Hector Fransua Mach-Chavez, A206 888 919 (BIA March 14, 2016)

Lubarsky, Alexander H Community Legal Centers PO Box 605 San Mateo, CA 94401

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 2204/

DHS/ICE Office of Chief Counsel - HLG 1717 Zoy Street Harlingen, TX 78552

Name: MACH-CHAVEZ, HECTOR FRAN ... A 206-888-919

Date of this notice: 3/14/2016

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

Enclosure

Panel Members: Guendelsberger, John Grant, Edward R. Adkins-Blanch, Charles K.

Sincerely,

DC!nn.L c t1/vL)

Donna Carr Chief Clerk

Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished/index/

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Cite as: Hector Fransua Mach-Chavez, A206 888 919 (BIA March 14, 2016)

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

Decision of the Board of Immigration Appeals

�J8 Church, Virginia 22041

File: A206 888 919 - Harlingen, TX

In re: HECTOR FRANSUA MACH-CHAVEZ

IN REMOVAL PROCEEDINGS

APPEAL

Date:

ON BEHALF OF RESPONDENT: Alexander H. Lubarsky, Esquire

APPLICATION: Reopening

MAR 1 4 2016

The respondent, a native and citizen of Guatemala, appeals the decision of the Immigration Judge, dated October 22, 2015, denying his motion to reopen. The Department of Homeland Security has not replied to the respondent's appeal.

We review Immigration Judges' findings of fact for clear error, but questions of law, discretion, and judgment, and all other issues in appeals, de novo. 8 C.F.R. §§ 1003.l(d)(3)(i), (ii).

Considering the totality of the circumstances presented in this case, we conclude that reopened removal proceedings are warranted in order to provide the respondent with a renewed opportunity to appear before an Immigration Judge to show why he should not be removed from the United States. See 8 C.F.R. § 1003.23(b)(l). At the present time, we express no opinion regarding the ultimate outcome of these proceedings. Accordingly, the following order is entered.

ORDER: The respondent's appeal is sustained, the order of removal, entered in absentia on August 24, 2015, is vacated, the proceedings .,are reopened, and the record is remanded to the Immigration Court for further proceedings and th entry of a new decision.

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Cite as: Hector Fransua Mach-Chavez, A206 888 919 (BIA March 14, 2016)

UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

IMMIGRATION COURT 2009 W. JEFFERSON AVE, STE 300

HARLINGEN, TX 78550

MACH-CHAVEZ, HECTOR FRANSUA 102 S IDAHO STREET 6B SAN MATEO, CA 94010

IN THE MATTER OF MACH-CHAVEZ, HECTOR FRANSUA

FILE A 206-888-919 DATE: Oct 26, 2015

. <

UNABLE TO FORWARD - NO ADDRESS PROVIDED

�ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE. THIS DECISION IS FINAL UNLESS AN APPEAL IS FILED WITH THE BOARD OF IMMIGRATION APPEALS WITHIN 30 CALENDAR DAYS OF THE DATE OF THE MAILING OF THIS WRITTEN DECISION. SEE THE ENCLOSED FORMS AND INSTRUCTIONS FOR PROPERLY PREPARING YOUR APPEAL. YOUR NOTICE OF APPEAL, ATTACHED DOCUMENTS, AND FEE OR FEE WAIVER REQUEST MUST BE MAILED TO: BOARD OF IMMIGRATION APPEALS

OFFICE OF THE CLERK 5107 Leesburg Pike, Suite 2000 FALLS CHURCH, VA 22041

ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE AS THE RESULT OF YOUR FAILURE TO APPEAR AT YOUR SCHEDULED DEPORTATION OR REMOVAL HEARING. THIS DECISION IS FINAL UNLESS A MOTION TO REOPEN IS FILED IN ACCORDANCE WITH SECTION 242B(c) (3) OF THE IMMIGRATION AND NATIONALITY ACT, 8 U.S.C. SECTION 1252B(c) (3) IN DEPORTATION PROCEEDINGS OR SECTION 240(c) (6), 8 U.S.C. SECTION 1229a(c) (6) IN REMOVAL PROCEEDINGS. IF YOU FILE A MOTION TO REOPEN, YOUR MOTION MUST BE FILED WITH THIS COURT:

OTHER:

IMMIGRATION COURT 2009 W. JEFFERSON AVE, STE 300 HARLINGEN, TX 78550

IMMIGRATION COURT CC: ASSISTANT CHIEF COUNSEL

1717 ZOY ST. HARLINGEN, TX, 785520000

FF

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UNITED STATES DEPARTMENT OF WSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

HARLINGEN IMMIGRATION COURT HARLINGEN, TEXAS

IN THE MATTER OF ) Octo�, 2015 )

MACH CHAVEZ, HECTOR FRANSUA

) File Number: A 206 888 919

RESPONDENT

APPLICATION:

)

) )

Motion to Reopen

ON BEHALF OF THE RESPONDENT Pro Se

In Removal Proceedings

ON BEHALF OF THE GOVERNMENT Assistant Chief Counsel U.S. Department of Homeland Security 1717 Zoy Street Harlingen, TX 78552

DECISION OF THE IMMIGRATION JUDGE

On August 24, 2015, the Court ordered the respondent removed to Guatemala in absentia pursuant to section 240(b)(S)(A) of the Immigration and Nationality Act (Act). On September 23, 2015, the respondent, through counsel, filed a motion to reopen, requesting that his removal proceedings be reopened because the respondent believed his case was transferred to a different Immigration Court and was awaiting notification of that transfer. The respondent's motion to reopen will be denied.

The Court notes that the respondent does not contest the issue of notice, but rather asserts that he failed to appear for his August 24, 2015 removal hearing because he believed the location of his immigration proceedings were being moved and that he would be receiving a notice relating to the change of venue. The record reflects that the respondent was released from immigration custody on January 23, 2015. In his affidavit in support of his motion to reopen the respondent states that at the time of his release from immigration custody he asked a "security guard" about his court date and was told to call a telephone number which appeared on his bail paperwork. Members of the respondent's family attempted to call the number but found that the number was not in service. On January 26, 2015 the respondent then called "the offices of the Detention Center" and was told that he would be sent a hearing notice that would inform him of his next court date. The record reflects that on January 30, 2015 a hearing notice was sent the respondent. The notice stated that the respondent was scheduled to appear for a master hearing in the Harlingen, Texas Immigration Court on August 24, 2015.

The Court finds that the respondent's motiont to reopen removal proceedings based on exceptional circumstances is timely. INA § 240(b)(S)(C)(i) (requiring that a motion to reopen based upon exceptional circumstances must be filed within 180 days of the date of the order of removal); 8 C.F.R. § 1003.23(b)(4)(ii). However, the respondent's belief that the location of his hearing had been changed and his subseuqent failure to appear does not constitue and exceptional circumstance as defined in section 240(e)(l). Exceptional circumstances are those which are "beyond the control of the alien." INA § 240(e)(l) (such as serious illness of the

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respondent or death of an immediate relative). The respondent's ignorance of the intricacies and complexity of this country's immigration laws is not beyond the control of the alien. Furthermore, the hearing notice, mailed after the respondents conversation with "the offices of the Detention Center", made clear that the respondent was scheduled to appear for a hearing in the Harlingen, Texas Immigration Court. Any assumptions that the respondent made about the location of his hearing being moved does not constitue an exceptional circumsntance which would be beyond his control.

Accordingly, the following orders shall be entered:

ORDER: The respondent's motion to reopen is DENIED.

David Ayala United States Immi,:..i.a.i� ...

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