U.S.

Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals
Office of the Clerk
5107 Leesburg Pike. Suite 2000
Falls Church, Virginia 2204/

OHS/ICE Office of Chief Counsel - SNA

8940 Fourwinds Drive, 5th Floor
San Antonio, TX 78239

Name: MORENO-REINA, GERSON ADO ...

A 077-607-472
Date of this notice: 12/22/2016

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

bCJvtL C

t1AA)

Donna Carr
Chief Clerk
Enclosure
Panel Members:
Adkins-Blanch. Charles K.
Grant. Edward R.
Mann, Ana

Userteam: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/
Cite as: Gerson Adonay Moreno-Reina, A077 607 472 (BIA Dec. 22, 2016)

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

Crayk, Adam Lee

STOWELL AND CRAYK, PLLC
2225 South State Street
SALT LAKE CITY, UT 84115

U.S. Department of Justice

Executive Office for Immigration Review

Decision of the Board of Immigration Appeals

Falls Church, Virginia 22041

File: A077 607 472 - San Antonio, TX

Date:

DEC 2 2 2016

In re: GERSON ADONAY MORENO-REINA

APPEAL
ON BEHALF OF RESPONDENT: Adam L. Crayk, Esquire
APPLICATION: Reopening
The respondent, a native and citizen of El Salvador, was ordered removed in absentia on
May 5, 2000. On January 12, 2016, the respondent filed a motion to reopen proceedings. The
Immigration Judge denied that motion on March 9, 2016, and the respondent filed the instant
appeal. The appeal will be sustained, the in absentia order will be vacated, proceedings will be
reopened, and the record will be remanded.
Upon de novo review of the record and in light of the totality of circumstances presented in
this case we find it appropriate to reopen these proceedings and allow the respondent another
opportunity to appear for a hearing before an Immigration Judge. In reaching this conclusion we
note that the respondent was a minor at the time he was served with the Notice to Appear and
under the control of his father. In addition, we note the absence of opposition by the Department
of Homeland Security.
ORDER: The appeal is sustained, the in absentia order is vacated, proceedings are reopened,
and the record is remanded to the Immigration Jdge for further proceedings.

Cite as: Gerson Adonay Moreno-Reina, A077 607 472 (BIA Dec. 22, 2016)

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

IN REMOVAL PROCEEDINGS

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
800 DOLOROSA STREET, SUITE 300
SAN ANTONIO, TX 78207

IN THE MATTER OF
MORENO-REINA, GERSON ADONAY

FILE A 077-607-472

DATE: Mar 10, 2016

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 ':FIIB BiCLOSJ;Q FOgs ANQ INSTRY6TI0e Q,it PR04i!Ji:PIJ;. PJ;t:I?J'.PtHl6 0'6'Pt APJ.2gAL.
YOUR NOTICE OF APPEAL, ATTACHED DOCUMENTS, AND FEE OR FEE WAIVER REQUEST
MUST BE MAILED TO:
BOARD OF IMMIGRATION APPEALS
OFFICE OF THE CLERK
5107 Leesburg Pike, Suite 2000
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 UNLESS A MOTION TO REOPEN IS FILED IN ACCORDANCE
WITH SECTION 242B(c)(3) OF THE IMMIGRATION AND NATIONALITY ACT, 8 U.S.C.
SECTION 1252B(c) (3} IN DEPORTATION PROCEEDINGS OR SECTION 240(c} (6),
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
800 DOLOROSA STREET, SUITE 300
SAN ANTONIO, TX 78207
OTHER:

CC: OHS/ ASSISTANT CHIEF COUNSEL

8940 FOURWINDS DR. Room 5045
SAN ANTONIO, TX, 78239

COURT

FF

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

STOWELL AND CRAYK, PLLC

Crayk, Adam Lee
2225 South State Street
SALT LAKE CITY, UT 84115

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
800 DOLOROSA STREET, SUITE 300
SAN ANTONIO, TX 78207

MORENO-REINA, GERSON ADONAY

RESPONDENT
IN REMOVAL PROCEEDINGS

)
)
)
)
)
)
)

Case No. A077-607-472

CHARGE:

Section 212(a)(6)(A)(i) of the Immigration and Nationality Act, as

amended: Alien present in the United States without admission or
parole.

APPLICATION:

8 C.F.R. 1003.23(b): Motion to Reopen.

8 C.F.R. 1003.20(b): Motion to Change Venue.
ONBEHALF OF THE GOVERNMENT
U.S. Immigration & Customs Enforcement
Office of the Chief Counsel
8940 Fourwinds Dr.,5th Fl.
San Antonio,TX 78239

ON BEHALF OF THE RESPONDENT

Adam L. Crayk,Esq.
Stowell Crayk & Bown,PLLC
2225 S. State St.
Salt Lake City,UT 84115

WRITTEN DECISION & ORDER OF THE IMMIGRATION JUDGE

I. Procedural History
The respondent is a twenty-six-year-old male, native and citizen of El Salvador, who
arrived in the United States at or near Eagle Pass,Texas,on or about May 17,1999. Exhibit #1;
Exhibit #2. On May 17, 1999, the Immigration and Naturalization Service (INS), now the
Department of Homeland Security (DHS), personally served the respondent's father with the
respondent's Notice to Appear (NTA),charging the respondent as removable pursuant to section
212(a)(6)(A)(i) of the Immigration and Nationality Act (the Act),as amended, an alien present
.

in the United States without admission or parole. Exhibit #1,; Exhibit #2.

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

IN THE MATTER OF

The NTA contains a section titled "Failure to appear" that specifies, inter alia, the
consequences of failing to appear for any scheduled hearings. Exhibit #1. The NTA reflects that
the respondent was advised of the consequences of non-appearance in the Spanish language. Id.
On May 5, 2000, the respondent was not present for his hearing before this Court and was
Pursuant to the authority provided in section

240(b)(S)(A) of the Act, the Court proceeded in absentia and ordered the respondent removed
from the United States to El Salvador on the charge contained in the NTA.
On January 12, 2016, the respondent filed a motion to reopen his removal proceedings.
Respondent's Motion to Reopen. On the same day, he also filed a motion for change of venue.
Respondent's Motion to Change Venue. DHS has not filed a response in opposition to either
motion.
II. Motion to Reopen

An in absentia order of removal may be rescinded only (i) upon a motion to reopen filed
within 180 days after the date of the order of removal if the alien demonstrates that the failure to
appear was because of exceptional circumstances, or (ii) upon a motion to reopen filed at any
time if the alien demonstrates that he did not receive notice in accordance with paragraph (1) or
(2) of section 239(a) of the Act or the alien demonstrates that he was in Federal or State custody
and the failure to appear was through no fault of his own. Section 240(b)(5)(C) of the Act; 8
C.F.R. 1003.23(b)(4)(ii).
A.

Exceptional Circumstances

Over fifteen years passed between the date the Court ordered the respondent removed in
absentia and the date he filed his motion to reopen. Accordingly, any motion to reopen based on
exceptional circumstances is time-barred. See Section 240(b)(S)(C) of the Act; see also 8 C.F.R.
I003.23(b)(4)(ii).
B.

Notice

On May 17, 1999, immigration officials personally served the respondent's father with an
NTA. Exhibit #1; Exhibit #2. As required by section 239(a)(l) of the Act, the NTA advised the
respondent of his obligation to maintain a current mailing address with the Court and of the
consequences of failing to appear for any scheduled hearings. Exhibit #1. The respondent's
father was also orally advised of the consequences of non-appearance in the Spanish language.
Id Despite this, the respondent failed to provide an address as required. Id.; Exhibit #2.
2

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

unavailable for examination under oath.

The NTA orders the respondent to appear before the San Antonio Immigration Court at a
date and time "to be set." Exhibit #1. The Act specifically prescribes, however, a method for
notifying aliens of a change in the time or place of removal proceedings. Section 239(a)(2) of
the Act. Because the respondent did not provide his address as required, the Court was not
hearing. See Section 239(a)(2)(B) of the Act.
In the case of a minor under fourteen years of age, service is proper if made upon the
person with whom the minor resides. 8 C.F.R. 103.8(c)(2)(ii). The purpose of this regulation
is to ensure service of a notice is rendered "upon the person or persons who are most likely to be
responsible for ensuring that an alien appears before the Immigration Court at the scheduled
time." Matter ofAmaya-Castro, 21 I&N Dec. 583,585 (BIA 1996). The Board of Immigration
Appeals (BIA) has found that "it is implicit in the statute and regulations dealing with notice that
an adult relative who receives notice on behalf of a minor alien bears the responsibility to assure
that the minor appears for the hearing,as required." Matter of Gomez-Gomez, 23 l&N Dec. 522,
528 (BIA 2002). In short,where an NTA is personally served on an adult with whom an alien
under the age of fourteen resides, service of the NTA is proper and sufficient to establish notice
to the minor alien himself. See Amaya-Castro, 21 l&N Dec. 583, 585; see also Gomez-Gomez,
23 I&N Dec. 522,528-29.
In the present case,the respondent was nine years old when he and his father entered the
United States. Exhibit #1; Exhibit #2. Furthermore, the record reflects that the respondent's
father was served an NTA on the respondent's behalf. Exhibit #1; Exhibit #2. Service of the
respondent's NTA was thus proper and it was the obligation of his father to comply with the
clearly stipulated terms of the NTA, including the obligation to maintain a current mailing
address with the Court. See 8 C.F.R. I03.8(c)(2)(ii). While the respondent claims not to have
received actual notice, the regulations and precedent cases of the BIA make it clear that the
requirements of section 239(a) were fully met insofar as the respondent's father was personally
served the respondent's NTA. See 8 C.F.R. 103.8(c)(2)(ii); see also Amaya-Castro, 21 I&N
Dec. 583, 585; see also Gomez-Gomez, 23 l&N Dec. 522,528-29. Accordingly, the respondent
is precluded from establishing that he is eligible for reopening based on lack of notice. See
Section 240(b)(5)(C) of the Act; see also 8 C.F.R. I003.23(b)(4)(ii).

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

required to mail him a notice of hearing apprising him of the date and time of his scheduled

'

C.

Reinstatement of Prior Removal Order

If an alien is found to have reentered the United States illegally after having been

removed or having departed voluntarily, under an order of removal, the prior removal order is
reinstated from its original date and is not subject to being reopened or reviewed. Section
on May 5, 2000, the respondent left the United States, only to return, at an unknown date,
without being admitted or paroled after inspection by an immigration officer, in violation of
section 212(a)(6)(A)(i) of the Act. See Respondent's Motion to Reopen at 22, Exhibit E.
Because he reentered the United States illegally after having been ordered removed, the Court
finds that his prior removal order is not subject to being reopened. See Section 24l(a)(5) of the
Act.
D.

Sua Sponte
An Immigration Judge may, upon his own motion, reopen any case in which he

previously made a decision. 8 C.F.R. 1003.23(b). Sua sponte reopening, however, is an

"extraordinary remedy reserved for truly exceptional situations" and is not "a general remedy for
any hardships created by enforcement of the time and number limits in the motions regulations."
Matter ofG-D-, 22 I&N Dec. 1132,1133-34 (BIA 1999).
In the present case, the Court declines to sua sponte reopen removal proceedings where
the respondent did not contact the Court regarding his proceedings for over fifteen years and
where he appears to have left and returned to the United States illegally. In addition, the
respondent has not identified any relief from removal for which he might be eligible.
Accordingly,the following orders shall be entered:
ORDERS
IT IS HEREBY ORDERED that the respondent's motion to reopen is DENIED.
IT IS FURTHER ORDERED that the respondent's motion to change venue is
DISMISSED as moot.
Date:

/ ,?l'l r II

o/

-----

,2016

Glenn P. McPhaul
United States Immigration Judge

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

241(a)(5) of the Act. In the present case,the record indicates that after being ordered removed