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 22041

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Joyce, William P. OHS/ICE Office of Chief Counsel - BOS
Joyce & Associates, PC P.O. Box 8728
205 Portland Street Boston, MA 02114
Third Floor
Boston, MA 02114

Name: MENDES, ANA PAULA A 096-415-542

Date of this notice: 10/2/2017

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

Sincerely,

Donna Carr
Chief Clerk

Enclosure
Panel Members:
Kendall Clark, Molly

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index

Cite as: Ana Paula Mendes, A096 415 542 (BIA Oct. 2, 2017)
U.S. Department of Justice Decision of the Board of Immigration Appeals
Exeutive Ofce for Immigration Review

Falls Church, Virginia 22041

File: A096 415 542 - Boston, MA Date:

OCT O 2 2017
In re: Ana Paula MENDES

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

1N REMOVAL PROCEEDINGS

APPEAL AND MOTION

ON BEHALF OF RESPONDENT: William P. Joyce. Esquire

APPLICATION: Reopening; remand

The respondent is a citizen of Brazil. In a decision dated April 17, 2017,1 the Immigration
Judge granted the respondent's motion to reopen seeking an opportunity to apply for adjustment
of status based on the approved immediate relative visa petition filed by her United States citizen
("USC") husband, and arguing that exceptional circumstances existed to warrant sua sponte
reopening.2 Four days later (on April 21, 2017), the Department of Homeland Security ("DHS")
filed a motion to reconsider. The same day, the Immigration Judge granted the DHS's motion to
reconsider, and rescinded her April 17, 2017, order granting the respondent's motion to reopen.
On May 3, 2017, the respondent timely filed a motion to reconsider with the Immigration Judge.
On May 19, 2017, the respondent timely filed a Notice of Appeal (Form EOIR-26) with this Board.
The DHS did not :le a response to the respondent's motion to reconsider, or to the instant appeal.
The record will be remanded.

The record reflects that no decision on the merits of the respondent's timely-filed motion to
reconsider was issued by the Immigration Judge prior to jurisdiction over her case vesting with
this Board on May 19, 2017, when she timely filed the instant appeal.3 Pursuant to the regulations,
a motion to reconsider an Immigration Judge's decision that is pending at the time an appeal is
filed with the Board may be deemed a motion to remand for further proceedings, and may be
"consolidated with, and considered by the Board in connection with the appeal to the Board." See
8 C.F.R. 1003.2(b). Accordingly, we deem the respondent's pending motion to reconsider of

1
This decision was mailed to the parties on April 19, 2017.
2 The respondent's motion to reopen was filed with the Immigration Judge on March 31, 2017.
A week later, she filed a "Motion to Amend" her motion to reopen. This filing was supported by
evidence confirming that the visa petition filed by the respondent's USC husband was approved
by the United States Citizenship and Immigration Services on March 31, 2017. Thereafter, the
respondent submitted additional documentation in support of her motion to reopen. The
Immigration Judge granted the respondent's motion to reopen on April 17, 2017, noting that a
response had not been filed.
3 As jurisdiction over the respondent's case vested with the Board on May 19, 2017, the
Immigration Judge's June 22, 2017, order (directing the respondent to file her response, if any, to
the DHS' s motion to reconsider within 15 days) is void for lack ofjurisdiction.
Cite as: Ana Paula Mendes, A096 415 542 (BIA Oct. 2, 2017)
A096415 542

the Immigration Judge's April 21, 2017, decision to be a motion to remand, which will be
consolidated with her appeal
The Immigration Judge granted the DHS's motion to reconsider after determining that "good
cause" for granting the motion had been established, noting that she was unaware of the DHS's
opposition to the respondent's motion, to which no reply was filed. However, it is not clear that

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

the respondent was given sufficient time to reply to the DHS' s opposition to her motion to reopen
(filed April 10, 2017), particularly given the time needed to serve and mail such a reply before the
Immigration Judge issued her April 17, 2017, decision. Further, the Immigration Judge's
April 21, 2017, decision is conclusory, and does not discuss the merits of the respondent's motion
to reopen-which was previously granted--in light of the OHS's opposition arguments.

On appeal, and in her motion to remand, the respondent contends, in part, that she was not
given an opportunity to respond to the DHS's motion to reconsider before the Immigration Judge
granted that motion (Form EOIR-26, box #6; Respondent's motion to remand at 3-4). The
Immigration Judge granted the DHS's motion to reconsider on April 21, 2017, the very same day
that motion was filed. Thus, the record supports the respondent's argument as to this issue.

In light of the foregoing, the Immigration Judge's April 21, 2017, decision is vacated. The
record will be remanded for further proceedmgs, .including but not limited to consideration of the
DHS's motion to reconsider and the respondent's underlying motion to reopen. On remand, the
respondent should be given an opportunity to respond to the DHS's motion to reconsider. The
parties may also submit additional arguments and evidence. The Immigration Judge should issue
a full decision explaining the reasons for her new decision, and taking into account the respective
arguments and positions of the parties. See Matter ofM-P-, 20 I&N Dec. 786 (BIA 1994) (noting
that when an Immigration Judge does not clearly identify and sufficiently explain the reasons for
the decision reached, the parties are deprived of a fair opportunity on appeal to contest the
Immigration Judge's determinations, and this Board is unabl to meaningfully exercise its
responsibility of reviewing the decision in light of the appellate arguments being made).

Accordingly, the following orders will be entered.4

ORDER: The Immigration Judge's April 21, 2017, decision is vacated.

FURTHER ORDER: The record is remanded for further proceedings consistent with the
foregoing opinion and entry of a new decision.

4
In light of this disposition, we need not address the other issues raised by the respondent on
appeal and in her motion to remand.

2
Cite as: Ana Paula Mendes, A096 415 542 (BIA Oct. 2, 2017)
 I. -..
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l

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
JFK FEDERAL BLDG., ROOM 320
BOSTON, MA 0220'3

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

Joyce & Associates P.C.
Doyle, Brin M.
205 Portland St.
Third Floor
Boston, MA 02114

IN THE MATTER OF FILE A 096-415-542 DATE: Apr 21; 2017

MENDES, ANA PAULA

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 22041
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 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
JFK FEDERAL BLDG., ROOM 320
BOSTON, MA 02203
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UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IM.lVIIGRATION COURT
BOSTON, MASSACHUSETTS

IN THE MATTER OF:

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

MENDES, Ana Paula )
A 096-415-542. ) In Removal Proceedings
)
Respondent )

ON BEHALF OF RESPONDENT ON BEHALF OF DHS

Brian M. Doyle, Esq. Todd A. Masters, Esq.
Joyce & Associates, P.C. Assistant Chief Counsel
205 Portland Street, 3rd Floor Office of the Chief Counsel
Boston, Massachusetts 02114 15 New Sudbury Street, Room 425
Boston, Massachusetts 02203

ORDER OF THE IMMIGRATION COURT

ON DHS'S MOTION TO RECONSIDER

Upon consideration of DHS's MOTION TO RECONSIDER the CourCs decision

granting the Respondent's motion to reopen, it is HEREBY ORDERED that the motion is
GRANTED because good cause has been established for the motion.

The Court RESCINDS the order granting then1:otion to reopen. The Court was unaware
of the government's opposition, with which the Court agrees and to which no reply has been
filed. The MOTION TO REOPEN is therefore DENIED and the STAY OF REMOVAL is
RESCINDED.

Date ROBIN E. FEDER

United States Immigration Jud::-:
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United States Department of Justice

Executive Office for Immigration Review
Immigration Court
Boston,MA

In the Matter of: Ana Paula Mendes A Number: 096 415 542

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

ORDER OF THE IMMIGRATION JUDGE

Upon conieration ofDHS's Motion to Reconsider the Emergency Jy1otio9A'.'O Stay

Removal, 1t 1s HEREBY ORDERED that the motion be o GRANTED ENIED
because:

o DHS does not oppose the motion.

o The respondent does not oppose the motion.
o A response to the motiqn has not been filed with the court.

*
o Good cause has been established for the motion.
o The court agrees with the reasons stated in the opposition to the motion.
o The motion is nti mely per--------
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Deadlines:

o The application(s) for relief must be filed by _____________

o The respondent must comply with DHS biometrics instructions by ______

Date
Robin E. Feder
Immigration Judge
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