U.S.

Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals
Qffice of the Clerk
5J()7 leesb11rg 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: COLOTL-COYOTL, YESSICA MA...

A 200-599-796

Date of this notice: 10/6/2016

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

DorutL ct1./lAJ
Donna Carr
Chief Clerk
Enclosure
Panel Members:
Cole, Patricia A.
Pauley. Roger
Wendtland, Linda S.

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/
Cite as: Yessica Mayeli Colotl-Coyotl, A200 599 796 (BIA Oct. 6, 2016)

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

Baxter, Dustin Reed

Kuck Immigration Partners LLC
365 Northridge Road, Suite 300
Atlanta, GA 30350

U.S. Department of Justice

Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 22041

File: A200 599 796 - Atlanta, GA

Date:

IN REMOVAL PROCEEDINGS
APPEAL
ON BEHALF OF RESPONDENT: Dustin R. Baxter, Esquire
ON BEHALF OF DHS: Joy Lampley
Assistant Chief Counsel
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; administrative closure

The respondent appeals from an Immigration Judge's January 26, 2015, denial of her
July 15, 2014, motion to reopen and administratively close proceedings. The Department of
Homeland Security ("OHS") opposes the appeal. The appeal will be sustained and the record
will be remanded.
We review for clear error the findings of fact, including the determination of credibility,
made by the Immigration Judge. 8 C.F.R. I003.l (d)(3)(i). We review de novo all other issues,
including whether the parties have met the relevant burden of proof, and issues of discretion.
8 C.F.R. 1003.l(d)(3)(ii).
The following facts are not in dispute. The respondent, a native and citizen of Mexico, was
served with a Notice to Appear on March 31, 2010 (1.J. at 1; Exh. 1). On April 28, 2010, she
requested pre-conclusion voluntary departure (I.J. at 1; Exh. 3). The respondent was granted
voluntary departure pursuant to section 240B(a) of the Immigration and Nationality Act,
8 U.S.C. 1229c(a), waived appeal, and was ordered to depart on or before May 28, 2010
(I.J. at 1; I.J. Order dated 4/28/2010). See 8 C.F.R. 1240.26(b)(l) (stating that a grant of
voluntary departure prior to the completion of proceedings under section 240B(a) of the Act
requires an express waiver of the alien's right to appeal). On May 5, 2010, the respondent was
granted deferred action for a period of 1 year and did not depart the United States on or before
May 28, 2010 (I.J. at 1). In 2011 and 2012, the deferred action grant was extended for an
additional year (I.J. at 1). On July 1, 2013, the respondent was granted Deferred Action for
Childhood Arrivals ("DACA") for the period between July 1, 2013, and June 30, 2015 (I.J. at 1).
On June 25, 2014, the respondent was granted advance parole for humanitarian reasons

Cite as: Yessica Mayeli Colotl-Coyotl, A200 599 796 (BIA Oct. 6, 2016)

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

In re: YESSICA MAYELi COLOTL-COYOTL

OCT - 6 2016

A200 599 796

I

(I.J. at 2). 1 On July 15, 2014, the respondent filed a motion to reopen and administratively close
proceedings so she could utilize the advance parole grant (I.J. at 2). The DHS declined to join in
the motion and subsequently opposed the motion (I.J. at 2). The Immigration Judge denied the
motion and this timely appeal followed.

We agree with the respondent that exceptional circumstances have been presented such that
sua sponte reopening is warranted (Respondent's Brief at 5-8). Here, the respondent has
demonstrated eligibility for an advance parole to travel abroad, and she has previously (and
continuously) been granted deferred action but is nonetheless unable to use the grant of advance
parole without self-deporting. See, e.g., 8 C.F.R. 1241.7. Furthermore, deferred action
recipients are not expected to depart. Based on these facts, we agree with the respondent's
appellate assertion that her case presents an exceptional circumstance warranting sua sponte
reopening. See Matter of G-D-, supra, at 1133-35; Matter ofJ-J-, supra, at 984. Accordingly,
we reverse the Immigration Judge's denial of the respondent's motion to reopen and
administrative closure.2

it:

Accordingly, the following order will be entered.

ORDER: The appeal is sustained, the Immigration Judge's denial of sua sponte reopening is
reversed, proceedings are reopened, and the record is remanded to the Immigration Court for
administrative closure.

THEBOARD
F
Board Member Roger A. Pauley respectfully dissents. The respondent's advance parole period
has long since expired and there is no indication that the reason for its prior issuance still exists
such that another such request would be granted. Accordingly, the case is essentially moot.
The respondent requested, and was granted permission from United States Citizenship and
Immigration Services ("USCIS") to travel to Mexico to see her mother after she underwent
surgery (see Respondent's Motion to Reopen; Respondent's Reply to DHS's Opposition
at Tab D). The grant expired on July 23, 2014 (I.J. at 1; Respondent's Motion to Reopen
at Tab A).
1

In light of our disposition of the respondent's appeal, we need not address the respondent's
argument that her appeal should be deemed timely based on equitable tolling (see Respondent's
Brief at 5).
2
Cite as: Yessica Mayeli Colotl-Coyotl, A200 599 796 (BIA Oct. 6, 2016)

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

Sua sponte reopening of proceedings is invoked sparingly and reserved for truly exceptional
circumstances. See Matter of G-D-, 22 l&N Dec. 1132, 1133-35 (BIA 1999); Matter of J-J-,
21 I&N Dec. 976, 984 (BIA 1997) (allowing an Immigration Judge or this Board to exercise
sua sponte authority to reopen proceedings, regardless of the applicable time and number
limitations on motions to reopen, but cautioning that sua sponte reopening is not a general cure
for filing defects or relief available to avoid the hardship associated with an order of removal);
see also Avila-Santoyo v. United States Attorney General, 713 F.3d 1357, 1363 (11th Cir. 2013).
The burden is on the movant to demonstrate that his situation is somehow exceptional so as to
merit exercise of the Immigration Judge's discretion to reopen.

UNITED STATES DEPARTMENT OF JUSTICE

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

COLOTL COYOTL, Yessica (Jessica)

Respondent

)
)

In Removal Proceedings
File No. A#200-S99-796

------------------)

APPLICATION:

Respondent's Motion to Reopen and Administratively Close

APPEARANCES

ON BEHALF OF THE RESPONDENT:

ON BEHALF OF THE GOVERNMENT:

Rebecca Rojas, Esq.

Kuck Immigration Partners, LLC
8010 Roswell Road, Suite 300
Atlanta, Georgia 30350

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 AND FACTUAL HISTORY

The Respondent, Yessica (Jessica) Colotl Coyotl, is a native and citizen of Mexico.
On March 31, 2010, the Respondent was arrested for allegedly impeding the flow of traffic
and driving without a license. The Respondent was personally served with a Notice to Appear
("NTA") alleging that she was removable pursuant to 212(a)(6)(A)(i) of the Immigration and
Nationality Act ("INA"), as amended, in that she was determined to be an alien 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 Respondent was initially held in ICE
custody but was released from ICE custody some time thereafter.
On April 28, 2010, the Respondent, represented by counsel, requested voluntary departure
and waived appeal. The Respondent was ordered to depart on or before May 28, 2010. The
Respondent did not depart and the departure order automatically converted to a final order of
removal.
On May 5, 2010, the Respondent was granted Deferred Action for a period of one year
ending May 5, 2011. On May 3, 2011, and April 30, 2012, the deferred action grant was
extended for one year. On July 1, 2013, the Respondent was granted Deferred Action for
Childhood Arrivals, valid for the period between July 1, 2013, and June 30, 2015.

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

IN THE MATTER OF:

On July 22, 2014, the Department of Homeland Security filed an opposition. The Department
argues that the motion is untimely. Further, the Department contends that there is no reason to
"disturb the finality" of the prior proceedings which has resulted in a removal order. The
Department states that the Respondent has failed to provide any evidence of eligibility for relief
before this Court.
The Court has carefully reviewed the arguments of both parties and 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 Respondent's Motion to Reopen and
Administratively Close.
II.

APPLICABLE LAW

Generally, only one motion to reopen may be filed before the Immigration Court and
such motion must be filed within ninety days of the final administrative order of removal,
deportation, or exclusion. 8 C.F.R. 1003.23(b)(l ). In Matter of G-D-, 22 I&N Dec. 1132, 1134
(BIA 1999), the Board explained that "motions rules respond directly to the legislative interest in
setting meaningful and effective limits on motions and ultimately in achieving finality in
immigration case adjudications." However, the time and numerical limitations do not apply when
the basis of the motion is either a request for asylum under INA 208, a request for withholding
of removal under INA 241 (b)(3), or a claim under the Convention Against Torture. See INA
240(c)(7)(C)(ii); 8 C.F.R. 1003.2(c)(3)(ii), I003.23(b)(4)(i).
As with all motions to reopen, the applicant must state new facts that will be proven at a
hearing if the motion is granted, and it must be supported by affidavits and other evidentiary
material. See 8 C.F.R. I003.23(b)(3); see also INS v. Abudu, 485 U.S. 94 (1988). Any motion
to reopen for the purpose of acting on an application for relief must be accompanied by the
appropriate application for relief and supporting documentation. Id. If the ultimate relief is
discretionary, the Immigration Judge may deny a motion to reopen even if the moving party
demonstrates primafacie eligibility for relief. Id.; see Abudu, 485 U.S. 94.
III.

DISCUSSION

A. The Respondent 's motion is untimely.

The Respondent's motion is untimely because the Respondent was granted voluntary
departure with an alternate order of removal on April 28, 2010. See INA 240(c)(7)(C); 8
1

This grant has since expired.

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

On June 25, 2014, the Respondent was granted advanced parole for humanitarian reasons. 1
The Respondent filed the instant Motion to Reopen and Administratively Close Proceedings on
July 15, 2014, arguing that her case should be reopened and administratively closed in order for
her to take advantage of the advanced parole grant. The Respondent states that she approached
the Department of Homeland Security ("Department") to see if they would be willing to join her
motion but the Department declined.

C.F.R. l 003.23(b). As the Respondent does not base the instant motion to reopen on an
application for asylum, withholding of removal, or protection under the CAT, and the motion
was not filed within 90 days of the Court's order, it is untimely. See INA 240(c)(7)(C)(i), 8
U.S.C. 1229a(c)(7)(C)(i); 8 C.F.R. 1003.23(b)(l ); Matter of Goolcharan, 23 I&N Dec. 5
(BIA 2001).

The Court may reopen, sua sponte, a case over which it has jurisdiction. 8 C.F.R.
1003.23(b)(l); see also Matter of J-J-, 21 I&N Dec. 976 (BIA 1997). However, such power
should only be exercised in cases of "exceptional situations." Id. at 984. Moreover, that power
"is not meant to be used as a general cure for filing defects or to otherwise circumvent the
regulations, where enforcing may result in hardship." Id. Generally, the Court "invokes [its] sua
sponte authority sparingly, treating it not as a general remedy for any hardships created by
enforcement of the time and number limits in the motions regulations, but as an extraordinary
remedy reserved for truly exceptional situations." Matter of G-D-, 22 I&N Dec. 1132, 1133-34
(BIA 1999) (citing Matter of J-J-, supra). The Eleventh Circuit has held that the Board's
discretion to reopen proceedings sua sponte is exceptionally broad and not subject to judicial
review. Lenis v. U.S. Atty. Gen., 525 F.3d 1291, 1293 (11th Cir. 2008).
As a threshold matter, the Respondent must demonstrate that there is a substantial
likelihood that the result in her case, if reopened, will be different. Matter of Beckford, 22 I. &
N. Dec. 1216 (BIA 2000). Here, the Respondent states that she has been granted benefits under
the Department of Homeland Security's Deferred Action for Childhood Arrivals ("DACA")
program. The Respondent has also been granted advanced parole. However, the Respondent does
not point to any change in her case before this Court that would warrant reopening removal
proceedings as the Immigration Judge does not have jurisdiction to grant or enforce benefits
under DACA. See Matter of Yauri, 25 l&N Dec. 103, 107 (BIA 2009) (stating that the Board has
"long been of the view that administratively final exclusion, deportation, or removal proceedings
should not be reopened for matters over which neither the Immigration Judge nor the Board has
jurisdiction, and that referencing the absence of such jurisdiction was a rational basis in itself to
decline to reopen proceedings."). The Court finds that the Respondent has not met her burden to
demonstrate that the Court should reopen her case because an application for DACA is collateral
to the respondent's removal proceedings. See Matter of Jose Castro-Gutierrez, : A200 967 881 ATL, 2014 WL 3698214 (BIA June 3, 2014) (finding that a respondent had not established good
cause for a continuance to pursue DACA, given that "an application for DACA is collateral to
the respondent's removal proceedings.").
The Respondent has also not presented primafacie eligibility for any relief that this Court
can grant. Matter of S-V-, 22 l&N Dec. 1306, 1317 (BIA 2000). Because DACA was not and
cannot be granted by this Court and the Respondent has not presented primafacie eligibility for
relief that this Court may grant, the Court finds no reason to reopen. The Respondent stayed
beyond the time period which the Court allotted for her to voluntarily depart the United States.
Under these circumstances, the Court finds no reason to exercise its discretionary consideration.
See INS v. Rios-Pineda, 471 U.S. 444, 451 (1985) (affirming the Attorney General's discretion
to deny respondents' motion to reopen because they failed to comply with the Court's order and
3

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

B. The Respondent has not demonstrated a reason why this case should be reopened.

depart voluntarily). Here, the Respondent was given until May 28, 2010, to comply with the
order of voluntary departure. She did not comply and the order became a final order of removal.
The Respondent has not pointed to any waiver or relief that this Court can grant to overcome the
finality of that order.

In light of the foregoing, the Court will enter the following order:
ORDER OF THE IMMIGRATION JUDGE
It is ordered that:

Respondent's Motion to Reopen Is Hereby

DENIED.

1ff5
. Dan Pelletier ..
:;: States Immigration Judge
Atlanta, Georgia

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

The Court further notes that granting a motion to reopen is traditionally disfavored,
especially where the Immigration Judge previously entered an order of voluntary departure. See
Matter of B-B, 22 I&N Dec. 309, 310 (BIA 1998) (noting that "there are strong policy reasons
for strictly adhering to and enforcing voluntary departure orders, not the least of which is to
discourage dilatory behavior"); see also Abudu, 485 U.S. at 108. In light of what has previously
been discussed, the Court does not find sufficient evidence in the Respondent's motion to merit
the "extraordinary remedy" of sua sponte reopening. Matter of G-D-, 22 l&N Dec. at 1132. The
Court denies Respondent's Motion to Reopen and Administratively Close.