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Enclosed is a copy of the Board's decision and order in the above-referenced case.
Sincerely,
DOWUL Ca.AA)
Donna Carr
Chief Clerk
Enclosure
Panel Members:
Mann, Ana
Grant, Edward R.
Adkins-Blanch, Charles K.
Userteam: Docket
Cite as: Cristobal Villatoro, A077 751 555 (BIA Jan. 31, 2017)
U.S. Department of Justice Decision of the Board of Immigration Appeals
Executive Office for Immigration Review
APPEAL
APPLICATION: Reopening
The respondent, a native and citizen of El Salvador, appeared before an Immigration Judge
on January 21, 2009. The Immigration Judge noted that the respondent was granted
administrative Temporary Protected Status (TPS). However, rather than administratively closing
the proceedings, the Immigration Judge issued an order permitting the respondent to depart the
United States voluntarily by May 21, 2009. On June 24, 2014, the respondent filed a motion to
reopen, and he appeals from the Immigration Judge's decision dated March 2, 2016, denying the
motion. The appeal will be sustained.
. The Board defers to the factual findings of an Immigration Judge, unless they are clearly
erroneous, but it retains independent judgment and discretion, subject to applicable governing
standards, regarding questions of law and the application of a particular standard of law to those
facts. 8 C.F.R. 1003.l(d)(3) (i), (ii).
On appeal, the respondent argues that he established an exceptional situation to reopen these
proceedings sua sponte. See Matter of J-J-, 21 I&N Dec. 976 (BIA 1997) (holding that the
Board's and the Immigration Judge's power to reopen or reconsider cases sua sponte is limited to
exceptional situations and is not meant to cure filing defects or circumvent the regulations, where
enforcing them might result in hardship). The respondent states that he afraid to return to El
Salvador and that he is the beneficiary of a 2009 approved visa petition (Form 1-130) submitted
on his behalf by his brother which is current. He further states that he has resided in the United
States for 16 years, has citizen children, has significant equities in the United States, and is
eligible to adjust his status to that of a lawful permanent resident at a reopened hearing under
section 245(i) of the Immigration and Nationality Act, 8 U.S.C. 1245(i). In addition, the
respondent's grant of TPS in 2009 may have accounted for his 5-year delay in filing his motion
to reopen (I.J. at 2-3). In light of the foregoing, we will reopen these proceedings sua sponte.
Cite as: Cristobal Villatoro, A077 751 555 (BIA Jan. 31, 2017)
A077 751 555
ORDER: The appeal is sustained, and these proceedings are reopened and remanded for
further proceedings consistent with the foregoing opinion.
2
Cite as: Cristobal Villatoro, A077 751 555 (BIA Jan. 31, 2017)
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HOUSTON, TX 77002
IMMIGRATION COURT
600 JEFFERSON, SUI'I:E
. 900
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UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
HOUSTON, TEXAS
Came on for consideration the Respondent's Motion to Reopen. The Court, after
considering the Motion, enters the following order DENYING the motion.
Respondent claims in his Motion to Reopen that this case should be reopened sua sponte
because he had experienced changed personal circumstances, because he wants to adjust his status,
because of extraordinary changes in the law, citing Suazo v. Holder, and because of humanitarian
reasons.
Respondent does not dearly identify his changed personal circumstances. It appears that
he may be referring to an approved 1-130 petition filed by his U.S.C. brother. These are not
changes in conditions in Respondent's home country of El Salvador, and thus are not an allowable
basis for reopening. C.f. Matter of C-W-L-, 24 I&N Dec. 346 (BIA 2007)(denying untimely
motion to reopen where changed "personal circumstances," not changed country conditions were
alleged). See also Wei v. Mukasey, 545 F.3d 1248, 1255-57 (10th Cir. 2008)(once there is a final
order, reopening can only occur through changed country conditions, not changed personal
circumstances). Particularly on point are the holdings in Liu v. Att'y Gen. of the U.S., 555 F.3d
145 (3d Cir. 2009)(where asylum applicant asserted the birth of two children in the U.S., motion to
reopen not valid unless filed within 90 days or changed country conditions also shown), and Chen
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v. Gonzales, 498 F.3d 758 (7th Cir. 2007)(applicant's subsequent marriage and birth of 2 children
cannot be a basis to reopen for fear of sterilization in China because the change contemplated
The other reasons cited by Respondent are not sufficient to warrant reopening sua sponte.
made a decision, unless jurisdiction in the case is vested in the Board. 8 C.F.R. 1003.23(b)(l).
Sua sponte authority is to be invoked sparingly, 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). Sua sponte authority is to be used in unique situations where it would serve the
interest of justice. Matter of X-G-W-, 22 I&N Dec. 71, 73 (BIA 1998). It is Respondent's
burden to persuade the Court that his circumstances are truly exceptional before it will intervene.
Matter of Beckford, 22 I&N Dec. 1216, 1218 (BIA 2000); G-D-, 22 I&N Dec. at 1134. The Court
does not find that Respondent presents exceptional circumstances, nor circumstances raising
Respondent's reliance on Suazo v. Holder, the citation for same not being given but the
case appearing to be actually Flores v. USCIS, 718 F.3d 548 (6th Cir. 2013), also does not
supporting reopening. See generally Serbellon v. Holder, 539 Fed. Appx. 640 (2013), and
Donnee v. Holder, 750 F.3d 951 (1st Cir. 2014). This Court previousy entered a final order of
removal.
Even if the Court's analysis is otherwise incorrect, there is another independent reason to
deny the Motion to Reopen. The Court notes that the approval of the 1-130 occurred on April 15,
2009. Respondent did not take any action until filing the Motion to Reopen on June 24, 2014.
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(
The failure of Respondent to seek to reopen for over five years means that Respondent did not act
with diligence, and reopening is properly denied on that basis. C.f. Iturribarria v. INS, 321 F.3d
889, 894 (9th Cir.2003)(deadline can be equitably tolled when a petitioner is prevented from filing
because of deception, fraud, or error, as long as the petitioner acts with diligence). See also
available where petitioner establishes that she was prevented from filing because of deception,
fraud or error, and acted with due diligence in discovering such circumstances). Periods of
unaccounted-for delay reveal a lack of diligence. Mahmood v. Gonzales, 427 F.3d 248, 252 (3d
Cir. 2005).
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Immigration Judge ?
Chris A. Brisack
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