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    Otoniel Rincon-Velasquez, A089 284 279 (BIA Oct. 21, 2015)

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    Immigrant & Refugee Appellate Center, LLC
    In this unpublished decision, the Board of Immigration Appeals (BIA) rescinded an in absentia order of removal upon finding the respondent's failure to appear was justified by exceptional circumstances, namely the kidnapping of her brothers and of her cousin, and the murder of her father in the family home shortly before the hearing. The decision was issued by Member Garry Malphrus and was joined by Member Patricia Cole and Member Joan Geller Looking for IRAC’s Index of Unpublished BIA Decisions? Visit www.irac.net/unpublished/index

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    Otoniel Rincon-Velasquez, A089 284 279 (BIA Oct. 21, 2015)

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    Immigrant & Refugee Appellate Center, LLC
    532 views5 pages
    In this unpublished decision, the Board of Immigration Appeals (BIA) rescinded an in absentia order of removal upon finding the respondent's failure to appear was justified by exceptional circumstances, namely the kidnapping of her brothers and of her cousin, and the murder of her father in the family home shortly before the hearing. The decision was issued by Member Garry Malphrus and was joined by Member Patricia Cole and Member Joan Geller Looking for IRAC’s Index of Unpublished BIA Decisions? Visit www.irac.net/unpublished/index

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    In this unpublished decision, the Board of Immigration Appeals (BIA) rescinded an in absentia order of removal upon finding the respondent's failure to appear was justified by exceptional circumstances, namely the kidnapping of her brothers and of her cousin, and the murder of her father in the family home shortly before the hearing. The decision was issued by Member Garry Malphrus and was joined by Member Patricia Cole and Member Joan Geller Looking for IRAC’s Index of Unpublished BIA Decisions? Visit www.irac.net/unpublished/index

    Copyright:

    © All Rights Reserved
    Download as PDF, TXT or read online from Scribd
    Download as pdf or txt
    532 views5 pages

    Otoniel Rincon-Velasquez, A089 284 279 (BIA Oct. 21, 2015)

    Uploaded by

    Immigrant & Refugee Appellate Center, LLC
    In this unpublished decision, the Board of Immigration Appeals (BIA) rescinded an in absentia order of removal upon finding the respondent's failure to appear was justified by exceptional circumstances, namely the kidnapping of her brothers and of her cousin, and the murder of her father in the family home shortly before the hearing. The decision was issued by Member Garry Malphrus and was joined by Member Patricia Cole and Member Joan Geller Looking for IRAC’s Index of Unpublished BIA Decisions? Visit www.irac.net/unpublished/index

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    U.S.

    Department of Justice
    Executive Office for Immigration Review
    Board qfImmigration Appeals
    Office ofthe Clerk
    5/07 Leesb11rg Pike. Suite 2000
    Falls Church. Virginia 22041

    DHS/ICE Office of Chief Counsel - CHI


    525 West Van Buren Street
    Chicago, IL 60607

    Name: RINCON-VELASQUEZ, OTONIEL

    A 089-284-279
    Date of this notice: 10/21/2015

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

    DonnL ca.AA)
    Sincerely,

    Donna Carr
    Chief Clerk
    Enclosure
    Panel Members:
    Cole, Patricia A.
    Malphrus, Garry D.
    Geller, Joan B

    Userteam: Docket

    For more unpublished BIA decisions, visit


    www.irac.net/unpublished/index/
    Cite as: Otoniel Rincon-Velasquez, A089 284 279 (BIA Oct. 21, 2015)

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

    Baldini-Potermin, Maria Theresa, Esq.


    Maria Baldini-Potermin & Associates, P.C.
    1 N. LaSalle, Suite 2150
    Chicago, IL 60602

    'u.S. Department of Justice

    Decision of the Board oflmmigration Appeals

    Executive Office for Immigration Review


    FalJs Church, Virginia 22041

    Date:

    File: A089 284 279 - Chicago, IL

    OCT 21 2015

    In re: OTONIEL RINCON-VELASQUEZ

    APPEAL
    ON BEHALF OF RESPONDENT: Maria Theresa Baldini-Potennin, Esquire
    ON BEHALF OF DHS: Seth B. Fitter
    Senior Attorney
    CHARGE:
    Notice: Sec.

    212(a)(6)(A){i), I&N Act [8 U.S.C. 1182(a)(6)(A)(i)] Present without being admitted or paroled

    APPLICATION: Reopening
    This case was last before us on November 25, 2014, when we remanded the record to the
    Immigration Judge to address legal and evidentiary issues arising from an order from the
    United States Court of Appeals for the Seventh Circuit that granted the government's motion to
    remand. On April 14, 2015, the Immigration Judge certified this case back to the Board, stating
    that no additional fact-finding was needed, that the issue presented was a legal one that had been
    fully briefed by the parties. The Immigration Judge declined to make any changes to her
    January 7, 2013, decision denying the respondent's motion to reopen and rescind his in absentia
    removal order. The respondent's removal proceedings will be reopened, and the record
    remanded to the Immigration Court for further proceedings.
    We review the findings of fact, including the determination of credibility, made by the
    Immigration Judge under a "clearly erroneous" standard. 8 C.F.R. 1003.l(d)(3)(i). 1 We
    review all other issues, including whether the parties have met their relevant burden of proof, and
    issues of discretion, under a de novo standard. 8 C.F .R. 1003 .1(d)(3)(ii).
    We conclude that the totality of the circumstances, which included the kidnapping of the
    respondent's two brothers, the kidnapping of the respondent's cousin, the murder of the
    respondent's father in the family's own home in May 2012, shortly before the respondent's
    June 2012 hearing, and the emotional and psychological impact these events had on the
    1

    We acknowledge at the outset the respondent's assertion that while the Immigration Judge
    characterized him as "fugitive," he voluntarily appeared at the county jail to serve his sentence
    even after the in absentia removal order was issued against him in June 2012 (Respondent's
    Br. at 64).

    - = ""'"

    Cite as: Otoniel Rincon-Velasquez, A089 284 279 (BIA Oct. 21, 2015)
    :&iz.3MM@

    U.iM.k.:

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

    IN REMOVAL PROCEEDINGS

    A089 284 279

    Accordingly, the respondent's removal proceedings will be reopened and his in absentia
    removal order will be rescinded. The record is remanded to the Immigration Court for further
    proceedings. The following orders are entered.
    ORDER: The respondent's removal proceedings are reopened and the Immigration Judge's
    June 19, 2012, in absentia removal order is rescinded.
    FURTHER ORDER: The record is remanded to the Immigration Court for further
    proceedings and for entry of a new decision.

    We note that in considering whether exceptional circumstances exist, we reject the respondent's
    assertion that fear of removal from the United States is a justifiable reason for not attending his
    removal proceedings. Such a reasoning would frustrate the overall statutory scheme of the in
    absentia provisions which were enacted so that aliens would either appear for their immigration
    proceedings or be ordered removed. See generally Matter of Grijalva, 21 I&N Dec. 27, 30-31
    (BIA 1995) (provisions enacted in response to concerns raised regarding "delays in the
    deportation process and the substantial number of aliens who fail to appear for their scheduled
    deportation hearings); Abu Hasirah v. Department of Homeland Security, 478 F.3d 474, 478-79
    (2d Cir. 2007) (finding that in absentia removal orders were intended for aliens who failed
    entirely to appear for a hearing, and noting legislative report which contained language that
    "willful and unjustifiable failure to attend deportation hearings that have been properly noticed is
    intolerable").

    2
    Cite as: Otoniel Rincon-Velasquez, A089 284 279 (BIA Oct. 21, 2015)

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

    respondnt during the period of time leading to his hearing, constituted "exceptional
    circumstances" for purposes of rescinding his in absentia removal order. 2 The death of a parent
    is explicitly included in section 240(e)(l) of the Immigration and Nationality Act, 8 U.S.C.
    1229a(e)(l ), as an example of the type of compelling circumstances that may amount to
    "exceptional circumstances" warranting rescission of an in absentia order. The gravity and detail
    of the assertions in the respondent's affidavit distinguish this case from Matter ofB-A-S-, 22 I&N
    Dec. 57 (BIA 1998), in which the alien's evidence did not show that a foot injury was severe
    enough to prevent his attendance at his deportation hearing.

    File: A089-284-279

    June 19, 2012

    In the Matter of
    )
    )
    )
    )

    OTONIEL RINCON-VELASQUEZ
    RESPONDENT

    IN REMOVAL PROCEEDINGS

    CHARGES:
    APPLICATIONS:
    ON BEHALF OF RESPONDENT: MICHELLE URKA
    ON BEHALF OF OHS: LYNN HOLLANDER, Assistant Chief Counsel

    THIS WILL BE THE ORDER OF THE COURT


    The respondent has conceded his removability as charged while
    appearing before this Court on November 8, 2011, with counsel. He has admitted that
    he is removable for having entered the United States without being admitted or paroled
    in violation of Section 212(a)(6)(A)(i) of the Immigration and Nationality Act. He
    expressed no fear of return to Mexico but indicated at that earlier hearing that he was
    going to be filing an application of cancelation of removal based on his claim of lengthy
    presence in the United States and the existence of qualifying relatives for purposes of

    CZ.:

    .a:.'

    &1

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

    UNITED STATES DEPARTMENT OF JUSTICE


    EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
    UNITED STATES IMMIGRATION COURT
    CHICAGO, ILLINOIS

    cancelation. The respondent's case was continued to today for presentation of a


    disposition on a 2010 controlled substance arrest. Had the respondent been convicted
    He was advised of the new hearing date. His attorney advised him of the
    consequences of failure to appear. He was to file all of these documents to preserve
    his right to proceed any further. Now, by failing to appear after proper notice being
    provided to his attorney, both in writing and orally, this Court finds that he has
    abandoned the opportunity to pursue all relief from removal even if he was eligible for
    cancellation, something I am not entirely certain of at this point.
    ORDERS
    And so therefore, the respondent is hereby ordered removed from the
    United States to Mexico based on the charge contained on the Notice to Appear. Upon
    service of the in absentia removal order, attorney Michelle Urka of the Solis Law Firm,
    will also allowed to withdraw and an order will be provided to her to that effect.

    JENNIE L. GIAMBASTIANI
    Immigration Judge

    A089-284-279

    June 19, 2012

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

    of such types of offense, he would not have been eligible for cancellation of removal.

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