U.S.

Department of Justice
,

Executive Office for Immigration Review

Board ofImmigration Appeals

Office of the Clerk

5107 Leesburg Pike. Suite 2000

Falls Church. Virgm1a 22041

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Hwu, Frank OHS/ICE Office of Chief Counsel - SLC
CHH LAW, PC 2975 Decker Lake Dr. Stop C
200 S. Garfield Ave #105 West Valley City, UT 84119
Alhambra, CA 91801

Name: XUE, JUAN A 206-683-080

Date of this notice: 10/17/2017

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

Sincerely,

Donna Carr
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For more unpublished BIA decisions, visit

www.irac.net/unpublished/index
U.S. Department of Justice Decision of the Board of Immigration Appeals
Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A206 683 080-Salt Lake City, UT Date:

OCT 1 7 2017
In re: Juan XUE

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IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Frank Hwu, Esquire

ON BEHALF OF OHS: Lisa P. Durant

Assistant Chief Counsel

APPLICATION: Reopening

The respondent, a native and citizen of the People's Republic of China, was ordered removed
from the United States in absentia on March 14, 2017, after not appearing at a hearing. She filed
a motion to reopen on April 5, 2017, and appeals from the Immigration Judge's decision dated
May 4, 2017, denying her motion. The appeal will be sustained.

We review the findings of fact, including the determination of credibility, made by the
Immigration Judge under the "clearly erroneous" standard. 8 C.F.R. 1003.l(d)(3)(i). We review
all other issues, including issues of law, discretion, or judgment, under a de novo
standard. 8 C.F.R. 1003.l(d)(3)(ii).

On appeal, the respondent argues that "exceptional circumstances" prevented her appearance
at the hearing. See section 240(e)(l) of the Immigration and Nationality Act, 8 U.S.C.
1229a(e)(l) (stating that the term "exceptional circumstances" refers to exceptional
circumstances (such as battery or extreme cruelty to the alien or any child or parent of the alien,
serious illness of the alien, or serious illness or death of the spouse, child, or parent of the alien,
but not including less compelling circumstances) beyond the control of the alien). She states in
her declaration that her attorney's legal assistant told her not to appear because the Immigration
Judge would likely change venue in her case. Her counsel's legal assistant, in a statement,
corroborates the respondent's statement and accepts responsibility for causing the respondent's
nonappearance at the hearing. The respondent asserts that she would have appeared if her
counsel's legal assistant did not instruct her not to appear.

We agree with the respondent that an "exceptional circumstance" caused the respondent's
nonappearance at the hearing. See Matter of Grijalva-Barrera, 21 I&N Dec. 472 (BIA 1996)
(acknowledging that an alien's reliance on an erroneous instruction from his or her counsel's office
could constitute "exceptional circumstances"). We acknowledge, as did the Immigration Judge,
that the respondent did not comply with the procedural requirements for establishing ineffective
assistance of counsel. See Matter of Lozada, 19 I&N Dec. 637 (BIA 1988). However, the
respondent submitted sufficient evidence to establish that she reasonably relied on the incorrect
. ..

A206 683 080

advice given by her counsel's legal assistant, which resulted in her nonappearance at the hearing.
In light of the foregoing, we will reopen these proceedings.

Accordingly, the following order will be entered.

ORDER: The appeal is sustained, the in absentia order of removal is vacated, and these

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proceedings are reopened and remanded for further proceedings consistent with the foregoing
opinion. \

2
 I I

07-/;;;.J
I

United States Department of Justice

Executive Office for Immigration Review
Immigration Court
Salt Lake City, Utah

In the Matter of: Xue, Juan A Number: 206-683-080

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

ORDER OF THE IMMIGRATION JU gGE -
"A s.....fl"",
Upon consideration of the respondent's Motion for Reopen.it is HEREBY ORDERED
that the motion be o GRANTED }tC
DENIED because:

o OHS does not oppose the motion.

o The respondent does not oppose the motion.

o A response to the motion has not been filed with the court.

o Good cause has been established for the motion.

)! The court agrees with the reasons stated in the opposition to the motion.
o The motion is untimely per _________

)(Other: 1?porJO&Nr 'fA-t l.-Et} 'tn CCMf'Wd wi"J\-4 6'1!)..) w.::rvrr

L,._\ ()rt.oC:A-Ofl
I
lC'\ ::c N Dec. 1-s-+-(e,1A I 48g) .

Deadlines:

o The application(s) for relief must be filed by

o The respondent must comply with OHS biometrics instructions by

---
Phillip M. Truman
/'Immigration Judge

Certificate of Service
This document was served by: [ ] Mail [ l Per
To: [ ] Alien [ ] Alien c/o Custodial Officer

Date: 5
05-0 -2/Jf-J
By: C
l Service
Alien's Atty/Re

T
Staff---- --