U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office of the Clerk

5107 Leesburg Pike, Suite 2000

Falls Church, Virginia 22041

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Thapa,Chanda,Esq. OHS/ICE Office of Chief Counsel - NYC
Chhetry & Associates, P.C. 26 Federal Plaza,11th Floor
363 7th Avenue New York,NY 10278
Suite 1500
New York, NY 10001

Name: HU, MINGYUE A 205-625-592

Date of this notice: 5/19/2017

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

Sincerely,

Cynthia L. Crosby
Acting Chief Clerk

Enclosure

Panel Members:
Adkins-Blanch, Charles K.
Grant, Edward R.
Mann, Ana

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/

Cite as: Mingyue Hu, A205 625 592 (BIA May 19, 2017)
I E.S. Department of Justice Decision of the Board of Immigration Appeals
Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A205 625 592 - New York, NY Date:

In re: MINGYUE HU
MAY 19 2017

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IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Chanda Thapa, Esquire

APPLICATION: Reopening

The respondent, a native and citizen of the People's Republic of China, appealed the
Immigration Judge's decision dated February 3, 2016, which denied her motion to reopen removal
proceedings. The respondent had been ordered removed in absentia on Decembel'. 8, 2015. The
record will be remanded.

We review an Immigration Judge's findings of fact for clear error; but questions of law,
discretion, judgment, and all other issues in appeals are reviewed de novo. 8 C.F.R.
1003.l(d)(3}(i}, (ii).

On appeal, the respondent contends that, on December 8, 2015, she was actually waiting
outside the courtroom, and her attorney was in a different courtroom with another Immigration
Judge at the time her hearing was scheduled to start (Respondent's Br. at 3-4). According to the
Immigration Judge's removal order, the respondent appeared with her attorney at 9:40 a.m. on the
day of her hearing, instead of 9:00 a.m. (I.J. Order, Dec. 8, 2015). She claims that her failure to
timely appear for her hearing was caused by unforeseen delays in the earlier hearing attended by
her attorney (Respondent's Br. at 4). She also contends that she arrived at the chambers while the
Immigration Judge was still on the bench; however, the Department of Homeland Security's
attorney was not in the courtroom (Respondent's Br. at 4). According to the record, the
Immigration Judge provided the respondent's attorney with a copy of the removal order at
9:40 a.m. (l.J. at 2; l.J. Order, Dec. 8, 2015).

An alien who does not appear for a hearing is required to establish that such failure was caused
by exceptional circumstances or lack of notice. However, an alien who merely appears late for a
hearing may be found to not have failed to appear and, therefore, need not establish that either of
these reasons apply. See Abu Hasirah v. Department ofHomeland Security, 478 F.3d 474 (2d Cir.
2007) (court held an alien's brief and unintentional tardiness to the removal proceedings did not
constitute a failure to appear within the meaning of section 240(b)(5) of the Immigration and
Nationality Act, 8 U.S.C. 1229a(b)(5)).

Upon a review of the record, we will sustain the appeal, reopen the case, and remand the record
to the Immigration Judge. See Abu Hasirah v. Department of Homeland Security, supra.
Accordingly, the following order will be entered.

Cite as: Mingyue Hu, A205 625 592 (BIA May 19, 2017)
A2o5. 625 592

ORDER: The respondent's appeal is sustained; the record is reopened and remanded for
further proceedings consistent with the foregoing opinion and for the entry of a new decision.

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2
Cite as: Mingyue Hu, A205 625 592 (BIA May 19, 2017)
 / J

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
NEW YORK, NEW YORK

---------------------------------------------){

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In the Matter of Feb 3, 2016

HU, Mingyue, REMOVAL PROCEEDINGS

A205-625-592,

Respondent.
---------------------------------------------- ){
On behalf of Respondent On behalf of Dep't of Homeland Security
Law Offices of Guang Jun Gao, LLP S. Osmanovic, Esq.
36-44 Main Street, 3L Assist. Chief Counsel
Flushing, NY 11354 New York District, ICE

DECISION ON RESPONDENT'S REQUEST TO RESCIND

IN ABSENTIA ORDER AND REOPEN PROCEEDINGS

The respondent filed a motion on Dec 15, 2015 requesting the court to rescind the in
absentia removal order and reopen the matter. The Dep't of Homeland Security ("DHS"), Bureau
of Immigration and Customs Enforcement ("ICE") submitted on Dec 29, 2015 written opposition
the motion. For the reasons stated herein, the respondent's motion will be denied without
prejudice.

PROCEDURAL HISTORY
The respondent was placed in removal proceedings service of a Notice to Appear (NTA)
on Feb 15, 2013. Exh. 1, Certificate o/Service. The respondent personally appeared on May 1,
2013 and admitted to the truth of the factual allegations in paragraphs 1 thru 4 and conceded
removal from the US, as charged in the NTA.

The respondent sought the affirmative relief of asylum and withholding of removal under
the INA and CAT based upon the filing of a Form I-589 with the OHS Center Director on Oct
23, 2012 in St Albans, VT. Exh. 2.

On May 1, 2013 in open court the respondent was provided with oral and written notice
of Hearing that her case was set for Dec 8, 2015 and that she was required to submit any and all
supporting documents, motions, witness lists, background data to the court by close of business
on Nov 2, 2015. See Court's Notice ofHearing date May 1, 2013.

On Dec 2, 2015 the court granted respondent's motion for substitution of attorney and
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,.

noted that respondent's case was set for a merits hearing on Dec 8, 2015 at 9; 00 am. See Court
Order dated Dec 2, 2015.

The respondent asserted that she was delayed and appeared at 9:45 am on the date of the
hearing.

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As correctly pointed out by the DHS-ICE attorney in her opposition, the court was
promptly opened at 9:00 and the only persons that entered the court room were the independent
language interpreter and the Assistant Chief Counsel. The court waited until 9:30 for
respondent's presence. The court requested the language interpreter to check both the small
waiting room outside the court and the large waiting room noted on the Notice of Hearing. The
interpreter returned about five minutes after the half hour to indicate that no one responded to the
respondent's name when it was called out in both waiting rooms. The court move forward in the
absence of the respondent and issued an in absentia order and dismissed the presence of the
interpreter. Assistant Chief Counsel was instructed to return at 10:30 am for the next case on the
hearing docket.

At 9:40 am both respondent and counsel appeared and the court personally served
respondent a copy of the in absentia order and advised respondent that a motion to rescind would
be required as the in court would be engaged in another hearing at 10:30 am.

DISCUSSION
This motion is fatally deficient. The motion fails to contain an affidavit from the
respondent. It is noted that attorney statements that are not based upon personal knowledge are a
nullity. See United States v. Bosurgi, 530 F.2d 1105 (2d Cir. 1975); Peter Pan Fabrics, Inc. v.

Dixon Textile Corp., 280 F.2d at 804 (2d Cir. 1960) and Matter ofRamirez-Sanchez, 17 I&N
Dec. 503 (BIA 1980).

In addition, the respondent cites no law or authority in support of her motion. The
respondent has also failed to show exceptional circumstances for failing to respond to the
interpreter seeking her whereabouts prior to the issuance of the in absentia order.

The respondent fails to explain in her motion why she did not inform the court of her
presence and that she was waiting for her legal counsel when the court opened the doors to
conduct business. The respondent also fails to reasonable explain why she did not respond to her
name when it was called out by the interpreter before the court entered the in absentia order.

Further, the respondent fails to provide immediate relative petition with proof of filing
(nor the filing fee if the motion is made on the basis of eligibility for new relief).

What is more puzzling is why the respondent did not attempt to discuss this matter with
the DHS-ICE Chief Counsel's Office in order to reach a favorable agreement to present a joint
motion to the court. The court makes no indication at this time regarding the merits of such a
motion.
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Accordingly, the following order will be entered:

ORDER

IT IS ORDERED that the respondent's motion to reopen proceedings is denied without

prejudice solely with respect to her claim of eligibility for a visa based upon marriage to a US

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dtizen provided the respondent files with the court within twenty (20) business days of receipt of
this order a motion with respondent's affidavit of her failure to answer the interpreter, competed
Form 1-130 and all supporting documents with filing receipt showing payment of the petition.

IT IS FURTHER ORDERED should respondent fail to file the above referenced

motion in a timely manner, then respondent's motion is denied in its entirety.