U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office of the Clerk
5/07 Leesb1Jrg Pike, S1Jite 2000
Falls Church, Virginia 2204/

OHS/ICE Office of Chief Counsel - SNA

8940 Fourwinds Drive, 5th Floor
San Antonio, TX 78239

Name: ALFARO-SORTO, MARIA ISABEL

Riders: 206-759-608

A 206-759-599
Date of this notice: 4/11/2016

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

Donru,._ cwvu
Sincerely,

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Grant, Edward R.
Guendelsberger, John
O'Leary, Brian M.

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/
Cite as: Maria Isabel Alfaro-Sorto, A206 759 599 (BIA April 11, 2016)

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

Maldonado, Javier
Law Office of Javier N. Maldonado
8918 Tesoro Dr.
Ste. 575
San Antonio, TX 78217

U.S. Department of Justice

Decision of the Board of Immigration Appeals

Executive Office for Immigi:ation Review

Fall Church, Virginia 22041

Files: A206 759 599 - San Antonio, TX

A206 759 608

Date:

AFR 1 1 2015

IN REMOVAL PROCEEDINGS
APPEAL
ON BEHALF OF RESPONDENTS: Javier N. Maldonado, Esquire
APPLICATION: Reopening

The respondents, natives and citizens of Honduras, appeal the decision of the Immigration
Judge, dated August 21, 2015, denying their motion to reconsider a previous denial of a motion
to reopen which was filed after the entry of an in absentia order. 1 The appeal will be sustained.
We review Immigration Judges' findings of fact for clear error, but questions of law,
discretion, and judgment, and all other issues in appeals, de nova. 8 C.F.R. 1003.l(d)(3).
The Immigration Judge's decision denying the motion to reconsider, and the decision
denying the motion to reopen, correctly set forth the facts and the applicable law (I.J. at 1-2,
August 21, 2015). As the Immigration Judge pointed out, there is a degree of negligence which
must be attributed to the lead respondent in this case. However, we assess the contested issue in
this case - whether the respondent established circumstances warranting reopening - under the
totality of the circumstances. See Matter ofJ-G-, 26 I&N Dec. 161, 164 (BIA 2013); Matter of
W-F-, 21 I&N Dec. 503, 509 (BIA 1996) (discussing the "exceptional circumstances" basis for
reopening in certain situations).
We acknowledge that the respondent does not claim that a Form EOIR-33 was filed, nor
does she claim that the Notice of Hearing was erroneously mailed when it was mailed to the
address she originally provided (LJ. at 1-2, July 9, 2015). However, we note that the respondent
1

The respondents are a mother and son; the lead respondent is the mother, and we refer to her as
"the respondent" throughout this decision. While the Notice of Appeal (filed with the Board on
September 16, 2015) was filed on behalf of both the mother and the son, the Motion to Reopen
(filed with the Immigration Court on March 19, 2015) and the Motion to Reconsider (filed with
the Immigration Court on August 6, 2015) were filed only on behalf of the mother. Under the
totality of the circumstances, and considering the lack of any material distinction in the legal
issues presented on behalf of the mother and the son, we deem, for procedural purposes, the
motion to reconsider to have been filed on behalf of the mother and the son, and thus consider
the appeal to have been properly filed on behalf of both the mother and son. See Respondent's
Br. at 3, n. 3. Alternatively, to resolve any issues of jurisdiction over the appeal with respect to
the son, we would accept the appeal of the son on certification. See 8 C.F.R. 1003.l(d)(l)(ii).
Cite as: Maria Isabel Alfaro-Sorto, A206 759 599 (BIA April 11, 2016)
zsz

&Ma

Afo t

Mi

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

In re: MARIA ISABEL ALFARO-SORTO

JORDIN ALEXANDER GARCIA-ALFARO

; ( .. +

A206 759 599 et al.

It is uncontested that the respondent did not fully comply with her responsibilities in these
proceedings. However, upon de novo review, based on the specific circumstances presented and
based on the general diligence shown by the respondent, we differ with the Immigration Judge
on the ultimate question of whether reopening is warranted. 8 C.F .R. 1003.1(d)(3)(ii).
The following orders will be entered.
ORDER: The respondents' appeal is sustained.
FURTHER ORDER: The in absentia order of removal is rescinded, the matter is reopened
and the record is remanded to the Immigration Judge for further proceedings and to afford the
respondents an opportunity to apply for any available relief.

2
Cite as: Maria Isabel Alfaro-Sorto, A206 759 599 (BIA April 11, 2016)

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

explained that she attended two scheduled appointments per an order of supervision (ICE Form
I-20B). The respondent has submitted evidence, in the form of a document prepared at her
second appointment, that an updated address was received by USCIS (ICE Form I-2208,
continuation page, showing respondent's current address, and dated February 2, 2015). At that
last appointment, on February 5, 2015, she learned of the order of removal, which had been
entered subsequent to her previous appointment, in August 2014. The motion to reopen was
filed on March 9, 2015. This indicates that the respondent exercised due diligence in promptly
obtaining counsel and requesting reopening of the proceedings. Furthermore, we credit the
respondent's explanation that she has, since arriving in the United States, wished to seek asylum
and that she was not seeking a delay in proceedings. Cf INS v. Doherty, 502 U.S. 314, 323
(1992).

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE OF IMMIGRATION REVIEW
OFFICE OF THE IMMIGRATION JUDGE
800 DOLOROSA STREET, SUITE 300
SAN ANTONIO, TEXAS 78207
A Number: 206-759-599

ORDER OF THE IMMIGRATION COURT

Upon considera
of the Motion to Reconsider, it is HEREBY ORDERED that the motion be

[ ] GRAN1ED

[v('"DENIED

because:

[]

DHS does not oppose the motion.

[]

The respondent does not oppose the motion.

[]

A response to the motion has not been filed with the court.

Good causOe r.en established for the motion.

[ ]

The court agrees with the reasons stated in the opposition to the motion.

Deadlines:
[]

The application(s) for relief must be filed by_____________

The respondent must comply with DHS biometric

--

-!f-1/K- ';l /

This document was served by:

---

---

lion Judge

CERTIFICATE OF SERVICE

/J Mail

[ rsonal Service

To: [ ] Alien [ ] Alien c/o Custodial Officer lien's Attorney

Date:

--

RO

HS

By: Court Staff_,_(U_'f___

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

In the Matter of: MARIA ALFARO-SORTO

UN1TED STATES DEPARTMENT OF JUSTICE

EXECUTNE OFFICE FOR WMIGRATION REVIEW
II\liMIGRATION COURT
San Antonio,Texas
In the Matter of
Alfaro-Sorto,Maria

File A206 759 599

In Removal Proceedings
Order of the Immigration Judge

Motion to Reconsider
The respondent in the above captioned case was scheduled for a Master Docket hearing before the Immigration
Court on September 11,2014 and did not appear. At the request of counsel for the Department of Homeland
(OHS),a hearing was conducted in the respondent's absence and he/she was ordered removed. The respondent,
through counsel,subsequently filed a motion to reopen proceedings,alleging that he/she had not received notice of
the hearing, thereby meeting the requirement for reopening proceedings under 240(b)(5)(C)(ii) of the Act [8
U.S.C. 1229a(b)(5)(C)(ii)]. On July 9,2015,this court denied the respondent's motion. Now the respondent files
this motion to reconsider with the court.
The respondent argues that the prior order should be reconsidered due her prior arguments regarding her failure to
receive proper notice of the hearing and because the respondent has a claim for asylum.
As to respondent's first argument regarding notice,the court finds no errors of fact or law in its prior decision
denying the motion to reopen. As such,the court maintains its analysis and findings from the prior decision and
finds no viable basis to reconsider its prior decision. See,8 C.F.R. 1003.23(b)(2).
Respondent's motion also requests that the court reopen proceedings,so that the court may consider the
respondent's evidence on asylum relief obtained subsequent to his in absentia order. The court has reviewed said
evidence which was attached to his motion to reconsider. The regulations at 8 C.F.R. 1003.23(b)(3) state in
pertinent part, as follows: "A motion to reopen will not be granted unless the Immigration Judge is satisfied that
evidence sought to be offered is material and was not available and could not have been discovered or presented at
the former hearing. (Emphasis added). See also,Matter ofJ-G-, 26 I&N Dec. 161,169 {BIA 2013)(citing to
section 240(c)(7)(C)(ii) of the Act and 8 C.F.R. 1002.23(b)(4)(i). "Thus,the alien bears a heavy burden to show
that his proffered evidence is material,reflects changed country conditions arising in the country of nationality,and
supports a prima facie case for a grant of asylum...Finally,where the ultimate relief is discretionary,a moving
party must also show that a favorable exercise of discretion is warranted." Id., at 169.
Having reviewed the proffered evidence,the court finds that it is not material and would not have altered the
underlying decision of the court. Here, the respondent's evidence (1-589 application) addresses alleged conditions
of generalized violence and a feeble economy in her country. Moreover,the respondent further alleges that the
authorities when alerted have intervened on her behalf. A tenuous claim based on familial ties is insufficient to
raise a valid basis for relief. See,Ramirez-Mejia v. Lynch, -- F.3d ---,2015 WL 4460993 (5 th Cir. July 21,2015).
Moreover,fear of persecution cannot be based solely on general violence and civil disorder. See Majd v.
Gonzalez, 446 F. 3d 590 (5th Cir. 2006); see also,Martinez-Romero v. INS,692 F.2d 595 (9th Cir 1982).
Furthermore,''persecution" must be inflicted under government sanction,or by groups the government is unable or
unwilling to control. See,Adebisi v. INS, 952 F2d 910,913 (5th Cir 1992){noting,"The law regulating
persecution claims,although humane in concept,is not generous."). Nor has the respondent provided any evidence
for a prima facie showing of eligibility for protection under the Convention against Torture. Accordingly,the prior
motion to reopen failed to comply with 8 C.F .R. 1003.23(b)(3) and said defect has not been cured here.
I find that the intent of the statutory scheme set up by Congress was to balance Due Process with Judicial economy.
Here the court finds that the new evidence sought to be introduced would neither alter the court's decision nor

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

Respondent

)
)
)
)
)
)

affect the respondent's due process; as such, the evidence is deemed immaterial. See Moncrieffe v. Holder, 133
S.Ct 1678, 1690 (2013)(noting our nation's overburdened immigration courts); See also, INSv. Doherty, 502 U.S.
314, 323 (1992)(noting $at motions to reopen like motions for rehearing are disfavored, especially in a deportation
proceeding, where, as a general matter, every delay works to the advantage of the deportable alien).
0

Dare:ff

met on this record and the motion to

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

I therefore find that the requirements for reconsidering have not

reconsider shall be and is hereby Denied. So ordered.

, ' .
'

'

'