Lim, Ann A., Esq.

Law Ofices of Chang & Lim

3600 Wilshire Blvd., Ste 832
Los Angeles, CA 90010
L.b. cgBImcD of JuScc
Executive Ofce fr Immigration Review
Board of Immigration Appeals
Ofce of the Clerk
5107 Leesburg Pike. Suite 2000
Fals Church. Vrginia 20530
OHS/ICE Office of Chief Counsel - LOS
606 S. Olive Street, 8th Floor
Los Angeles, CA 90014
Name: MURILLO-VELASQUEZ, BREND ... A 099-667-090
Date of this notice:
2/3/2014
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosure
|HE! MEHDEI5'
|SH, L0WB|0 .
Sincerely,
|O t
Donna Carr
Chief Clerk
sclwarzA
U5EILEH. OCKB
For more unpublished BIA decisions, visit www.irac.net/unpublished
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
Cite as: Brenda Iriselda Murillo-Velasquez, A099 667 090 (BIA Feb. 3, 2014)
.b.6g60I0J08U06
Eeutve Um>for Imgton Revew
Decision of te Boad ofimigon Apes
.
tHCuh Vigia 20530
File: A099 667 090 - Los Ageles, CA
Ure: BRDA ISELDA MLO-VELASQUZ
I REMOVAL PROCEEDIGS
APEAL
Date:
ON BEHALF OF RESPONDENT: PA. Lim, Esqie
APPLICATION: Reopeg
FEB - 3 2014
Te repondent, a natve ad citizen of El Salvador, appeas te deision of te Imigaton
Judge, date May 2, 2012, denyg he motion to reope. Te Depaent of Homeland
Seurt has not resnded to te ape.
Te respondet's moton to repen is based upon a claim of lack of notce (Respondet's
Motion to Repe at 3; Resondent's Afdavit at 2). See secton 240(b)(5)(C)(ii) of te
Imigaton ad Nationaity Ac, 8 U.S.C. 1229a(b)(5)(C)(ii); 8 C.F.R. 1003.23(b)(4)(ii).
Hee, on Novebe 6, 2006, te Imigation Cou maile a Notce of Heang in Reova
Proceedings (''OH") to te respondent i Caoga Pak, Caifra i orde K place her on
notice of te reoval heang which was scheuled on December 5, 2006. Howeve, te record
refects tat te NOH wa reted as undeliverable by te Postal Serce. The I igaton
Judge's decision does not aclowledge tat the NOH was reted as undeliveable.
Considerng te afreentioned circstaces, we conclude tat it is appropriate to JM
te reord to te I igaton Judge fr fer cnsideration of the repondet's moton to
reopen. U pacula, on read, te Imigation Judge should conside what efect, if ay,
should be aforded to te ret of te NOH. Compare Matter of M-R-A-, 24 l&N Dec. 665
(IA 2008), with Popa v. Holder, 571 F.3d 890, 898 (9t Cir. 2009). Moreove, a the
respondent's moton to repe is preise upon lack of notce, the Imigaton Judge maintans
jusdicton to cnsider the motion despite te respondent's possible depare fom the United
States i Setembe 2011. See Matter of Bulne, 25 I&N Dec. 57 (BI 2009). Accordingly, te
fllowing order is enteed.
ORDER: The record is retred to the Immigation Judge fr fe action a require
above.
1
FOR THEB
1 Te repondet reains subject to te orde of reova which was entee in asetia by te
Imigaton Judge on December 5, 2006.
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
Cite as: Brenda Iriselda Murillo-Velasquez, A099 667 090 (BIA Feb. 3, 2014)
I
UITED STATES DEPARTMENT OF JUSTICE
EXECUTIV OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COUT
606 SOUTH OLIV ST.
LW OFFICE OF CHAG & LIM
AN LIM, ESQ.
3600 WILSHIRE BLV. SUITE 832
LOS AGELES, CA 90010
IN THE MTTER OF
LOS AGELES, CA 90014
FILE A 099-667-090
MURILLO-VLSQUEZ, BRENDA IRISELDA
-
LE TO FORWA - NO ADRESS PROVIDED
DATE: May 4, 2012
TTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE. THIS DECISION
IS FINA UNLESS A APPEA IS FILED WITH THE BOARD OF IMIGRATION APPEALS
WITHIN 30 CALENAR DAYS OF THE DATE OF THE MAILING OF THIS WRITTEN DECISION.
SEE THE ENCLOSED FORMS A INSTRUCTIONS FOR PROPERLY PREPAING YOU APPEAL.
YOUR NOTICE OF APPEA, ATTACHED DOCUMENTS, A FEE OR FEE WAIVER REQUEST
MUST BE MAILED TO: BOARD OF IMIGRTION APPEAS
OFFICE OF THE CLERK
P.O. BOX 8530
FALLS CHURCH, VA 22041
ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE AS THE RESULT
OF YOUR FAILURE TO APPEAR AT YOUR SCHEDULED DEPORTATION OR REMOVAL HEARING.
THIS DECISION IS FINAL ULESS A MOTION TO REOPEN IS FILED IN ACCORDACE
WITH SECTION 242B{c) (3) OF THE IMMIGRTION A NATIONALITY ACT, 8 U.S.C.
SECTION 1252B(c) (3) IN DEPORTATION PROCEEDINGS OR SECTION 240(c) (6)
I
8 U.S.C. SECTION 1229a(c) (6) IN REMOVA PROCEEDINGS. IF YOU FILE A MOTION
TO REOPEN, YOUR MOTION MUST BE FILED WITH THIS COURT:
IMMIGRTION COURT
1
/
/f

(
/
.. .. '
606 SOUTH OLIVE ST.
LOS AES: CA 90014
/ ( <d:-
0
CC: CHON, HYE, ESQ.
606 S. OLIVE ST., 8TH FLOOR
LOS AGELES, CA, 900140000
> /. . . ..
/ ( - c , ==
COURT CLERK
IMMIGRATION COURT
-~ __
---
FF
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
LOS ANGELES, CALIFORNIA
File No.: A099 bb090
In the Matter of
Brenda Irselda MURILLO-VELASQUEZ,
Respondent
)
)
)
)
)
)
IN RMOVAL PROCEEDINGS
ORER SUMARY DECISION
Upon review ad consideration of Respondent's Motion to Reopen ad Rescind In Absentia Order
of Removal, the Record of Proceedings, and any opposition by the Depament of Homelad Security, the
Court fnds that:
[ Respondent failed to timely fle the motion to reopen based upon exceptional circumstances within
180 days of the in absentia order of removal. 6 C.F.R. 1003.23(b)(4)(ii).
Respondent has filed to show that te filure to appear was due to exceptional circumstances. 6 C.F.R.
1003.23(b)(4)(ii).
I Respondent has faled to show that the failure to appea was due to lack of notice.
C.F.R. 1003.23(b)(4)(ii). m fct, Respondent merely states that she did not receive notice of hearing
on December 5, 2006 but fils to provide any basis or reason (e.g., address on notice was incorrect) fr her
conclusor statement.
D Respondent's motion is subject to the numerical limitations set frh in 8 C.F .R
1003.23(b
)
(l), (b
)
(4
)
(ii
)
.
[ Respondent ha failed to show that any exceptions to the fling deadlines apply. 8 C.F.R.
1003.23(b )
(
4)
(i
)
, (ii
)
, (iii
)
(iv
)
.
[ Respondent has filed to persuade the Immigration Judge that the Motion to Reopen should be
granted in the exercise of discretion. 8 C.F.R. 1003.23(b
)
{l
)
{iv
)
.
Other: On March 19, 2006, the Department of Homeland Security personally served Respondent
wit the Notice to Appear (''NTA"
)
. See Exh. . The Department provided oral notice to
Respondent, in the Spanish language, of the consequences of filue to appear as provided in IA
240(b )(7). Id. Terefre, Respondent received both written and oral notice of the consequences
of faling to appear fr her heaings befre the Immigration Court and of her obligation to notif
the Court of any change of address. Moreover, Respondent provided te Court with her updated
address on a For EOI-33 on May 17, 2006, which was where the notice of heang fr
December J, 2006 was sent via regular mail.
Moreover, it is not clea fom Respondent's motion that the Court even has jurisdiction in this
case. The regulations state that a motion to reopen or to reconsider shall not be made by or on
behalf of a person who is the subject of removal, deportaton, or exclusion proceedings subsequent
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t
to his or her deparure fom the United States. 8 C.F.R. 1003.23(b)(l). The Boad of
Imigration Appeals ("the Board") has interreted this language to mean that the Imigration
C6urt lacks authority to reopen removal, deporation, or exclusion proceedings, eiter via motion
.
or sua sponte, if the respondent lef the United States at any time during admistrative
proceedings or afer their conclusion. See Matter of Armendarez-Mendez, 24 l&N Dec. 646 (BIA
2008) (declining to fllow Lin v. Gonzales, 473 F.3d 979 (9th Cir. 2007)).
In the present matter, Respondent's motion indicates that she would be removed on September 20,
2011. However, her motion was not fled with the Court until April 13, 2012, and there is no
indication in the motion regarding Respondent's curent whereabouts. Therefre, the Court will
issue te fllowing alterative ruling: if Respondent is now outside of te United States and/or if
she has executed the in absentia removal order ad is now back in the United States, the Court
would fnd under 8 C.F.R. 1003.23(b)(l) ad the Board's holding in Armendarez-Mendez, 24
I&N Dec. 64, that the Court does not have jurisdiction over Respondent's motion.
1
IT IS HEREBY ORDERD that Respondent's Motion to Reopen
DATE: May 2, 2012
Rachel Ann Ruane
Immigration Judge
bLh|LOF SERVICE
NLWAS S B

(N} ( J LJNSERC (
TO: [ ] L [ J ALINE ro Csti
ll
L0JAT/RE
UAL: _ i c BY CUR W

Attachments: C 1 EOIR-33 J EO -
[ J Legal Serices List ( J Oter
1 The Court notes that the Board's interpretation of B C.F.R. 1003.23(b)(l) and 1003.2(d) has been naowed since its
decision in Armendarez-Mendez in two circumstances which do not apply to the present mater. See Coyt v. Holder, 593 F.3d
902 (9th Cir. 2010) (fding that where a respondent has been frcibly removed fom the United States while his motion is
pending, the motion is not automatically withdrawn under B C.F.R. 1003.2(d)); Matter of Bulnes-Nolaco, 25 l&NDec. 57,
59 (BI 2009) (fnding that the Board has jurisdiction over a motion to reopen where the respondent was previously mremoval
proceedings and subsequently departed the United States if the respondent claims lack of notice).
2 A099 bb 090
I
m
m
i
g
r
a
n
t

&

R
e
f
u
g
e
e

A
p
p
e
l
l
a
t
e

C
e
n
t
e
r

|

w
w
w
.
i
r
a
c
.
n
e
t