U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office of the Clerk

5/07 Leesburg Pike, Suite 2000

Falls Church. Virg;n;a 2204/

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Ugbana, Matthew C DHS/ICE Office of Chief Counsel - HOU
Immigration Law firm 126 Northpoint Drive, Suite 2020
8211 Long point Road,suite C Houston, TX 77060
Houston, TX 77055

Name: VILLATORO, CRISTOBAL A 077-751-555

Date of this notice: 1/31/2017

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

Sincerely,

DOWUL Ca.AA)
Donna Carr
Chief Clerk

Enclosure

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

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/

Cite as: Cristobal Villatoro, A077 751 555 (BIA Jan. 31, 2017)
U.S. Department of Justice Decision of the Board of Immigration Appeals
Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A077 751 555 - Houston, TX Date:

JAN 3 1 2017
In re: CRISTOBAL VILLATORO

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IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Matthew C. Ugbana, Esquire

APPLICATION: Reopening

The respondent, a native and citizen of El Salvador, appeared before an Immigration Judge
on January 21, 2009. The Immigration Judge noted that the respondent was granted
administrative Temporary Protected Status (TPS). However, rather than administratively closing
the proceedings, the Immigration Judge issued an order permitting the respondent to depart the
United States voluntarily by May 21, 2009. On June 24, 2014, the respondent filed a motion to
reopen, and he appeals from the Immigration Judge's decision dated March 2, 2016, denying the
motion. The appeal will be sustained.

. The Board defers to the factual findings of an Immigration Judge, unless they are clearly
erroneous, but it retains independent judgment and discretion, subject to applicable governing
standards, regarding questions of law and the application of a particular standard of law to those
facts. 8 C.F.R. 1003.l(d)(3) (i), (ii).

On appeal, the respondent argues that he established an exceptional situation to reopen these
proceedings sua sponte. See Matter of J-J-, 21 I&N Dec. 976 (BIA 1997) (holding that the
Board's and the Immigration Judge's power to reopen or reconsider cases sua sponte is limited to
exceptional situations and is not meant to cure filing defects or circumvent the regulations, where
enforcing them might result in hardship). The respondent states that he afraid to return to El
Salvador and that he is the beneficiary of a 2009 approved visa petition (Form 1-130) submitted
on his behalf by his brother which is current. He further states that he has resided in the United
States for 16 years, has citizen children, has significant equities in the United States, and is
eligible to adjust his status to that of a lawful permanent resident at a reopened hearing under
section 245(i) of the Immigration and Nationality Act, 8 U.S.C. 1245(i). In addition, the
respondent's grant of TPS in 2009 may have accounted for his 5-year delay in filing his motion
to reopen (I.J. at 2-3). In light of the foregoing, we will reopen these proceedings sua sponte.

Cite as: Cristobal Villatoro, A077 751 555 (BIA Jan. 31, 2017)
A077 751 555

Accordingly, the following order will be entered.

ORDER: The appeal is sustained, and these proceedings are reopened and remanded for
further proceedings consistent with the foregoing opinion.

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FOR

2
Cite as: Cristobal Villatoro, A077 751 555 (BIA Jan. 31, 2017)
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UNITED STATES DEPARTMENT OF JUSTICE

t EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
'
IMMIGRATION COURT
600 JEFFERSON, SUITE 900

.,
HOUSTON, TX 77002

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Eddison Titus
8211 Long Point Road
Houston, Texas 77055

IN THE MATTER OF FILE A 077-751-555 DATE: Mar 2, 2016

VILLATORO, CRISTOBAL

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 DECIS.ION ....
SEE THE ENCLOSED FORMS AND INSTRUCTIONS FOR PROPERLY PREPARING YOUR APPEAL.
YOUR NOTICE OF APPEAL, ATTACHED DOCUMENTS, AND FEE OR FEE WAIVER REQUE 1 .

MUST BE MAILED TO: BOARD OF IMMIGRATION APPEALS

OFFICE OF THE CLERK
5107 Leesburg Pike, Suite 2000
FALLS CHURCH, VA 22041
i
1;ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE AS THE RESULT
OF YOUR FAILURE TO APPEAR AT YOUR SCHEDULE.P DEPORTATION OR REMOVAL HRIN.G.
THIS DECISION IS IfNJ.\!';::,-;,UNLESS A MOTION TO. -EOPEl';J3 FILED IN ACCORDANCE
WITH SECTION 242B{_ . (3'J OF THE IMMIGRATION AND NATIQALITY ACT, 8 U.S. C.
-SECTION 1252JcJ (3} IN' DEPORTATION PROCEEDINGS OR SECTION 240(c) (6) ,
8 u.s.c. SECON 1229a(c) (6) IN REMOVAL PREDINGS. IF YOU FILE A MOTION
TO REOPEN, YOUR MOTION MUST BE FILED WITH s- ,,;.ouRT:

IMMIGRATION COURT
600 JEFFERSON, SUI'I:E
. 900
HOUSTON, TX 77002'. -

THER: riftY

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 UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
HOUSTON, TEXAS

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CRISTOBAL VILLATORO, ) FILE NO. A077-751-555
)
RESPONDENT )

ORDER DENYING RESPONDENT'S MOTION TO REOPEN

Came on for consideration the Respondent's Motion to Reopen. The Court, after

considering the Motion, enters the following order DENYING the motion.

Respondent claims in his Motion to Reopen that this case should be reopened sua sponte

because he had experienced changed personal circumstances, because he wants to adjust his status,

because of extraordinary changes in the law, citing Suazo v. Holder, and because of humanitarian

reasons.

Respondent does not dearly identify his changed personal circumstances. It appears that

he may be referring to an approved 1-130 petition filed by his U.S.C. brother. These are not

changes in conditions in Respondent's home country of El Salvador, and thus are not an allowable

basis for reopening. C.f. Matter of C-W-L-, 24 I&N Dec. 346 (BIA 2007)(denying untimely

motion to reopen where changed "personal circumstances," not changed country conditions were

alleged). See also Wei v. Mukasey, 545 F.3d 1248, 1255-57 (10th Cir. 2008)(once there is a final

order, reopening can only occur through changed country conditions, not changed personal

circumstances). Particularly on point are the holdings in Liu v. Att'y Gen. of the U.S., 555 F.3d

145 (3d Cir. 2009)(where asylum applicant asserted the birth of two children in the U.S., motion to

reopen not valid unless filed within 90 days or changed country conditions also shown), and Chen

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v. Gonzales, 498 F.3d 758 (7th Cir. 2007)(applicant's subsequent marriage and birth of 2 children

cannot be a basis to reopen for fear of sterilization in China because the change contemplated

relates to changed country conditions).

The other reasons cited by Respondent are not sufficient to warrant reopening sua sponte.

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This Court has discretion under its sua sponte authority to reopen any case in which the Court has

made a decision, unless jurisdiction in the case is vested in the Board. 8 C.F.R. 1003.23(b)(l).

Sua sponte authority is to be invoked sparingly, not as a general remedy for any hardships created

by enforcement of the time and number limits in the motions regulations, but as an extraordinary

remedy reserved for truly exceptional situations. Matter of G-D-, 22 I&N Dec. 1132, 1133-34

(BIA 1999). Sua sponte authority is to be used in unique situations where it would serve the

interest of justice. Matter of X-G-W-, 22 I&N Dec. 71, 73 (BIA 1998). It is Respondent's

burden to persuade the Court that his circumstances are truly exceptional before it will intervene.

Matter of Beckford, 22 I&N Dec. 1216, 1218 (BIA 2000); G-D-, 22 I&N Dec. at 1134. The Court

does not find that Respondent presents exceptional circumstances, nor circumstances raising

unusual humanitarian concerns.

Respondent's reliance on Suazo v. Holder, the citation for same not being given but the

case appearing to be actually Flores v. USCIS, 718 F.3d 548 (6th Cir. 2013), also does not

supporting reopening. See generally Serbellon v. Holder, 539 Fed. Appx. 640 (2013), and

Donnee v. Holder, 750 F.3d 951 (1st Cir. 2014). This Court previousy entered a final order of

removal.

Even if the Court's analysis is otherwise incorrect, there is another independent reason to

deny the Motion to Reopen. The Court notes that the approval of the 1-130 occurred on April 15,

2009. Respondent did not take any action until filing the Motion to Reopen on June 24, 2014.

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 (

The failure of Respondent to seek to reopen for over five years means that Respondent did not act

with diligence, and reopening is properly denied on that basis. C.f. Iturribarria v. INS, 321 F.3d

889, 894 (9th Cir.2003)(deadline can be equitably tolled when a petitioner is prevented from filing

because of deception, fraud, or error, as long as the petitioner acts with diligence). See also

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Avagyan v. Holder, 646 F.3d 672, 674 (9th Cir.201 l)(equitable tolling of the filing deadline is

available where petitioner establishes that she was prevented from filing because of deception,

fraud or error, and acted with due diligence in discovering such circumstances). Periods of

unaccounted-for delay reveal a lack of diligence. Mahmood v. Gonzales, 427 F.3d 248, 252 (3d

Cir. 2005).

In summary, Respondent has not shown a valid basis for reopening.

It therefore is ORDERED that Respondent's Motion to Reopen is DENIED.

--.
Immigration Judge ?
Chris A. Brisack

Date: March 2, 2016

cc: all parties

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