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U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals


Office ofthe Clerk

5107 leesburg Pike, Suite 2000


Falls Church, Virginia 22041

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DeCosmo, Derek Anthony OHS/ICE Office of Chief Counsel - NEW
Zucker Steinberg Wixted 970 Broad Street, Room 11048
415 Federal Street Newark, NJ 07102
Camden, NJ 08103

Name: GONZALEZ, FIDEL A 205-754-142

Date of this notice: 3/3/2017

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

Sincerely,

bOYUtL C t1AA)

Donna Carr
Chief Clerk

Enclosure
Panel Members:
Mann, Ana
O'Connor, Blair
Adkins-Blanch. Charles K.

Userteam: Docket

For more unpublished BIA decisions, visit


www.irac.net/unpublished/index/

Cite as: Fidel Gonzalez, A205 754 142 (BIA March 3, 2017)
U.S. Departmeni'of Justice Decision of the Board of Immigration Appeals
Executive Office for Immigration Review

Falls Church, Virginia 22041

File: A205 754 142-Newark, NJ Date:


MAR -3 2017
In re: FIDEL GONZALEZ

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IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Derek A. DeCosmo, Esquire

APPLICATION: Reopening

The respondent, a native and citizen of Mexico, appeals from the Immigration Judge's
August 26, 2015, decision denying his motion to reopen his removal proceedings. The
respondent was ordered removed in absentia on February 3, 2015, after he did not appear for his
hearing. The Department of Homeland Security ("DHS") has not responded to the appeal.
Proceedings will be reopened and the record will be remanded to the Immigration Judge for
further proceedings.

We review findings of fact, including credibility findings, under the "clearly erroneous"
standard. 8 C.F.R. 1003.l (d)(3)(i). We review questions of law, discretion, or judgment, and
all other issues de novo. 8 C.F.R. 1003.l(d)(3)(ii).

On appeal, the respondent contends that the in absentia order of removal should be
rescinded because he did not receive proper notice of his hearing (Respondent's Brief at 5-11).
See generally 8 C.F.R. I003.23(b)(4)(ii). He argues that there is no evidence that he had
moved from the mailing address to which the notice of hearing ("NOH") was mailed prior to its
mailing (Respondent's Brief at 8). Pursuant to section 240(b)(5)(C)(ii) of the Immigration and
Nationality Act, 8 U.S.C. 1229a(b)(5)(C)(ii), an order of removal in absentia may be rescinded
at any time if the alien demonstrates that he did not receive notice of his hearing in accordance
with section 239(a)(2) of the Act, 8 U.S.C. 1229(a)(2). Service of the NOH is sufficient if the
notice was sent to the most recent address provided by the alien. See section 240(b)(5)(A) of the
Act. There is a presumption of receipt when the NOH was properly sent. See Matter ofM-R-A-,
24 l&N Dec. 665, 673 (BIA 2008) (finding a presumption of receipt for a hearing notice sent by
regular mail when the notice was properly addressed and mailed according to normal office
procedures).

Contrary to the Immigration Judge's determination, we agree with the respondent that there
is insufficient evidence that he moved from his New Brunswick address by March 21, 2014,
when the NOH was sent. Moreover, we conclude that the Immigration Judge did not properly
consider whether the respondent had overcome the weaker presumption of delivery of the notice
when regular mail is used. See Matter of M-R-A-, supra, at 674 (holding that "an inflexible and
rigid application of the presumption of delivery is not appropriate where regular mail is the
method of service of a Notice [of Hearing]" and listing factors to be considered in determining
whether the respondent has overcome the presumption of delivery).

Cite as: Fidel Gonzalez, A205 754 142 (BIA March 3, 2017)
A205 754 142

Considering the totality of the circumstances presented in this case, including the
respondent's routine reporting to ICE immigration officials and acting with due diligence in
filing a motion to reopen, we find it appropriate to reopen proceedings. See Santana Gonzalez v.
U.S. Att'y Gen., 506 F.3d 274 (3d Cir. 2007). We will remand the record to the Immigration
Judge to consider the respondent's eligibility for any form of relief from removal that is available
to him. Accordingly, the following orders will be entered.

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ORDER: The respondent's motion to reopen is granted.

FURTHER ORDER: The record is remanded to the Immigration Judge for further
proceedings and issuance of a new decision consistent with this opinion.

2
Cite as: Fidel Gonzalez, A205 754 142 (BIA March 3, 2017)
U.S. Department of Justice

Executive Office for Immigration Review

Immigration Court, Newark, New Jersey

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Rodino Federal Building
970 Broad Street, Room] 200
Newark, New Jersey 07102
973/645-3524

IN THE MATTER OF:

GONZALEZ, FIDEL CASE NO. A205 754 142

RESPONDENT.

IN REMOVAL PROCEEDINGS
AT NEWARK, NEW JERSEY

ORDER ON MOTION TO REOPEN

Respondent filed a Motion to Reopen on June 17, 2015, only months after this
court issued a decision ordering his removal on February 3, 2015. The Department of
Homeland Security has filed a timely opposition.

Lack ofNotice: Respondent Was Served Personally with the Notice to Appear yet
Failed. to Report his Address

There is no doubt or issue about whether Respondent was served with the Notice
to Appear (Exhibit l); he signed it and ;tie was personally served on May 28, 2013.

The Notice to Appear advised the Respondent in writing of his obligation to


report any address change:
You must notify the Immigration Court immediately by using Fonn EOIR-33 whenever
you change your address or telephone number during the courtse of this proceeding.

Respondent swears under oath that he did not receive notice of the hearing that
was held. The Motion's attachments establishes that it is because the the Respondent
failed to advise this court of any address change. By the time that this court mailed out
notice to the Respondent on March 21, 2014, Respondent had moved months before, yet
had made no effort to advise this court of the address change (and-with the exception of
his attorney's EOIR-28 - still has failed to disclose his current address and phone
nwnber).
A205 754 142
Order of Motion to Reopen
Page 2

The Respondent, in the sworn statement attached to this Motion, does not disclose
where was his address on March 21, 2014 when this court's notice was mailed to him.

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Instead, Mr. Gonzalez simply claims that he lived in ''New Brunswick." The evidence
supplied by the Respondent, in fact, indicates that Respondent did not live at the last
known address that he had provided to this court (sworn statements by Noe Abraham
Gonzalez and by Montserrat Pinelo Hernandez).

Respondent has failed to address or explain his failure to advise this court of his
address change as he was notified to do in instructions handed to him when he was served
with the Notice to Appear despite its materiality and relevance. Santana-Gonzalez v.
Att'y Gen 'I of U.S., 506 F.3d 274 (3d Cir.2007).

The court, therefore, is forced to conclude that Mr. Gonzalez has notestablished
that his failure to have received notice is the result of his non-compliance with his duty to
advise this court of how to reach him.

Asylum: Lack ofEvidence to Support Reopening to Consider Asylum under Section


208 ofthe Immigration and Nationality Act

Respondent also seeks reopening to apply for protection and briefly outlines his
fear of return to Mexico. Mr. Gonzalez vaguely refers to the murder of a relative of his
girlfriend. No I-589 is attached so that this court can explore whether there has been a
change in country conditions in Mexico that would permit reopening this matter despite
the problems outlind above. -See 8 C.F.R. 1003. 22(b)(4).

Sua Sponte: Lack ofEvidence to Support Reopening Sua Sponte

No 1-589 is attached to establish that proceedings should be reopened sua sponte


to permit Respondent to address why the murder of a non-refative on an unknown date
impacts the Respondent.

ORDER

IT IS ORDERED that Respondent's Motion to Reopen is DENIED. This court's


decision signed on February 3, 2015 remains in full force and effect. SIGNED on August
26, 2015 at Newark New ersey.