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Enclosed is a copy of the Board's decision and order in the above-referenced case.
Sincerely,
Cynthia L. Crosby
Acting Chief Clerk
Enclosure
Panel Members:
Adkins-Blanch, Charles K.
Mann, Ana
Kelly, Edward F.
Userteam: Docket
Cite as: Claudia Carolina Perez-Duran, A206 687 577 (BIA May 30, 2017)
U.S. Department of Justice Decision of the Board of Immigration Appeals
Executive Office for Imm igration Review
IN REMOVAL PROCEEDINGS
APPEAL
APPLICATION: Reopening
In an order dated November 12, 2015, the respondents, natives and citizens of El Salvador,
were ordered removed in absentia.1 The respondents filed for reopening on February 9, 2016. The
respondents now appeal from the February 22, 2016, decision of the Immigration Judge, denying
the motion to reopen. The appeal will be sustained.
We have considered the totality of the circumstances presented in this case, including the lead
respondent's affidavit, due diligence by counsel in discovering the rescheduled hearing date by
calling the 1-(800) phone number and evidence that the respondents had an incentive to appear in
order to pursue their applications for asylum. We find that an exceptional situation has been
demonstrated and the respondents should be allowed an opportunity to appear at a removal hearing
and to pursue relief from removal, as appropriate. See 8 C.F.R. 1003.23(b)(l); Matter ofG-D-,
22 l&N Dec. 1132 (BIA 1999); Matter ofJ-J-, 21 l&N Dec. 976 (BIA 1997). Accordingly, the
following order will be entered.
ORDER: The appeal is sustained, the in absentia order is vacated, proceedings are reopened,
and the record is remanded to the Immigration Judge for further proceedings and the entry of a
new decmoa
Cite as: Claudia Carolina Perez-Duran, A206 687 577 (BIA May 30, 2017)
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Sincerely,
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Respondent )
The Respondents are a natives and citizens of El Salvador. On November 12, 2015, the
Immigration Court issued an in absentia order of removal against the Respondents. Thereafter,
on February 9 2016, the Respondent, through counsel, filed a motion to reopen. The
Respondents are claiming a lack of notice for their failure to appear, and that they never received
their hearing notices. The OHS has failed to submit any written response to this latest motion.
An in absentia order is properly entered when an alien has been properly served with a
copy the Respondent's charging document, informing the alien of the statutory obligations
associated with his removal proceedings and of the consequences of failing to provide a current
address, pursuant to 239(a)(l )(F) of the Immigration and Nationality Act ("the Act"). See
Matter of G-Y-R, 23 I&N Dec. 181 (BIA 2001). A review of the record indicates that the
1
Respondents were properly served with a copy of the Notice to Appear (''NTA") within the
statutory requirements of 239(a)(l) of the Act, as they were served the NTAs in person.
In the instant case, Respondent's counsel of record, Jasmine Coca, was properly served
with the written reset hearing notices. On June 24, 2015, this Court mailed a hearing notice to
notices have never been returned to this Court as undeliverable, thus this Court must assume that
counsel received such notices. Attorney Coca even appeared in court on November 12, 2015 on
It has been held by the BIA that proper service on counsel of record is proper notice on
the Respondent. See 239(a)(l); 8 C.F.R. 292.5 & 1003.13; See also Matter ofN-K-& V-S-,
21 I&N Dec. 879 (BIA 1997); Matter of Peugnet, 20 I&N Dec. 233, 237 (BIA 1991). As the
method of service was reasonably calculated to ensure that notice reached the Respondent, the
The Respondents can therefore be charged with receipt of their hearing notices.
Therefore, the in absentia order of removal issued on November 12, 2105, was properly entered
ORDER
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DATED:
2
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CERTIFICATE OF SERVICE
SEirJCE BY: Mail (M) .}rsonal Service (P)
TO: f] DHS [ ] Alien r Alien's Attorney
DATE: '2..- f?-.//f::::,
BY: Court s'taff