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. Virgi11ia 22041

Oltarsh, Jennifer, Esq. 494 Eighth Avenue, Suite 1704 New York, NY 10001

OHS/ICE Office of Chief Counsel - SN D 880 Front St., Room 1234 San Diego, CA 92101-8834

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Name: SALCIDO-ROCHA, MARITZA

A 200-832-424

Date of this notice: 9/ 26/2013

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

DCrutL ct1IVt.)
Donna Carr Chief Clerk

Enclosure

Panel Members: Grant, Edward R.

: 1 _, ...

1 r:: .

Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: Maritza Salcido-Rocha, A200 832 424 (BIA Sept. 26, 2013)

. I

U.S.

Department of Justice

Executive

ffice for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 22041

File: A200 832 424 - San Diego, CA In re: MARITZA SALCIDO-ROCHA IN REMOVAL PROCEEDINGS APPEAL ON BEHALF OF RESPONDENT: ON BEHALF OF OHS:

Date:

SEP 2 6 2013

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Jennifer Oltarsh, Esquire1

Ted Y. Yamada Deputy Chief Counsel

APPLICATION: Reopening

The respondent has appealed from the Immigration Judge's decision dated June 7, 2012. The Immigration Judge denied the respondent's motion to reopen proceedings in which she was ordered removed in absentia. The record will be remanded to the Immigration Judge for further proceedings. 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)(3)(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)(3)(ii). On appeal, the respondent argues that she has demonstrated exceptional circumstances for her failure to appear. See 8 U.S.C. 1229a(b)(5)(C) and 1229a(e){l). The respondent maintains that she was unable to board her earlier scheduled flight that would have ensured her arrival in San Diego, CA, prior to her hearing, due to forgetting to bring her identification to the airport. The respondent, through counsel, indicates on the Notice of Appeal (Form EOIR-26) and in her appellate brief that she appeared at the Immigration Court on the day of her hearing. However, the Immigration Judge did not make any factual findings in his written decision regarding whether the respondent appeared in court on the day of her hearing. See Perez v. th 1h Mukasey, 516 F.3d 770, 774 (9 Cir. 2008); Valencia-Fragoso v. Ashcroft, 321 F.3d 1204 (9 Cir. 2003); Matter of S-H-, 23 l&N Dec. 462 (BIA 2002) (providing that Board has limited fact finding authority on appeal). In light of the foregoing, we find it appropriate to remand the record to the Immigration Judge to make additional factual findings and for the entry of a new decision. The respondent and the Department of Homeland Security should be served with a copy of the decision and should thereafter be given an opportunity to submit briefs in accordance with the regulations. Accordingly, the following order will be entered.

This Board apologizes for the mistake with regard counsel's entry of an appearance on behalf of the respondent and the improper issuance of the briefing schedule in this matter. We have considered the contents of the respondent's brief in this matter.
Cite as: Maritza Salcido-Rocha, A200 832 424 (BIA Sept. 26, 2013)

A200 832 424

ORDER: The record is. remanded to the Immigration Judge for further proceedings consistent with the foregoing decision.

Immigrant & Refugee Appellate Center | www.irac.net

Cite as: Maritza Salcido-Rocha, A200 832 424 (BIA Sept. 26, 2013)

UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR I.MivlIGRATION REVIEW IMMIGRATION COURT 401 WEST A STREET, SAN DIEGO, CA SUITE 92101 #800

SALCIDO-ROCHA, EL CAJON, CA

MARITZA 92021 FILE A 200-832-424 DATE: Jun

7,

221 ORLANDO STREET

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IN THE MATTER OF SALCIDO-ROCHA, MARITZA

2012

UNABLE TO FORWARD - NO ADDRESS PROVIDED

-\f:J_ ' ;-

ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE. IS FINAL UNLESS AN WITHIN 30 CALENDAR DAYS SEE THE ENCLOSED FORMS YOUR NOTICE OF APPEAL, MUST BE MAILED TO:

'.l'HIS DECISION

APPEAL IS FILED WITH THE BOARD OF IMMIGRATION APPEALS OF THE DATE OF THE MAILING OF THIS WRI'fTEN DECISION. AND INSTRUCTIONS FOR PROPERLY PREPARING YOUR APPEAL. ATTACHED DOCUMENTS, BOARD OFFICE OF THE CLERK P.O. BOX 8530 FALLS CHURCH, VA 22041 IMMIGRATION JUDGE AS THE RESULT AND FEE OR FEE WAIVER REQUEST OF IMMIGRATION APPEALS

ATTACHED IS A COPY OF THE OF THIS DECISION IS FINAL SECTION 8 U.S.C.

DECISION OF THE

YOUR FAILURE TO APPEAR AT YOUR SCHEDULED DEPORTATION OR REMJVAL HEARING. UNLESS A MOTION TO REOPEN IS FILED IN l:CORDANCE 8 U.S.C. SECTION 240(c)(6), IF YOU FILE A MOTION NATIONALITY ACT,

WITH SECTION 242B(c)(3) OF THE IMMIGRATION AND

1252B(c) (3) IN DEPORTATION PROCEEDINGS OR YOUR MOTION MUST BE FILED WITH THIS

SECTION 1229a(c)(6) IN REMOVAL PROCEEDINGS. COURT:

TO REOPEN,

IMMIGRATION COURT 401 WEST A STREET, SAN DIEGO, OTHER: CA SUITE #800 92101

FF CC: ORLAND, DAVID, CA, DEPUTY CHIEF COUNSEL SUITE 2246 92101 880 FRONT STREET, SAN DIEGO,

UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW UNITED STATES IMMIGRATION COURT 401 West A Street, Suite 800 San Diego, California 92101

File No.:
In

A200 832 424

the Matter of

Maritza SALCIDO-ROCHA, Respondent

ON BEHALF OF RESPONDENT:

) Date: June 7, 2012 ) ) ) IN REMOVAL PROCEEDINGS ) ) )

ON BEHALF OF DEPARTMENT OF HOMELAND SECURITY:

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Pro Se

David M. Orland, Esquire 880 Front Street, Suite 2246 San Diego, California 92101 Section 212(a)(6)(A)(i) of the Immigration and Nationality Act, (Present Without Admission or Parole). Motion to Reopen.

CHARGE:

APPLICATION:

DECISION AND ORDER OF THE IMMIGRATION JUDGE

On October 12, 2010, the Department of Homeland Security ("DHS") personally served the respondent with a Notice to Appear ("NTA") (Exh. 1), charging her with removability under section 212(a)(6)(A)(i) of the Immigration and Nationality Act ("Act"), as an alien present in the United States without being admitted or paroled, or who arrived in the United States at any time or place other than as designated by the Attorney General. The DHS alleged that the respondent is a native and citizen of Mexico who arrived in the United States at an unknown location on or about October 12, 1995 and was not then admitted or paroled after inspection by an Immigration Officer. On October 22, 2010, the DHS filed the NTA with the Phoenix Immigration Court, thereby vesting it with jurisdiction over the proceedings. See 8 C.F.R. 1003.14(a) (2010). At the initial master calendar hearing on April 26, 2011, the respondent appeared with counsel, and the Court granted the respondent a continuance for attorney preparation. 1 At the next master calendar hearing on January 24, 2012, the respondent, through counsel, moved for a change of venue to the San Diego Immigration Court because she had moved to El Cajon, California as

1As neither party appealed the Court's decision, no transcript has been produced; however, this information is gleaned from the Record of Proceedings and the audio recording of the hearings, which the Court reviewed in preparation of this decision.

evidenced by the Change of Address Form. (Exh. 4.) The Court granted the motion. (Order of the Court, January 24, 2012.) (Exh. 5.) On January 31, 2012, a Notice of Hearing was sent by mail to both counsel and the respondent herself notifying them that the next hearing was scheduled in San Diego on April IO, 2012 at 8:30 a..m. (Exh. 6.) Counsel subsequently filed a motion to withdraw on February 6, 2012. However, the Court rejected this filing on February 10, 2012 for improper proof of service. (Exh. 7.) On April 10, 2012, the Court went on the record at 10:21 a.m. Neither the respondent nor the attorney of record appeared. No one else appeared on her behalf. The Court noted that since it had rejected respondent's counsel's filing, counsel remained the attorney of record in this case. Neither the Court nor the DHS counsel had any information before them that would explain the respondent's absence. The DHS requested that the Court proceed in absentia under section 240(b)(S)(A) of the Act, and the Court, finding proper notice, granted the request. The DHS filed a Record of Deportable/lnadmissible Alien (Form 1-213). The Court held that based on the information contained in the Form I-213, the DHS had presented clear, unequivocal, and convincing evidence that the respondent was removable as charged. As the respondent was not present to establish eligibility for any relief from removal, the Court ordered the respondent removed to Mexico on the charge contained in the NTA. See Decision (April 10, 2012). On April 13, 2012, the respondent filed her Motion to Reopen. The respondent argues that she failed to appear at her hearing because her flight arr ived in San Diego at 10:30 a.m. on the day of the hearing. (Resp't Mot. to Reopen.) She claims that her original flight was scheduled to arrive the day before, but she missed this flight because she had to return home for a passport. Id Respondent also mentions that her husband and she are currently going through a divorce and are under financial strain. Id. Respondent would like the Court to consider that she has lived in the United States without incident for seventeen years and reopen her proceedings. Id Attached to the motion, were a copy of plane tickets from Tampa, Florida to Houston, Texas and from Houston, Texas to San Diego, California on April 10, 2012 showing expected arrival in San Diego at 10:34 a.m., as well as a fee waiver request.2 Id On May 14, 2012, the DHS filed its Opposition To Respondent's Motion to Reopen. The DHS argued that the respondent's missed flight the day before the hearing and late arrival to San Diego on the day of the hearing are not exceptional circumstances. (DHS's Opp'n, 2-3.) Immigration Judge may, upon a motion by an alien, reopen any case in which he or she has made a decision, unless jurisdiction is vested in the Board of Immigration Appeals. 8 C.F.R. 1003.23(b)(l) (2012). A removal order entered in absentia pursuant to section 240(b)(5) of the Act may be rescinded upon a motion to reopen filed within 180 days after the date of the order if the alien demonstrates that the failure to appear was caused by exceptional circumstances. Section 240(b)(5)(C)(i) of the Act; 8 C.F.R. 1003.23(b)(4)(iii)(A)(l). Exceptional circumstances refers to circumstances beyond the control of the alien, such as battery or extreme cruelty to the alien, serious illness of the alien, or serious illness or death of the spouse, child, or parent of the alien, but nothing
An

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2Respondent's request to waive the required filing fee is granted. A200 832 424 2 June 7, 2012

less com . pelling. See section 240(e)( 1) of the Act. The Court "looks to the particularized facts presented in each case" in order to determine whether or not exceptional circumstances exist. Singh v: INS, 213 F.3d 1050, 1052 (9th Cir. 2000). The Court finds that while the respondent's motion is timely, based on the particularized facts in this case, the respondent has not shown, on the current record, that her failure to appear was due to exceptional circumstances beyond her control. Transportation delays or complications on the way to an Immigration Court hearing, generally do not constitute exceptional circumstances as contemplated by the Act. See Sharma v. INS, 89 F.3d 545 (9th Cir. 1996) (finding traffic difficulties did not qualify as exceptional circumstances justifying rescission of deportation order entered in absentia); DeMorales v. INS, 1 1 6 F.3d 145 (5th Cir. 1997) (finding mechanical breakdown of alien's automobile on the way to Court coupled with other factors is not an exceptional circumstance); Matter ofS-A-, 21 I&N Dec. 1050 (BIA 1997) (finding delays caused by heavy traffic do not constitute exceptional circumstances). The respondent claimed that she missed her original flight, scheduled to arrive on the day before the hearing because she had to return home for a passport. (Resp't Mot. to Reopen.) She has not supported her motion with sufficient evidence to show exceptional circumstances beyond her control. In her motion, the respondent wrote she had "to return home" in Tampa, yet the address she provided shows her home to be in San Diego County. In addition, the respondent has not provided proof of her originally scheduled flight to San Diego. Furthermore, the respondent has not explained why she was in Tampa or why she rescheduled her flight to arrive in San Diego at 10:34 a.m. on the day of her hearing when her hearing was scheduled for 8:30 a.m. Thus, upon consideration of the evidence currently before it, the Court does not find that respondent has shown an exceptional circumstance beyond her control excusing her failure to appear. Accordingly the following order will be entered:
ORDER IT IS ORDERED

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that the motion to reopen is denied.

cc:

The Respondent. Mr. Orland for the OHS.

A200 832 424

June 7, 2012