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U.S.

Department of Justice

Executive Office for Immigration Review


Board ofImmigration Appeals
Office of the Clerk
5107 Leesburg Pike. Suite 2000
Falls Church, Virginia 22041

DHS/ICE Office of Chief Counsel - ATL


180 Ted Turner Dr., SW, Ste 332
Atlanta, GA 30303

Name: BAUTISTA-PEREZ, VITALINA

A 202-079-302

Date of this notice: 10/7/2015

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

Don.rtL

a/lAJ

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Holmes, David B.
Greer, Anne J.
O'Herron, Margaret M

Userteam: Docket

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Cite as: Vitalina Bautista-Perez, A202 079 302 (BIA Oct. 7, 2015)

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Miller, Will
Catholic Charities Atlanta
P.0. Box 450469
Atlanta, GA 31145

U.S. Department of Justice

Decision of the Board of Immigration Appeals

. Executive Office for Immigration Review


Falls Church, Virginia 22041

Date:

File: A202 079 302 - Atlanta, GA


In re: VITALINA BAUTISTA-PEREZ

OCT - 7 20JS

APPEAL
ON BEHALF OF RESPONDENT: Willis Miller, Esquire
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
The respondent, a native and citizen of Guatemala, appeals from the Immigration Judge's
decision dated May 26, 2015, denying the respondent's timely motion to reopen her removal
proceedings and rescind the in absentia order of removal based on exceptional circumstances and
lack of notice. See sections 240(b)(5)(C), (e)(l) of the Immigration and Nationality Act,
8 U.S.C. 1229a(b)(S)(C), (e)(l); 8 C.F.R. 1003.23(b)(4)(ii). The Department of Homeland
Security has not responded to the appeal or to the respondent's underlying motion.
Given the particular circumstances present in this case, we conclude reopening is warranted.
The respondent has submitted evidence that a special immigrant visa petition (Form I-360) and
application for adjustment for adjustment of status (Form I-485) are currently pending before
U.S. Citizenship and Immigration Services. On remand, the Immigration Judge will consider
whether good cause exists for a continuance or whether administrative closure is appropriate
pending the adjudication of these applications. See Matter of Hashmi, 24 I&N Dec. 785 (BIA
2009) (setting forth factors to consider in determining whether a continuance is warranted
pending adjudication by USCIS of a visa petition); 8 C.F.R. 1003.29. Accordingly, the
following order will be entered.
ORDER: The appeal is sustained.
FURTHER ORDER: These proceedings are reopened, the in absentia order of removal is
vacated, and the record is remanded to the Immigration Court for further proceedings.

FOR T,E BOARD

Cite as: Vitalina Bautista-Perez, A202 079 302 (BIA Oct. 7, 2015)
C

'"

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IN REMOVAL PROCEEDINGS

UNITED STATES DEPARTMENT OF JUSTICE


EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
ATLANTA, GEORGIA
)

In Removal Proceedings

BAUTISTA PEREZ, Vitalina

File No. A# 202-079-302

)
)

Respondent

->
APPLICATION:

Respondent's Motion to Reopen an In Absentia Order


APPEARANCES

ON BEHALF OF THE RESPONDENT:

ON BEHALF OF THE GOVERNMENT:

Willis Miller, Esq.


Catholic Charities Atlanta, Immigration Services
P.O. Box 450469
Atlanta, Georgia 31145

Assistant Chief Counsel


Department of Homeland Security
180 Spring Street SW, Suite 332
Atlanta, Georgia 30303

DECISION AND ORDER OF THE IMMIGRATION JUDGE


I.

PROCEDURAL HISTORY

Vitalina Bautista Perez ("Respondent") is a female native and citizen of Guatemala. The
Respondent turned 18-years old on March 22, 2015. The Respondent entered the United States as
a minor, On August 12, 2014, the Department of Homeland Security ("Department") issued and
personally served the Respondent with a Notice to Appear ("NTA"), which advised her of the
consequences of failure to appear. By Notice of Hearing dated December 22, 2014, the Court
notified the Respondent that a Master Calendar Hearing in her case was scheduled for January 6,
2015, at 8:00 a.m. On January 6, 2015, the Respondent failed to appear before the Court. The
Court proceeded in absentia, and ordered the Respondent removed to Guatemala.
On April 16, 2015, the Respondent filed a Motion to Reopen an In Absentia Order. The
Respondent filed Motions to Amend her original Motion to Reopen on April 16, 2015 and April
23, 2015. The Department has not filed a response to the Respondent's Motion to Reopen at the

time of this writing.

The Court has carefully reviewed the entire record before it. All evidence has been
considered, even if not specifically discussed further in this decision. For the reasons set forth
below, the Court will deny the Respondent's Motion to Reopen an In Absentia Order.

Cite as: Vitalina Bautista-Perez, A202 079 302 (BIA Oct. 7, 2015)

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IN THE MATTER OF:

II.

DISCUSSION

A. The Rejpondent 's Motion is timely.

B. The Respondent has not established that her failure to appear was due to exceptional
circumstances.
Even when a motion to reopen is filed within 180 days of after the date of the in absentia
removal order, the respondent bears the burden of showing that his or her failure to appear was
due to "exceptional circumstances." See INA 240(b)(S)(C)(i). The "term exceptional
circumstances' refers to exceptional circumstances (such as battery or extreme cruelty to the
alien or any child or parent of the alien, or serious illness or death of the spouse, child, or parent
of the alien, but not including less compelling circumstances) beyond the control of the alien."
INA 240(e)(l).
The Respondent was a minor at the time of her in absentia order of removal, but turned 18years old on March 22, 2015, prior to the filing of her Motion to Reopen. The Motion to Reopen,
as amended, includes affidavits from both the Respondent and Miguel Bautista Ramos, the
Respondent's uncle and current legal guardian. These affidavits confirm that the Respondent was
living with her Uncle at the time the Notice to Appear was sent to her by regular mail. The
Respondent's uncle admits that he did receive "something from the immigration court, but [he]
just assumed the Respondent would not have to appear in immigration court since [they] were
already appearing in Cherokee County Juvenile Court in early January with Respondent's
attorney, Willis Miller." Resp. Mot. to Reopen, Tab B at 11 (emphasis in original).
The Court finds that the Respondent's uncle's failure to read the notice of hearing from this
Court and/or his alleged mistaken belief that the Respondent was not required to attend this
Court's hearing on January 6, 2015 does not qualify as "exceptional circumstances." In order for
Respondent to be released into the care of her uncle, he was required to agree to the provisions
set forth in the Sponsor Care Agreement pertaining to the minor's care and responsibility for the
minor's presence at all future proceedings before this Court. See Exh. 3. To find his failure to
bring the Respondent to Court while waiting on a dependency order is "exceptional
circumstances" removes all meaning from the Sponsor Care Agreement and makes a mockery of
these proceedings.
Furthermore, the Respondent was not granted her dependency order in Cherokee County
Juvenile Court until March 2, 2015. See Resp. Mot. to Reopen, Tab E. The Court will not allow
the Respondent to gain an unfair advantage from failing to appear for her hearing and then
2
Cite as: Vitalina Bautista-Perez, A202 079 302 (BIA Oct. 7, 2015)

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

Generally, motions to reopen for the purpose of rescinding an in absentia removal order must
be filed within 180 days after the date of the removal order, and demonstrate that the failure to
appear was because of exceptional circumstances. See INA 240(b)(S)(C)(i); 8 C.F.R.
1003.23(b)(4)(ii). Here, Respondent was ordered removed in absentia on January 6, 2016. She
filed a Motion to Reopen one hundred and one (101) days later, on April 16, 2015. Therefore,
Respondent filed her Motion within 180 days from the final administrative order of removal, and
the Motion to Reopen is timely.

waiting to file a Motion to Reopen until after she has received a dependency order from the
Cherokee Superior Court and receipt notices from U.S. Citizenship and Immigration Service
("USCIS") for her Form 1-360 and Form 1-485.
C.

The Respondent received proper notice of her hearing.

In light of the foregoing, the Com1 will enter the following orders:
ORDER
It is ordered that:

Respondent's Motion to Reopen an In


Absentia Order is hereby DENIED;

J./Dan Pelletier
Ifumigration Judge
Atlanta, Georgia

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Motions to reopen for purposes of rescinding an in absentia removal order may be filed at
any time, including after the 180-day deadline, if the alien asserts that he or she did not receive
notice of the hearing. See INA 240(b)(5)(C)(ii); 8 C.F.R. 1003.23(b)(4)(ii). As discussed
above, the Respondent received notice of the January 6, 2015 hearing by a Notice of Hearing
issued December 22, 2014. There is nothing in the Court's file to indicate that the Notice of
Hearing was not properly delivered. When a Notice of Hearing is sent to an alien by regular
mail, properly addressed, and mailed according to normal office procedures, there is a
presumption that the alien received proper notice. Matter of M-R-A-, 24 I&N Dec. 665, 673
(BIA 2008). Furthermore, the Respondent's uncle admitted that he received "something'' from
the Court prior to the Respondent's January 6, 2015 hearing. See Resp. Mot. to Reopen, Tab Bat
11 (emphasis in original). For these reasons, the Court finds that the Respondent received proper
notice of her January 6, 2015 hearing.