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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Zoltan, Paul Steven OHS/ICE Office of Chief Counsel - DAL
Law Office of Paul S. Zoltan 125 E. John Carpenter Fwy, Ste. 500
P.O. Box 821118 Irving, TX 75062-2324
Dallas, TX 75382

Name: R -G ,M A 770

Date of this notice: 10/12/2017

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

Sincerely,

Donna Carr
Chief Clerk

Enclosure

Panel Members:
Greer, Anne J. .

Kelly, Edward F.
Kendall Clark, Molly

Userteam: Docket

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Cite as: M-R-G-, AXXX XXX 770 (BIA Oct. 12, 2017)
U.S. Department of Justice Decision of the Board of Immigration Appeals
Exi:cutive Office for Immigration Review

Falls Church, Virginia 22041

File: 770 - Dallas, TX Date:

OCT 12 2017
In re: M G

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IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Paul Steven Zoltan, Esquire

APPLICATION: Reopening; remand

The respondent, a native and citizen ofHonduras, has appealed from the Immigration Judge's
April 27, 2017, decision. In that decision, the Immigration Judge denied the respondent's motion
to reopen her removal proceedings in which she was ordered removed in absentia on April 27,
2015. The Department ofHomeland Security ("OHS") has not filed an opposition to the appeal.
The appeal will be sustained, the motion to reopen will be granted, the in absentia order will be
rescinded, and the record will be remanded for further proceedings.

We review for clear error the findings offact, including the determination ofcredibility, made
by the Immigration Judge. 8 C.F.R. 1003.l(d)(3)(i) (2017). We review de novo all other issues,
including issues oflaw, judgment, and discretion. 8 C.F.R. 1003.l(d)(3)(ii).

The respondent entered the United States on November 23, 2013, as a minor (IJ at l;
Exhs. 1-2). She was taken into custody, and the OHS served her with a Notice to Appear
(Form I-862) (IJ at l; Exhs. 1-2). The respondent was released into the custody of her mother
(IJ at 1; Exhs. 1-2). The respondent and her mother provided the OHS with an address in Dallas,
Texas, at which they could be served with the notice ofhearing (IJ at 1). Venue was changed from
San Antonio to the Dallas, Texas, Immigration Court (IJ at 1). On March 2, 2015, the Immigration
Court mailed a notice ofhearing to the address the respondent and her mother had provided (IJ at
1-2). The notice of hearing indicated that the respondent's removal hearing was scheduled for
April 27, 2015 (IJ at 2). The respondent did not appear at the April 2015 hearing and was ordered
removed in absentia (IJ at 2). On April 7, 2017, the respondent moved to reopen her removal
proceedings and rescind the removal order, claiming that she did not receive the notice ofhearing
at the address she had provided (Respondent's Motion at 2-8). The Immigration Judge denied the
motion and this appeal followed.

The respondent's motion to reopen is untimely. See 8 C.F.R. 1003.23(b)(4)(ii). She may
nevertheless move to rescind the in absentia order at any time if she establishes that she did not
receive notice ofthe removal hearing in accordance with sections 239(a)(l)-(2) ofthe Immigration
and Nationality Act, 8 U.S.C. 1229(a)(l)-(2) (2012). See section 240(b)(5)(C)(ii) of the Act,
8 U.S.C. 1229a(b)(5)(C)(ii); see also 8 C.F.R. 1003.23(b)(4)(ii).

To overcome the presumption of receipt of a notice of hearing sent by regular mail, which is
weaker than the presumption applied to a notice of hearing sent by certified mail, an alien must

present sufficient evidence showing that the notice was not received at the most recent address
Cite as: M-R-G-, AXXX XXX 770 (BIA Oct. 12, 2017)
 770

provided. Matter ofM-R-A-, 24 I&N Dec. 665, 673 (BIA 2008). In this case, the respondent and
her mother submitted affidavits, indicating that they had not received the notice of hearing at the
address that they had provided and they continued to live at this address until the end of 2015
(Respondent's Motion at 4-6).1 The respondent has submitted proof that she is the beneficiary of
an approved Petition for Amerasian, Widower, or Special Immigrant (Form I-360) (Respondent's
Motion at 8). The approval notice indicates that she filed this petition on February 2, 2016-

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approximately 10 months after she had been ordered removed (Respondent's Motion at 8). The
notice was sent to her on June 27, 2016--less than 10 months before she filed her motion to reopen
(Respondent's Motion at 8). The record also reflects that the respondent attended her prior hearing
before the San Antonio Immigration Court on May 28, 2014 (U at 3).

In light of this evidence, we conclude that the respondent has submitted sufficient evidence to
overcome the presumption of delivery of the notice of hearing pursuant to the standards set forth
in Matter of M-R-A-. See Matter of C-R-C-, 24 I&N Dec. 677, 679-80 (BIA 2008) (concluding
that reopening was appropriate where an alien had submitted similar evidence indicating that he
had not received notice). The respondent acted with due diligence because she sought and obtained
an approved petition for a nonimmigrant visa, and filed her motion less than 10 months after she
had received notice that the petition had been approved. She previously appeared for proceedings
and stated in her affidavit that she had an incentive to appear in April 2015. Finally, there is no
indication that the DHS opposes the respondent's motion. Under the circumstances of this case,
we conclude that the respondent's motion to reopen should be granted. We will therefore sustain
the respondent's appeal, reopen her removal proceedings, rescind the in absentia removal order,
and remand the record for further proceedings. Accordingly, the following orders will be entered.

ORDER: The appeal is sustained.

FURTHER ORDER: These proceedings are reopened, the Immigration Judge's in absentia
order is rescinded, and the record is remanded to the Immigration Court for further proceedings.

1 The Immigration Judge found that the affidavit of the respondent's mother was not sufficiently

corroborative of the narrative outlined in the respondent's affidavit (IJ at 3). However, the
Immigration Judge did not question the veracity of the respondent's affidavit. Because the
Immigration Judge did not find any "evidentiary flaw" in the respondent's affidavit, we regard it
as "sufficient to rebut the presumption of effective service" by regular mail. Hernandez v. Lynch,
825 F.3d 266, 269 (5th Cir. 2016).

2
Cite as: M-R-G-, AXXX XXX 770 (BIA Oct. 12, 2017)
 UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
DALLAS, TEXAS

IN THE MATIER OF: )

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) IN REMOVAL PROCEEDINGS
G ,M )
) A 770
RESPONDENT )

APPLICATION: Motion to Reopen

ON BEHALF OF THE RESPONDENT: ON BEHALF OF THE DEPARTMENT

OF HOMELAND SECURITY:
Paul Zoltan Office of the Chief Counsel
P.O. Box 821118 DHS/ICE
Dallas, TX 75382 125 E. John Carpenter Freeway, Suite 500
Irving, TX 75062

ORDER OF THE IMMIGRATION JUDGE

I.Procedural History

Respondent is a native and citizen of Honduras. Ex. 1. She entered the United States on
or about November 23, 2013, at or near Hidalgo, TX. Id. Respondent was not admitted or
paroled by an immigration officer. Id. On November 24, 2013, Department of Homeland
Security (OHS) charged Respondent with removability under section 212(a)(6)(A)(i) of the
Immigration and Nationality Act (the Act). Id. The Notice to Appear (NTA) was served on her
case manager. Id.

Upon her release from the custody of the Office of Refugee Resettlement, Respondent
provided the Government with the following mailing address: 3118 Valley Meadow Dr. #219,
Dallas, TX 75220.

On September 10, 2014, the San Antonio Court granted Respondent's motion to change
venue to Dallas, TX. On March 2, 2015, this Court mailed Respondent a notice of hearing at the

1
 (

aforementioned, Valley Meadow mailing address. The notice informed Respondent that her next
hearing would be at the Dallas Immigration Court on April 27, 2015.

On April 27, 2015, Respondent failed to appear for her hearing. Once the Government
established by clear, unequivocal, and convincing evidence that written notice was provided and
Respondent was removable, the Court issued an order of removal pursuant to INA 240(b)(5).
Ex. 2.

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Almost two years later, on April 7, 2017, Respondent submitted a motion seeking to
reopen her proceedings due to lack of notice. Respondent claimed that she never received a
hearing notice. Respondent's Motion to Reopen Proceedings, Tab A.

II. Statement of Law and Analysis

If an alien does not attend a removal hearing after written notice has been provided to the
alien or the alien's counsel of record, she 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). An in absentia order is proper if
an alien failed to keep the court apprised of his address. INA 240(b)(5)(B).

An in absentia order may be rescinded upon the filing of a motion to reopen filed at any
time if an alien has not received adequate notice of the hearing. INA 240(b)(5)(C)(ii); 8 C.F.R.
1003.23(b)(4)(ii). Adequate notice can be accomplished through personal service or through
service by mail. 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 outlines the consequences of
failing to appear. INA 239(a)(l)(F), (G). Thus, if the alien receives actual notice of the hearing
or can be charged with receiving constructive notice, through receipt of a NTA, in absentia
proceedings are authorized. Matter ofG-Y-R-, 23 I&N Dec. 181, 186 (BIA 2001).

The Board has held that when service of a written notice is sent by certified mail through
the United States Postal Service and there is proof of attempted delivery and notification of
certified mail, a strong presumption of proper service arises. See Matter ofGrijalva 21 I&N Dec.
27, 37 (BIA 1995). However, the Board determined that if written notice is sent by regular mail,
there is a decreased presumption of proper service. Matter ofM-R-A-, 24 I&N Dec. 665, 673
(BIA 2008). Therefore, if notice was sent by regular mail, an alien must present evidence to
overcome the slight presumption of proper service. Id.

The Board enumerated an inexhaustible list of seven factors to consider when

determining whether a respondent has overcome the presumption of delivery when notice is
delivered by regular mail. Id. at 674. Some of the factors outlined by the Board include: (1) the
respondent's affidavit; (2) affidavits from family members or other individuals; (3) respondent's
actions once she learned about the in absentia order; and (4) respondent's incentive to appear.
The Court must consider these forms of evidence when deciding whether to reopen proceedings.
Id.

2
 (

Respondent does not overcome the slight presumption of delivery afforded notice sent by
mail. First, the Court notes that Respondent and her mother submitted affidavits. Respondent and
her mother state that they lived together at the Valley Meadow address and they never received
the notice of hearing. They also suggest that they did not receive other mail during the time the
Court sent the notice. Respondent and her mother admit that they moved from their Valley
Meadow address at the end of 2015, but Respondent did not provide any corroborating evidence
to substantiate this timeframe. Respondent did not state how she learned about the removal order,

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and she did not detail the steps she took upon learning of the in absentia order.

The Court considers that Respondent attended her first hearing in San Antonio and that
she appear prima facie eligible for relief at the time as positive factors. However, these positive
factors do not outweigh the adverse factors. Although Respondent stated that she did not receive
the notice, the notice was not returned to the Court as undeliverable. Secondly, Respondent has
not demonstrated due diligence to resolve the situation in a timely manner. She was ordered
removed in absentia two years ago, and she is silent as to how she learned of the order and the
steps taken since then to redress the situation. Further, her mother's affidavit does not adequately
corroborate Respondent's claim since it is almost identical to Respondent's affidavit. This
undermines whether her mother was actually "knowledgeable about the facts relevant to whether
notice was received," preventing the Court from affording it weight. Matter of M-R-A-, 24 I&N
Dec. at 674. Therefore, given the totality of the circumstances, the adverse factors outweigh the
positive factors that Respondent attended her first hearing and has an approved 1-360. Thus, the
Court finds that Respondent has not overcome the presumption of delivery.

sua sponte. See Matter of

Finally, the Court fmds no reason to reopen these proceedings
J-J-, 21 l&N Dec. 976 (BIA 1997); Matter ofG-D-, 22 I&N Dec. 1132 (BIA 1999).

Accordingly, IT IS HEREBY ORDERED that the Respondent's motion to reopen be

DENIED.

"2'f17
Dat
Immigration Judge
Dallas, Texas