Motion to Reopen Immigration Proceedings

February 5, 2023

JUAN GUTIERREZ LOZANO

77 28 141ST ST APT B

FLUSHING NY 11367

 

IN THE UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

BOARD OF IMMIGRATION APPEALS

 

In the Matter of:

JUAN GUTIERREZ LOZANO

In Removal Proceedings

File No.: ____________
APPELLANT’S MOTION TO REOPEN IMMIGRATION PROCEEDINGS

 

TABLE OF CONTENTS

 

STATEMENT OF RELEVANT FACTS 4

 

STANDARD OF REVIEW 5

 

ARGUMENTS 5

 

  1. APPELLANT’S IMMIGRATION PROCEEDINGS SHOULD BE REOPENED 5

 

  1. A DENIAL OF APPELLANT’S VISA APPLICATION AMOUNTS TO A VIOLATION OF APPELLANT’S DUE PROCESS RIGHTS 6

 

  1. A DENIAL OF APPELLANT’S VISA APPLICATION IN SUCH CIRCUMSTANCES AMOUNTS TO AN ABUSE OF DISCRETION 7

 

CONCLUSION 7

 

PROOF OF SERVICE 8

 

TABLE OF AUTHORITIES

Cases

also Kucana v. Holder, 558 U.S. 233, 242 (2010) 5

Chandra v. Holder, 751 F.3d 1034, 1036 (9th Cir.2014). 5

Cruz Pleitez v. Barr, 938 F.3d February 2021 C-63 1141, 1143 (9th Cir. 2019) 5

Cuenca v. Barr, 956 F.3d 1079, 1082 (9th Cir. 2020) 5

Dada v. Mukasey, 554 U.S. 1 (2008) 5

Man v. Barr, 940 F.3d 1354, 1355–58 (9th Cir. 2019) 5

Martinez v. Barr, 941 F.3d 907, 922 (9th Cir. 2019) 5

Matter of Cerna, 20 I&N Dec. 399, 403 (BIA 1991). 5

Miller v. Sessions, 889 F.3d 998 (9th Cir. 2018) 5

Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Ins. Co., 463 U.S. 29. 43 (1983) 7

Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Ins. Co., 463 U.S. 29. 43 (1983). 7

Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1580 (10th Circ. 1994). 7

Oshodi v. Holder, 729 F.3d 883, 889 (9th Cir. 2013) 6

Rosales v. Bureau of Immigration and Customs Enforcement, 426 F.3 733, 736 (5th Cir. 2005) 6

Sanchez Rosales v. Barr, 980 F.3d 716, 719–20 (9th Cir. 2020) 5

Sorenson Commc’ns, Inc. v. F.C.C., 567 f.3D 1215, 1221 (10th Cir. 2009). 7

Zadvydas v. Davis, 533 U.S. 678, 693 (2001) 6

 

Statutes

5 U.S.C. § 706(2)(A). 7

8 C.F.R. § 1003.2(c)(1). 5

8 U.S.C. § 1229a(c)(7)(B). 5

 

Other Authorities

https://www.uscis.gov/about-us/find-a-uscis-office/if-you-feel-sick-do-not-come-to-your-uscis-appointment-please-cancel-and-reschedule-it, 6

 

COMES NOW Appellant, JUAN GUTIERREZ LOZANO, pro se, submits the following Motion to Reopen Immigration proceedings.

STATEMENT OF RELEVANT FACTS

 

Appellant filed Form I-485, Application to Register Residence or Adjust Status, to U.S. Citizenship and Immigration Services (USCIS) pursuant to Section 245 of the Immigration and Nationality Act (INA). Appellant filed the said Form based on being the beneficiary of an approved immigrant petition. 

The USCIS set the interview date at March 29, 2021, which was on a Monday. However, that weekend, Appellant and her husband started experiencing symptoms of Covid-19. Appellant had to quarantine from March 26, 2021. Accordingly, Appellant attempted to make a reschedule of the appointment date online via the department’s website. According to the website, immigrants who felt sick were allowed to cancel the appointment date and seek a reschedule thereof at no penalty whatsoever. 

It follows; on or about March 29, 2021, Appellant made a call to the USCIS requesting for an interview reschedule. (See request No. T1S0882100263QNS). The USCIS informed Appellant that it had forwarded Appellant’s request to the relevant unit for review and reconsideration. Further, the department notified Appellant that USCIS was experiencing delays in reviews and interviews due to the Covid-19 pandemic. However, Appellant was advised that her request would be handled expeditiously when the situation get back to normal.  

On or about July 12, 2021, Appellant’s visa application was denied on the grounds that Appellant did not provide any evidence to indicate that Appellant is immediately entitled to an immigrant visa. 

It appears, the Department’s system failed to update before the Field Officer Director checked the Applicant’s status and proceeded to deny Appellant’s visa application.

Appellant hereby appeals the Director’s decision.    

STANDARD OF REVIEW

 

A motion to reopen asks the IJ or BIA to reopen proceedings so that a respondent may present new evidence and a new decision can be entered following an evidentiary hearing. Matter of Cerna, 20 I&N Dec. 399, 403 (BIA 1991). A motion to reopen “shall state the new facts that will be proven at a hearing to be held if the motion is granted and shall be supported by affidavits and other evidentiary material.” 8 U.S.C. § 1229a(c)(7)(B). It must be accompanied by  the application for relief and all supporting documents. 8 C.F.R. § 1003.2(c)(1).

ARGUMENTS

  • APPELLANT’S IMMIGRATION PROCEEDINGS SHOULD BE REOPENED

 

“The motion to reopen is an ‘important safeguard’ intended ‘to ensure a proper and lawful disposition’ of immigration proceedings.” Cuenca v. Barr, 956 F.3d 1079, 1082 (9th Cir. 2020) (as amended) (internal quotation marks and citation omitted). See also Kucana v. Holder, 558 U.S. 233, 242 (2010); Dada v. Mukasey, 554 U.S. 1 (2008)); Chandra v. Holder, 751 F.3d 1034, 1036 (9th Cir.2014).

The BIA has reopened cases and dismissed orders entered in Appellant’s absentia. In Sanchez Rosales v. Barr, 980 F.3d 716, 719–20 (9th Cir. 2020), the court granted a petition and remanded to the BIA to evaluate petitioners’ motion to reopen to rescind petitioners’ in absentia removal order. Also, in Martinez v. Barr, 941 F.3d 907, 922 (9th Cir. 2019), the Court considered a motion to reopen removal proceedings after IJ issued an in absentia removal order); See also Man v. Barr, 940 F.3d 1354, 1355–58 (9th Cir. 2019) (per curiam) (motions to reopen to consider U visa); Cruz Pleitez v. Barr, 938 F.3d February 2021 C-63 1141, 1143 (9th Cir. 2019) (motion to reopen seeking to rescind the deportation order entered in absentia); Miller v. Sessions, 889 F.3d 998 (9th Cir. 2018) (motion to reopen to rescind a removal order entered in absentia).

The USCIS has a policy that requires people seeking visas not to come for their appointment when they are unwell. The said policy, available at https://www.uscis.gov/about-us/find-a-uscis-office/if-you-feel-sick-do-not-come-to-your-uscis-appointment-please-cancel-and-reschedule-it, the USCIS wants to ensure the safety of those whom it serves and its employees. Accordingly, the USCIS expressly state that it shall help individuals reschedule their appointment, without penalty, when they get better. Further, the website provided instructions for rescheduling an appointment in the event a person fell sick. 

Appellant therefore duly followed the USCIS’s instruction not to appear for the appointment when sick. In that regard, Appellant first attempted to make an online cancelling and rescheduling via the website to no avail. Appellant proceeded to place a call directly to the relevant office in charge, which registered Appellant’s request and assured Appellant that they would direct Appellant’s request to the relevant unit. It follows; therefore, Appellant adhered to all requirements pertaining to her circumstances.   Besides, the BIA has previously reopened cases where individual seeking a visa, where the denial was entered in Appellant’s absentia. 

  • A DENIAL OF APPELLANT’S VISA APPLICATION AMOUNTS TO A VIOLATION OF APPELLANT’S DUE PROCESS RIGHTS

“[T]he Due Process Clause applies to all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent.” Zadvydas v. Davis, 533 U.S. 678, 693 (2001). “[D]ue process requires that removal hearings [and any other decision] be fundamentally fair.” Rosales v. Bureau of Immigration and Customs Enforcement, 426 F.3 733, 736 (5th Cir. 2005); Oshodi v. Holder, 729 F.3d 883, 889 (9th Cir. 2013) (en banc) (“It’s well established that the Fifth Amendment guarantees non-citizens due process in removal proceedings.”). 

Appellant contends that the DHS officer’s decision to deny Appellant’s visa application is unfair because the officer failed to probe why Appellant did not appear for the appointment. Notably, Appellant had duly followed all the required procedure for cancelling and rescheduling Appellant’s appointment after Appellant and her husband developed Covid-19 symptoms and therefore they had to subject themselves to quarantine. 

  • A DENIAL OF APPELLANT’S VISA APPLICATION IN SUCH CIRCUMSTANCES AMOUNTS TO AN ABUSE OF DISCRETION

Under the Administrative Procedures Act (APA), a reviewing court will “hold unlawful an set aside agency action, findings, and conclusions” that it finds “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.” 5 U.S.C. § 706(2)(A). 

“An agency’s action is entitles to a presumption of validity, and the burden is upon the petitioner to establish the action is arbitrary or capricious.” Sorenson Commc’ns, Inc. v. F.C.C., 567 f.3D 1215, 1221 (10th Cir. 2009). Once agency action is challenge as arbitrary or capricious, a court reviews that action as if it were an Appellate Court. See Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1580 (10th Circ. 1994). As part of the appeal, the court “ascertain[s] whether the agency examined the relevant data and articulated a rational connection between the facts found and the decision mae.” Id., at 1574 (citing Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Ins. Co., 463 U.S. 29. 43 (1983). 

Appellant contends that the Officer’s decision was arbitrary and capricious. Notably, the Officer failed to check why Appellant did not appear for the scheduled appointment date. In that regard, the Officer abused his discretion by denying Appellant’s visa application in that regard.  

CONCLUSION

 

For the above reasons, Appellant requests that the Officer’s decision be reversed and she be provided an opportunity to attend the interview for her application for visa. 

 

Respectfully submitted,

 

                                                                            

DATED:    ____________ 

 

PROOF OF SERVICE

 

On [DATE], I, JUAN GUTIERREZ LOZANO, served a copy of Respondent’s Motion to Reopen by first class mail to the U.S. Immigration and Customs Enforcement Office of Chief Counsel, at the following address:

 

U.S. Citizen and Immigration Office

Quality Field Office

26 Federal Plaza

New York, NY 10278

 

DATED:    ____________ 

 

                                                                            

 

 

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