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

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

Wynn-Stewart, Angela OHS/ICE Office of Chief Counsel - ATL
Wynn Law Office, LLC 180 Ted Turner Dr., SW, Ste 332
P.O. Box 877 Atlanta, GA 30303
Flagler Beach, FL 32136

Name: V -M , G ... A 957

Date of this notice: 9/28/2017

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

Sincerely,

Cynthia L. Crosby
Deputy Chief Clerk

Enclosure

Panel Members:
Liebowitz, Ellen C
Creppy, Michael J.
Mullane, Hugh G.

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index

Cite as: G-M-V-M-, AXXX XXX 957 (BIA Sept. 28, 2017)
U.S. Department of Justice Decision of the Board of Immigration Appeals
Exeutive
-
Office for Immigration Review
\

Falls fhurch, Virginia 22041

File: 957 - Atlanta, GA Date:

SEP 28 1817
In re: G M V -M

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

IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Angela Wynn-Stewart, Esquire

ON BEHALF OF OHS: Kelley Fowler

Assistant Chief Counsel

APPLICATION: Motion to reopen

The respondent, a native and citizen of Guatemala, appeals the Immigration Judge's
March 31, 2017, decision denying her motion to reopen removal proceedings. Section 240(c)(7)
of the Immigration and Nationality Act, 8 U.S.C. 1229a(c)(7) (2017); 8 C.F.R. 1003.23(b)(l),
(3) (2017). The Immigration Judge previously issued a removal order dated February 28, 2017.
In this decision, the Immigration Judge found the respondent's application for asylum, withholding
of removal, and protection under the Convention Against Torture abandoned for failing to file the
application within the time deadline set by the Immigration Judge. The Department of Homeland
Security ("OHS") opposes the respondent's appeal. The appeal will be sustained, and the record
will be remanded.

We review findings of fact determined by an Immigration Judge, including credibility findings,

under a "clearly erroneous" standard. 8 C.F.R. 1003.l(d)(3)(i). We review questions of law,
discretion, and judgment, and all other issues in appeals from decisions of Immigration Judges de
novo. 8 C.F.R 1003.l(d)(3)(ii).

The Immigration Judge determined that the Immigration Court lacked jurisdiction to hear the
respondent's motion to reopen as she had failed to pay the requisite filing fee, and the exceptions
for filing such a fee were not applicable (U at 1). According to 8 C.F.R. 1003.24(b)(2)(i), no
filing fee is required for a motion to reopen that is based exclusively on an application for relief
that does not require a fee. There is no filing fee requirement for applications for asylum,
withholding of removal, and protection under the Convention Against Torture. See 8 C.F.R.
103.7, 1003.24(a).

As the underlying application for relief in this matter requires no filing fee, the Immigration
Court had jurisdiction to consider the motion to reopen. The OHS contends that the provisions of
8 C.F.R. 1003.24(b)(2)(i) are not applicable as the respondent is seeking to extend the filing
deadline for her asylum application and, therefore, the motion does not exclusively concern an
application that does not require a filing fee (OHS Br. at 1 n.l). We are unpersuaded by thi
argument. The question raised in the motion to reopen is whether the Immigration Court received
the respondent's asylum application prior to the deadline set by the Immigration Judge, and does
not argue for an extension of the deadline. See Motion To Reopen (March 30, 2017), items 3-7.
Cite as: G-M-V-M-, AXXX XXX 957 (BIA Sept. 28, 2017)
- 957

As the Immigration Judge did not reach the merits of the motion to reopen, we will remand for
further proceedings (U at 1; Respondent's Br. at 8, item F; OHS Br. at 2). The Board, by issuing
this remand, expresses no opinion on the final outcome of this matter.

Accordingly, the following orders will be entered.

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

ORDER: The respondent's appeal is sustained, and the Immigration Judge's March 31, 2017,
decision is vacated.

FURTHER ORDER: The record is remanded to the Immigration Court for further proceedings
consistent with the foregoing opinion and for the entry of a new decision.

Cite as: G-M-V-M-, AXXX XXX 957 (BIA Sept. 28, 2017)
 T
, ,
J

United States Department of Justice

Executive Office of Immigration Review
United States Immigration Court
Atlanta, Georgia

In Re: G M. V -M Case No. 957

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

Order Denying Motion to Re-Open

This matter is before the Court pursuant to the Respondent's March 30, 2017
Motion to Re-Open. For the reasons set forth below, the Motion will be Denied.

The Court is without jurisdiction to hear the current Motion to Re-Open because
no filing fee has been paid. 8 C.F.R. 1003.23(b)( 1)(ii) specifies that a motion "must be
filed in duplicate with the Immigration Court, accompanied by a fee receipt."(emphasis
supplied). A review of the record reveals that no filing fee was paid. None of the
exceptions allowing for the Motion to Re-Open to be filed without a filing fee set forth in
8 C.F.R. 1003.24(b)(2) apply in this case. Therefore a filing fee is required. The Motion
to Re-Open was improvidently filed.

Additionally, there is no sua sponte basis upon which to re-open the proceedings.

The automatic stay of removal is vacated.

Micha P. Baird
United States Immigration Judge

U.S. Immigration Court

Atlanta, Georgia
Cerrfflcate of Servk:e

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This document was served by:Ma11fH Per8onal Svc

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