Shouan Zhoobin Riahi, Esquire Central American Legal Assistance 240 Hooper Street Brooklyn, NY 11211

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals Office of the Clerk

51071.eesburg Pike. Suite 2000 Falls Church. Virginia 20530

OHS/ICE Office of Chief Counsel - BUF 130 Delaware Avenue, Room 203 Buffalo, NY 14202

Name: FLORES-VELASQUEZ, GICELY ... A 205-277-572

Date of this notice: 4/24/2015

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

Enclosure

Panel Members: Grant. Edward R. Adkins-Blanch, Charles K. Guendelsberger, John

Sincerely,

Don.rtL c tVlA)

Donna Carr Chief Clerk

Use rte am: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished/index

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Cite as: Gicely Sarai Flores-Velasquez, A205 277 572 (BIA April 24, 2015)

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

Decision of the Board oflnunigration Appeals

Falls Church, Virginia 20530

File: A205 277 572 - Buffalo, NY

In re: GICEL Y SARAI FLORES-VELASQUEZ

IN REMOVAL PROCEEDINGS

APPEAL

Date:

ON BEHALF OF RESPONDENT: Shouan Zhoobin Riahi, Esquire

ON BEHALF OF DHS:

APPLICATION: Reopening

Michele Henriques Assistant Chief CoWlsel

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The respondent, a native and citizen of Honduras, has appealed from the decision of the Immigration Judge dated September 20, 2013, denying the respondent's motion to reopen proceedings after she was ordered removed in absentia when the respondent failed to appear for her scheduled hearing on May 17, 2013. The Department of Homeland Security (DHS) opposes the appeal. The appeal will be sustained and the record remanded for further proceedings.

The Board reviews findings of fact, including credibility determinations, under a "clearly erroneous" standard. See Matter of R-S-H-, 23 I&N Dec. 629 (BIA 2003); 8 C.F.R. § 1003.l(d)(3)(i). If the Board determines that an Immigration Judge's findings of fact are not clearly erroneous, it may review de novo whether the facts are sufficient to meet an applicable legal standard. See Matter of A-S-B-, 24 I&N Dec. 493,497 (BIA 2008). In determining whether established facts meet a particular legal standard, the Board may weigh the evidence in a manner differently than the Immigration Judge, or conclude that the foundation for the Immigration Judge's legal conclusions is insufficient or otherwise not supported by the evidence. Id at 496. We review de novo determinations made in the exercise of discretion. Id at 497. We have conducted de novo review of the issues presented here.

The Immigration Judge denied the respondent's April 29, 2013, motion to change venue, which was unopposed by the DHS. The decision to grant an alien's request to change venue is a matter of discretion and is subject to demonstration of good cause, which is determined by balancing relevant factors, including administrative convenience, expeditious treatment of the case, location of witnesses, cost of transporting witnesses or evidence to a new location, and factors commonly associated with the alien's place of residence. See Matter of Rahman, 20 I&N Dec. 480 (BIA 1992).

In this case, we find that the balance of such factors is in the respondent's favor. The DHS did not oppose the motion to change venue, and there is little or no apparent inconvenience to the government. Moreover, we agree with the respondent that there is no requirement that the respondent include her asylum application, because she provided a description of the basis of her eligibility for this relief. See Immigration Court Practice Manual, Chapter 5. IO(c). http://W\\rw.justice.gov/eoir/vll/OCIJPracManual/Practice Manual review.pdf#page=l 1.

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Cite as: Gicely Sarai Flores-Velasquez, A205 277 572 (BIA April 24, 2015)

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Therefore, we conclude that the respondent's request for a change of venue should have been granted. See Monter v. Gonzales, 430 F.3d 546 (2d Cir. 2005) (denial of alien's motion for change of venue of removal proceedings to a location significantly closer both to his and his principal witness' residence, that was also significantly closer to evidence bearing on only contested issue in case, the bona fide nature of alien's marriage to United States citizen, was abuse of discretion that prejudiced alien's rights, and that necessitated vacation of the Board order and remand for further proceedings).

In view of our determination that the Immigration Judge incorrectly denied the respondent's motion to change venue, we find under the totality of the circumstances that the respondent has presented exceptional circumstances to excuse her failure to appear for her May 17, 2013, removal hearing. See Romero-Morales v. INS, 25 F.3d 125, 129 (2d Cir. 1994) (requiring Immigration Judges to examine the substance of a petitioner's motion for change of venue as part of their obligation "to consider the record as a whole and issue a reasoned opinion" on a motion to reopen).

ORDER: The appeal is sustained, the in absentia order is rescinded, and the proceedings are reopened.

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

FURTHER ORDER: Venue is changed from Buffalo, New York, to New York, New York.

FOR THE BOARD

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Cite as: Gicely Sarai Flores-Velasquez, A205 277 572 (BIA April 24, 2015)

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UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

UNITED STATES IMMIGRATION COURT BUFFALO, NEW YORK

In the Matter of:

FLORES-VELASQUEZ, Gicely Sarai A# 205-277-572

Respondent

CHARGES: INA§ 212(a)(6)(A)(i)

IN REMOVAL PROCEEDINGS

Present without Permission or Parole

MOTIONS: Motion to Rescind an in Absentia Order and Reopen Proceedings

ON BEHALF OF RESPONDENT Rebecca R. Press, Esq. Central American Legal Assistance 240 Hooper Street Brooklyn, New York 11211

ON BEHALF OF THE DHS Denise C. Hochul, Esq. Senior Attorney 13 0 Delaware A venue, Suite 203 Buffalo, New York 14202

DECISION AND ORDER OF THE IMMIGRATION JUDGE

Respondent's motion to rescind an order and reopen proceedings is DENIED.

I. FACTS AND PROCEDURAL HISTORY

Gicely Sarai Flores-Velasquez ("Respondent") is a 27-year-old native and citizen of Honduras. She is not a citizen or national of the United States. She arrived in the United States at an unknown place on an unknown date. She was not then admitted or paroled after inspection by an immigration officer.

On September 22, 2012, the Department of Homeland Security ("DHS") issued Respondent a Notice to Appear ("NT A") (Exh. 1 ), charging her as subject to removal from the United States pursuant to INA § 212(a)(6)(A)(i).1 Respondent was ordered to appear before the Buffalo Immigration Court ("Court") on May 17, 2013, at 9 a.m . See Notice of Hearing in Removal Proceedings (Dec. 18, 2012) .

1 According to INA § 212(a)(6)(A)(i), "An alien present in the United States without being admitted or paroled, or who arrives in the United States at any time or place other than as designated by the Attorney General, is inadmissible.',

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On April 1 , 2013, Respondent filed a motion to change venue, asking the Court to change the venue of her removal proceedings to the New York City Immigration Court. See Motion to Change Venue (Apr. 1, 2013) (admitting the government's factual allegations and conceding removability). The government opposed Respondent's motion for its failure to comply with the Immigration Court Practice Manual ("Practice Manual"). See DHS Memorandum in Response to the Motion (Apr. 12, 2013) (citing Practice Manual Chapter 5.lO(c)). The Court denied the motion "based on the Goverrunent's objection" on April 23, 2013. See Order of the IJ (Apr. 23, 2013).

On April 29, 2013, Respondent filed a second motion to change venue. See Motion to Change Venue (Apr. 29, 2013) (stating summarily, "I wish to apply for asylum withholding and CAT relief due to abuse from my partner in Honduras."). This time the government did not oppose the motion; however, the Court denied the motion for failure to demonstrate eligibility for the relief sought. See Order of the IJ (May 1 3, 2013) ("The Respondent has not set forth any grounds for relief, nor attached any relief applications to said motion."); see also Practice Manual Chapter 5 . 10( c ).

Respondent failed to appear for her hearing in removal proceedings and the Court ordered her removed to Honduras in absentia. See Order of the IJ (May 17, 201 3). On July 3 1 , 2013, Respondent filed a motion to rescind the Court's order of removal and reopen proceedings to allow Respondent an opportunity to apply for asylum and related relief. See Motion to Reopen (Jul. 31 , 2013) (arguing that Respondent's failure to appear was caused by exceptional circumstances) (citing 8 C.F.R. § 1003.23(b)(4)(ii)). DHS opposes Respondent's motion. See DHS Response to the Motion (Aug. 7, 2013).

II. DOCUMENTARY EVIDENCE

The following documents are included in the record of proceedings:

Exhibit 1:

Exhibit 2:

Group Exhibit 3:

3A:

3B: 3C: 3D:

3E:

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Notice to Appear, dated September 22, 2012

Record of Deportable/Inadmissible Alien ("Form I-213"), dated September 22, 2013

Documents Submitted by Respondent on July 31, 20 13 Application for Asylum and for Withholding of Removal ("Form 1-589") Respondent's Honduran Passport Respondent's Statement By Pure Miracle, Flores and Patiiio are Saved, LA PRENSA (Nov. 27, 2011) Assassin of Journalist David Meza Leaving in an Ambulance, EL HERALDO (Sept. 21, 2010)

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III. FINDINGS OF FACT AND CONCLUSIONS OF LAW

A. Respondent's Motion to Rescind the Court's Order of Removal

An order of removal entered in absentia may be rescinded only:

(i) upon a motion to reopen filed within 180 days after the date of the order of removal if the alien demonstrates that the failure to appear was because of exceptional circumstances (as defined in subsection (e)(l))), or

(ii) upon a motion to reopen filed at any time if the alien demonstrates that the alien did not receive notice in accordance with paragraph (1) or (2) of section 239(a) or the alien demonstrates that the alien was in Federal or State custody and the failure to appear was through no fault of the alien.

INA § 240(b)(5)(C). Respondent previously acknowledged receipt of the Notice to Appear and notice of the date and location of her hearing in removal proceedings. See Motion to Reopen (Apr. 29, 2013). She has not alleged that she did not receive notice in accordance with INA§ 239(a)(l ), (2). Additionally, Respondent has not alleged that she was in Federal or State custody at the time of her hearing. Therefore, she must demonstrate that her failure to appear was because of "exceptional circumstances."

Respondent has alleged that her failure to appear was caused by: (1) her inability to secure legal counsel in Buffalo, New York; (2) the cost of travelling to Buffalo, New York; and (3) the distance between her home and Buffalo, New York. See Motion to Reopen at 1 (Jul. 31, 2010) ("[R]equiring [Respondent] to travel to Buffalo when she resides in New York City, where she has resided for the past five years and where there is an Immigration Court, would cause undue hardship for reasons beyond her control. Specifically, Respondent would be required to travel seven-to-nine hours from her home, a trip that would cost approximately $450-more money than she earns in a week-and would be forced into navigating a complicated and intimidating legal system alone, as she has been unable to secure counsel to represent her in Buffalo.''). The Court finds that these are not exceptional circumstances.

The term "exceptional circumstances" is defined by statute as referring to "exceptional circumstances (such as battery or extreme cruelty to the alien or any child or parent of the alien, serious illness of the alien, or serious illness or death of the spouse, child, or parent of the alien, but not including less compelling circumstances) beyond the control of the alien." INA§ 240(e)(l). The circumstances described by Respondent may be sympathetic, but they are not of the kind described by the statute.

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An alien in removal proceedings, which are civil in nature, does not have an absolute right to counsel. See Practice Manual Chapter 2.3(a) ("An alien in immigration proceedings may be represented by an attorney of his or her choosing, at no cost to the government. Unlike in criminal proceedings, the government is not obligated to provide legal counsel."); see also 8 C.F.R. § 1003.16(b). Therefore, Respondent's inability to secure legal counsel in Buffalo did not excuse her appearance before the Court. Many aliens in removal proceedings are required to represent themselves before an immigration judge.

The Court also finds nothing exceptional about the distance and cost allegedly involved in Respondent's travel from her home to the Court. Respondent filed two motions to change venue, each of which was denied. The Court was under no obligation to grant Respondent's motions. See Matter of Rahman, 20 I&N Dec. 480, 483 (BIA 1992) ("[T)he presiding immigration judge should not order a change of venue without a proper finding of good cause ... "). Good cause for a change of venue is determined by the balancing of a variety of factors. Id. at 482-84. A respondent's place of residence is relevant but not determinative of good cause. See id. Respondent was at liberty to seek review of the Court's denials of her motions, but she was not free to miss her scheduled hearing. See Practice Manual Chapter 5 .10( c) ("The filing of a motion to change venue does not excuse the appearance of an alien or representative at any scheduled hearing.").

The Court also notes that Respondent's claim that a trip to Buffalo would have cost her $450 is supported by no evidence apart from her own written statement. Respondent has not explained how she calculated this figure. Respondent has likewise not supported her claim that the "cost of travelling to Buffalo would be more than what I earn in a week'' with any evidence other than her own statement. (Exh. 3C). In regards to the distance between Respondent's home and Buffalo, the Court notes that Respondent voluntarily entered the jurisdiction of the Court. See (Exh. 3C at ,2). Respondent was detained in Syracuse, New York. Id.; (Exh. 2 at 2) (stating that Respondent was travelling west). The Court has jurisdiction over Syracuse, New York. The Court further takes judicial notice of the fact that Syracuse is approximately 150 miles from Buffalo and approximately 245 miles from New York City.2 It is not unusual for an alien detained in Syracuse to be ordered to appear before the Court.

Accordingly, the Court finds that Respondent has failed to establish that her failure to appear was because of exceptional circumstances. See also DHS Response to the Motion at 2 (Aug. 7, 2013). Her motion to rescind the Court's in absentia order must therefore be denied.

2 See 8 C.F.R. § 1003. l(d)(J)(iv) (permitting the Board of Immigration Appeals, and by implication the Immigration Judges, to take "administrative notice of commonly known facts such as current events or the contents of official documents").

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B. Respondent's Motion to Reopen Proceedings3

A motion to reopen "shall state the new facts that will be proven at a hearing to be held if the motion is granted and shall be supported by affidavits and other evidentiary material." 8 C.F.R. § 1003.23(b)(3). "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." Id.

All of the evidence that Respondent seeks to off er was available and could have been presented to the Court on May 17, 2013. Respondent allegedly arrived in the United States in December 2008. (Exh. 3A at 1). Respondent's passport was issued in January 2013. (Exh. 3B). The news articles submitted by Respondent are from 2010 and 2011. (Exhs. 3D, 3E). The events described by Respondent in her Form 1-589 all took place prior to May 2013. Seet e.g., (Exh. 3A at 5); see also Motion to Change Venue (Apr. 29, 2013) (stating in April 2013 that Respondent wished to apply for asylum "due to abuse from my partner in Honduras").

Based on the foregoing, Respondent's motion to reopen must be denied for failure to satisfy the requirements of 8 C.F.R. § 1003.23(b)(3); see also Practice Manual Chapter 5.7(b)(iii) ("A motion to reopen based on an application for relief will not be granted if it appears the alien's right to apply for that relief was fully explained and the alien had an opportunity to apply for that relief at an earlier stage in the proceedings (unless the relief is sought on the basis of circumstances that have arisen subsequent to that stage of the proceedings).")

The Court shall enter the following order:

ORDER

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3 An alien need not seek rescission of an in absentia removal order prior to seeking reopening of proceedings. See Matter of J-G-, 26 I&N Dec. 161 (BIA 2013). Unlike the respondent in Matter of J-G-, Respondent does not need to establish that her application for asylum is based on changed country conditions arising in her country of nationality because her motion was filed within 90 days of the date on which the Court's order was entered. See id. at 163-64.

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