing, he has provided no proof of this assertion, which belies credulity in light of the fact that
Respondent was ordered to report to an ICE field office in Los Angeles, California-not Fresno.
See Mot. to Substitute Counsel Attachment (Jan. 30, 2017). Contrary to Respondent's assertion
that his prior attorney did not appear at the February l , 2017 hearing, the recording of the
hearing indicates that she did, in fact appear. Further, at the hearing, she stated that she spoke
with Respondent just prior to his release and he represented to her that he was in possession of
his Notice of Hearing, was aware of his February 1, 2017 hearing date, and understood that he
was required to appear. See DAR 00:01:00-00:02:00 (Feb. 1, 2017). Thus, to the extent
Respondent argues that his prior attorney was ineffective, he has not only failed to comply with
the procedural requirements of Matter of Lozada, 19 I&N Dec. 637, 639 (BIA 1988), 1 but has
also failed to demonstrate the requisite prejudice. See Dakane v. U.S. Att'y Gen., 399 F.3d 1269,
1274-75 (11th Cir. 2005) (holding that a respondent must demonstrate "substantial, if not exact,"
compliance with Lozada and that "the performance of counsel is so inadequate that there is a
reasonable probability that but for the attorney's error, the outcome of proceedings would have
been different").

Finally, because the Court denies Respondent's Motion to Reopen, the Court will also deny
Respondent's request for a stay of removal as moot. See 8 C.F.R. 1003.23(b)(l)(v).

Accordingly, the Court will enter the following order:

ORDER OF THE IMMIGRATION JUDGE

It is ordered that:
l Respondent's Motion to Reopen is hereby
oEm

Date William A. Cassidy

Ll f, i
United States Immigration Judge
Atlanta, Georgia

1 The Court notes that Respondent's Motion to Reopen asserts that a bar complaint against his prior attorney is "in
process." See Mot. to Reopen, at 3. The Court seriously doubts the veracity of this statement in light of the lack of
candor exhibited in Respondent's Motion to Reopen. Regardless, this assertion, even if true, is insufficient to meet
the procedural requirements of Lozada, l 9 I&N Dec. at 639, especially in the absence of an affidavit from
Respondent or any evidence that his prior attorney has been informed of the allegations Respondent levies against
her.

Sunil Kumar Bains-209-154-541 Page4of4