U.S.

Department of Justice
Executive Office for Immigration Review
Board ofImmigration Appeals
O.ffice ofthe Clerk
5107 leesb11rg Pike. Suite WOO
Falls Church. Virgmia 20530

DHS/ICE Office of Chief Counsel - ORL

3535 Lawton Road, Suite 100
Orlando, FL 32803

Name: LALL, NARINDRA

A 046-107-800
Date of this notice: 5/15/2015

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

DOYutL ceuvu
Donna Carr
Chief Clerk
Enclosure
Panel Members:
Greer, Anne J.
Holmes, David B.
O'Herron, Margaret M

Userteam: Docket

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Cite as: Narindra Lall, A046 107 800 (BIA May 15, 2015)

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U.S. Department of Justice

Decision of the Board of Immigration Appeals

Executive Office for Immigration Review

Falls Church, Virginia 20530

File: A046 107 800 - Orlando, FL

Date:

MAY 1&2015

In re: NARINDRA LALL

APPEAL AND MOTION

ON BEHALF OF RESPONDENT: Fairuze Sofia, Esquire
Manuel Ramirez
Assistant Chief Counsel

ON BEHALF OF OHS:
CHARGE:
Notice: Sec.

237(a)(2)(C), l&N Act [8 U.S.C. 1227(a)(2)(C)] Convicted of firearms or destructive device violation

APPLICATION: Reopening
The respondent has appealed the Immigration Judge's decision of December 2, 2014,
denying the respondent's second motion to reopen to rescind the in absentia removal order
entered against him on March 6, 2014. The Department of Homeland Security ("OHS") has
opposed the appeal. On appeal, the respondent has submitted additional evidence in support of
another request to rescind his in absentia order, which we construe as a motion to remand.
8 C.F.R. 1003.2(c)(4). The record will be remanded.
We review for clear error the findings of fact, including the determination of credibility,
made by the Immigration Judge. 8 C.F.R. 1003.l(d)(3)(i). We review de novo all other issues,
including whether the parties have met the relevant burden of proof, and issues of discretion.
8 C.F.R. 1003.l(d)(3)(ii).
The record reflects that the respondent was personally served with the Notice to Appear
("NTA") on February 1, 2013 (Exh. 1), which advised him of his obligation to keep the court
apprised of his current address. A notice for the March 6, 2014, hearing was mailed to the
respondent at the address provided on the NT A (Exh. 3). The respondent was ordered removed
in absentia when he did not appear for his scheduled hearing on that date. On June 19, 2014, the
respondent filed a motion to reopen to rescind an in absentia order based on a lack of notice. See
section 240(b)(5)(C)(ii) of the Act (stating that an in absentia may be rescinded upon a motion to
reopen filed at any time if the alien demonstrates that he or she did not receive notice in
accordance with section 239(a) of the Act); 8 C.F.R. 1003.23(b)(4)(ii) (same). Specifically, the
respondent asserted that he moved to a new address after his initial hearing, but he did not notify
the court. The Immigration Judge denied the motion on July 7, 2014, correctly pointing out that
where an alien has not provided an address for notice purposes, no notice is required. See
sections 239(a)(2)(B) and 240(b)(5)(B) of the Act; 8 C.F.R. 1003.23(b)(4)(ii). The respondent
did not appeal that decision.
Cite as: Narindra Lall, A046 107 800 (BIA May 15, 2015)

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

IN REMOVAL PROCEEDINGS

A046 107 800

The respondent appealed that decision. On appeal, the respondent once again moves to
rescind the in absentia order based on his claim that he did not possess the mental capacity to
understand the address obligations in the NTA (Resp. Br. at 23, 5-6). In support of the motion,
he has provided a psychological evaluation and mental health records. This motion is number
barred, and the respondent has not established that the evidence submitted in support of the
motion was previously unavailable. 8 C.F.R. 1003.23(b)(3) and (b)(4)(ii).
However, in an abundance of caution, we will reopen proceedings sua sponte and remand the
record for further consideration of the evidence submitted on appeal. See 8 C.F.R. 1003.2(a);
Matter ofG-D-, 22 I&N Dec. 1132, 1133-34 (BIA 1999). The medical records from November
and December 2014 indicate that the respondent suffers from paranoid schizophrenia, dependent
personality disorder, and "borderline intellectual functioning" (Appeal, tab A, at 2). The records
further note that the respondent was placed in special education classes throughout his youth, and
that he has "limited reading and writing abilities," as well as "limited cognitive abilities"
(Appeal, tab A, at 5). The respondent has also submitted a psychological evaluation based on
an assessment conducted in January 2015 (Appeal, tab B). The psychologist diagnosed the
respondent as suffering from Post-Traumatic Stress Disorder, and he concurred with the prior
diagnosis of "Borderline Intellectual Functioning," reporting that the respondent's IQ is in the
"extremely low range" of 62. Id. at 1, 5. 1 The psychologist concluded that the respondent
"does not have the intellectual capacity and language comprehension skills to understand the
current proceedings." Id. at 1. In light of this evidence, we will reopen proceedings and remand
the record to the Immigration Judge.
ORDER: The respondent's removal proceedings are reopened sua sponte.
FURTHER ORDER: The record is remanded for further proceedings consistent with the
foregoing opinion and the entry of a new decision.

----

FOR THE BOARD

The psychologist does not, however, include schizophrenia in his diagnosis of the respondent's
condition.

Cite as: Narindra Lall, A046 107 800 (BIA May 15, 2015)

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

On November 20, 2014, the respondent filed a second motion to reopen seeking to rescind
the in absentia order, arguing that he was not mentally competent to understand the advisals in
the NTA regarding the requirement to provide the court with any change of address. The
Immigration Judge denied this motion as number-barred, as an alien is only permitted to file one
motion to reopen to rescind an in absentia removal order. 8 C.F.R. 1003.23(b)(4)(ii). The
Immigration Judge also denied the motion on the merits, noting that the respondent did not assert
any mental health diagnosis or provide medical evidence of any mental health issue.

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UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
3535 LAWTON ROAD, SUITE 200
ORLANDO, FL 32803

IN THE MATTER OF
LALL, NARINDRA

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

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David Stoller, PA
Stoller, David
4445 S. Conway Rd.
Orlando, FL 32812

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FILE A 046-107-800

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DATE: Dec 2, 2014

UNABLE TO FORWARD - NO ADDRESS PROVIDED

ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE. THIS DECISION
IS FINAL UNLESS AN APPEAL IS FILED WITH THE BOARD OF IMMIGRATION APPEALS
WITHIN 30 CALENDAR DAYS OF THE DATE OF THE MAILING OF THIS WRITTEN DECISION.
SEE THE ENCLOSED FORMS AND INSTRUCTIONS FOR PROPERLY PREPARING YOUR APPEAL.
YOUR NOTICE OF APPEAL, ATTACHED DOCUMENTS, AND FEE OR FEE WAIVER REQUEST
BOARD OF IMMIGRATION APPEALS
MUST BE MAILED TO:
OFFICE OF THE CLERK
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5107 Leesburg Pike, Suite 2000
FALLS CHURCH, VA 20530

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ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUDGE AS THE RESUL1C .. -

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OF YOUR FAILURE TO APPEAR AT YOUR SCHEDULED DEPORTATION OR REMOVAL HEA.'. . :'Ii
THIS DECISION IS FINAL UNLESS A MOTION TO REOPEN IS FILED IN ACCORDANCE -)ik
WITH SECTION 242B(c)(3) OF THE IMMIGRATION AND NATIONALITY ACT, 8 U.s.c: . :,\
SECTION 12528(c)(3) IN DEPORTATION PROCEEDINGS OR SECTION 240 (c) (6),
.:5
8 U.S.C. SECTION 1229a(c) (6) IN REMOVAL PROCEEDINGS. IF YOU FILE A MOTION
TO REOPEN, YOUR MOTION MUST BE FILED WITH THIS COURT:
IMMIGRATION COURT
3535 LAWTON ROAD, SUITE 200
ORLANDO, FL 32803

-IL"oTHER: JUDGE'S DECISION ON MOTION TO REOPEN AND STAY OF REMOVAL

CC: OFFICE OF THE CHIEF COUNSEL

3535 LAWTON RD, SUITE 100
ORLANDO, FL, 32803

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<ITED STATES DEPARTMENT bsTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
U.S. IMMIGRATION COURT
3535 Lawton Road, Suite 200
Orlando, Florida 32803

NARINDRA LALL

RESPONDENT

A046107 800

ON BEHALF OF RESPONDENT: David Stoller, Esq.

IN REMOVAL PROCEEDINGS

DECISION ON A MOTION

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

CASE NO.

IN THE MATIER OF:

A Motion to Reopen has been filed by Respondent 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 the Motion be

GRANTED.

[XX] The Motion has been duly considered and it appears to the Court that no substantial grounds

have been advanced to warrant that it be granted. Therefore, IT IS HEREBY ORDERED that

[XX]

__

See attached.

Appeal: RESERVED by Respondent

\__

DANIEL LIPPMAN
U.S. Immigration Judge
Date Signed:

Certificate of Service

DEC

2 2014

PERSONAL (P);?
THIS DOCUMENT
SERVED BY:
MAl.k (M)
TO: I I ALIEN f
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DA TE:_
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Attachments: I I EO I I EOIR-28
I I Legal Service ist


NARINDRA LALL

A046 107 800

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

Respondent's instant second motion to reopen was filed on November 20, 2014. The record reflects that
Respondent was ordered removed in absentia on March 6, 2014, and Respondent's first motion to reopen filed
by his first counsel on his behalf was denied on July 7, 2014. The Court would point out that the facts were set
out in detail in the Court's last decision and are incorporated by reference. Respondent is rearguing the merits of
the in absentia order of removal. Respondent's instant motion to reopen filed by present counsel was filed on
November 20, 2014, and thus exceeds numerical limitations. See section 240 (c)(7)(A) of the Immigration and
Nationality Act; 8 C.F.R. 1003.23(b)( l ). There is no exemption to the numerical limitations on the basis that
the alien did not receive adequate notice. 1003.23(b)(4)(ii). The Court would also note that even if
Respondent's motion is considered one to reconsider, it is untimely filed since the motion was filed beyond 30
days from the date of the Court's July 7, 2014 decision. See section 240(c)(6)(B) of the Act; 8 C.F.R.
1003.23(b).

Respondent also raises mental competency, but the issue is only a conclusory assertion, and the proceedings
have already been completed. Moreover, the Court notes that Respondent was represented by prior counsel, he
submitted an affidavit in support of his first motion to reopen, and he was apparently able to assist his first
counsel and his mental competency was never raised as an issue in the first motion. In Matter ofM-A-M-, 25
I&N Dec. 474 (BIA 2011), the Board held that the test for determining whether an alien is competent to
participate in immigration proceedings is whether he or she has a rational and factual understanding of the
nature and object of the proceedings, can consult with the attorney if there is one, and has a reasonable
opportunity to examine and present evidence and cross-examine witnesses. Id. at 479. If there are indicia of
incompetency, the Immigration Judge must make further inquiry to determine whether the alien is competent
for purposes of immigration proceedings. Id. at 480. However, absent indicia of mental incompetency, an
Immigration Judge is under no obligation to analyze an alien's competency. Id. at 477. Respondent in the
instant motion at 13 concedes that no evidence of mental incompetency has been raised.

Respondent also contests his removability. Section 240(b)(S)(C) of the Act, which is the exclusive provision
allowing for the rescission of an in absentia removal order, provides that such and order "may be rescinded
only" upon a motion to reopen establishing either ""exceptional circumstances" or that "the alien did not receive
notice" of the hearing as provided for in section 239(a)(l), (2) of the Act, 8 U.S.C. 1239(a)(l ), (2) (emphasis
added). The phrase "may be rescinded" signals the Court's discretionary authority to rescind an in absentia
order of removal, but "only" if the alien establishes eligibility for rescission in one of the two ways prescribed
by the statute. Moreover, the documents in the record established Respondent's removability, and he waived
any objections by his failure to appear for the removal hearing. See Matter ofPonce-Hernandez, 22 l&N Dec.
784 (BIA 1999). Respondent's argument regarding antique firearms has been already addressed and decided
against his position in Matter ofChairez, 26 I&N Dec. 349, 355-58 (BIA 2014).