U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office ofthe Clerk
5107 Leesburg Pike, Suite 2000
Falls Church, Virginia 22041

OHS/ICE Office of Chief Counsel - CHL

5701 Executive Ctr Dr., Ste 300
Charlotte, NC 28212

Name: VEGA VARGAS, MARIA

A 079-189-914

Date of this notice: 3/9/2016

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

DCrutL C

t1/Vl)

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Grant, Edward R.
Guendelsberger, John
O'Leary, Brian M.

Userteam: Docket

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Cite as: Maria Vega-Vargas, A079 189 914 (BIA March 9, 2016)

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Lamb, Robert, Esq.

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P.O. Box 1847
Durham, NC 27702

U.S. Department of Justice

Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Vuginia 22041

File: A079 189 914 - Charlotte, NC

Date:

In re: MARIA VEGA-VARGAS

MAR - 9 2016

APPEAL
ON BEHALF OF RESPONDENT: Robert Lamb, Esquire
ON BEHALF OF OHS: Cori White
Assistant Chief Counsel
APPLICATION: Reopening
The respondent, a native and citizen of Chile, was ordered removed in absentia on
May 13, 2015. On July 10, 2015, the respondent filed a motion to reopen proceedings, which an
Immigration Judge denied on July 27, 2015. The respondent filed a timely appeal of that
decision. The appeal will be sustained, the in absentia order will be vacated, proceedings will be
reopened, and the record will be remanded.
The Board reviews an Immigration Judge's findings of fact, including findings as to the
credibility of testimony, under the clearly erroneous standard. 8 C.F.R. 1003.l(d)(J)(i). The
Board reviews questions of law, discretion, and judgment and all other issues in appeals from
decisions of Immigration Judges de novo. 8 C.F.R. 1003. l(d)(J)(ii).
Upon de novo review of the record and in light of the totality of circumstances presented in
this case, we conclude that the respondent demonstrated that reopening is warranted. 1 See
sections 240(b)(S)(C)(i), (e)(l) of the Immigration and Nationality Act, 8 U.S.C.A.
1229a(b)(5)(C)(i), (e)(l). We will therefore sustain the respondent's appeal and remand the
record for further proceedings.
ORDER: The respondent's appeal is sustained, the in absentia order is vacated, proceedings
are reopened and the record is remanded to the Immigration Judge for further proceedings and
for the entry of a new decision.

FOR
Among other factors, we have considered that the respondent appeared at multiple prior
hearings, was diligent in filing her motion to reopen proceedings, she claims to have arrived late
as the result of a flat tire, she is the beneficiary of an approved 1-130 and has a citizen husband
and four citizen children.
1

Cite as: Maria Vega-Vargas, A079 189 914 (BIA March 9, 2016)

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IN REMOVAL PROCEEDINGS

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
CHARLOTTE, NORTH CAROLINA
IN THE MATTER OF

Respondent.

)
)

IN REMOVAL PROCEEDINGS
File No. A 079-189-914
MINUTE ORDER
July 27, 2015

NOW COMES the Court upon review and consideration of Respondent's Motion to
Reopen Proceedings filed on July 10, 2015, and the Department of Homeland Security's
(DHS) response in opposition filed on July 16, 2015. The Court finds the following:
1.
That Respondent was placed in removal proceedings with the service of a Notice to
Appear (NTA) on September 5, 2012. Exhibit 1.
2.
That at a master calendar hearing held on July 29, 2013, Respondent appeared prose
and admitted to the factual allegations contained in the Amended NT A issued on April 19,
2013. Exhibit I A. The Court sustained the charge of removability as an arriving alien under
INA 212(a)(7)(B)(i)(II) and designated Chile as the country of removal. INA
240(c)(3)(A). The Court granted Respondent a continuance to await adjudication of a
family-based visa petition (Form 1-130) filed with the United States Citizenship and
Immigration Services (USCIS) by her United States citizen spouse on April 1, 2013.
3.
That between July 29, 2013 and August 27, 2014, the Court granted Respondent three
continuances to await the USCIS' adjudication of the Form I-130 petition.
4.
That between August 27, 2014 and May 13, 2015, the Court granted Respondent two
continuances to file a Form I-485 application for adjustment of status along with the required
fee.
5.
That Respondent failed to appear at a master calendar hearing held on May 13, 2015,
and was ordered removed in absentia.
6.
That the criminal record filed by Respondent with her instant motion to reopen
reflects she was convicted of misdemeanor child abuse in Alamance County, North Carolina
on February 3, 2014, and a misdemeanor probation violation related to that same offense on
April 16, 2015. Respondent's motion to reopen at 20. Respondent was also convicted of
providing fictitious information to a law enforcement officer in Alamance County on April 3,
2008. Id Respondent was also convicted of sale or distribution of tobacco products to a
minor in Alamance County on November 7, 2008. Id. at 22.

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MARIA VEGA VARGAS,

)
)
)

'

'a

The Court finds that the respondent has not demonstrated her failure to appear was
because of exceptional circumstances as defined in INA 240(e)(l); 8 C.F.R.
1003.23(b)(4)(iii)(l); Matter of W-F-, 21 I&N Dec. 503,509 (BIA 1996); Matter ofS-A-, 21
I&N Dec. I 050 (BIA 1998) (holding that traffic is not a reasonable cause to warrant the
reopening of exclusion proceedings). The respondent has not filed any evidence that
demonstrates her car actually suffered a flat tire,such as a repair receipt.
The Court finds the respondent has not met her burden to demonstrate her case should
be reopened for her to pursue the discretionary relief of adjustment of status under INA
245(a). 8 C.F.R. 1003.23(b)(3). The respondent's criminal record reflects she has at least
two convictions for a crime involving moral turpitude,which renders her inadmissible. INA
212(a)(2)(A)(I). The respondent has failed to demonstrate she is eligible for a waiver of
admissibility, and therefore statutorily eligible for adjustment of status. INA 212(h).
For the foregoing reasons,the Court finds the respondent's motion to reopen has no
merit. The Court has discretion to deny the motion to reopen the respondent's case pursuant
to 8 C.F.R. 1003.23(b)(3), and hereby exercises that discretion. Accordingly,the Court
enters the following:

ORDER
IT IS HEREBY ORDERD that Respondent's motion to reopen is DENIED.

United States Immigration Judge

Charlotte,North Carolina

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"Motions to reopen are disfavored because every delay works to the advantage of the
deportable alien who wishes merely to remain in the United States." Barry v. Gonzales, 445
F.3d 741, 744-45 (4th Cir. 2006) (citing Stewart v. Immigration & Naturalization Serv., 181
F.3d 587, 596 (4th Cir.1999)) (internal citations omitted); see also Matter ofColeho, 20 l&N
Dec. 464,472 (BIA 1992). A respondent who seeks to reopen his case must establish that
the ultimate relief she seeks would be merited as a matter of discretion. Id When there is
evidence that an alien may be statutorily barred from relief,the alien has the burden to prove
by a preponderance of the evidence that such bar does not apply. 8 C.F.R. 1240.8( d);
Salem v. Holder, 647 F.3d 111,115 (4th Cir. 2011).