U.S.

Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
Office of the Clerk
5107 Leesburg Pike, Swte 2000
Falls Church. Virginia 220./ I

OHS/ICE Office of Chief Counsel - DAL

125 E. John Carpenter Fwy, Ste. 500
Irving, TX 75062-2324

Name: A
Riders:

716

Date of this notice: 12/27/2016

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

DOYl/1L ctl/VL)
Sincerely,

Donna Carr
Chief Clerk
Enclosure
Panel Members:
O'Herron, Margaret M

Userteam: Docket

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Cite as: S-D-A-A-, AXXX XXX 716 (BIA Dec. 27, 2016)

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Cambria, Bridget
Cambria & Kline, P.C.
123 N. 3rd Street
Reading, PA 19601

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals
Office of the Clerk
5 /07 Leeslmrg Pike, Suite 2000
Fa{(s Church, l'irgmia 2204/

DHS/ICE Office of Chief Counsel - DAL

125 E. John Carpenter Fwy, Ste. 500
Irving, TX 75062-2324

Name:A
S
Riders-717
Date of this notice: 12/27/2016

Enclosed is a copy of the Board's decision in the above-referenced case. This copy is being
provided to you as a courtesy. Your attorney or representative has been served with this
decision pursuant to 8 C.F.R. 1292.S(a). If the attached decision orders that you be
removed from the United States or affirms an Immigration Judge's decision ordering that you
be removed, any petition for review of the attached decision must be filed with and received
by the appropriate court of appeals within 30 days of the date of the decision.
Sincerely,

DonttL ClVvu
Donna Carr
Chief Clerk
Enclosure
Panel Members:
O'Herron, Margaret M

Userteam:

Cite as: S-D-A-A-, AXXX XXX 716 (BIA Dec. 27, 2016)

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A-S_D_
A,716
BERKS CNTY FAMILY RESIDENTIAL
1040 BERKS ROAD
LEESPORT, PA 19533

Decision of the Board of Immigration Appeals

U.S. Department of Justice

Executive
. Office' for Immigration Review
Falls Church, Virginia 22041

Files:

Date:

716 - Dallas, TX
717

DEC 2 7 2016

APPEAL AND MOTION

ON BEHALF OF RESPONDENTS: Bridget Cambria, Esquire
ON BEHALF OF DHS:

Judson J. Davis
Senior Attorney

APPLICATION: Reopening; remand

ORDER:
The respondents, 1 natives and citizens of Honduras, appeal from the Immigration Judge's
decision dated August 4, 2016, denying their motion to reopen and rescind the in absentia
removal order entered on October 6, 2015. The Department of Homeland Security opposes the
appeal. While the appeal was pending, the respondents submitted evidence showing that the
United States Citizenship and Immigration Services granted the minor respondent's petition for
Special Immigrant Juvenile status. In light of this evidence, as well as the unique circumstances
presented this case, including the minor respondent's young age, we will reopen the proceedings
on our own motion. See 8 C.F.R. 1003.2(a). Accordingly, the in absentia order of removal is
rescinded, the respondents' removal proceedings are reopened, and the record is remanded for
further proceedings consistent with the foregoing opinion.

'-v?!l {)-L I_

FOhkioARD

1 The respondents in this case include the lead respondent ( 716), and her minor
daughter(717).

Cite as: S-D-A-A-, AXXX XXX 716 (BIA Dec. 27, 2016)

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IN REMOVAL PROCEEDINGS

.;

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
1100 COMMERCE ST., SUITE 1060
DALLAS, TX 75242

,...,

IN THE MATTER OF

FILE A-716

DATE: Aug 5, 2016

UNABLE TO FORWARD - NO ADDRESS PROVIDED

CHED 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
BOARD OF IMMIGRATION APPEALS
MUST BE MAILED TO:
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
1100 COMMERCE ST., SUITE 1060
DALLAS, TX 75242
OTHER:

CC: GONZALEZ, ROSLYN

125 E. HWY 114, STE 500
IRING, TX, 75062

IMMIGRATION COURT

-FF

'J

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Casa Marianella
Willis, Gracie
821 Gunter St
Austin, TX 78702

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
DALLAS, TEXAS

RESPONDENTS

IN REMOVAL
PROCEEDINGS

DETAINED

ON BEHALF OF RESPONDENTS:

ON BEHALF OF THE
DEPARTMENT OF HOMELAND
SECURITY:

Gracie Willis, Esq.

Judson Davis, Esq.

Order Denying Motion to Reopen

On August 1, 2016, Respondent filed a motion to rescind an absentia order of
removal issued on Oct. 6, 2015, based on exceptional circumstances. DHS opposes the
1
motion. The motion is denied.
The lead respondent, hereafter respondent, was personally served with the Notice
to Appear for herself and her minor child on April 20, 2015. That notice advised
Respondent of the requirement to notify the Immigration Court of any change of address,
and also notified Respondent of the consequences of failing to appear for her hearing.
Respondent was released from custody due to lack of space on April 20, 2015.
On that date, Respondent signed form I-220A, listing her address in Denver City, Texas.
This form bears the fingerprint and photograph of Respondent. The MTR identifies this
address as belonging to Respondent's "friend" Homer.
According to the MTR, Respondent lived at this address for one month, and then
relocated to Hobbs, New Mexico, where she engaged in unauthorized employment,
making no effort to notify the Immigration Court of her new address. In September,
1

The motion to rescind was initially received by the court on July 6, 2016, but rejected due to a lack of
notice of appearance of the attorney for case A208-I63-717. DHS filed its opposition to this motion on
July 13, 2016. Respondent's cured the deficiency and refiled the motion on August I, 2016.

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)
)
)
)
)
)
)
)

IN THE MATTER OF:

2015, Respondent relocated to McAllen, Texas for employment, making no effort to

notify the Immigration Court of her new address.

In September 2015, a DHS officer contacted Respondent's friend Homer,

instructing Respondent to report for an appointment with OHS in September.
Respondent and her friend Homer attended the DHS appointment. At that time,
Respondent was served a second copy of the hearing notice for the Oct. 6, 2016 hearing. 2
Respondent's fingerprint and signature were placed on the hearing notice as clear
evidence that Respondent was served with the hearing notice. MTR, Tab B. Respondent
was again allowed to leave without being detained.
Respondent asserts in her MTR that she then sought legal advice. She asserts that
she talked to an attorney in Seminole, Texas, who said that she could not represent her
but referred her to another attorney. She talked to the other attorney by phone, who said
that he could represent her. According to Respondent's affidavit, this second attorney3
did not ask whether she had fear of return, nor did Respondent inform the attorney that
she had a fear. But, according to Respondent this attorney said that the only thing he
could do for her was to arrange a voluntary departure, and that there was no way she
could stay in the U.S. Respondent thereafter did not retain the services of this or any
other attorney, and made no further effort to seek legal advice prior to the hearing.
Respondent failed to appear for hearing on Oct. 6, 2015, and was ordered
removed in absentia. Although Respondent's affidavit does not state why she did not
appear, counsel for Respondent, MTR at 3, states that after talking to this attorney
Respondent "simply gave up" and "abandoned her hopes of being protected in the U.S."
"Due to the aforementioned factors, Ms. Antunez Antunez and her daughter failed to
appear at their master calendar hearing on Oct. 6, 2015."
Following her failure to appear, Respondent continued to work without
authorization, making no effort to determine the outcome of her case or regularize her
immigration status. In March 2016, her friend Homer notified Respondent that she and
2

Respondent's attorney states, in error, that this meeting occurred in August 2015 and that the officer gave
Respondent a copy of the initial hearing notice. Respondent's affidavit indicates that the meeting was
conducted in Sept. 2015, and the hearing notice contained in the MTR at Tab B clearly corresponds to the
second hearing notice for the Oct. 6, 2015 hearing. The initial hearing notice for the August hearing was
typewritten, and thus could not possibly be the notice contained in the MTR at Tab B.
3
According to research later conducted by Respondent's attorneys, MT Tab C, the phone number for the
first "attorney" Respondent talked to belongs to a paralegal named Elisha Bergen, and the second phone
number belongs to an attorney named David Arditti. The Court takes administrative notice that David
Arditti is a well known immigration attorney who practices in Dallas, Texas.

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On July 27, 2015, the Court sent Respondents' first notice of hearing to the
Denver City address on July 27, 2015, for a hearing on August 17, 2015. Respondent
failed to appear for her hearing on August 17, 2015. Rather than ordering her removal in
absentia, the undersigned judge (generously) reset the case to Oct. 6, 2015, allowing the
Respondent another opportunity to appear. On August 17, 2015, the Court sent a hearing
notice to the Denver City address notifying Respondent of her hearing on Oct. 6, 2015.

her child had been ordered removed. Respondent's affidavit, para. 3 1 . She continued to
make no effort to address her immigration status. She was finally apprehended by the
Border Patrol at a checkpoint on June 16, 2016. She has been detained since that time.

Respondent asserts that equitable tolling does apply, based upon a theory of
ineffective assistance of counsel. While ineffective assistance of counsel can in some
circumstances be a basis for equitable tolling, I find in this case that ineffective assistance
of counsel has not been shown, and that, even if it had been, respondent has not been
prejudiced and that ineffective assistance was not the reason for her failure to appear or
her failure to file the motion within the 1 80 day deadline.
In order to prove a case of ineffective assistance of counsel the respondent must
meet the requirements stated by the board in Matter ofLozada, 1 9 l&N Dec. 637 (BIA
1 988). The requirements have not been met in this case. Specifically the respondent has
not filed a bar complaint against attorney David Arditti, and has not offered Mr. Arditti a
chance to respond to the allegations.4 This is a direct violation of the Lozada
requirements. Because the respondent has not offered Mr. Arditti a chance to respond to
her allegations, her claim cannot be credited. 5
Additionally the respondent did not retain Mr. Arditti or any other attorney prior
to the hearing, and never sought a proper evaluation of her case. No objectively
reasonable person would rely on a brief telephone conversation that was an initial
consultation and believe that this was a thorough examination of their case. According to
the respondent's affidavit, the attorney offered to represent her but she declined the offer.
Furthennore, respondent was not prejudiced by the legal advice that she asserts
she received or did not receive. Respondent has not made the claim that she was advised
not to attend the hearing. As the respondent had the legal duty to attend her hearing, as a
4

The MTR inexplicably and incorrectly asserts that Respondent is unable to locate a phone number for or
the identity the "second attorney" she talked to. Tab C attached to the motion, para. 7 clearly contains the
phone number 21 4-741-1 158 and also contains the name of the attorney David Arditti. Respondents'
attorneys apparently made no attempt to call this number or to locate a number for attorney Arditti from
publicly available sources. The attorney who prepared the MTR apparently did not read the report prepared
by the attorney who authored Tab C.
5 Although Respondent in her affidavit also refers to the first person she spoke to [later identified as Elisha
rd
Bergen] as an attorney, and has offered screenshots from 3 party data mining sites listing Ms. Bergen as
an attorney, none of those screen shots show that Ms. Bergen herself advertised herself as an attorney.
According to Respondent's affidavit, Ms. Bergen told Respondent that she could not represent her,
referring her instead to attorney Arditti. Had Respondent aJlowed Mr. Arditti an opportunity to respond to
the allegations, he presumably would have addressed the allegations against paralegal Bergen as well,
insofar as Respondent implies they are linked together in a pattern of improper conduct.

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Initially, I conclude that the instant motion [to "rescind pursuant to INA
240(b)(5)(C)(i)"] is a statutory motion. Since the motion was not filed within 1 80 days,
as required by 8 CFR 1003.23(b)(4)(ii), the Court must determine whether the 1 80
deadline is subject to equitable tolling. See Lugo-Resendez v. Lynch, No. 1 4-60865, (5th
Cir., July 28, 2016.

'1

matter of law she cannot have been prejudiced. If the respondent had attended the
hearing, the undersigned immigration judge would have made sure that she received
proper notice of the right to apply for any relief that she may have been eligible for.
Thus, any incorrect advice she may have received prior to the hearing would have had no
impact on the outcome of the hearing or her case.

Equitable tolling does not apply to this case. Respondent has failed to show that
she has been diligent in pursuing her rights and has failed to show that ineffective
assistance of counsel constitutes an extraordinary circumstance which stood in her way.
To the contrary there has been a gross lack of diligence. Respondent has provided no
explanation for her failure to appear on August 17. When respondent was notified in
March 2016 that a removal order had been issued against her, she took no action to
address the situation, but instead continued to operate in the underground, working
without authorization, and failing to notify the court of her changes of address. The
instant motion has been filed solely because the respondent was caught and detained. In
sum, the respondent has grossly, intentionally, and unlawfully thwarted the lawful actions
of the Attorney General.
Therefore the respondent is barred from statutory reopening by the 180 day
deadline cited above.
Additionally the respondent has failed to show that her failure to appear was
because of an exceptional circumstance. 8 C.F.R. 1003.23(b)(4)(ii). A belief that one
has no relief from removal or a desire to avoid deportation does not constitute an
exceptional circumstance for failure to appear. To the contrary, respondent had a legal
duty to appear even if she believed that it would result in her deportation.
Further, the respondent is not eligible for sua sponte reopening. This case does
not represent an exceptional circumstance warranting reopening. Respondent
intentionally tried to thwart the lawful authority of the Atty. Gen. The ineffective
assistance of counsel claim is without merit and would not in any event excuse her
multiple failures to appear. The Respondents' claim that sua sponte reopening is
warranted because they "never had an opportunity to present the facts of their case to any
representative of the United States government," MTR at 1 3, is demonstrably false, as the

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Moreover, the incorrect legal advice that the respondent says that she received
was after she had failed to appear for her first hearing on August 17, 2015, and thus can
have had no impact on the respondent's decision not to attend her first hearing. I could
have ordered her removal on that date, and while it is true that the court allowed the
respondent a second opportunity to appear on October 6, that opportunity was conditional
upon the respondent actually appearing on that date. The order of removal which was
issued on October 6 was based not merely upon the respondent's failure to appear on
October 6 but was also based on the respondent's failure to appear on August 17. The
respondent has made no explanation for her failure to appear on August 17 and makes no
claim that exceptional circumstances prevented her appearance on that date.

undersigned judge twice offered Respondents an opportunity to speak with me in court,

. but they instead refused to appear.

The Fifth Circuit has held that the fugitive disentitlement doctrine applies to
fugitive aliens who evade custody and fail to comply with a court's order. See Giri v.
Keisler, 507 F.3d 833 (5th Cir. 2007). The fugitive disentitlement doctrine limits a
fugitive alien's access to the judicial system "whose authority he evades." Id at 835
(quoting Bagwell v. Dretke, 376 F.3d 408, 4 1 0 (5th Cir. 2004)). As the Fifth Circuit has
noted, "A litigant whose disappearance makes an adverse judgment difficult if not
impossible to enforce cannot expect favorable action . . . the best solution is to dismiss
the proceeding." Id. at 836 (quoting Sapoundjiev v. Ashcroft, 376 F.3d 727, 728-29 (th
Cir. 2004)). Here, the Respondent has evaded the authority of the Court and refused to
comply with the Court's orders, notices and instructions.
For all of the above reasons, the MTR should also be denied as a matter of
discretion.
I note that the Respondent has attached an application for relief to the MTR. I do
not understand the motion to be based on an argument that there has been a change of
circumstance, such that new relief is available. To the extent Respondent intended to
make that argument, I note that the matters raised in the application predate the failure to
appear. As the Respondent could have sought this relief at the hearing, but did not, she
cannot present it at this time absent a showing that the application is based on
circumstances arising after the hearing. 8 C.F.R. 1 003.23(b)(3). As that showing
cannot be made, nor does Respondent even make this argument, the 1-589 application
cannot be considered at this late date.
Finally, with respect to the respondent's argument that the age of the minor child
constitutes an exceptional circumstance for the child's failing to appear, I disagree. Legal
decisions made by parents are imputed to the child. See Matter ofWinkens. 15 I&N Dec.
451 (BIA 1 975) (parents' decision to surrender lawful residency imputed to child). Just
as the respondent sought to avoid her own removal so she sought to avoid also the
removal of her child. Any other rule would render children immune to legal proceedings,
a clearly absurd result, and one which would be inconsistent with the holding of the 5th
Circuit in the case of Lopez-Dubon v. Holder, 609 F.3d 642 (2010). In that case the court
held that the notice to appear for a minor child under the age of 14 could be served on the

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Moreover the respondent is barred by the clean hands doctrine and the fugitive
disentitlement doctrine. Respondent is willing to subject yourself to the authority of the
court only to the extent that the court is willing to rule in her favor. When she believed
that she would derive no benefit from attending court she unlawfully absconded. The
respondent cannot on the one hand seek the benefit of asylum from the court while on the
other hand refusing to submit to the possibility of removal. As the respondent has clearly
chosen to reject this court's authority she cannot now seek a benefit from the court. Any
other conclusion would eviscerate the operation of the immigration courts because few
would want to come to court if there were no penalty for failing to appear.

-
f

parent, thus subjecting the child to removal proceedings. Implicit in that holding was that
the parent had the right and the responsibility to make legal decisions on behalf of the
child and that the child would be bound by those decisions.
Accordingly, the following Order will be entered:

IT IS HEREBY ORDERED that the Respondents' Motion to Reopen be

DENIED. The stay of removal is lifted.
This

'-/fl,

day of

, 2016.

4
R. Wayne Kimball
Immigration Judge

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ORDER