U.S.

Department of Justice

Executive Office for Immigration Review

Board ofImmigration Appeals

Office of the Clerk

5/07 Leesburg Pike, Suite 2000

Falls Church, Virginia 2204/

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Nong, Yuvora DHS/ICE Office of Chief Counsel - HOU
Tucker, Nong & Associates 126 Northpoint Drive, Suite 2020
8133 Leesburg Pike, Suite 900 Houston, TX 77060
Vienna, VA 22182

Name: REYES- DE ROMERO, KEILA IS... A 206-698-059

Date of this notice: 6/8/2017

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

Sincerely,

Cynthia L. Crosby
Deputy Chief Clerk

Enclosure
Panel Members:
Kelly, Edward F.
Grant, Edward R.
Mann, Ana

Usertea m: Docket

For more unpublished BIA decisions, visit

www.irac.net/unpublished/index/

Cite as: Keila Isabel Reyes-De Romero, A206 698 059 (BIA June 8, 2017)
U.S. Department of Justice Decision of the Board of Immigration Appeals
Executive Office for Immigration Review

Falls Church, Virginia 22041

JUN - 8 2017
File: A206 698 059 - Houston, TX Date:

In re: KEILA ISABEL REYES-DE ROMERO

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IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Yuvora Nong, Esquire

ON BEHALF OF DHS: Hayden Colby

Assistant ChiefCounsel

APPLICATION: Reopening

The respondent, a native and citizen of El Salvador, was ordered removed from the United
States in absentia on August 11, 2016, after not appearing at a hearing. She filed a motion to
reopen on September 27, 2016, and appeals from the hnmigration Judge's decision dated
December 15, 2016, denying her motion. The appeal will be sustained.

We review Immigration Judges' findings offact for clear error, but questions oflaw, discretion,
and judgment, and all other issues in appeals, de novo. 8 C.F.R. 1003.l(d)(3)(i), (ii).

On appeal, the respondent argues that she did not receive the Notice of Hearing. See Matter
of M-R-A-, 24 l&N Dec. 665, 675 (BIA 2008) (setting forth the factors for rebutting the
presumption of delivery ofregular mail). The Notice ofHearing was mailed to the address stated
by the respondent on her February 2016, Form EOIR.-33/IC, and the notice was not returned to
the hnmigration Court as undeliverable (Exh. 4). However, the respondent filed her motion to
reopen with due diligence, provided a detailed affidavit with corroborating evidence, and appears
to have been diligent regarding her obligations to the hnmigration Court and the Department of
Homeland Security. She also has a child who appears to have a case pending before the
hnmigration Court, an incentive for the respondent to appear at the hearing. In light of the
foregoing, the respondent has rebutted the presumption that she received the Notice of Hearing,
and we will reopen and remand these proceedings based on lack of notice. On remand, the
hnmigration Judge shall change venue to Baltimore, MD.

Accordingly, the following order will be entered.

ORDER: The appeal is sustained, the in absentia order of removal is vacated, and these
proceedings are reopened and remanded for further proceedings consistent with the foregoing
opinion.

Cite as: Keila Isabel Reyes-De Romero, A206 698 059 (BIA June 8, 2017)
 (
f1P".

UNITED STTES DEPARTMENT OF JUSTICE

EXECUTIVEOFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
HOUSTON, TEXAS

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In the Matter of:

REYES-DE ROMERO, Keila I. File Number: A 206-698-059

Respondent.

APPLICATION: Respondent's Motion to Reopen

ON BEHALF OF RESPONDENT: ON BEHALF OF DBS:

Yuvora Nong, Esq. Hayden Colby, Esq.
Tucker & Associates, PLLC Assistant ChiefCounsel
8521 Leesburg Pike, Suite 200 126 Northpoint, Room 2020
Vienna, Virginia 22182 Houston, Texas 77060

ORDER ONMOTION

Pending before the Court is Respondent's Motion to Reopen filed on September

27, 2016. Respondent, through counsel, argues that the Court should reopen her removal
proceedings to rescind the in absentia removal order due to lack of notice. The
Department of Homeland Security (OHS or Department) filed an opposition on
December 1, 2016. For the reasons stated below, the Court will deny Respondent's
motion.
I. FactualandProceduralHistory
Respondent is twenty-seven years old. See Exh. 1. She is a native and citizen ofEl
Salvador. Id. Respondent arrived in the United States at or near Hidalgo, Texas, on or
about April 16, 2014. Id. Respondent was not admitted or paroled after inspection by an
Immigration Officer. Id. On April 17, 2014, the Department personally served
Respondent with a Notice to Appear (NTA), charging her as removable from the United
States pursuant to section 212(a)(6)(A)(i) of the Immigration and Nationality Act (INA or
the Act). Id.

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. A 206-698-059

On July 14, 2015, the Court sent Respondent a Notice of Hearing (NOH) ordering
her to appear before the Court on November 29, 2019. See Notice of Hearing (July 14,
2015). The hearing notice was mailed to the address on record, and was not returned as
undeliverable. Id.
On May 26, 2016, the Court sent Respondent a Notice of Hearing ordering her to
appear before the Court on July 28, 2016 at 1:00 p.m. See Notice of Hearing (May 26,
2016). The hearing notice was mailed to the address on record, and was not returned as

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undeliverable. Id.
Respondent failed to appear at the hearing on July 28, 2016. OHS' Counsel,
however, asked the Court to reset the case because Respondent had recently moved to
Maryland and might be seeking a change of venue. The Court granted OHS' request and
sent Respondent a Notice of Hearing ordering her to appear before the Court on August
11, 2016 at 1:30 p.m. See Notice of Hearing (July 28, 2016). The hearing notice was
mailed to the address on record, and was not returned as undeliverable. Id.
Respondent failed to appear at the hearing on August 11, 2016 and was ordered
removed to El Salvador in absentia. See Order of the Immigration Judge (Aug. 11, 2016).
II. Statement of theLaw
An in absentia removal order may be rescinded only in the following
circumstances: (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 due to
exceptional circumstances; or (ii) upon a motion to reopen filed at any time if the alien
demonstrates that she did not receive notice in accordance with paragraph (1) or (2) of
section 239(a) of the INA, or the alien demonstrates that she was in Federal or State
custody and the failure to appear was through no fault of her own. INA 240(b)(5)(C); 8
C.F.R. 1003.23(b)(4)(ii) (2011). Furthermore, the filing of this motion shall stay the
removal of the alien until the Immigration Judge issues his decision. See 8 C.F.R.
1003.23(b)(4)(ii). An alien may file one motion to reopen proceedings. See INA
240(c)(7)(A).
If an alien does not attend a removal hearing after written notice has been
provided to the alien or the alien's counsel ofrecord, the alien will be ordered removed in
absentia if the Government establishes by clear, unequivocal, and convincing evidence
that written notice of the hearing was provided and that the alien is removable. INA
240(b)(5)(A). Adequate notice can be accomplished through personal service, or if
personal service is not practicable, through service by mail to the alien. INA 239(a)(l).
Service by mail is proper upon proof of attempted delivery to the alien's most recently
provided address. INA 239(c). The Notice to Appear (NTA) includes the alien's
obligation to immediately provide a written record of any change in address or telephone
number and the consequences of failing to do so, and also includes the consequences of
failing to appear. See INA 239(a)(l}(F), (a)(l)(G). Thus, if the alien receives actual
notice ofthe hearing or can be charged with receiving constructive notice, through receipt
of a NTA, then in absentia proceedings are authorized. Matter of G-Y-R-, 23 I&N Dec.
181, 186 (BIA 2001).

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 A 206-698-059

. When written notice is properly addressed and sent to the alien by regular mail
according to normal office procedures,a presumption of delivery arises. Matter of M-R
A-, 24 I&N Dec. 665, 673 (BIA 2008). Once the presumption of delivery arises, the
burden is on the alien to provide proof that the document was not received. Id. at 674.
The Court may consider all relevant evidence of record to overcome the presumption of
delivery. Id. at 673-74. Evidence may include,but is not limited to:

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(1) [T]he respondent's affidavit; (2) affidavits from family members or
other individuals who are knowledgeable about the facts relevant to
whether notice was received; (3) the respondent's actions upon learning of
the in absentia order, and whether due diligence was exercised in seeking
to redress the situation; (4) any prior affirmative application for relief,
indicating that the respondent had an incentive to appear; (5) any prior
application for relief filed with the Immigration Court or any prima facie
evidence in the record or the respondent's motion of statutory eligibility
for 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 non-receipt of notice.
Id. at 674. The granting of a motion to reopen lies within the ''broad discretion" of the
Immigration Judge. See INS v. Doherty, 502 U.S. 314,323 (1992).
Ill. Analysis
Respondent's NTA reflects that She was personally served, as evidenced by her
signature and fingerprint thereon. See Exh. 1. Thus, Respondent was on notice of the
initiation of removal proceedings, her obligation to update the Immigration Court with
any change of address, and the consequences of failing to appear as required by Section
239(a)(l) of the INA. See Matter of G-Y-R-, 23 l&N Dec. at 186. In addition, the NTA
indicates that Respondent was advised in her native Spanish language of the
consequences of her failure to appear. See Exh. 1.
However, Respondent alleges that she did not receive her NOH, and thus did not
have actual notice of the time and date of the hearing. The last address Respondent
provided-before the hearing on August 11, 2016---in accordance with Section
239(a)(l)(F) of the INA was the address she provided on Form EOIR - 33/IC, which was
filed with the Court on February 18, 2016.1 The NOH was mailed to Respondent at this
address. See Exh. 4. Service by mail of the NOH to the last address provided by
Respondent in accordance with Section 239(a)(l)(F) of the INA is sufficient due to the
presence of proof of attempted delivery to such address. INA 239(c). Thus,in absentia
proceedings were properly authorized. See INA 240(b)(5)(B); Matter of G-Y-R-, 23
I&N Dec. at 187.
As to Respondent's claim for rescission based on lack of notice, the Court must
determine whether Respondent received actual notice of the hearing. See Gomez-Palacios

1
Respondent listed her address as 1612 Veirs Mill Rd. Silver Spring, MD 20902.
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 A 206-698-059

v. Halder, 560 F.3d 354, 359-60 (5th Cir. 2009). Her NOH was mailed to Respondent's
most recent address of record2 according to normal office procedures. Thus, a
preswnption of delivery arises. See Matter of M-R-A-, 24 I&N Dec. at 673. The Court
must consider all evidence submitted by Respondent to overcome the presumption of
delivery. Id. at 674-75.
The Court finds that the evidence in the record is not enough to overcome the

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presumption of delivery. See Matter of M-R-A-, 24 l&N at 673. Respondent has
submitted an affidavit to rebut the presumption of delivery. See Respondent's Motion to
Reopen,Tab B. In her affidavit,Respondent does not allege that the NOH was delivered
improperly. Instead,Respondent explains that she did not receive notice of the hearing on
August 11,2016, and only became aware of such hearing upon receiving the in absentia
removal order "in late August of 2016." See id. Respondent further explains that she
would not have failed to appear at the hearing had she received notice of the hearing. Id.
The Court notes that Respondent exercised due diligence in filing this motion.
Respondent was ordered removed in absentia on August 11, 2016. See Order of the
Immigration Judge (Aug. 11, 2016). According to Respondent's affidavit, as soon as
Respondent received the in absentia order, she contacted the Immigration Court and then
"began consulting with private attorneys to see if anyone could help [her] for a
reasonable fee." See Respondent's Motion to Reopen, Tab B. Shortly thereafter,
Respondent contracted an attorney and filed this motion on September 27,2016. Id.
However, the remaining evidence of record compels a finding that Respondent
has not overcome the presumption of delivery. First,the Court notes that Respondent did
not initiate these removal proceedings. See Matter of C-R-C-, 24 l&N Dec. 677, 680
(BIA 2008) (finding that the respondent had an incentive to appear where he
affirmatively filed an asylum application approximately six months after he entered the
United States, thereby initiating a proceeding to obtain a benefit). Furthermore, in her
affidavit,Respondent asks the Court to reopen her case so that she "can continue seeking
asylum with the [I]mmigration [J]udge." See Respondent's Motion to Reopen, Tab B.
However, Respondent has not submitted an application for asylum, and had no prior
applications for relief or appearances before the Court, indicating her incentive to appear.
Lastly, while the Court commends Respondent for attending her appointments with ICE,
such diligence does not excuse her absence at her scheduled hearing.
In consideration of the foregoing factors, the Court finds that Respondent has
submitted insufficient evidence to rebut the presumption of delivery. Therefore,the Court
will not reopen the proceedings. See Matter ofM-R-A-, 24 I&N at 673.

2
The Court wishes to make clear that the address filed with the Court on February 18, 2016 (1612 Veirs
Mill Rd. Silver Spring, MD 20902) was the most recent address of record at the time of the hearing on
August 11, 2016. At the time of filing this motion on September 27, 2016, Respondent filed a newEOIR-
33/IC listing her address as 3306 Tapestry Cir. Burtonsville, :MD 20866.
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 A 206-698-059

ORDER

IT IS HEREBYORDERED that Respondent's Motion to Reopen Removal Proceedings

beDENIED .

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Date Georgina Picos
Immigration Judge