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U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals


Office ofthe Clerk

5/07 Leesburg Pike, Suite 2000


Falls Church, Virginia 2204/

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Zambrano, Shirley Cristina DHS/ICE Office of Chief Counsel - ATL
Kuck Immigration Partners LLC. 180 Ted Turner Dr., SW, Ste 332
365 Northridge Road Atlanta, GA 30303
Suite 300
Atlanta, GA 30350

Name: SILVA-SANTOS MARTINS, NAU ... A 098-350-369

Date of this notice: 6/23/2017

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

Sincerely,

Cynthia L. Crosby
Deputy Chief Clerk

Enclosure

Panel Members:
Adkins-Blanch, Charles K.
Grant, Edward R.
Mann, Ana

Userteam: Docket

For more unpublished BIA decisions, visit


www.irac.net/unpublished/index/

Cite as: Naually Silva-Santos Martins, A098 350 369 (BIA June 23, 2017)
U.S. Department of Justice Decision of the Board of Immigration Appeals
, Executive .Office for Immigration Review

Falls Church, Virginia 22041

File: A098 350 369 - Atlanta, GA Date:


JUN 2 3 2017
In re: NAUALLY SILVA-SANTOS MARTINS

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IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Shirley Cristina Zambrano, Esquire

ON BEHALF OF DHS: James J. Crofts


Assistant Chief Counsel

APPLICATION: Reopening

The respondent appeals the Immigration Judge's decision dated January 26, 2017, denying her
motion to reopen. The respondent was ordered removed in absentia in 2005 when she was 10
years old for failing to appear for a scheduled hearing. The Notice to Appear was personally served
on her when she was 9 years old. The appeal will be sustained, proceedings will be reopened, and
the record will be remanded.

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).

The Board possesses discretion to reopen or reconsider cases sua sponte. See 8 C.F .R.
1003.2(a); see also Matter ofG-D-, 22 I&N Dec. 1132 (BIA 1999); Matter ofJ-J-, 21 I&N Dec.
976 {BIA 1997). Based on the totality of the circumstances in this case, we will grant the
respondent's motion to reopen, and we will rescind her in absentia order pursuant to our sua sponte
authority. See 8 C.F.R. 1003.2(a); see also Matter ofJ-J-, supra. Accordingly, the following
order will be entered.

ORDER: The appeal is sustained, the in absentia order of removal is rescinded, the
proceedings are reopened, and the record is remanded for further proceedings consistent with the
foregoing opinion.

Cite as: Naually Silva-Santos Martins, A098 350 369 (BIA June 23, 2017)
,,. I

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UNITED STATES DEPARTMENT OF JUSTICE


EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
180 TED TURNER DR SW, STE. 241
ATLANTA, GA 30303

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Kuck Immigration Partners LLC.
Zambrano, Shirley Cristina
365 Northridge Road
Suite 300
Atlanta, GA 30350

IN THE MATTE OF FILE A 098-350-369 DATE: Jan 26, 2017


SILVA-SANTOS MARTINS, NAUALLY

UNABLE TO FORWARD - NO ADDRESS PROVIDED

xxx ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE. THIS DECISlON
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
,W,
MUST BE MAILED TO: BOARD OF IMMIGRATION APPEALS
OFFICE OF THE CLERK
5107 Leesburg Pike, Suite 2000
FALLS CHURCH, VA 22041
,-..,J:,
i
ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE AS THE RESULT
OF YOUR FAILURE TO APPEAR AT YOUR SCHEDULED DEPORTATION OR REMOVAL HEARINGJ::.
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 D,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
180 TED TURNER DR SW, STE. 241
ATLANTA, GA 30303

OTHER:

COURT CLERK
IMMIGRATION COURT FF
CC: OFFICE OF THE CHIEF COUNSEL
180 TED TURNER DRIVE SW, SUITE 332
ATLANTA, GA 30303
( (

UNITED STATES DEPARTMENT OF JUSTICE


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

IN THE MATTER OF: ) In Removal Proceedings

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)
SILVA-SANTOS MARTINS, Naually ) File No. A# 098-350-369
)

__________________ )
Respondent
)

APPLICATION: Respondent's Motion to Reopen Sua Sponte


APPEARANCES

ON BEHALF OF THE RESPONDENT: ON BEHALF OF THE GOVERNMENT:


Shirley Zambrano Assistant Chief Counsel
365 Northridge Road, Suite 300 Department of Homeland Security
Atlanta, GA 30350 180 Ted Turner Dr. SW, Suite 332
Atlanta, Georgia 30303

DECISION OF THE IMMIGRATION JUDGE


I. PROCEDURAL HISTORY
Naually Santos Martins Silva ("Respondent") is an adult female native and citizen of Brazil.
On September 27, 2004, the Department of Homeland Security ("Department") issued
- ---Respondent a Notice to Appearf'NT"*'-'-)-charging-Respomlent as-renrovabl-e7lllder sectiun----
212(a)(6)(A)(i) of the Immigration and Nationality Act ("INA" or "Act"), for being present in
the United States without being admitted or paroled. See Exh. 1. The NTA was served on
Respondent in person and advised that she was to appear at a hearing on September 28, 2005.
Respondent failed to appear at the scheduled hearing and was ordered removed to Brazil on
September 28, 2005.
On October 31, 2016, Respondent filed a Motion to Reopen Sua Sponte (In Absentia Order
of Removal) ("Motion to Reopen") with the Court. On November 8, 2016, the Department filed
an Opposition to Respondent's Motion to Reopen.
The Court has carefully reviewed 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.
II. STATEMENT OF LAW

Only one motion to reopen may be filed by an alien. 8 C.F.R. 1003.23(b)(4)(ii). Generally,
motions to reopen for the purpose of rescinding an in absentia removal order must be filed
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within 180 days after the date of the removal order, and the respondent must demonstrate that the
failure to appear was due to exceptional circumstances. See INA 240(b)(5)(C)(i); 8 C.F.R.
1003.23(b)(4)(ii). However, motions to reopen for the purpose of rescinding an in absentia
removal order may be filed at any time, including after the 180-day deadline, if the alien
demonstrates that she did not receive notice of the hearing or that she was in Federal or State
custody and the failure to appear was through no fault of her own. See INA 240(b)(5)(C)(ii); 8

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C.F.R. 1003.23(b)(4)(ii). In addition, the time and numerical limitations do not apply when the
basis of the motion is either a request for asylum under section 208 of the Act, a request for
withholding of removal under section 241(b)(3) of the Act, or a claim under the United Nations
Convention against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or
Punishment ("CAT"), and the application is based on changed country conditions arising in the
country of nationality or removal. See INA 240(c)(7)(C)(ii); Jiang v. U.S. Att'y Gen., 568 F.3d
1252, 1256-57 (11th Cir. 2009); Matter of J-G-, 26 l&N Dec. 161, 163 (BIA 2013); 8 C.F.R.
1003.23(b)(4)(i).
All motions to reopen must state new facts that will be proven at a hearing if the motion is
granted and must "be supported by affidavits and other evidentiary material." 8 C.F.R.
1003.23(b)(3); see also INS v. Abudu, 485 U.S. 94, 97 (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. 8 C.F.R. 1003.23(b)(3). A motion to reopen will be
denied unless the respondent establishes a primafacie case of eligibility for the underlying relief
sought. INS v. Doherty 502 U.S. 314, 315 (1992); Matter of S-V-, 22 l&N Dec. 1306, 1307
(BIA 2000) (citing Abudu, 485 U.S. at 105); 8 C.F.R. 1003.23(b)(3). Moreover, if the ultimate
relief is discretionary, the Immigration Judge may deny a motion to reopen even if the
respondent demonstrates primafacie eligibility for relief. See Abudu, 485 U.S. at 105; 8 C.F.R.
1003.23(b)(3).
Finally, the Supreme Court has held that "motions to reopen are disfavored" and "[t]here is a
strong public interest in bringing litigation to a close as promptly as is consistent with the interest
in giving the adversaries a fair opportunity to develQp_s_ent_the_ir__r_esp_e.c.tiY.e_cases " Abudu
485 U.S. at 107. "This is especially true in a deportation proceeding, where, as a general matter,
every delay works to the advantage of the deportable alien who wishes merely to remain in the
United States." Doherty 502 U.S. at 323.
Ill. DISCUSSION

Respondent has not demonstrated that the case should be reopened pursuant to the
Court's sua sponte authority.
The Court may sua sponte reopen a case over which it has jurisdiction at any time. 8 C.F.R.
1003.23(b)(l); see also Matter of J-J-, 21 I&N Dec. 976. However, such power should only be
exercised in cases of "exceptional situations." Id. at 984. The respondent has the burden to show
that an exceptional situation exists. Matter of Beckford, 22 I&N Dec. 1216, 1218-19 (BIA 2000).
Moreover, the power to reopen a case sua sponte "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." Matter of J-J-, 21 I&N Dec. at 984. As a general matter, 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

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remedy reserved for truly exceptional situations." Matter of G-D-, 22 l&N Dec. 1132, 1133-34
(BIA 1999) (citing Matter of J-J-, supra). Finally, the Eleventh Circuit has held that the Board's
discretion to reopen proceedings sua sponte is exceptionally broad and not subject to judicial
revie'v\'., Lenis v. U.S. Atty. Gen., 525 F.3d 1291, 1293 (11th Cir. 2008).
The Court has read carefully read the affidavits submitted by Respondent and her husband.
While the Court is sympathetic to the difficulty Respondent now faces because of the entry of the

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order of removal in 2005, the Court agrees with the Department that Respondent has not
demonstrated. that the case should be reopened as a matter of discretion. As noted above, the
Court's sua sponte authority is not intended to used as a general remedy for hardships created by
enforcement of the regulations. And the fact that Respondent may be eligible to adjust her
status, without more, does not constitute an "exceptional situation" sufficient to establish that
this case should be reopened based on a remedy reserved for tTuly exceptional situations.
For the foregoing reasons, the Court will deny Respondent's M otion to Reopen Sua Sponte.
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 Sua Sponte


is hereby DENIED.

ir/2k'/ I 7
Date Earle B. Wilson
United States Immi gration Judge
Atlanta, Georgia

NOTICE OF THE RIGHT TO APPEAL: You are hereby notified that both parties have the right to
appeal the Immigration Judge's decision in this case to the Board of Immigration Appeals
("Board"). 8 C.F.R. 1003.38(a). A Notice of Appeal (Form EOIR-26) must be submitted to the
Board within 30 calendar days from the issuance or mailing of this decision. 8 C.FR.
I003. 38(b). If the final date for filing falls on a Saturday, Sunday, or legal holiday, the filing
date is extended to the next business day. Id. If no appeal has been taken within the time allotted
to appeal, the Immigration Judge's decision becomes final. Id. By failing to timelyfile an appeal,
a party irrevocably relinquishes the opportunity to obtain review of the Immigration Judge's
decision and challenge the ruling.

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