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Gicely Sarai Flores-Velasquez, A205 277 572 (BIA April 24, 2015)
Gicely Sarai Flores-Velasquez, A205 277 572 (BIA April 24, 2015)
Department of Justice
Executive Office for Immigration Review
A 205-277-572
Enclosed is a copy of the Board's decision and order in the above-referenced case.
Sincerely,
Don.rtL ctVlA)
Donna Carr
Chief Clerk
Enclosure
Panel Members:
Grant. Edward R.
Adkins-Blanch, Charles K.
Guendelsberger, John
File:
In re:
Date:
'
APR
2 4 2DfJ3
APPEAL
ON BEHALF OF RESPONDENT:
Michele Henriques
ON BEHALF OF DHS:
APPLICATION: Reopening
The respondent, a native and citizen of Honduras, has appealed from the decision of the
Immigration Judge dated September 20, 2013, denying the respondent's motion to reopen
proceedings after she was ordered removed in absentia when the respondent failed to appear for
her scheduled hearing on May 17, 2013. The Department of Homeland Security (DHS) opposes
the appeal. The appeal will be sustained and the record remanded for further proceedings.
The Board reviews findings of fact, including credibility determinations, under a "clearly
erroneous" standard.
1003.l(d)(3)(i).
If the Board determines that an Immigration Judge's findings of fact are not
clearly erroneous, it may review de novo whether the facts are sufficient to meet an applicable
legal standard. See Matter ofA-S-B-, 24 I&N Dec. 493,497 (BIA 2008). In determining whether
established facts meet a particular legal standard, the Board may weigh the evidence in a manner
differently than the Immigration Judge, or conclude that the foundation for the Immigration
Judge's legal conclusions is insufficient or otherwise not supported by the evidence. Id at 496.
We review de novo determinations made in the exercise of discretion.
Id at 497. We have
factors commonly associated with the alien's place of residence. See Matter ofRahman, 20 I&N
Dec. 480 (BIA 1992).
In this case, we find that the balance of such factors is in the respondent's favor. The DHS
did not oppose the motion to change venue, and there is little or no apparent inconvenience to the
government. Moreover, we agree with the respondent that there is no requirement that the
respondent include her asylum application, because she provided a description of the basis of her
for this relief.
See Immigration Court Practice Manual, Chapter
http://W\\rw.justice.gov/eoir/vll/OCIJPracManual/Practice Manual review.pdf#page=l 1.
eligibility
Cite as: Gicely Sarai Flores-Velasquez, A205 277 572 (BIA April 24, 2015)
5. IO(c).
IN REMOVAL PROCEEDINGS
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Therefore, we conclude that the respondent's request for a change of venue should have been
granted. See Monter v. Gonzales, 430 F.3d 546 (2d Cir. 2005) (denial of alien's motion for
change of venue of removal proceedings to a location significantly closer both to his and his
principal witness' residence, that was also significantly closer to evidence bearing on only
contested issue in case, the bona fide nature of alien's marriage to United States citizen, was
order and remand for further proceedings).
In view of our determination that the Immigration Judge incorrectly denied the respondent's
motion to change venue, we find under the totality of the circumstances that the respondent has
presented exceptional circumstances to excuse her failure to appear for her May 17, 2013,
removal hearing.
See Romero-Morales
v.
Immigration Judges to examine the substance of a petitioner's motion for change of venue as
part of their obligation "to consider the record as a whole and issue a reasoned opinion" on a
motion to reopen).
ORDER: The appeal is sustained, the in absentia order is rescinded, and the proceedings are
reopened.
FURTHER ORDER: The record is remanded to the Immigration Court for further
proceedings consistent with the foregoing opinion and for issuance of a new decision.
FURTHER ORDER: Venue is changed from Buffalo, New York, to New York, New York.
Cite as: Gicely Sarai Flores-Velasquez, A205 277 572 (BIA April 24, 2015)
abuse of discretion that prejudiced alien's rights, and that necessitated vacation of the Board
IN REMOVAL PROCEEDINGS
A# 205-277-572
Respondent
CHARGES:
INA
MOTIONS:
212(a)(6)(A)(i)
ON BEHALF O F RESPONDENT
Rebecca R. Press, Esq.
Central American Legal Assistance
240 Hooper Street
Brooklyn, New York 11211
Respondent's motion to
I.
1 According to INA 212(a)(6)(A)(i), "An alien present in the United States without being admitted or
paroled, or who arrives in the United States at any time or place other than as designated by the Attorney
General, is inadmissible.',
A# 205-277-572
.J..J.&
On April
change the venue of her removal proceedings to the New York City Immigration Court.
See Motion to Change Venue (Apr.
On April
23, 20 1 3.
23, 20 1 3).
withholding and CAT relief due to abuse from my partner in Honduras."). This time the
government did not oppose the motion; however, the Court denied the motion for failure
to demonstrate eligibility for the relief sought. See Order of the IJ (May
1 3, 2013) ("The
forth any grounds for relief, nor attached any relief applications to
said motion."); see also Practice Manual Chapter 5. 1 0(c).
Respondent has not set
Respondent failed to appear for her hearing in removal proceedings and the Court
ordered her removed to Honduras in absentia. See Order of the IJ (May
July
1 7, 20 1 3). On
3 1 , 2013, Respondent filed a motion to rescind the Court's order of removal and
reopen proceedings to allow Respondent an opportunity to apply for asylum and related
relief. See Motion to Reopen (Jul.
DOCUMENTARY EVIDENCE
Exhibit 2:
22, 2012
I-2 1 3"), dated
22, 2013
Group
Exhibit 3:
3A:
31, 20 1 3
1-589")
3B:
3C:
Respondent's Statement
3D:
27, 2011)
3E:
(Nov.
HERALDO (Sept.
21, 2010)
2
A# 205-277-572
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III.
j)
A.
An order
3
A# 205-277-572
(i) upon a motion to reopen 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 in subsection (e)(l))), or
An
alien in removal proceedings, which are civil in nature, does not have an
legal counsel.");
secure legal counsel in Buffalo did not excuse her appearance before the Court. Many
judge.
The Court also finds nothing exceptional about the distance and cost allegedly
involved in Respondent's travel from her home to the Court. Respondent filed two
motions to change venue, each of which was denied. The Court was under no obligation
to grant Respondent's motions.
1992) ("[T)he presiding immigration judge should not order a change of venue without a
proper finding of good cause ..."). Good cause for a change of venue is determined by
review of the Court's denials of her motions, but she was not free to miss her scheduled
hearing.
See Practice Manual Chapter 5 .10(c) ("The filing of a motion to change venue
does not excuse the appearance of an alien or representative at any scheduled hearing.").
The Court also notes that Respondent's claim that a trip to Buffalo would have
cost her
Respondent has not explained how she calculated this figure. Respondent has likewise
not supported her claim that the "cost of travelling to Buffalo would be more than what I
earn in
a week'' with any evidence other than her own statement. (Exh.3C). In regards
to the distance between Respondent's home and Buffalo, the Court notes that Respondent
voluntarily entered the jurisdiction of the Court.
travelling west). The Court has jurisdiction over Syracuse, New York. The Court further
takes judicial notice of the fact that Syracuse is approximately
and approximately
an
alien
Accordingly, the Court finds that Respondent has failed to establish that her
See 8 C.F.R. 1003. l(d)(J)(iv) (permitting the Board of Immigration Appeals, and by implication the
Immigration Judges, to take "administrative notice of commonly known facts such as current events or the
contents of official documents").
4
A# 205-277-572
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B.
A motion to reopen "shall state the new facts that will be proven at a hearing to be
held if the motion is granted and shall be supported by affidavits and other evidentiary
material." 8 C.F.R. 1003.23(b)(3). "A motion to reopen will not be granted unless the
Immigration Judge is satisfied that evidence sought to be offered is material and was not
available and could not have been discovered or presented at the former hearing." Id.
Based on the foregoing, Respondent's motion to reopen must be denied for failure
to satisfy the requirements of 8 C.F.R. 1003.23(b)(3); see also Practice Manual Chapter
5.7(b)(iii) ("A motion to reopen based on an application for relief will not be granted if it
appears the alien's right to apply for that relief was fully explained and the alien had an
opportunity to apply for that relief at an earlier stage in the proceedings (unless the relief
is sought on the basis of circumstances that have arisen subsequent to that stage of the
proceedings).")
The Court shall enter the following order:
ORDER
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Date
e
An alien need not seek rescission of an in absentia removal order prior to seeking reopening of
proceedings. See Matter ofJ-G-, 26 I&N Dec. 161 (BIA 2013). Unlike the respondent in Matter ofJ-G-,
Respondent does not need to establish that her application for asylum is based on changed country
conditions arising in her country of nationality because her motion was filed within 90 days of the date on
which the Court's order was entered. See id. at 163-64.
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A# 205-277-572
All of the evidence that Respondent seeks to offer was available and could have
been presented to the Court on May 17, 2013. Respondent allegedly arrived in the
United States in December 2008. (Exh. 3A at 1). Respondent's passport was issued in
January 2013. (Exh. 3B). The news articles submitted by Respondent are from 2010 and
2011. (Exhs. 3D, 3E). The events described by Respondent in her Form 1-589 all took
place prior to May 2013. Seet e.g., (Exh. 3A at 5); see also Motion to Change Venue
(Apr. 29, 2013) (stating in April 2013 that Respondent wished to apply for asylum "due
to abuse from my partner in Honduras").