U.S.

Department of Justice Executive Office for Immigration Review Board o fImmigration Appeals Office o fthe Clerk
51071.eesburg Pike. Suite 2000 Falls C/111rc/1, Virginia 22041

Latham, Pamela, Esq. 10350 NW 17 Place Plantation, FL 33322

OHS/ICE Office of Chief Counsel 333 South Miami Ave., Suite 200 Miami, FL 33130

MIA

Immigrant & Refugee Appellate Center | www.irac.net

Name: MENDOZA-DIAZ, JOSE ADALID

A 077-794-526

Date of this notice: 6/21/2013

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

DonttL ct1AA)
Donna Carr Chief Clerk

Enclosure Panel Members: Hoffman, Sharon

yungc Userteam: Docket

Cite as: Jose Adalid Mendoza-Dias, A077 794 526 (BIA June 21, 2013)

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U.S. Department of Justice Executive Office for Immigration Review

Falls Church, Virginia 22041

Decision of the Board of Immigration Appeals

File: A077 794 526 - Miami, FL In re: JOSE ADALID MENDOZA-DIAS

IN

Date:

JUN .21 2013

REMOVAL PROCEEDINGS

APPEAL ON BEHALF OF RESPONDENT: Pamela Latham, Esquire ON BEHALF OF DHS: Philippe d' Adesky Assistant Chief Counsel

Immigrant & Refugee Appellate Center | www.irac.net

APPLICATION: Reopening The respondent, a native and citizen of Honduras, has appealed the Immigration Judge's November 23, 2012, denial of the respondent's motion to reopen proceedings in which he was ordered removed in absentia on March 1, 2000. The Department of Homeland Security (DHS) opposes the appeal. The record will be remanded. The record contains a December 1, 1999, notice of the March 1, 2000, hearing (NOH). While the DHS on appeal maintains that this NOH was personally served on the respondent, the record does not clearly indicate such.1 Instead, while the NOH was addressed to Jonathan P. Rose, Esquire, the certificate of service indicates it was mailed only to DHS. The Executive Office for Immigration Review (EOIR) database does not contain a digital audio recording, and thus we are unable to confirm whether the respondent was present at that hearing and personally received the NOH. Moreover, neither the record nor the EOIR database reflects that Mr. Rose filed a Notice of Entry of Appearance as Attorney or Representative (Form EOIR-28). See 8 C.F.R. 1292.4(a). In addition, the Immigration Judge's decision contains insufficient factual findings and is devoid of legal analysis. Because the Board may not engage in fact-finding in the course of deciding appeals (See 8 C.F.R. 1003.l(d)(3)(iv)), we find remand appropriate for further fact finding by the Immigration Judge. On remand, the Immigration Judge should address whether the respondent was properly notified of the time, date, and place of the removal hearing wherein he was ordered removed in absentia in accordance with section 239(a)(2)(A) of the Immigration and Nationality Act, 8 U.S.C. 1229(a)(2)(A). Accordingly, we will remand this case to the Immigration Judge for preparation of a full decision addressing all of the arguments in the respondent's motion to reopen. See Matter of S1 Inexplicably, the September 22, 1999, NOH for the December 1, 1999, hearing is marked as Exh. 2. However, the December 1, 1999, NOH is not marked as an exhibit, and is the NOH for the March 1, 2000, hearing in which the respondent was ordered removed in absentia. Because the Immigration Judge does not address the NOH in her decision, we cannot discern whether the Immigration Judge mistakenly marked into evidence the wrong NOH.

Cite as: Jose Adalid Mendoza-Dias, A077 794 526 (BIA June 21, 2013)

. A077 794 526

23 I&N Dec. 462, 463-65 (BIA 2002) (remanding for further proceedings and the entry of a new decision because of the Immigration Judge's "almost complete lack of factual findings and legal analysis"); Matter ofA-P-, 22 I&N Dec. 468, 477 (BIA 1999) (stating that the Immigration Judge is "responsible for the substantive completeness of the decision").
H-,

We emphasize that, by this remand, we offer no opinion as to the merits of the case. Rather, we wish to ensure a thorough decision for purposes of proper appellate review. 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.

Immigrant & Refugee Appellate Center | www.irac.net

Cite as: Jose Adalid Mendoza-Dias, A077 794 526 (BIA June 21, 2013)

UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT ONE RIVERVIEW SQUARE 333 SOUTH MIAMI AVE. SUITE 700 MIAMI, FL. 33130 IN THE MATTER OF Mendoza-Dias, Jose Adalid Respondent A#

Immigrant & Refugee Appellate Center | www.irac.net

077-794-526
In Removal Proceedings

DECISION ON A MOTION A Motion To Reopen In Absentia filed in the above captioned case. The Motion has been duly considered and it appears to the Court that:

[]

The request is timely and reasonable. Therefore, IT IS HEREBY ORDERED that the Motion be GRANTED. Adjournment Code:

_____

The Motion has been duly considerd and it appears to the Court that no substantial grounds have been advanced to warra nt its grant. Therefore, IT IS HEREBY ORDERED that the Motion be and the same is hereby DENIED.

Immigration Judge Date: Certificate Of Service

[X] Mail [

-c::i.:J-/..)...

This document was served by: To: [ ] Alien Date:

Pers n [X] DHS/Assistant Chief Counsel [ ] Legal Services List [ ] Other

[X] Alien's Attorney

Attachments:

l\tf\l\"d.

[ ] EOIR-33