U.S.

Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals
Office of the Clerk
5/07 Leesburg Pike, Suite 2000
Falls Church. Virginia 22041

OHS/ICE Office of Chief Counsel - CHL

5701 Executive Ctr Dr., Ste 300
Charlotte, NC 28212

Name: MARTINEZ-REYES, SANDRA GA...

A 206-459-135

Date of this notice: 9/28/2016

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

DOYUtL c

t1AA)

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Adkins-Blanch, Charles K.
Grant, Edward R.
Mann, Ana

Usertea m: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/
Cite as: Sandra Gabriela Martinez-Reyes, A206 459 135 (BIA Sept. 28, 2016)

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Madrid, Juan F ., Esq.

Law Offices of Juan F. Madrid P.A.
14 N.E. 1st Ave Suite 900
Miami, FL 33132

U.S. Depa,;tment of Justice

Decision ofthe Board of Immigration Appeals

Executive Office for Immigration Review

'Falls Church, Virginia 22041

File: A206 459 135 - Charlotte, NC

Date:

In re: SANDRA GABRIELA MARTINEZ-REYES

SEP 2 8 2016

APPEAL
ON BEHALF OF RESPONDENT: Juan F. Madrid, Esquire
APPLICATION: Reconsideration; consolidation

The respondent has appealed from the Immigration Judge's decision dated July 8, 2015,
denying her motion to reconsider and to consolidate her case with that of her husband. The
appeal will be sustained, proceedings will be reopened, and the record will be remanded.
We review an Immigration Judge's findings of fact for clear error, but questions of law,
discretion, and judgment, and all other issues in appeals, are reviewed de novo. 8 C.F.R.
1003. l(d)(3)(i), (ii).
The Board possesses discretion to reopen or reconsider cases sua sponte. See 8 C.F.R.
I003.2(a);
see also Matter of G-D-, 22 I&N Dec. 1132 (BIA 1999); Matter of J-J-, 21 l&N

Dec. 976 (BIA 1997). Based on the totality of the circumstances in this case, we will grant the
respondent's motion to reopen to allow her to pursue relief from removal pursuant to our sua
sponte authority. See 8 C.F.R. I003.2(a); see also Matter of J-J-, supra. Accordingly, the
following order will be entered.
ORDER: The appeal is sustained, the in absentia order of removal is rescinded, the
proceedings are reopened, and the record is remanded for further proceedings consistent with the
foregoing opinion.
,I'

Cite as: Sandra Gabriela Martinez-Reyes, A206 459 135 (BIA Sept. 28, 2016)

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IN REMOVAL PROCEEDINGS

'

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UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
5701 EXECUTIVE CENTER DR. #400
CHARLOTTE, NC 28212

FILE A 206-459-135
IN THE MATTER OF
MARTINEZ-REYES, SANDRA GABRIELA

DATE: Jul 9, 2015

UNABLE TO FORWARD - NO ADDRESS PROVIDED

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
MUST BE MAILED TO:
BOARD OF IMMIGRATION APPEALS
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:
IMMIGRATION COURT
5701 EXECUTIVE CENTER DR. #400
CHARLOTTE, NC 28212

L__OTHER:

ydtuJcl

CC: LISA DURANT., ESQ

5701 EXECUTIVE CENTER DR, 300
CHARLOTTE, NC, 28212
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COURT
IMMIGRATION WRT

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Immigrant & Refugee Appellate Center, LLC | www.irac.net

Law Offices of Juan F. Madrid P.A.

Madrid, Juan F
14 N.E. 1st Ave Suite 900
Miami, FL 33132

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UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
CHARLOTTE, NORTH CAROLINA

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SANDRA GABRIELA MARTINEZ

REYES,
Respondent.

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IN REMOVAL PROCEEDINGS
File No. 206-459-135
ORDER TO REOPEN
Date: JUNE 26, 2015

COMES NOW the Court upon review and consideration of Respondent's Motion to
Reconsider these proceedings, and enters the fo,ll. qwing ORDERS:
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The motion is GRANTED and the case is adjourne,d to individual/ master calendar
'

hearing on ______ at ____ am/ pm.

The motion is DENIED. 8 C.F.R. 1003.23(b)(2) per attached minute ordef,
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A telephonic appearance of counsel [ ] :fs: [ ] i' not auth(?zd for the next hearing only.

Respondent shall file. all [ ] applications for relief and [ ] supporting documents no later
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or thefmay be deemed waived and abandoned by the Court pursu8tlt to
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8 C.F.R. 1003.3 l(c).

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7 V. STUART 9QUCH
Unite S!tes immigration Judge
Charlotte, North Carolina

CERTIFICATE OF SERVICE
THIS DOCUMENT WAS SERVED BYL {MiJ!tERSONAL SERVICE (P) _ ..

TO: [ ] ALIEN L ] ALIEN c/o COffi

Alien's
REP f:l.. ;
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BY: COURT STAFF-- "r!!!:ltN------DATE:
Attachments: [ ] EOIR-33 [ ] EOIR-28 [ ] Legal Services is
] Other

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Immigrant & Refugee Appellate Center, LLC | www.irac.net

IN THE MATTER OF

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UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
CHARLOTTE, NORTH CAROLINA
IN THE MATTER OF

Respondent.

IN REMOVAL PROCEEDINGS
File No. A 206-459-135
MINUTE ORDER
July 8, 2015

NOW COMES the Court upon review and consideration of Respondent's Motion to
Reconsider and Consolidation of Proceedings filed on June 26, 2015, and the Department of
Homeland Security's (OHS) response in opposition filed on July 1, 2015. The Court finds the
following:
I.
That at a master calendar hearing held on April 15, 2015, Respondent appeared pro se and
admitted that, inter aliaJ she last entered the United States on May 27, 2014. Exhibit 1. Based upon
Respondent's statement expressing her fear of return to Mexico and a prior credible fear
determination by an asylum officer, the Court provided her with a Form 1-589 application and
instructed her to file it at the next hearing on May 27, 2015 for it to be timely filed. Id.; INA
208(a)(2)(8); 8 C.F.R. 208.4(a)(2). The Court specifically advised Respondent that failure to file
her applications for relief would result in waiver under 8 C.F.R. 1003.3 l(c).
2.
That at a master calendar hearing on May 27, 2015, Respondent appeared pro se and
admitted the factual allegations contained in the Notice to Appear (NTA) issued on June 10, 2014.
Exhibit t. The Court sustained the charge ofremovability under INA 212(a)(7)(A)(i)(I) and
designated Mexico as the country of removal. INA 240(c)(3)(A). 1 Respondent but did not file the
Form I-589 application as directed. The Court found Respondent waived and abandoned her
opportunity to file all applications for relief. 8 C.F.R. I 003.31(c). The Court determined
Respondent was not eligible for post-conclusion voluntary departure, and ordered her removed to
Mexico. 8 C.F.R. 1240.26(c). The Court explained to Respondent her right to appeal its
determination of her waiver of applications for relief and order of removal to the Board of
Immigration Appeals no later than June 26, 2015. 8 C.F.R. I003.38(b).
3.

That Respondent failed to file a notice of appeal by June 26, 2015.

In immigration proceedings, it is important for parties to comply with reasonable requests

from the Immigration Judge. Matter of Interiano-Rosa, 25 I&N Dec. 264, 266 (BIA 2010).
Immigration Judges have broad discretion to conduct and control immigration proceedings and to
admit and consider relevant and probative evidence. Id. at 265 (citations omitted). "If an
application or document is not filed within the time set by the Immigration Judge, the opportunity to
1

The record reflects that Respondent resolved the NT A before another Immigration Judge in Eloy, Arizona on July 2,
2014. Exhibit I.

Immigrant & Refugee Appellate Center, LLC | www.irac.net

SANDRA GABRIELA MARTINEZ

REYES,

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file that application or document shall be deemed waived." 8 C.F.R. 1003.31(c) (emphasis added);
Matter o/Shanu, 23 I & N Dec. 754 (BIA 2005) (citing Matter of R-R-, 20 I&N Dec. 547, 549 (BIA
1992)). An alien does not have a legal entitlement to discretionary relief. Obioha v. Gonzales, 431
F.3d 400,409 (4th Cir. 2005).

The Court finds that insofar as Respondent's instant motion to reconsider can be construed as
a motion to reopen,she is unable to show such action is warranted. "A motion to reopen for the
purpose of providing the alien an opportunity to apply for any form of discretionary relief will not be
granted if it appears that the alien's right to apply for such relief was fully explained to him or her by
the Immigration Judge and an opportunity to apply therefore was afforded at the hearing,unless the
relief sought on the basis of circumstances that have arisen subsequent to the hearing." 8 C.F.R.
I 003.23(b)(3) (emphasis added). "Motions to reopen are disfavored because every delay works to
the advantage of the deportable alien who wishes merely to remain in the United States.'' Barry v.
Gonzales, 445 F.3d 741,744-45 (4th Cir. 2006) (citing Stewart v. Immigration & Naturalization
Serv., 181 F.3d 587,596 (4th Cir.1999)) (internal citations omitted); see also Matter of Coleho, 20
I&N Dec. 464,472 (BIA 1992). A respondent who seeks to reopen her case must establish that the
ultimate relief she seeks would be merited as a matter of discretion. Id.
The Court finds that the respondent has failed to demonstrate a valid basis to set aside its
determination she waived the opportunity to file applications for relief, to include material evidence
of changed country conditions. INA 240(c)(7)(B) and (C)(ii); 8 C.F.R. 1003.23(b)(4). The
Court has discretion to deny the motion to reopen the respondent's case pursuant to 8 C.F.R.
1003.23(b)(3), and hereby exercises that discretion.
For the foregoing reasons,the Court finds the respondent's motion to reconsider has no
merit. Accordingly, the Court enters the following:
ORDERS
IT IS HEREBY ORDERD that Respondent's motion to reconsider is DENIED.
IT IS FURTHER ORDERED that Respondent's motion to consolidate her case is DENIED as
moot.2

Date

Vy:f??fG

? V. STUART COUCH
United States Immigration Judge
Charlotte,North Carolina

The respondent has not filed any evidence that demonstrates she is lawfully married to Darvin Daniel Perez Sanchez,
therefore her motion to consolidate the cases is without good cause. See EOIR Practice Manual, paragraph 4.2l(a); 8
C.F.R. 1003.18.

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The Court finds that the respondent waived her opportunity to file applications for relief in
this case on May 27, 2015. 8 C.F.R. 1003.3l (c). The Court finds that Respondent's instant
motion does not cite to any error of fact or law in the Court's prior order of May 27,2015 finding
abandonment of her opportunity to file applications for relief. INA 240(c)(6)(C); 8 C.F.R.
1003.23(b)(2).