Nasseri, Saman Law Offices of Saman Nasseri 925 B Street, Suite 402 San Diego, CA 92101

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals Office of the Clerk

5107 Leesburg Pike, Suite 2000 Falls Church. Virginia 20530

OHS/ICE Office of Chief Counsel - SND 880 Front St., Room 1234 San Diego, CA 92101-8834

Name: GARCIA JAVIER , DOMINGA M A 077-599-243

Date of this notice: 4/11/2014

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

Enclosure

Panel Members: Grant, Edward R. Guendelsberger, John Hoffman, Sharon

Sincerely,

DOtt.JtL c t1/VL)

Donna Carr Chief Clerk

Trane Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished

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Cite as: Dominga M. Garcia-Javier, A077 599 243 (BIA Apr. 11, 2014)

....

U.S. Department of Justice Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 20530

File: A077 599 243 - San Diego, CA

In re: DOMINGA M. GARCIA-JAVIER

IN REMOVAL PROCEEDINGS

APPEAL

Date:

ON BEHALF OF RESPONDENT: Saman Nasseri, Esquire

ON BEHALF OF DHS:

APPLICATION: Reopening

Ted Y. Yamata Deputy Chief Counsel

APR 11 2014

The respondent, a native and citizen of Mexico, appeals the Immigration Judge's decision dated June 14, 2013, denying the respondent's motion to reopen an order of removal entered in absentia on February 27, 2013. The Board defers to the factual findings of an Immigration Judge, unless they are clearly erroneous, but it retains independent judgment and discretion, subject to applicable governing standards, regarding pure questions of law and the application of a particular standard of law to those facts. 8 C.F.R. § 1003. l(d)(3). Under the totality of the circumstances, we are persuaded by the respondent's argument that the Immigration Judge should have exercised his sua sponte authority to reopen these proceedings. See 8 C.F.R. § 1003.23(b)(l). See also Matter of J-J-, 21 I&N Dec. 976 (BIA 1997).

Accordingly, the following order will be entered.

ORDER: The appeal is sustained, the in absentia order of removal is rescinded, these proceedings are reopened, and the record is remanded for further proceedings consistent with the foregoing opinion.

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Cite as: Dominga M. Garcia-Javier, A077 599 243 (BIA Apr. 11, 2014)

.i ... United States Department of Justice

Executive Office for Immigration Review Immigration Court

San Diego� California

In the matter of: Dominga Garcia Javier A Number: A077-599-243

ORDER OF THE IMMIGRATION JUDGE

Upon consideration of Dominga Garcia Javier's Motigµ to Reopen, it is HEREBY ORDERED that the motion be 'd€R.\;J!qTED Ol'f>ENIED because:

l:J DHS does not oppose the motion. r:J The respondent does not oppose the motion. (J A response to the motion has not been filed with the court. D Good cause has been established. Cl The court agrees with the reasons stated in the opposition to the motion. l:l Jhe motion is untimely per ________ _

flY'Other: Se-t q.�ch../ Deadlines:

[J The application(s) for relief must be filed by ___ __________ _

[J The respondent must comply with DHS biometrics instru

Date Ho

Certificate of Service This document was served by: M Mail e Personal Service To: [ � �ien l [ ] Alien c/o Custodial Officer ["'1 Alien's Date: (QjJ 4 _clOB By: Court Staff ---11L-.....:.....-_;;___=----���

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077599243 Dominga Garcia Javier

On May 14, 2013, the respondent through counsel filed a motion to reopen. The Government filed its response on May 22, 2013. Both submissions have been considered by the Court.1 The motion is not supported by an affidavit from the respondent. Counsel's representations in the motion as to what the respondent may have thought leading to her failure to appear cannot be considered as evidence under the precedent of the Board of Immigration Appeals. Matter of Ramirez-Sanchez, 17 l&N Dec. 503 (BIA 1980). The respondent has failed to demonstrate exceptional circumstances for the failure to appear based solely on the pre-existing medical conditions of her family members. The Government's charge relates to alien smuggling. The in absentia decision also directly references the findings of the Board of Immigration Appeals, as well as alternate independent findings of the Court, in concluding that the order of removal was appropriate.

APPEAL RIGHTS: Both parties have the right to appeal the decision. Any appeal must be received by the Board of Immigration Appeals on or before 30 calendar days from the date of service of this decision.

1 A prior attempt to file a motion by the respondent had been rejected. The respondnet's May 14, 2013, motion is considered to be his first motion subsequent to the Court's February 27, 2013, order. Although the Government's response refers to a brief allegedly filed May 17, 2013, the Court did not receive such alleged filing.

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