U.S.

Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals
Q[fice of the Clerk
5/07 Leesburg Pike, Suite 2000
Falls Church, Virginia 22041

DHS/ICE Office of Chief Counsel - DAL

125 E. John Carpenter Fwy, Ste. 500
Irving, TX 75062-2324

Name: CUN-BALAN, BERNABE

A 205-305-480
Date of this notice: 2/10/2016

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

bon.rtL CtVvtJ
Donna Carr
Chief Clerk
Enclosure
Panel Members:
Adkins-Blanch, Charles K.
Grant, Edward R.
Guendelsberger. John

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/
Cite as: Bernabe Cun-Balan, A205 305 480 (BIA Feb. 10, 2016)

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Labrada Dume, Marilyn

Labrada Dume & Associates
1 Engle Street, Suite 204
Englewood, NJ 07631

U.S. Department of Justice

Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 22041

File: A205 305 480 - Dallas, TX

Date:

In re: BERNABE CUN-BALAN

FEB f O 2016

APPEAL
ON BEHALF OF RESPONDENT: Marilyn Labrada Dume, Esquire
ORDER:
The respondent has appealed the Immigration Judge's denial of a motion to reopen
proceedings in which the respondent was ordered removed in absentia. . We review an
Immigration Judge's findings of fact for clear error, but questions of law, discretion, and
judgment, and all other issues in appeals, are reviewed de novo. 8 C.F.R. 1003. l(d)(3)(i), (ii).
On review, in light of the totality of the circumstances presented, we find that the respondent
established exceptional circumstances for his failure to appear at the scheduled removal hearing.
See section 240(b)(5)(C) of the Immigration and Nationality Act, 8 U.S.C. 1229a(b)(5)(C).
Accordingly, the appeal is sustained, the in absentia removal order is rescinded, the
proceedings are reopened, venue is changed to the Immigration Court in Newark, New Jersey,
and the record is remanded to the Immigration Court for further proceedings consistent with the
foregoing opinion and the entry of a new decision.

Cite as: Bernabe Cun-Balan, A205 305 480 (BIA Feb. 10, 2016)

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IN REMOVAL PROCEEDINGS

..::..;
..
. ;>

LAW OFFICES OF MARILYN LABRADA DUME

DUME, MARILYN LABRADA
ONE EAGLE STREET, SUITE 204
ENGLEWOOD, NJ 07631
IN THE MATTER OF
CUN-BALAN, BERNABLE

DATE: Nov 29, 2014

FILE A 205-305-480

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 20530
hTTACHED 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:
IMMIGRATION COURT
1100 COMMERCE ST., SUITE 1060
DALLAS, TX

OTHER:

75242

tJd)if) to Reopw CW)ULLJ.

OCT

CC: HARLOW, CRAIG

125 E. HWY 114, STE 500
IRVING, TX, 75062

COURT CLERK
IMMIGRATION COURT

1,. rl)

FF

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UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFJCE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
1100 COMMERCE ST., SUITE 1060
DALLAS, TX 75242

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
DALLAS, TEXAS
)
)
)
)
)

CUN-BALAN, Bernable
RESPONDENT

IN REMOVAL PROCEEDINGS
A 205-305-480

CHARGE:

Section 212(a){7)(A)(i)(l) of the Immigration and Nationality Act

(Act), as amended, as an immigrant who, at the time of application
for admission, is not in possession of a valid unexpired immigrant
visa, reentry permit, border crossing card, or other valid entry
document required by the Act, and a valid unexpired passport, or
other suitable travel document, or document of identity and
nationality as required under the regulations issued by the Attorney
General under section 21 l(a) ofthe Act.

APPLICATION:

Motion to Reopen

ON BEHALF OF THE RESPONDENT:

Marilyn Labrada Dume, Esq.
Law offices of Marilyn Labrada Dume, P.C.
One Engle St., Suite 204
Englewood, New Jersey 07631

ON BEHALF OF THE DEPARTMENT

OF HOMELAND SECURITY:
Paul B. Hunker III, Esq.
Chief Counsel- DHS/ICE
125 E. John Carpenter Freeway, Suite 500
Irving, TX 7 5 062

WRITTEN DECISION OF THE IMMIGRATION JUDGE

FACTUAL AND PROCEDURAL HISTORY
The Respondent is a male native and citizen of Guatemala who arrived in the United
States at or near Hidalgo, Texas on or about February 19, 2012, without being inspected by an

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IN THE MATTER OF:

immigration officer. Exhibit 1. Soon thereafter, the Respondent was apprehended and detained
by Border Patrol agents. Exhibit 4. Subsequently, on August 3, 2012, the Government mailed

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tlie Respondent a Notice to Appear (NTA) charging him with removability under section
212(a)(7)(A)(i)(I) of the Immigration and Nationality Act (Act). Exhibit 1.

On September 4, 2012, the Court served the Respondent with a Notice of Hearing (NOH) by
mail indicating that his hearing would be held on October 4, 2012 at 9:00 A.M at the Dallas
Immigration Court.
The Respondent, represented by counsel, appeared before this Court on September 23,
2012 for a bond hearing. The Respondent was subsequently released from custody on a $5,000
bond.
On October 4, 2012, the Respondent failed to appear at his scheduled hearing. The
Respondent's counsel, however, appeared telephonically. 1 The Respondent's attorney explained
that the Respondent was not present because she was acting under the belief that since her
motion for telephonic hearing was granted, it also waived the Respondent's appearance. The
Immigration Judge explained that the telephonic hearing was granted solely to the attorney and
that the Respondent was required to be present, and without his presence the Court would
proceed in absentia. The Respondent's counsel at that time requested a continuance. The
Government indicated they had no opposition, so the matter was continued to November 7, 2012
and an in absentia order was not issued. However, the Court made it clear to the Respondent's
attorney that unless the motion to change venue is granted, the Respondent was required to be
present at the Dallas Immigration Court on November 7, 2012. On October 5, 2012, the Court
also mailed the Respondent's attorney a Notice of Hearing advising the Respondent of the
consequences if he failed to appear at the hearing.
1

The Respondent's counsel had previously filed a motion requesting to appear telephonically for this hearing. That
motion was granted by the Court on September 4, 2012. See Motion to Request for Counsel to Appear
Telephonically for Master Calendar Hearing.

Page 2 of7

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On August 14, 2012, the NTA was filed with the Dallas Immigration Court (Court). Id.

On October 26, 2012,2 the Respondent filed a motion for change of venue with the Court
acknowledging receipt of the NTA, admitting the allegations contained in the NTA and

an application seeking asylum and a motion requesting for counsel to appear telephonically and
waive the Respondent's appearance or issue a continuance in the alternative. Id.
On November 7, 2012, the Respondent and his counsel failed to appear at the scheduled
hearing and the proceedings were conducted in absentia pursuant to section 240(b)(S)(A) of the
Act. The Court concluded that the Respondent had adequate notice of the hearing, that he had
previously admitted the allegations set forth in the NTA, and that the charge of removability had
been established by clear and convincing evidence. The Court also denied the Respondent's
motion to change venue and held that any applications for relief from removal had been
abandoned. Subsequently, the Respondent was ordered removed in absentia.
On May 2, 2013, Respondent filed the present Motion to Reopen, asserting that his case
should be reopened and his in absentia order rescinded due to exceptional circumstances. See
Motion to Reopen. The Respondent's motion contends that Ms. Dume advised the Respondent
that he did not need to be present at the hearing because since he had filed a timely motion to
change venue and had filed for relief, his case would be transferred to New Jersey. Id. DHS has
not filed a response.
STATEMENT OF THE LAW
If an alien does not attend a removal hearing after written notice has been provided to the
alien or the alien's counsel of record, the alien will be ordered removed in absentia if the
Government establishes by clear, unequivocal, and convincing evidence that the written notice
was provided and that the alien is removable. INA 240(b)(5). Adequate notice can be
2

There was also an identical motion to change venue filed on October 12, 2012. Exhibit 2.

Page 3 of7
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conceding removability. See Exhibit 2. Along with the motion, the Respondent also submitted

accomplished through personal service, or if personal service is not practicable, through service
by mail to the alien or to the alien's counsel of record. INA 239(a)(l).

rescinded at any time upon the filing of a motion to reopen with the appropriate filing fee and fee
receipt. INA 240(b)(5)(C)(ii); 8 C.F.R. 1 003.23(b)(4)(ii), 1 003.23(b)(l)(ii), 1003.24(b).
An in absentia order may also be rescinded upon a motion to reopen filed 180 days after an
administratively final order of removal is entered if the Respondent shows "exceptional
circumstances" leading to his absence from the hearing. INA 240(b)(5)(C)(i); 8 C.F.R.
1 003.23(b)(4)(iii). Exceptional circumstances are circumstances beyond the control of the alien,
including "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). This "is a difficult burden to meet."
Magdaleno de Morales v. INS, 1 16 F.3d 145, 148 (5th Cir. 1 997). The Court must look to the

"totality of the circumstances" in deciding whether exceptional circumstances exist. In re W-F-,

21 I&N Dec. 503, 509 (BIA 1996).
The Court may also exercise its sua sponte authority to reopen in ''truly exceptional
situations" where the interests of justice would be served. Matter of G-D-, 22 l&N Dec. 1 132
(BIA 1 999).
ANALYSIS
The Respondent filed a timely motion to reopen with the appropriate filing fee and fee

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If an alien did not receive adequate notice of the hearing, an in absentia order may be

receipt. See Motion to Reopen. Thus, this Court has jurisdiction over the present motion.
The Respondent asserts that his case should be reopened and his in absentia order
rescinded due to exceptional circumstances.

See Motion to Reopen.

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He claims that he

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"detrimentally relied on his attorney's representation that since he had filed a timely motion to
change venue and had filed for relief, his case should be transferred to Newark, New Jersey." Id.

traveling to Texas. Id., Tab A. The Respondent further states that his attorney, Ms. Dume, relied
on her legal assistant' s assumption that a telephonic hearing would be held instead and that the
motion to change venue would be decided during that hearing on November 7, 201 2. See id. On
November 7, 20 1 2, the Respondent and Ms. Dume were in her New Jersey office waiting for a
call from the Dallas Immigration Court. See id. However, the call was never received and by
the time Ms. Dume called the Court, she was informed that the Respondent was ordered removed
in absentia. See id. The Respondent and his attorney have both submitted affidavits to this

effect. See id., Tab A, B. However, the Court finds that in considering the totality of the
circumstances, the Respondent's failure to appear at his hearing was not due to "exceptional
circumstances" as contemplated by the statute and regulations.
"Exceptional circumstances" are defined as "circumstances beyond the control of the
alien (such 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) (emphasis added). Courts have

consistently held that "the mere submission of a motion for continuance does not relieve an alien
or his counsel of the obligation to appear for a noticed hearing." Patel v. INS, 803 F.2d 804, 806
(5th Cir. 1986); see also Tang v. Ashcroft, 354 F .3d 1 192, 1 195 ( 1 0th Cir. 2003); Romero
Morales v. INS, 25 F.3d 1 25, 1 29 (2d Cir. 1994). Moreover, "it is never reasonable to assume

that a motion to change venue will be granted." Hernandez-Vivas v. INS, 23 F.3d 1 557, 1 560-6 1
(9th Cir. 1994). Likewise, the Court made it clear to the Respondent's attorney during the

Page 5 of7

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The Respondent states that he was "wrongfully advised" to go to Ms. Dume's office instead of

',"'-,..

October 4, 2012 hearing in which the Respondent failed to attend, that unless the change of
venue request was granted, both the Respondent and the attorney were required to be present in

or a continuance, the Respondent had an obligation to attend his hearing in Dallas, Texas on
November 7, 20 1 2.4
In his motion to this Court, both the Respondent and his counsel further state that the
Respondent's failure to attend the hearing was a result of Hurricane Sandy which made
communication and travel difficult. See id., Tab A, B. However, the Respondent's failure to
appear at his scheduled hearing was not due to weather concerns. As stated in his affidavit in
support of his motion to change venue, the Respondent "was wrongfully advised to go to [Ms.
Dume's] office rather than fly to Texas" and consequently, he did as advised. Id., Tab A. The
Court finds that poor legal advice from the Respondent's attorney, after the Respondent had
already been informed that he was required to be present on November 7, 2012 and the
consequences for failing to do so, does not rise to the level of an "exceptional circumstance"
warranting that these proceedings be reopened. Rather it is a circumstance "less compelling"
than those described by the statute. Based on the foregoing, the Court finds that the Respondent
has failed to establish the presence of an exceptional circumstance causing him to be absent from
his November 7, 2012 hearing.
If it is the Respondent's intention to make an ineffective assistance of counsel claim, the
Respondent has failed to meet the requirements for such a claim as articulated in Matter of
Lozada, 1 9 l&N Dec. 637, 639 (BIA 1 988). The Respondent has not submitted any evidence
3

The Court denied the Respondent' s request for change of venue because the Respondent failed to appear for his
removal hearing on October 4, 20 1 2 and thus, was unable to show that "he's likely to appear for future hearings."
See Order of lmmigration Judge.
4
The same applies to the motion for a telephonic hearing. The Court never ruled on that motion, thus, it would be
unreasonable to assume that a telephonic hearing would held.

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Dallas on November 7, 2012. Therefore, unless and until the Court granted a change of venue3

that a complaint has been filed with the requisite disciplinary authorities, nor has he explained
his failure to submit such a complaint. See id. The Court would also note that the record reflects

with poor legal advice. Thus, there is no "prior counsel" against whom to make an ineffective
assistance of counsel claim. See id. Accordingly, the Court finds that the Respondent has failed
to meet the initial requirements for establishing an ineffective assistance of counsel claim. See,
e. g., Tang, 354 F.3d at 1 1 96-97.

Finally, the Court declines to exercise its sua sponte authority, as the present
circumstance does not rise to the level of a "truly exceptional situation," where reopening would
serve the interests ofjustice. See Matter ofG-D-, 22 I&N at 1 135-36 (citing examples of when it
is appropriate for the Court to exercise its sua sponte authority).

Accordingly, the following Orders will be entered:

ORDER
IT IS HEREBY ORDERED that the Respondent's Motion to Reopen is DENIED.
IT IS FURTHER ORDERED that the Respondent's Request for St .,_.....--,-..
DENIED.

Date: th day of October 201 4

Dallas, Texas

Immigration Judge

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that the Respondent continues to be represented by the attorney whom he claims provided him

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