Excerpted from AILA's Immigration Litigation Toolbox, 5th Ed. (©2016, American Immigration Lawyers Association), and distributed with permission.

MOTION TO REOPEN AND TERMINATE REMOVAL PROCEEDINGS BASED ON EXCEPTIONAL CIRCUMSTANCES

NOT DETAINED

UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW UNITED STATES IMMIGRATION COURT BALTIMORE, MARYLAND

IN THE MATTER OF IN REMOVAL PROCEEDINGS

X A#

(RESPONDENT)

Before Immigration Judge XXXX XXXXX Next Hearing Date: None

MOTION TO REOPEN AND TO TERMINATE IN ABSENTIA REMOVAL PROCEEDINGS

AILA Doc. No 17031762. (Posted 3/17/17) UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW UNITED STATES IMMIGRATION COURT BALTIMORE, MARYLAND

IN THE MATTER OF IN REMOVAL PROCEEDINGS

X A#

(RESPONDENT)

MOTION TO REOPEN AND TO TERMINATE IN ABSENTIA REMOVAL PROCEEDINGS

COMES NOW INTO COURT, X, Respondent, herein through undersigned counsel, and respectfully represents as follows: 1. The Immigration Court may sua sponte reopen proceedings “at any time” and “in any case in which it has rendered a decision.” 8 C.F.R. §1003.2(a). 2. Pursuant to 8 C.F.R. § 1003.23(b)(4)(ii) and 8 C.F.R. § 1003.23(b)(3), Respondent requests the reopening and termination of her removal proceedings so that her husband X, who was granted asylum by the Immigration Judge in Los Fresnos, Texas on December 15, 2011, may file an I-730, Refugee Asylee Relative Petition, on her behalf. Exh. G, Immigration Judge’s Order for Respondent’s husband. 3. Pursuant to 8 C.F.R. § 1003.23(b)(4)(ii), “An order of removal entered in absentia or in removal proceedings pursuant to section 240(b)(5) of the Act may be rescinded only upon a motion to reopen filed within 180 days after the date of the order of removal, if the alien demonstrates that the failure to appear was because of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 section 240(e)(1) of the Act.” 4. Respondent, along with her minor daughter X, was scheduled for a Master Calendar Hearing on October 27, 2011 before the Honorable Judge XXXXX XXXXXX. Ex. A, Copy of the Honorable Immigration Judge XXXXX XXXXXX’s decision dated October 27, 20XX.

AILA Doc. No 17031762. (Posted 3/17/17) 5. Respondent missed the hearing before due to serious illness that befell her daughter, who was also removed in absentia on the same date. “The term ‘exceptional circumstances’ refers 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.” 8 C.F.R. § 1129a(e)(1). 6. After approximately three weeks at the Berks County Family Shelter, Respondent and her daughter were released and they went to live with her husband’s relative in Maryland. Respondent states that X worried a lot for her father and brother who were still detained in Texas. Exh. B, Respondent’s Declaration at ¶12. It seems X literally became ill from worrying and crying over her father and brother. Id. Respondent states that X got a cold and then a fever, eye and ear infection. Id. Respondent did not take her to the doctor because during this time their relative was out of town. Id. Not knowing where to go for medical assistance or what the cost would be without medical insurance, she took care of X on her own. Id. It was during this time that the October 27, 2011 hearing took place. After her relative came back to Maryland, X’s condition improved but then she relapsed, becoming even more ill, which required a trip to the emergency room. Id.; see also Exh. D, Holy Cross Hospital Emergency Department Discharge for Respondent’s minor daughter. 7. Respondent states in her declaration that she had not even realize that the date for the court hearing had come and gone as she “was too worried with my daughter being sick and my husband’s and son’s well-being.” Exh. B, Respondent’s Declaration at ¶13. 8. Further, even if X had not been seriously ill during the October 27, 2011 hearing, Respondent would not have been able to attend the hearing on her own due to her unfamiliarity with her surroundings, her inability to speak English (or any widely spoken language such as Spanish) and general illiteracy, and lack of transportation as her relative was out of town. Exh. B, Respondent’s Declaration at ¶¶8 and 12. Respondent admits to feeling lost without her husband since she “relied on him for everything.” Id. at ¶13. With no one to take her to the hearing on October 27, 2011, Respondent’s circumstances also qualify as “exceptional” as few respondents face such vulnerability, helplessness, and lack of support.

AILA Doc. No 17031762. (Posted 3/17/17) 9. Respondent intended to appear at the October 27, 2011 hearing with her daughter. Respondent wanted to pursue asylum after being paroled from detention based on the determination by an Asylum Officer that she and her daughter have a credible fear of persecution or torture. Exh. E, ICE ERO Letter Informing Respondent of Parole Grant. Respondent failed to appear primarily because of her daughter’s serious and unforeseen illness and because of her lack of familiarity with the English language, her surroundings, and U.S. immigration law. Respondent therefore demonstrates her failure to appear at the October 27, 2011 hearing was due to exceptional circumstances as defined in Section 240(e)(1) of the Act. See Matter of W-F-, 21 I&N Dec. 503 (BIA 1996). 10. Alternatively, Respondent merits reopening of her removal proceedings pursuant to 8 C.F.R. § 1003.23(b)(3): “A motion to reopen proceedings 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. […] 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.” 11. Respondent had a Master Calendar Hearing on October 27, 2011. Exh. A, Honorable Immigration Judge XXXXX XXXXXX, Decision dated October 27, 2011. Los Fresnos Immigration Judge K XXXXX XXXXXXXXX granted Respondent’s husband’s asylum case December 15, 2011. Exh. G, Immigration Judge’s Order for Respondent’s husband. At the time of Respondent’s Master Calendar Hearing, her husband had not received asylum and this information was therefore not available not could it have been discovered or presented at the former hearing on October 27, 2011. Respondent’s husband’s asylum grant is material to Respondent’s case because he is now able to file an I-730 Refugee Asylee Relative Petition, on Respondent’s behalf thereby providing her with legal status. See Matter of X-G-W, 22 I&N Dec. 71 (BIA 1998) (reopening of proceedings warranted where respondent acquired eligibility for relief based on fundamental changes in asylum law). Respondent and her husband have one child together, X. Exh. H, X’s Birth 1 Certificate. Respondent’s husband has a son from a former marriage and his name is X0F .

1 Respondent’s husband and his son share the exact same name including same middle name.

AILA Doc. No 17031762. (Posted 3/17/17) 12. In conclusion, Respondent was subject to exceptional circumstances through no fault of her own warranting the reopening and termination of her removal proceedings so that she may pursue an I-730, Refugee Asylee Relative Petition, before U.S. Citizenship and Immigration Services. Respondent’s Motion to Reopen is timely filed within 180 days of the order under INA §240(b)(5)(C)(i) and he has paid the required motion fee of $110.00. Apart from the prior removal proceedings, which Respondent seeks to open and terminate, Respondent is not the subject to any judicial proceedings nor is the subject of any pending criminal proceedings.

WHEREFORE, IT IS MOVED, that this court accept and grant this Motion to Reopen and Terminate Removal Proceedings pursuant to 8 C.F.R. 1003.23(b)(4)(ii), 8 C.F.R. § 1003.23(b)(3), and in the interest of fairness and justice so the Respondent may pursue an I-730, Refugee Asylee Relative Petition.

Respectfully submitted,

, Esq. Attorney for Respondent

AILA Doc. No 17031762. (Posted 3/17/17) UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW UNITED STATES IMMIGRATION COURT BALTIMORE, MARYLAND

IN THE MATTER OF IN REMOVAL PROCEEDINGS

X A#

(RESPONDENT)

EXHIBIT LIST FOR MOTION TO REOPEN AND TO TERMINATE IN ABSENTIA REMOVAL PROCEEDINGS

EX. NAME PAGE

A. Honorable Immigration Judge XXXXX XXXXXX’s Decision 7 dated October 27, 2011

B. Respondent’s Declaration 8-10

C. Declaration of X, Respondent’s Asylee Husband 11-13

D. Holy Cross Hospital Emergency Department Discharge 14 Instructions for Respondent’s minor daughter

E. ICE ERO Letter Informing Respondent of Parole Grant 15

F. I-94s for Respondent and Minor Daughter Denoting 16-17 Humanitarian Parole

G. Immigration Judge’s Order Granting Asylum to Respondent’s 18 Husband X

H. Respondent’s daughter’s Birth Certificate noting she is the 19-20 daughter of Respondent and X, Asylee

AILA Doc. No 17031762. (Posted 3/17/17) UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW UNITED STATES IMMIGRATION COURT BALTIMORE, MARYLAND

IN THE MATTER OF IN REMOVAL PROCEEDINGS

X A#

(RESPONDENT)

ORDER OF THE IMMIGRATION JUDGE

Upon consideration of the Respondent’s Motion to Reopen and Terminate In Absentia Removal Proceedings, it is HEREBY ORDERED that the motion be [ ] GRANTED [ ] DENIED because: [ ] DHS does not oppose the motion. [ ] The respondent does not oppose the motion. [ ] A response to the motion has not been filed with the court. [ ] Good cause has been established for the motion. [ ] The court agrees with the reasons stated in the opposition to the motion. [ ] The motion is untimely per ______. [ ] Other:______.

Deadlines: [ ] The application(s) for relief must be filed by ______. [ ] The respondent must comply with DHS biometrics instructions by ______.

______Date XXXXX XXXXXX, Immigration Judge

______Certificate of Service

This document was served by: [ ] Mail [ ] Personal Service To:[ ] Alien [ ] Alien c/o Custodial Officer [ ] Alien’s Attorney [ ] DHS

Date:______By: Court Staff______

AILA Doc. No 17031762. (Posted 3/17/17)

UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW UNITED STATES IMMIGRATION COURT BALTIMORE, MARYLAND

IN THE MATTER OF IN REMOVAL PROCEEDINGS

X A#

(RESPONDENT)

CERTIFICATE OF SERVICE

On April 12, 2012, I, XXXXXX, served a copy of the Respondent’s Motion to Reopen and Terminate In Absentia Removal Proceedings to the United States Department of

Homeland Security, Immigration and Customs Enforcement, Office of the Chief Counsel, 31

Hopkins Plaza, Suite 1600, Baltimore, MD 21201 by hand delivery.

______April 12, 2012 (Signature) (Date)

AILA Doc. No 17031762. (Posted 3/17/17)