U.S.

Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals
Office ofthe Clerk
5107 leesburg Pike, Suite 2000
Falls Church, Virginia 22041

DHS/ICE Office of Chief Counsel - DAL

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

Name: SANTILLAN, DIMAS

A 076-329-291
Date of this notice: 3/9/2016

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

Don,u_ C

l1/VL)

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Guendelsberger, John
Grant, Edward R.
O'Leary, Brian M.

Userteam: Docket

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Cite as: Dimas Santillan, A076 329 2911 (BIA March 9, 2016)

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Crofts, Justin
Petty & Stewart, PLLC
PO Box 540665
Dallas, TX 75354

U.S. Department of Justice

Decision of the Board of Immigration Appeals

Executive Office for Immigration Review

, Falls Church, Virginia 22041

File: A076 329 291 -Dallas, TX

Date:

MAR - S 2016

In re: DIMAS SANTILLAN

APPEAL
ON BEHALF OF RESPONDENT: Justin M. Crofts, Esquire
APPLICATION: Reopening
The respondent appeals the Immigration Judge's April 8, 2015, decision denying the
respondent's and the Department of Homeland Security's joint motion to reopen and terminate
proceedings without prejudice to allow the respondent to pursue adjustment of status. We will
sustain the appeal, grant the motion to reopen, and terminate proceedings without prejudice.
In view of the parties' agreement, sua sponte reopening of the proceedings is warranted.
See Matter of Yewondwosen, 21 I&N Dec. 1025, 1026 (BIA 1997) (discussing the important role
the parties play in the proceedings and noting that "their agreement on an issue or proper course
of action should, in most instances, be determinative").
ORDER: The appeal is sustained, proceedings are reopened and terminated without
prejudice and the record is returned to the Immigration Court without further action.

Cite as: Dimas Santillan, A076 329 2911 (BIA March 9, 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
SANTILLAN, DIMAS

FILE A 076-329-291

UNABLE TO FORWARD - NO ADDRESS PROVIDED

DATE: May 13, 2015

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
BOARD OF IMMIGRATION APPEALS
MUST BE MAILED TO:
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.
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:
x:

THER:

IMMIGRATION COURT
1100 COMMERCE ST., SUITE 1060
DALLAS, TX 75242

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CC: ARRINGTON, SAUNDRA H.

8101 NORTH STEMMONS FREEWAY
DALLAS, TX, 752470000

COURT CLd
IMMIGRATION COURT

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Petty & Stewart, PLLC

Stewart, Daniel
PO Box 540665
Dallas, TX 75354

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UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
DALLAS, TEXAS
IN THE MATTER OF:
SANTILLAN, Dimas
RESPONDENT

IN REMOVAL PROCEEDINGS
A 076-329-291

CHARGE:

Section 212(a)(6)(A)(i) of the Immigration and Nationality Act, as

amended, in that you are an alien present in the United States
without being admitted or paroled, or who arrived in the United
States at any time or place other than as designated by the Attorney
General.

APPLICA 'T'tQNS:

Joint Motion to Reopen and Terminate Proceedings

ON BEHALF OF THE DEPARTMENT
OF HOMELAND SECURITY:
Paul B. Hunker III, Esq.
Chief Counsel - DRS/ICE
125 E. John Carpenter Freeway, Suite 500
Irving, TX 75062

ON BEHALF OF THE RESPONDENT:

Daniel Stewart, Esq.
Petty & Steward, PLLC
PO Box 540665
Dallas, TX 75354

WRITTEN DECISION OF THE IMMIGRATION JUDGE

I.

Facts and Procedural History

The Respondent is a native and a citizen of Mexico. Exhibit 1. He arrived in the United

States on April 20, 1997, at or near Laredo, Texas. Id. At the time of his arrival, he was not
admitted or paroled by an immigration officer. Id.
After his arrival, the Respondent filed for adjustment of status based on

an

approved I-

130 petition by his U.S. citizen spouse. See Form 1-213. However, that application was denied
because he failed to appear for a scheduled interview with the United States Citizenship and
Immigration Services (USCIS) on December 16, 2005. Id. Consequently, on February 8, 2006,

Page I of 4

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)
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the Department of Homeland Security (DHS or Government) served the Respondent with a
Notice to Appear (NTA) charging him with removability under section 21 2(a)(6)(A)(i) of the
Immigration and Nationality Act (INA or Act). Exhibit 1 . The NTA was filed with the Dallas

On March 30, 2006, a Notice of Hearing was mailed to the Respondent indicating that he
had a hearing scheduled for June 6, 2006 at 8:30 a.m. However, the Respondent did not appear
at the hearing. As a result, he was ordered removed in absentia pursuant to section 240(b)(5)(A)
of the Act. On January 7, 2015, the Respondent filed a motion to reopen and terminate
proceedings to allow the Respondent to refile for adjustment of status. The Government has
joined the motion.
II.

Applicable Law & Analysis

A party is limited to one motion to reopen and that motion must be filed no later than 90
days after the date on which the final administrative decision was rendered in the proceedings
sought to be reopened. 8 C.F.R. 1 003.23(b)(l). A motion to reopen does not have to conform
to the above time and numerical limitations where the motion is agreed upon by all parties and
jointly filed. See 8 C.F.R. 1003.23(b)(4)(iv). Thus, although the Respondent's motion was
filed well beyond the filing deadline, the motion is not time barred as it was jointly filed and
agreed upon by both parties.
The regulations provide that a motion to reopen may not be granted unless the moving
party demonstrates that the evidence sought to be offered is material, previously unavailable, and
could not have been discovered or presented at the original hearing. 8 C.F.R. 1 003.23(b)(3).
A motion to reopen must also state the new facts to be proven at the reopened proceeding,
supported by affidavits or other evidentiary material. Id. Any motion to reopen for the purpose

Page 2 of 4

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Immigration Court on March 27, 2006.

of acting on an application for relief must be accompanied by the appropriate application for
relief and all supporting documents. Id A motion to reopen will not be granted unless the alien
establishes a prima facie case of eligibility for the underlying relief. See INS v. Abudu, 485 U.S.

The Respondent seeks reopening in order to apply for adjustment of status. However, he
has failed to show that this relief was not available at his previous hearing on June 6, 2006.
According to the parties, the 1-130 petition filed on his behalf was approved on November 3,
1998. See Motion to Reopen. Thus, the evidence could have been presented at the prior hearing.
Additionally, the Court does not find that the regulations nor case law excuse the Respondent
from complying with the requirements of 8 C.F.R. 1003.23(b)(3) by simply filing a joint
motion. The Board of Immigration Appeals has held that the language of the regulations
"specifically precludes favorable action in cases involving certain evidentiary and procedural
shortcomings," such as the failure to show that evidence offered "is material and was not
available and could not have been discovered or presented at the former hearing." Matter of
Yewondwosen, 21 l&N Dec. I 025, 1026 (BIA 1997) (emphasis added).

Therefore, the

Respondent's motion must be denied for failure to comply with the of requirements of 8 C.F.R.
I 003.23(b)(3).
Finally, the Court declines to exercise its power to reopen sua sponte, as the Respondent
has not demonstrated that exceptional circumstances exist that warrants a favorable exercise of
discretion. See Matter of G-D-, 22 l&N Dec. at 1133-34; Matter of J-J-, 21 l&N Dec. 976, 984
(BIA 1997) (noting that although the Court may sua sponte reopen proceedings, that authority
"is not meant to be used as a general cure for filing defects or to otherwise circumvent
regulations, where enforcing them might result in hardship.").

Page 3 of 4

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94, 104 (1988).

,.

Accordingly, the following order will be entered.

ORDER
IT IS HEREBY ORDERED that the Respondent's

Date: '-/ f
Dallas, Tex&s

fsl

Deitrich H. Sims
Immigration Judge

Page 4 of 4

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Terminate Proceedings is DENIED.

RE:

File:

SANTILLAN, DIMAS
A076-329-291

Other

Cl

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CERTI ICTE OF SERVICE

THIS DOCUMENT WAS SERVED BY: MAIL M)
PERSON VICE (P)
/o Custo' 1 Officer c.;?'iLiEN's ATT/REP
TO: [ J AL IE )
,
BY: COURT STAFF
DATE:
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Attachments:']
EOIR-33 [] EOIR-28-[-] lS-e-rv_ i_'c_e_sL-is
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