Berg, Royal F Law Offices of Royal F. Berg 33 N. LaSalle St., Suite 2300 Chicago, IL 60602

Name: GOMEZ-ALONZO, FELIPE

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals Office ofthe Clerk

5107 l.eeshurg Pike. Sui le ::ooo Falls Church. 1"1rgi111a .?0530

OHS/ICE Office of Chief Counsel - CHI 525 West Van Buren Street Chicago, IL 60607

A 200-144-055

Date of this notice: 3/26/2014

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

Enclosure

Panel Members: Hoffman, Sharon Manuel, Elise Guendelsberger, John

Sincerely,

DonttL c aJVL)

Donna Carr Chief Clerk

Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished

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Cite as: Felipe Gomez-Alonzo, A200 144 055 (BIA Mar. 26, 2014)

U.S. Department of Justice . Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

· Falls Church, Virginia 20530

File: A200 144 055 - Chicago, IL

In re: FELIPE GOMEZ-ALONZO

IN REMOVAL PROCEEDINGS

APPEAL

Date:

ON BEHALF OF RESPONDENT: Royal F. Berg, Esquire

ON BEHALF OF DHS:

APPLICATION: Reopening

Colleen Peppard Assistant Chief Counsel

MAR 2 G 2014

The respondent, a native and citizen of Guatemala, has appealed from the Immigration Judge's decision dated November 21, 2013. The Immigration Judge denied as untimely the respondent's motion to reopen proceedings in which he was ordered removed in absentia. On appeal, the respondent urges that his motion was timely, and further that he established exceptional circumstances for his failure to appear at his hearing. The Department of Homeland

· Security submitted a response to the respondent's appeal, agreeing with the respondent's appellate argument that his motion was timely, and indicating its non-opposition to a remand for the Immigration Judge to consider whether the respondent established exceptional circumstances. The DHS further urged that the respondent had not established exceptional circumstances. We will sustain the appeal and remand the record to the Immigration Judge for further fact-finding.

The Immigration Judge denied the respondent's motion as untimely, inasmuch as he found that the motion was filed more than 180 days after his in absentia order. However, the record reflects that the respondent's motion to reopen was filed on October 31, 2013, less than 180 days after his May 7, 2013, in absentia order, and he raised a claim of exceptional circumstances for his failure to appear. See 8 C.F.R. § 1003.23(b)(4)(ii). Accordingly, we conclude that the respondent's motion is timely, and we will vacate the Immigration Judge's decision finding otherwise.

While the respondent demonstrated that he timely filed the present motion to reopen and rescind his in absentia removal order, he must also demonstrate that his failure to appear at his hearing was because of exceptional circumstances, which may include ineffective assistance of counsel. See id. The respondent asserted in his motion that his attorney1 received the Notice of Hearing of the May 7, 2013, hearing date; however, his attorney did not inform him of his

1 In this regard, we note that the record does not contain a Notice of Entry of Appearance as Attorney or Representative Before the Immigration Court (Form EOIR-28) from the respondent's attorney before the Immigration Judge so as to establish that notice of the hearing was properly served on the respondent's attorney of record.

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Cite as: Felipe Gomez-Alonzo, A200 144 055 (BIA Mar. 26, 2014)

A2PO 144 055

. hearing date. 2 The Immigration Judge, however, did not make any findings of fact with respect to whether the respondent established exceptional circumstances. Given our limited fact-finding ability on appeal, we will remand the record to the Immigration Judge for consideration of whether the respondent established exceptional circumstances to explain his failure to appear at his May 7, 2013, hearing. See Matter of M-P-, 20 I&N Dec. 786 (BIA 1994) (finding that an Immigration Judge must fully explain the reasons for denying a motion in order to allow the respondent a fair opportunity to contest the decision and the Board an opportunity for meaningful appellate review); see also Matter of A-P-, 22 I&N Dec. 468, 477 (BIA 1999). Accordingly, the following orders will be entered.

ORDER: The respondent's appeal ts sustained and the Immigration Judge's November 21, 2013, decision is vacated.

FURTHER ORDER: These removal proceedings are reopened and the record is remanded to the Immigration Court for further consideration of the respondent's motion to reopen consistent with the foregoing opinion and for the entry of a new decision.

2 We also note that the respondent did not comply with the procedural requirements set forth in Matter of Lozada, 19 I&N Dec. 637 (BIA 1988), so as to establish his ineffective assistance of counsel claim.

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Cite as: Felipe Gomez-Alonzo, A200 144 055 (BIA Mar. 26, 2014)

,.

BERG, ROYAL F.

. :� .. ·� UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT

525 W. VAN BUREN, SUITE 500 CHICAGO, IL 60607

33 N. LASALLE, STE. 2300 CHICAGO, IL 60602

IN THE MATTER OF GOMEZ-ALONZO, FELIPE

FILE A 200-144-055 DATE: Nov 21, 2013

,,·

UNABLE TO FORWARD - NO ADDRESS PROVIDED

X 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 20530

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. SECTIOij 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:

OTHER:

IMMIGRATION COURT 525 W. VAN BUREN, SUITE 500 CHICAGO, IL 60607

COURT CLERK IMMIGRATION COURT

CC: COLLEEN PEPPARD

i_

525 W. VAN BUREN ST. , STE. 701 CHICAGO, IL, 60607

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lf.S. Department of Justice Ex eel!'. i \'C Office for Immigration Review

Tmmigration Court Chicago

In the Matter of: Case No.: A200 144 055

Felipe Gomez-Alonzo

Docket: -------------------

Respondent/ App1 irnnt IN Removal Proceedings

ORDER <) F THE lMMl GRAT ION JUDGE

Upon consideration of respondent's/applicant's

Motion to Reconsider �n I 111111 igration Judge's decision

_X_ Motion to Reopen proceedings

filed in the above entitled rn:ittcr. it is HEH.EBY ORDERED that the motion

x

be granted.

be denied for the reasons i11,.::,::ill'J bdow.�.

J Robert D. Vinikoor Immigration Judge

Date: November 21, 2013 _11 The respondcnrs motion to r(.'(>11cn to was filed on October 31, 2013 more than six months after the ;nabsentia order ofr emoval becmne final on May 7, 2013. Under Section 240(b)(5)(C)

a motion to reopen based 011 c:-: .. :0_· : "11d cir�umstanc1..·s must be filed within 180 days after the date of the order ofremoval. Whi '..· inclTective assistance of counsel may, under some circumstances, be a basis to equit·:l.ly toll the 180 day limitation, the respondent has not filed an affidavit or any other evidence exl'1·,i11i11g the circums1r1nccs of his c�se or even when he became aware that he had missed hi::; heai 1.: :...'.· l· vr Lhcse reasons, the motion must be denied .

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To:

U.S. DEPARTMENT OF JUSTICE Executive Office for Immigration Review

Immigration Court 525 W. VAN BUREN, SUITE 500

CHICAGO, IL 60607

COLLEEN PEPPARD 525 W. VAN BUREN ST., STE. 701 CHICAGO, IL 60607

Date: Nov 4, 2013

File: A200-144-055

IN THE MATTER OF: GOMEZ-ALONZO, FELIPE

(VI) On oct- ' 3 I 0... 0 \ ::, ' a Motion to Reopen/Reconsider . l Deporation ProceeJings was filed in the ab

·ove referenced case (s).

On , a Motion for Change of Venue was filed in the above referenced case(s).

·._c'.p due within ( (Q days, on or before

&M

,(� The Motion is scheduled to be heard before IJ ROBERT D. VINIKOOR on at at

-� The Motion is scheduled for a telephonic hearing at

cc:

, , Pl.ease report to the local DHS office.

BERG, ROYAL F. 33 N. LASALLE, STE. 2300 CHICAGO, IL 60602

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-� Sincerely,

� a Immigration Court

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