U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals
qfjice of the Clerk
5107 leesburg Pike, Suite 2000
Falls Church, Virginia 22041

DHS/ICE Office of Chief Counsel - SEA

1000 Second Avenue, Suite 2900
Seattle, WA 98104

Name: CONEJO-CACERES, JOSE MAN ...

A 205-867-937
Date of this notice: 7/19/2016

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

bon.rtL Ca.;vu
Donna Carr
Chief Clerk
Enclosure
Panel Members:
Adkins-Blanch, Charles K.
Mann, Ana
O'Leary, Brian M.

Userteam: Docket

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Cite as: Jose Manuel Conejo-Caceres, A205 867 937 (BIA July 19, 2016)

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Wennerstrom, Ann K., Esq.

Law Office of Ann Wennerstrom
615 Second Ave.
Suite 350
Seattle, WA 98104

U.S. Department of Justice

Decision of the Board of Immigration Appeals

Executive Office for Immigration Review

Falls Church, Virginia 2204 I

Date:

File: A205 867 937 - Seattle, WA

In re: JOSE MANUEL CONEJO-CACERES

JUL 1 9 2016

APPEAL
ON BEHALF OF RESPONDENT: Ann K. Wennerstrom, Esquire
APPLICATION: Reopening
The respondent appeals from an Immigration Judge's decision dated May 26, 2015, denying
the respondent's motion to reopen his removal proceedings. The Department of Homeland
Security (DHS) did not file an opposition to the motion or to this appeal. The appeal will be
sustained.
We have considered the totality of the circumstances presented in this case, and find that an
exceptional situation has been demonstrated warranting reopening to allow the respondent an
opportunity to apply for relief from removal. See 8 C.F.R. I003.23(b)(l); Matter ofJ-J-, 21
I&N Dec. 976 (BIA 1997). Accordingly, the appeal will be sustained, the proceedings will be
reopened, and the record will be remanded.
ORDER: The appeal is sustained, the in absentia order is vacated, proceedings are reopened,
and the record is remanded to the Immigration Judge for further proceedings.

FOR THE B0ARD2:)

Cite as: Jose Manuel Conejo-Caceres, A205 867 937 (BIA July 19, 2016)

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IN REMOVAL PROCEEDINGS

UNITED STATES DEPARTMENT OF .JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
SEATTLE, WASHINGTON

File Number:

A205-867-93 7

Jose Manuel CONEJO-Caceres,

Respondent.

IN REMOVAL PROCEEDINGS

CHARGE:

INA 237(a)(l)(B)-Alien Remaining Longer Than Permitted

APPLICATION:

Motion to Reopen and Rescind In Absentia Order of Removal

ON BEHALF OF RESPONDENT
Ralph Hua, Esq.
Gibbs Houston Pauw, PLLC
I 000 Second Avenue, Suite 1600
Seattle, WA 98104

ON BEHALF OF ICE
Ryan Kahler, Esq.
Assistant Chief Counsel
I 000 Second Avenue, Suite 2900
Seattle, WA 98104

DECISION OF THE IMMIGRATION JUDGE

I. Introduction and Procedural History
The Department of Homeland Security ("DHS" or "Government") initiated removal
proceedings against Respondent, Jose Manuel Conejo-Caceres, on September 11, 2013, by filing
a Notice to Appear ("NTA") with the Seattle Immigration Court. Exh. 1. The NTA alleges that
Respondent is a native and citizen of Ecuador, who was admitted to the United States at New
York, New York, on May 28, 1999, as a nonimmigrant P3 with authorization to remain in the
United States for a temporary period not to exceed May 28, 2000. Id The NTA further alleges
that Respondent remained in the United States beyond May 28, 2000, without authorization from
the legacy Immigration and Naturalization Service or its successor the Department of Homeland
Security. On the basis of these allegations, the Government charged Respondent with
removability under section 237(a)(l )(B) of the Immigration and Nationality Act ("INA" or
"Act"), as an alien who, after admission as a nonimmigrant, has remained in the United States
for a time longer than permitted. Id.

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In the Matter of:

,,

II. Motion to Reopen

An in absentia order of removal may be rescinded where an alien files a motion to reopen
within 180 days of the date of the order of removal and establishes that the failure to appear was
because of "exceptional circumstances" or at any time where the alien establishes that he did not
receive notice. 8 C.F.R. I003.23(b)(4)(ii). As Respondent has conceded notice of his hearing
and has timely filed his motion, the issue is whether he has shown exceptional circumstances
sufficient to warrant reopening. Exceptional circumstances are circumstances beyond the control
of the alien, "such as battery or extreme cruelty to the alien or any child or parent of the alien,
serious illness of the alien, or serious illness or death of the spouse, child, or parent of the alien,
but not including.less compelling circumstances." INA 240(e)(l). The decision to grant or deny
a motion to reopen ultimately lies within the discretion of the immigration judge. 8 C.F.R.
I 003.23(b)(1)(iii).
The Court finds that Respondent has not shown exceptional circumstances sufficient to
warrant reopening. Respondent asserts that he "confused [his] [I]mmigration [C]ourt hearing
date with [his] ICE check-in appointment, which was schedule[d] for April 9, 2015." MTR at 18.
He states that he thought his "ICE appointment was the next immigration related matter that [he]
had to attend." Id The Court notes that Respondent's first hearing was also around the time of an
ICE check-in appointment and Respondent did not confuse the two dates then. See id. at 23.
Specifically, the document listing Respondent's check-in appointments with ICE notes that he
had an appointment on July 9, 2014, and that his initial master calendar hearing was July 16,
2014. Id. He next had an ICE check-in appointment on September 9, 2014, which he attended.
Id.

A205-867-937

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At a master calendar hearing on July 16, 2014, the Court adjourned the case to give
Respondent an opportunity to find an attorney. Respondent was personally served with a hearing
notice ordering him to appear for another master calendar hearing on March 18, 2015.
Respondent failed to appear on March 18, 2015, and the Court granted the Government's motion
to proceed in absentia. The Court found that Respondent received proper service of the NTA.
See Exh. 1. Furthermore, the Court noted that the hearing notice had been personally served on
Respondent and that he had been warned of the consequences of failing to appear. See Exh. 2.
The Court then found that the Government had established removabiJity by clear and convincing
evidence, and ordered Respondent removed in absentia to Ecuador. IJ Removal Proceedings
Decision (Mar. 18, 2015); see also Exh. 3. On March 30, 2015, Respondent, through counsel,
filed a motion to reopen removal proceedings and rescind the in absentia order of removal based
on exceptional circumstances. Motion to Rescind an In Absentia Order (Mar. 30, 2015)
[hereinafter "MTR"]. For the following reasons, the Court will deny Respondent's motion.

1W

In addition, the Court declines to reopen these proceedings sua sponte. The power to
reopen proceedings sua sponte is reserved for exceptional situations and "is not meant to be used
as a general cure for filing defects or to otherwise circumvent the regulations, where enforcing
them might result in hardship." Matter of J-J-, 21 I&N Dec. 976, 984 (BIA 1997). The Court
recognizes that Respondent has presented an application for cancellation of removal for certain
nonpermanent residents and supporting documents. See MTR at 24-185. However, this filing
does not constitute the type of exceptional situation that warrants sua sponte reopening.
Although the Ninth Circuit cautioned in Singh against "deny[ing] reopening of an in absentia
order where the denial leads to the unconscionable result of deporting an individual eligible for
relief from deportation," the Circuit also emphasized the importance of making sure the alien has
established exceptional circumstances. Singh, supra, at 1040. There, the alien "diligently
appeared for all of his previous [five] hearings" and "had no possible reason to try to delay the
hearing . . . [which] was the culmination of years of efforts to obtain lawful permanent resident
status." Id Here, Respondent was given a continuance by the Court to find an attorney in July of
2014, but did not do so until March of 2015, when he was ordered removed. Cf. Matter of J-P-,
22 l&N Dec. 33, 36 (BIA 1998) ("Although diligence is not a statutory requirement, . . . lack of
diligence is a factor that undercuts [a] respondent's claim, given the totality of the record . .. . ").
Furthermore, unlike the alien in Singh, he did not pursue relief until after he was ordered
removed. See Singh, supra, at 1040; see also 8 C.F.R. 1003.23(b)(3). Therefore, despite the
potential hardship that may result, the Court finds that reopening these proceedings is not
appropriate in light of the high standard set by the regulations and the Act.

A205-867-937

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An alien's misunderstanding as to the date of his hearing is not considered an exceptional

circumstance sufficient to warrant reopening removal proceedings. The exception to this rule
applies in situations, where, among other "unusual circumstances," the alien was clearly entitled
to relief at the time of the missed hearing. Vukmirovic v. Holder, 640 F.3d 977, 978 (9th Cir.
2011); see also Singh v. INS, 295. F.3d 1037, 1040 (9th Cir. 2002). In Singh, for example, the
Government "conceded that [the alien] would not have been deported if his hearing had been
held," and he "was the beneficiary of an approved visa petition." Valencia-Fragoso v. INS, 321
F.3d 1204, 1 205 (9th Cir. 2003) (citing Singh, supra, at 1039-40). By contrast, where the alien's
potential relief is discretionary, such as asylum or voluntary departure, the circumstances are not
exceptional. Valencia-Fragoso, supra, at 1206; Sharma v. INS, 89 F.3d 545, 548 (9th Cir. 1996).
The Court finds that Respondent's confusion as to the April 9, 2015 check-in appointment and
his March 18, 2015 hearing is a less compelling circumstance than the kind excusing non
appearance by the Act.

t,/

'\

4,

' ...

ORDER
IT IS HEREBY ORDERED that Respondent's motion to reopen and rescind the in absentia
order of removal is DENIED.

Paul A. DeFonzo
Immigration Judge

A205-867-93 7

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