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In this unpublished decision, the Board of Immigration Appeals (BIA) reopened proceedings at which the respondent was removed in absentia upon finding he was not properly notified of hearing because the address listed on the Notice to Appear misspelled the name of the street on which he resided. The decision was written by Member John Guendelsberger and joined by Member David Holmes and Member Edward Grant.
Looking for IRAC’s Index of Unpublished BIA Decisions? Visit www.irac.net/unpublished/index
In this unpublished decision, the Board of Immigration Appeals (BIA) reopened proceedings at which the respondent was removed in absentia upon finding he was not properly notified of hearing because the address listed on the Notice to Appear misspelled the name of the street on which he resided. The decision was written by Member John Guendelsberger and joined by Member David Holmes and Member Edward Grant.
Looking for IRAC’s Index of Unpublished BIA Decisions? Visit www.irac.net/unpublished/index
In this unpublished decision, the Board of Immigration Appeals (BIA) reopened proceedings at which the respondent was removed in absentia upon finding he was not properly notified of hearing because the address listed on the Notice to Appear misspelled the name of the street on which he resided. The decision was written by Member John Guendelsberger and joined by Member David Holmes and Member Edward Grant.
Looking for IRAC’s Index of Unpublished BIA Decisions? Visit www.irac.net/unpublished/index
Sobel & Erin Law Ofice 1856 East 15th St, Suite A Tulsa, OK 74104 U.S. Department of Justice Executive Ofce fr I igration Review Board of Immigration Appeals Ofce of the Clerk 5107 Leeburg Pike, Suite 2000 Falls Church, Vrginia 20530 OHS/ICE Ofice of Chief Counsel DAL 125 E. John Carpenter Fwy, Ste. 500 Irving, TX 75062-2324 Name: HERNANDEZ RODERIGUEZ, JA ... A 037-518-812 Date of this notice: 6/4/2014 Enclosed is a copy of the Boad's decision and order in the above-referenced case. Enclosure Panel Members: Guendelsberger, John Hofman, Sharon Grant, Edward R. Sincerely, Do c t Donna Carr Chief Clerk lucasd Userteam: Docket For more unpublished BIA decisions, visit www.irac.net/unpublished I m m i g r a n t
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w w w . i r a c . n e t Cite as: Javier Harnandez Roderiguez, A037 518 812 (BIA June 4, 2014) U.S. Department of Justice Executive Ofce fr Immigration Review Board of Immigration Appeals Ofce of the Clerk 5107 leeb11rg Pike, Suite 2000 Fals Church. Vrginia 20530 HERNANDEZ RODERIGUEZ, JAVIER 3130 LEPSY STREET OHS/ICE Ofice of Chief Counsel DAL 125 E. John Carpenter Fw, Ste. 500 Iring, TX 75062-2324 DALLAS, TX 75212 Name: HERNANDEZ RODERIGUEZ, JA ... A 037-518-812 Date of this notice: 6/4/2014 Enclosed is a copy of the Boad's decision in the above-referenced cae. This copy is being provided to you as a courtesy. Your attorey or representative has been served wit this decision pursuant to 8 C.F.R. 1292.S{a). If the attached decision orders that you be removed fom the United States or afrs an Immigration Judge's decision ordering that you be removed, any petition fr review of the attached decision must be fled with and received by the appropriate cout of appeals within 30 days of the date of the decision. Enclosure Panel Members: Guendelsberger, John Hofman, Sharon Grant, Edward R. Sincerely, Do. CW Dona Carr Chief Clerk lucasd Userteam: Docket I m m i g r a n t
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w w w . i r a c . n e t Cite as: Javier Harnandez Roderiguez, A037 518 812 (BIA June 4, 2014) U.S. Department of Justice Executve Ofce fr In g ration Review Decision of te Board of I igaton Appeals Falls Curch Viga 20530 File: A03 7 518 812 - Dallas, TX I re: JAVIR HANDEZ RODERIGUEZ I RMOVAL PROCEEDIGS APPEAL Date: ON BEHALF OF RESPONENT: David L. Sobel, Esquire APPLICATION: Reopening JUN -4 2014 The respondent ha appealed te Imigation Judge's decision dated November 20, 2012, denying his motion to reopen. The Iigation Judge had previously ordered te respondent's removal fom the United States, fllowing the respondent's falue to appea fr a heang on July 12, 2012. The appeal will be sustained ad the record will be remaded. We review a Imgation Judge's fdings of fct fr clear eror, but questions of law, discretion, ad judgent, ad all other issues in appeals, ae reviewed de novo. 8 C.F .R. 1003. l ( d)(3)(i),(ii). O appeal te respondent contends that the address on the Notce to Appea was not corect, and he never received te notice of the hearing, toug no fult of his own. The respondent states fer that he resided at 3130 Lapsley Steet, Dallas, Texa 75212, at te time of te hearing, ad tat tis is te address he provided to the Depaent of Homelad Securit upon his release fom custody. He asserts that te DHS ofcial mstaenly put the "Lepsy Steet" address on te For I-830 (otice to EOI: Alien Addess ). The respondent has submitted additional evidence on appeal, but has prvided no persuasive explaation why such evidence was not previously avalable to him. The Boad ordinaily will not consider ay previously available evidence frst profered on appeal, as its review is limited to te record of proceedings befre te Immigation Judge. See Matter of Grialva, 21 I&N Dec. 27 (BIA 1995). The Imigation Judge fund that te heaing notice maled to the respondet wa properly sered as it was delivered to the respondent's last kown address of 3130 Lepsy Steet, Dalla, Texas 75212. Te Immigation Judge notes that althoug te respondent did eventually submt a chage of address fr on August 14, 2012, te fr was submited only afer the Imigation Court's order of removal was entered on July 12, 2012. He notes that the respondent wa infored of his requirement to submit ay chages of address to the Iigation Court immediately ad that a failue to do so would relieve the goverent of its requirement to provide wrtten notice of the heaing. We fnd that the respondent has presented suffcient evidence to overcome the presuption of deliver of te notice of heaing. See Matter of M-R-A-, 24 I&N Dec. 665, 674-76 (I 2008) (setting fr te stadads fr deterinng if a respondent has presented suffcient evidence to overcome te weaer presumption of delivery that attaches to notices sent by regula mal). I m m i g r a n t
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w w w . i r a c . n e t Cite as: Javier Harnandez Roderiguez, A037 518 812 (BIA June 4, 2014) . ! A037 518 812 Based on a review of the record, it appeas that te heang notice was not sent to te respondent's corect adress. 1 I is the respondent's contention tat he ha resided at the 3130 Lapsley Steet, Dalla, Texas, address fr more tha 10 yeas. The chage of address fr fled by te respondent in August 2012 actally indicates tat te respondent continues to reside at 3130 Lapsley Street, Dalas, Texa 75212, ad it does not provide a ''ew" address fr the respondent. . Fuerore, the Notice of Appeal indicates tat te respondent still resides at the Lapsley Steet address. The record refects tat on Mach 29, 2012, a notice of heang was sent to te respondent at 3130 Lesy Steet, Dallas, Texas 75212. 2 Te heang notce was not reted to te Dallas I igation Cou as undeliverable. However, the respondent contends tat he did not receive the notice of heang, ad tat he contacted his attorey ad fled a motion to reopen one month afer leag of te i absentia order of remova. Therefre, te record supports te fnding tat the respondent continues to. reside at te 3130 Laplsey Steet address, ad that he exercised due diligence in seekng to reopen proceedings afer leag of te i absentia order of removal. Consequently, we fnd that the respondent has overcome te presuption of delivery of the notice ofheang. See Matter of M-R-A-, supra. Accordingly, te fllowing orders shall be entered. ORER: The appeal is sustained. FUTHER ORER: Te record is remaded to the Imigation Judge fr fer proceedngs consistent wth the fregoing opinion ad fr te enty of a new decision. 1 We note that the For I-213 idicates a incorect addess of 31330 Lapdley St. Dallas, Texas 75212. 2 Te Imigaton Cou was not requred to notify the respondent's cousel of the heaing, as he had not fled a Notice of Appeaace on For EOI-28 with the Imigation Cout pror to issuace of te notice of heang on Mach 29, 2012. 8 C.F.R. 1003. l 7 ( a). The Executive Offce fr Imigation Review ad te Depaent of Homelad Secuty ae sepaate ad distinct entities. When a Notice to Appea is fled with the Imigaton Cou by the Deament of Homelad Secuty, jusdiction vests, ad proceedings befre a Imgation Judge commence. 8 C.F.R. 1003.14(a). Te Imigation Cou is responsible fr scheduling cases ad providig notice to the goverent ad the alien of the time, place, ad date of heangs. 8 C.F.R. 1003.18. 2 . .. .< I m m i g r a n t
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w w w . i r a c . n e t Cite as: Javier Harnandez Roderiguez, A037 518 812 (BIA June 4, 2014) UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT DALLAS, TEXAS IN THE MATTER OF: ) ) HERNANDEZ RODRIGUEZ, JAVIER ) ) ) ) RSPONDENT ) I REMOVAL PROCEEDINGS A 037-518-812 CHARGES: Section 212(a)(6)(A ) (i) of the Immigration and Nationality Act, as amended, in that you are an alien present in the United States without being admitted or paroled, who arrived in the United States at any time or place other than as designated by the Attorey General APPLICATION(S): Motion to Reopen ON BEHALF OF THE RESPONDENT: David L. Sobel, Esq. 5514 Lewis Ave. Tulsa, OK 74015 ON BEHALF OF THE DEPARTMENT OF HOMELAND SECURTY: Roslyn Gonzalez, Esq. Asst. Chief Counsel - ICE 125 E. Joh Capenter Fwy. Ste. 500 Irving, TX 7 5062 ORDER OF THE COURT The Respondent has fled a Motion to Reopen in the above-captioned case. For the fllowing reasons, the Motion will be DENIED. FACTUA AND PROCEDURL HISTORY The Respondent is a male, native and citizen of Mexico. Record of Deportable/Inadmissible Alien (Form I-213). He arrived in the Unted State at or near Eagle Pass on or about July 3, 2001. He was not then admited or paroled afer inspection by an Immigration Offcer. Id. I m m i g r a n t
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\ On May 27, 20 I 0 the Department of Homeland Security (DHS or the Government) personally served the Respondent with a Notice to Appear (NT A) charging him with removability under Section 2 l 2(a)(6)(A)(i) and Section 2 I 2(a)(9)(B)(i)(II), which he signed. See NT A. The Respondent was provided oral notice in the Spaish language of the consequences of filing to appear as provided in Section 240(b )(7) of the Immigration and Nationality Act (the Act). Id. On December 7, 2011, the Dallas Immigration Cour served the Respondent by regular mail at 3310 Lepsy Street, Dallas, TX 75212 a Notice of Hearing, setting the Respondent's removal heaing fr March 29, 2012. See Notice of Hearing, dated Dec. 7, 2011. The Notice of Hearing was retued by the Postal Service on December 14, 2011. A typographical error in the Respondent's address was subsequently discovered, and te Respondent was then served a Notice of Hearing by mail at 3130 Lepsy Street, Dallas, TX 75212 on March 29, 2012, setting the Respondent's remova hearng fr July 12, 2012. See Notice of Hearing, dated Mar. 29, 2012. The second Notice of Hearing was not retured by the Postal Service. The Respondent did not appear fr his hearing on July 12, 2012. Thus, the proceedings were conducted in absentia. See Order of the Immigration Judge. On Juy 12, 2012, the Court ordered the Respondent removed to Mexico afer the Goverent submited a Form I-213, which established the trth of the allegations contained in te NTA. Id. The Respondent hired attorey David Sobel, who fled a Notice of Entry of Appeaance as Attorey or Representative befre the Immigration Court (Form E-28) on August 14, 2012, indicating he was representing the Respondent. See Notice of Entry of 2 I m m i g r a n t
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w w w . i r a c . n e t Appearance (Attached to this Opinion). Additionally on August 9, 2012, the Respondent, through counsel, submitted a Change of Address Form (Form E-33). See Alien's Chage of Address Form. On August 14, 2012 the Respondent, through counsel, submited the present Motion to Reopen, arguing that he did not receive notice of his heaing scheduled fr July 12, 2012. See Motion to Reopen. LEGAL STANDARDS An Order of Removal entered in absentia may be rescinded upon a Motion to Reopen if the alien demonstrates that he did not receive proper notice of the scheduled heaing. IA 240(b)(S)(C)(ii); 8 C.F.R. 1003.23(b)(4)(iii). Proper notice can be accomplished though personal service of the written notice, or if personal service is not practicable, through serice by mail to the Respondent. IA 239(a)( l ). A Notice of Hearing is properly served when it is personally delivered to the alien or his attorey, or when it is mailed to the attorey or to the last address provided by the alien in accordance with INA 239(a)(l)(F). INA 239(a)(l)(G)(i). Additionally, service by mail of a Notice of Hearing is suffcient if tere is proof of attempted delivery to the alien's most recently provided address. INA 239( c ). If notice of deportation proceedings is properly addressed ad sent to the aien by regular mail according to normal ofce procedures, there is a presumption of delivery, albeit weaker than fr cerifed mail. Matter of M-R-A, 241. & N. Dec. 665 (IA 2008). Tus, when a respondent bases his motion to reopen on a claim that he or she lacked notice, the question to be deterined is whether the respondent has presented sufcient evidence to overcome the weaker presumption of delivery. Id. at 673. 3 f_ I m m i g r a n t
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w w w . i r a c . n e t When a Respondent's motion to rescind an in absentia order of removal is based on a claim that a Notice to Appear or Notice of Hearing sent by regular mail to the most recent address was not received, the burden is on the Respondent to provide proof that the document was not received. See Matter of Ramirez-Sanchez, 17 l&N Dec. 503 (BIA 1980). In determining whether a respondent has rebutted the weaker presumption of delivery, an Immigration Judge may consider a variety of fctors including, but not limited to, the fllowing: (1) the respondent's afdavit; (2) affdavits fom family members or other individuals who are knowledgeable about the fcts relevant to whether notice was received; (3) the respondent's actions upon learing of the in absentia order, and whether due diligence was exercised in seeking to redress the situation; ( 4) any prior afrmative application fr relief, indicating that the respondent had an incentive to appear; (5) any prior application fr relief fed with the Immigration Court or any prima fcie evidence in the record or the respondent's motion of statutory eligibility fr relief, indicating that the respondent had an incentive to appear; ( 6) the respondent's previous attendance at Immigration Court hearings, if applicable; and (7) any other circumstances or evidence indicating possible nonreceipt of notice. Each case must be evaluated based on its own paricular circumstances and evidence. Matter of M-R-A, 24 I. & N. Dec. at 674. A Motion to Reopen will not be granted unless te Respondent establishes a primafacie case of eligibility fr the underlying relief. See INS v. Abudu, 485 U.S. 94, I 04 ( 1988). A Motion to Reopen must also be accompanied by applications fr relief and all supporing documents. INS v. Dohert, 502 U.S. 314 (1992). 4 I m m i g r a n t
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w w w . i r a c . n e t Additionally, the Court may exercise its sua sponte authority to reopen in Htruly exceptional situations" and where the interests of justice would be served. In Re G-D-, 221. & N. Dec. 1132 (BIA 1999). Finally, an immigration judge has broad authority to grant or deny a motion to reopen. INS v. Dohert, 502 U.S. 314, 322 ( 1992). ANALYSIS As an initial matter, the Court notes that the Notice of Hearing, dated March 29, 2012, was properly served as it was delivered to the Respondent's last kown address in accordance with INA 239(a)(l)(G)(i). Here, the Respondent's last kown address was H3130 Lepsy St., Dallas, Texas 752 I 2" as stated on the Form 1-830, Notice to EOIR: Alien Address. See Exhibit 3. This is the address at which the Respondent was served with the corrected Notice of Hearing on March 29, 2012. Although the Respondent did eventually submit a Change of Address For on August 14, 2012, that frm was submitted only afer the Court's Order of Removal was entered on July 12, 2012. Therefre, it does not alter te Court's analysis. The Respondent was infrmed of his requirement to submit any changes of address to the Immigration Court immediately and that a filure to do so would relieve the Goverent of its requirement to provide written notice of the hearing. See NT A. As the Respondent was properly served at his last kown address, the presumption of delivery by regular mail applies. See Matter of M-R-A, 241. & N. Dec. 665 (BIA 2008). It is the Respondent's burden to present sufcient evidence to overcome the presumption of delivery by regular mail. See Matter of Ramirez-Sanchez, 17 I&N Dec. 503 (BIA 1980). Here, the only evidence that te Respondent has provided 5 I m m i g r a n t
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w w w . i r a c . n e t of non-receipt is a statement by his counsel in his Motion to Reopen that neither the Respondent nor his counsel received notice. The record does not contain an affdavit by the Respondent or anyone else with personal knowledge of the circumstances. It is well established that statements by counsel contained in a motion to reopen are not evidence, and if unaccompanied by other evidence., do not carry respondent's burden of proof See Matter of Ramirez-Sanchez, 17 I&N Dec. 503 (BIA 1980). Given the utter lack of other evidence in the record, the Respondent"s burden simply cannot be carried by his counsel's statements asserting lack of notice. Although the Respondent's counsel complains that he himself did not receive a Notice of Hearing, the Court notes that current counsel did not submit his Notice of Entry of Appearance as Attorey until August 14, 2012, more than a month afer the Respondent's Order of Removal. See Notice of Entry (Attached to this Opinion). The Court is not required to send a Notice of Hearing to a attorey that is not listed as the attorey of record. Finally, the Respondent's counsel states in the Motion to Reopen that the Respondent never gave the 3 130 Lepsy Street, Dallas, TX 75212 address to Imigration Court. See Motion to Reopen, at 1. However, that assertion is contradicted by the evidence in the record. Form 1-830, Notice to EOIR: Aien Address, lists the Respondent's address as 3130 Lepsy Street, Dalla, TX 75212, which substantiates that the Respondent told Ofcer Shane Lovet of ICE that he would be living at 3 130 Lepsy Street, Dallas, TX 7 5212 upon his release. See Exhibit 3. Thus, afer considering all of the relevant fcts and circumstances in the record, the Court fnds, fr the reasons stated above, that the Respondent has not presented 6 I m m i g r a n t
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w w w . i r a c . n e t sufcient evidence to rebut the weaker presumption of delivery by regular mail. 'The Respondent is therefre unable to meet his burden to show that he lacked notice of his hearing. Finally, the Court fnds that this case does not present the exceptional circumstances warranting a sua sponte reopening of the proceedings. CONCLUSION Accordingly, the fllowing Order will be entered: ORDER IT IS HEREBY ORDERD that the Respondent's Motion to Reopen is DENIED. This cO day of November, 2012 Immigration Judge 7 I m m i g r a n t