U.S.

Department of Justice
Executive Office for Immigration Review

Board ofImmigration Appeals

Office of the Clerk
5 /07 Leesburg Pike, Suite 2000
Falls Church, Virginia 20530

OHS/ICE Office of Chief Counsel - EAZ

.

Name: HERNANDEZ-PACHECO, CIRILO

A 200-280-956

Date of this notice: 11/26/2014

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

DcnJtL ca.AA)
Donna Carr
Chief Clerk

Enclosure
Panel Members:
Adkins-Blanch, Charles K.
Hoffman, Sharon
Manuel, Elise

Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: Cirilo Hernandez-Pacheco, A200 280 956 (BIA Nov. 26, 2014)

Immigrant & Refugee Appellate Center | www.irac.net

P 0 Box 25158
Phoenix, AZ 85002

Decision of the Board of Immigration Appeals

U.S. Department of Justice

Executive Office for Immigration Review
Falls Church,

Virginia 20530

Date:

File: A200 280 956 - Eloy, AZ

In re:
IN

CIRILO HERNANDEZ-PACHECO

NOV .262014

REMOVAL PROCEEDINGS

ON BEHALF OF RESPONDENT: Pro se1

APPLICATION: Reopening
The respondent, a native and citizen of Mexico, was ordered removed in absentia by an
Immigration Judge on December 3, 20 12.2 He filed a motion to reopen on May 31, 20 13. The
Immigration Judge denied the motion on June 28, 20 13, and the respondent timely appeals. The
Department of Homeland Security (DHS) has not replied to the appeal. We will sustain the
respondent's appeal.
We have considered the totality of the circumstances presented in this case, and find that
exceptional circumstances for the respondent's failure to appear have been shown.
Sections 240(b)(S)(C) and (e)(l) of the Immigration and Nationality Act, 8 U.S.C.
1229a(b)(S)(C), (e)(l); 8 C.F.R. 1003.23(b)(4)(ii). Accordingly, the respondent's appeal
will be sustained, the in absentia order will be rescinded, the proceedings will be reopened, and
the record will be remanded to allow the respondent another opportunity to appear for his
hearing.
ORDER: The appeal is sustained.
FURTHER ORDER: These proceedings are reopened, the in absentia order of removal is
vacated, and the record is remanded to the Immigration Court for further proceedings.

FOR THE BOARD

We note that effective May 13, 2014, attorney Roberto Salazar, who filed the appeal, has been
suspended from practice before the Board. As this attorney is not permitted to practice law
before the Board at this time, this order is being sent directly to the respondent. Please also see
the attached copy of the order suspending attorney Salazar from practice.
1

The respondent's previous counsel, Roberto Salazar, first filed a direct appeal of the in absentia
order to the Board, which the Board dismissed for lack of jurisdiction, by order dated March 27,
2013. Mr. Salazar then filed the motion to reopen on the last day and did not include an affidavit
from the respondent.
2

Cite as: Cirilo Hernandez-Pacheco, A200 280 956 (BIA Nov. 26, 2014)

Immigrant & Refugee Appellate Center | www.irac.net

APPEAL

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UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE :OFFICE FOR

IMMIGRATION

.............

REVIEW

IMMIGRATION COURT
.

SALAZAR,
ONE E.
TUCSON,

HANNA RD.

ELOY,

AZ

85131

ROBERTO

CON RESS,

AZ

SUITE 165

85701
FILE A 200-280-956

IN THE MATTER OF
HERNANDEZ-PACHECO,

UNABLE TO FORWARD

ATTACHED

DATE:

Jun 28,

2013

CIRILO
-

NO ADDRESS PROVIDED

IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE.

THIS DECISION

IS 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,
MUST BE.MAILED TO:

ATTACHED DOCUMENTS,

AND FEE OR FEE WAIVER REQUEST

BOARD OF IMMIGRATION APPEALS

OFFICE OF THE CLERK
P.O.

BOX 8530

FALLS CHURCH,

VA

22041

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

ATTACHED

OF YOUR FAILURE TO APPEAR AT YOUR SCHEDULED DEPORTATION OR .. REMOVAL HEARING-.

THIS DECISION IS FINAL UNLESS A MOTION TO REOPEN IS FILED IN ACC RDANCE

WITH SECTION 242B(c) (3) OF THE IMMIGRATION AND NATIONALITY ACT, a u.s.c.

SECTION 1252B(c) (3)

8

.s.c.

IN DEPORTATION PROCEEDINGS OR SECTION 240(c)J6),

IF YOU FILE A MOTION

SECTION 1229a(c) (6) IN REMOVAL PROCEEDINGS.

TO REOPEN,

YOUR MOTION MUST BE FILED WITH THIS COURT:

IMMIGRATION COURT
1705 E.
ELOY,

HANNA RD.

AZ

85131

OTHER:

IMMIGRATION

COURT

FF

CC:
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Immigrant & Refugee Appellate Center | www.irac.net

'-.

170.5 E.

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
1705 EAST HANNA ROAD,SUITE 366
ELOY,AZ85131
IN THE MATTER OF:

RESPONDENT

MOTION:

IN REMOVAL PROCEEDINGS
FILE NO.

A200-280-956

DATE:

June 28, 20 13

Respondent's Motion to Reopen Removal Proceedings

ON BEHALF OF THE RESPONDENT:

Roberto Salazar, Esq.

One East Congress, Ste. 165
Tucson, Arizona 8570 1

ON BEHALF OF THE DEPARTMENT:

Elly Laff, Assistant Chief Counsel

Department of Homeland Security
1705 East Hanna Road
Eloy, Arizona 85 13 1

MEMORANDUM DECISION AND ORDER OF THE IMMIGRATION COURT

I.

PROCEDURAL BACKGROUND

The above-named respondent is a thirty-four year old male native and citizen of Mexico.
On July 5, 20 12, the Department of Homeland Security ("DHS" or "The Department") issued a
Notice to Appear ("NTA'') against the respondent. (Exh. 1, Form 1-862, 1.) This charging
document alleged that the respondent was a native and citizen of Mexico who entered the United
States at or near an unknown place on or about an unknown date without being admitted or
paroled after inspection by an immigration officer. (Id.)
Based on these allegations, the DHS charged the respondent with being removable
pursuant to section 2 12(a)(6)(A)(i) of the Immigration and Nationality Act, "in that [he is] an
alien present in the United States wiout being admitted or paroled, or who arrived in the United
States at any time or place other than as designated by the Attorney General." (Id.) In written
pleadings, the respondent admitted all of the allegations and conceded his removability as
charged; based on these admissions and concessions, the Court sustained the allegations and the
charge by clear and convincing evidence. (Exh. 2; Tr. (Aug. 13, 20 12), 9:9- 13.) Mexico was
designated as the country.of removal. (Tr. at 9:20-21.) The respondent averred that he wished to
apply for cancellation of removal for certain nonpermanent residents and voluntary departure, in
the alternative, pursuant tosections 240A(b)(l), 240B of the Act. (Id. at 9: 13- 18).
The Court orally noified the respondent that the case was reset to December 3, 2012, at
8:30 a.m., and the respondent's counsel acknowledged that this he ng date was acceptable:

Immigrant & Refugee Appellate Center | www.irac.net

HERNANDEZ-PACHECO, Cirilo

)
)
)
)
)

HERNANDEZ-PACHECO
A200-280-956

,"-"

THE COURT:
COUNSEL:
THE COURT:

My first available three hour hearing is December 3rd at

8:30, are you available, sir?
Yes, Your Honor.
So December 3rd, 20 12 will be the date for the individual
hearing at 8:30 in the morning. . . .
December 3rd at 8:30, Mr. Salazar?
Yes, Your Honor.

(Tr. at 10:2 1-23, 13: 15-16.)

The same day as the hearing,. the Court mailed a Notice of Hearing to the respondent's
counsel, stating that the respondent was scheduled to appear at an individual hearing before this
Court on December 3, 20 12. (Exh. 3.)
The respondent was released on bond on November 30, 2012. (DHS Opposition (June 7,
20 13), Attach. A.) Prior to his release, the respondent certified that he had been informed by the
Court to appear for a further hearing and that a removal hearing could be conducted in his
absence if he failed to appear for that hearing. (Id.)
On December 3, 20 12, neither the respondent, nor his counsel appeared before this Court.
(Tr. (Dec. 3, 20 12), 15:6-7.) No motion to change venue had been received by the Court as of
December 3, 2012. 1 The DHS requested the respqndent be ordered removed in absentia. (Id at
18: 11- 14.) In a written order, the Court determined that the respondent was amenable to the
entry of an in absentia removal order because he failed to attend removal proceedings in this
matter despite being personally served with the NTA, and in spite of the fact that his attorney
was served with sufficient notice of the time and place of the removal hearing, (IJ Order (Dec. 3,
20 12), 3-6). See sections 239(a)(2), (c), 240(b)(5) of the Act; 8 C.F.R. 1292.5 (2013).
Accordingly, the respondent was ordered removed to Mexico on December 3, 2012. (IJ Order at
6.)
On May 31, 20 13, the respondent requested that this Court reopen his removal
proceedings. (Resp't Mot. (May 31, 20 13).)2 The DHS filed its opposition to this request on
June 7, 2013. (DHS Opposition (June 7, 2013).)

The Court's records indicate that a motion to change venue was received by the Court on

December 10, 2012, and was rejected due to the fact that the respondent had been ordered removed a
week prior.
2 Prior to filing his motion to reopen, the respondent appealed the Court's in absentia removal
order to the Board of Immigration Appeals. On March 27, 2013, the Board dismissed the respondent's
appeal for lack of jurisdiction and returned the record in this matter to this Court. In its Order, the Board
suggested that the respondent file a motion to reopen before this Court pursuant to section 240{b)(S)(C) of
the Act.

Immigrant & Refugee Appellate Center | www.irac.net

THE COURT:
COUNSEL:

'- '

HERNANDEZ-PACHECO ._
A200-280-956
.

II.

STAT EM ENT OF LAW

Immigration Judge upon his or her motion, or upon motion of the OHS or an alien,
may reopen or reconsider any case in which he or she has made a decision, unless jurisdiction is
vested with the Board of Immigration Appeals. 8 C.F.R. 1003.23(b)(l). Generally, an alien is
limited to only one motion to reopen, which must be filed within ninety days of the date of entry
of a final administrative order of removal, deportation, or exclusion, or on or before September
20, 1996, whichever is later. Section 240(c)(7)(C)(i) of the Act; 8 C.F.R. 1003.23(b)(l).
Under certain circumstances, however, a motion to rescind an in absentia removal order entered
pursuant to section 240(b)(5) of the Act may be filed outside the ninety-day filing period.
Sections 240(b)(5), (c)(7)(C)(iii) of the Act; 8 C.F.R. 1003.23(b)(4)(ii).
An

Ultimately, the decision to grant or deny a motion to reopen is within an Immigration

Judge's "broad discretion" under the Act and the regulations. INS v. Doherty, 502 U.S. 314, 323
( 1992) (citations omitted).
III.

FINDINGS AND ANALYSIS

The respondent argues that his removal proceedings should be reopened because "it was
incorrect for the Eloy Immigration Judge to have an [i]ndividual hearing in absentia . . . ."
(Resp't Mot. at I.) The respondent concedes that this Court applied the correct legal standard;
considered the appropriate evidence; and properly allocated the burden of proof when it ordered
him removed in absentia. (Id.) He merely objects to the fact that an individual hearing was held
on a Monday (December 3, 2012) after he was released from DHS custody on the Friday
(November 30, 2012). (Id. at 2) ("Why the Eloy Immigration Judge had an individual hearing in
absentia in a situation where t}le respondent paid the bond amount and .was released 48 hours
approximately before the hearing?"). The respondent's motion is untimely and his argument
lacks merit. Accordingly, the respondent's motion to reopen shall be denied.
A.

T imeliness

The respondent's motion is untimely. The record reflects that the respondent was ordered
removed in absentia on December 3, 2012. (IJ Order at 6.) The respondent filed his motion to
reopen with this Court on May 31, 20 13-179 days after the entry of the Court's removal order.
(Resp't Mot at 1.) The respondent's motion requests that this Court rescind its in absentia order

Immigrant & Refugee Appellate Center | www.irac.net

Specifically, a motion to rescind an in absentia removal order may be 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 by section 240(e)( 1) of the Act. Id.
"Exceptional circumstances" include "circumstances beyond the control of the alien . . . such as
battery or extreme cruelty, serious illness by the alien, or serious illness or death of the spouse,
child, or parent of the alien, but not including less compelling circumstances . . ." Id (emphasis
added). Alternatively, a motion to rescind an in .absentia removal order may be filed "at any
time" if he or she demonstrates that he or she did not receive notice in accordance with sections
239(a)(l) or (2) of the Act, or the alien demonstrates that he or she was in federal or state
custody and the failure to appear was through no fault of the alien. Id.

HERNANDEZPACHECO
A20D:-280956

'-'.

in this matter. (Id) Under the regulations, therefore, the respondent's filing of his motion
outside the ninetyday period is excusable if he can demonstrate: (1) exceptional circumstances;
(2) lack of sufficient notice; or (3) he was in federal or state custody and his failure to appear was
through no fault of his own. 8 C.F.R. 1003.23(b)(4)(ii). Based on the evidence of record and
the below analysis, the Court finds that the respondent has failed to demonstrate a sufficient
excuse under the regulations.

The respondent has failed to establish that he was prevented from filing his motion to
reopen. within the ninetyday filing period by exceptional circumstances as defined by section
240(e)(I) of the Act. In his motion, the . respondent notes that he mailed a motion to change
venue on December 3, 2012-the date of his removal hearing.3 However, the mere filing, let
alone mailing, of a motion for a change of venue does not constitute "exceptional circumstances"
so as to relieve the respondent of his responsibility to appear for his scheduled removal hearing,
and unless the Immigration Judge grants the motion, he remains obligated to appear at the
appointed place, date, and time. See Matter of Rivera, 19 I&N Dec. 688 (BIA 1988); Matter of
Patel, 19 l&N Dec. 260 (BIA 1985), affd, Patel v. INS, 803 F.2d 804 (5th Cir. 1986); cf
Hernandez.Vivas v. INS, 23 F.3d 1560 (9th Cir. 1994) (holding under lower "reasonable cause"
standard that filing a motion for a change of venue did not excuse failure to appear).
The Court takes notice, furthermore, that the respondent was released to Tucson, Arizona,
between one and two hours away from this Court by automobile. See Matter of R-R-, 20 I&N
Dec. 547, 551 n.3 (BIA 1992) (holding that it is well established that Immigration Judges may
take administrative notice of commonly known or readily verifiable facts). Nothing in the
respondent's motion indicates that he was unable to appear before this Court on December 3,
2012, due to battery; extreme cruelty; a serious illness; or the serious illness or death of an
immediate relative. Section 240(e)(l) of the Act; 8 C.F.R. l003.23(b)(4)(ii). Therefore, the
Court finds that the respondent has not demonstrated that exceptional circumstances excuse the
latefiling of his motion to reopen.
ii. Notice

The record also reflects that the respondent and his counsel received sufficient notice of
the December 3, 2012; hearing under sections 239(a)(l) or (2) of Act. Under these provisions it
is sufficient to serve the NTA or a Notice of Hearing on the alien in person. Sections 239(a)(l),
(2) of the Act. Notice of a removal hearing is also sufficient under these provisions if written
notice of the hearing is serviced by mail on the alien's counsel of record. Section 239(a)(2)(A)
of the Act.
Here, the record reflects that the respondent acknowledged that was personally served
with the NTA in this matter. (Exh. I at 2.) The record additionally indicates that this Court
notified the respondent and the respondent's counsel orally that a removal hearing was scheduled
December 3, 2012, at 8:30 a.m., and the respondent's counsel acknowledged that this hearing
date was acceptable:
3

The Court did not receive this motion until December 10, 2012.

Immigrant & Refugee Appellate Center | www.irac.net

i. Exceptional Circumstances

HERNANDEZ-PACHEco--
A2()0280-956
THE COURT:
COUNSEL:
THE COURT:

December 3rd at 8:30, Mr. Salazar?

Yes, Your Honor.

(Tr. (Aug. 13, 20 12), 10:21-23, 13:15-16.)

The record also reflects that, on August 13, 2012, the Court mailed a Notice of Hearing to
the respondent's counsel of record, stating that the respondent was scheduled to appear at an
individual hearing before this Court on December 3, 2012. (Exh. 3; see also Form EOIR-28.)
Therefore, the respondent received adequate notice of the Decemper 3, 2012, hearing nearly four
months in advance. Sections 239(a)(l) or (2) of Act; 8 C.F.R. 1003.23(b)(4)(ii).
Upon his release on November 30, 2012, the respondent acknowledged the consequences
of failing to appear for any hearing scheduled in his proceedings. (OHS Opposition at Attach.
A.) More precisely, he acknowledged that if he failed to appear his removal "hearing could be
held in [his] absence," which is precisely what happened. (Id.) The respondent is thus incapable
of demonstrating that he lacked notice of the December 3, 2012, hearing.
iii. Federal or State Custody

The record reflects that the respondent was released from OHS custody on November 30,
2012. (DHS Opposition at Attach. A.) There is no indication whatsoever that the respondent
was prevented from appearing at his December 3, 2012, hearing because he was in federal or
state custody.
iv. Conclusion

On this record, the respondent has failed to establish that he take advantage of the filing
exception under 8 C.F.R. 1003.23(b)(4)(ii). Consequently, his motion is untimely.
B.

Discretion

The respondent's argument is without merit. Furthermore, the Court concludes that the
respondent's motion does not warrant a favorable exercise of discretion. The respondent-and
his counsel-were given sufficient notice of the December 3, 2012, hearing. Supra at 4-5. No
cognizable excuse has been presented for their failure to appear. The respondent merely protests
that his removal proceeding was held too soon after his release on bond. As noted, however, the
December 3, 20 12, hearing date was set approximately four months in advance. In fact, the
respondent and his counsel were given written and oral notice of this hearing date on August 13,
2012. (Exh. 3; Tr. (Aug. 13, 2012), 10:21-23, 13:15-16.)

Immigrant & Refugee Appellate Center | www.irac.net

THE COURT:
COUNSEL:

My first available three hour hearing is Dcember 3rd at 8:30, are

you available, sir?
Yes, Your Honor.
So December 3rd, 2012 will be the date for the individual hearing
at 8:30 in the morning. . . .

HERNANDEZ-PACHECO'"'-'
Aioo:-280-956
The respondent's position misconstrues his obligations in these proceedings. His release
from OHS custody does not negate his responsibility to appear for a hearing for which he has
received adequate notice. Mailing a motion to change venue to this Court the day of his hearing
also does not relieve him of his responsibility to appear.

Jurisdiction in the respondent's case vested with this Court on July 5, 20 12. (Exh. 1 at 1.)
8 C.F.R. 1003. 14(a). The Court was not divested of jurisdiction upon the respondent's release
on bond. Accordingly, this Court wa8 well within its authority to conduct a hearing in this
case-a matter over which it retained jurisdiction. The Court was also well within its authority
when it sched1:lled the December 3, 20 12, hearing in this matter on August 13, 20 12approximately four months in advance-and provided both parties with adequate notice of the
December 3, 20 12, hearing. 8 C.F.R. 1003. 18. Nothing compels this Court to reschedule a
hearing subsequent to an alien's release on bond. As . a consequence, the Court declines to
exercise its discretion with respect to the respondent's motion on account of its utter lack of
merit.
IV.

CONCLUSION

Accordingly, the Court shall enter the following Order:

ORDER:

IT IS HEREBY ORDERED THAT

the respondent's motion to reopen is

DENIED.

Both parties have the right to appeal the decision of the Immigration Judge
in this case. Any appeal is due in the hands of the Board of Immigration Appeals on or before
thirty calendar days from the date of servi.ce of this decision.

APPEAL RIGHTS:

CERTIFICATE OF SERVICE
PER ONAL SERVICE (P)
THIS DOCUMENT WAS SERVED BY: MAIL (M)
TO: ( ) AL N ( ) ALIEN c/o Custodial Officer ALIEN'S
T/REP <f) DHS
DATE:
lo 'a .-j
BY COURT STAFF:
Attachments: ( ) OIR-33 ( ) EOIR-28 ( ) Legal Services List (
Other

Immigrant & Refugee Appellate Center | www.irac.net

No other representations were made by either the respondent or his representative pnor to
(or on) December 3, 20 12, that proceedings should be delayed. This Court permits window
filing, which allows both parties to file motions-including motions to chapge venue-with the
Court personally and dir.ectly. Therefore, the respondent's assertion that "it was impossible to
file the change of venue" prior to the December 3, 20 12, hearing is baseless. (Resp't Mot. at 3.)
Regardless, the respondent would have been required to appear for the December 3, 2012,
hearing, even if he had properly filed a motion to change venue prior to that date.