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Felix Rodriguez-Rojas, A200 673 246 (BIA Jul. 12, 2012)

Felix Rodriguez-Rojas, A200 673 246 (BIA Jul. 12, 2012)

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In this unpublished decision, the Board of Immigration Appeals (BIA) reopened sua sponte the proceedings at which the respondent was removed in absentia. Citing Matter of Bulnes, 25 l&N Dec. 57 (BIA 2009), the Board stated that respondent’s removal from the United States did not divest the immigration judge of jurisdiction to consider the motion to reopen because the respondent did not receive actual notice of the hearing. The decision was written by Member Charles Adkins-Blanch and joined by Member John Guendelsberger and Member Sharon Hoffman.
In this unpublished decision, the Board of Immigration Appeals (BIA) reopened sua sponte the proceedings at which the respondent was removed in absentia. Citing Matter of Bulnes, 25 l&N Dec. 57 (BIA 2009), the Board stated that respondent’s removal from the United States did not divest the immigration judge of jurisdiction to consider the motion to reopen because the respondent did not receive actual notice of the hearing. The decision was written by Member Charles Adkins-Blanch and joined by Member John Guendelsberger and Member Sharon Hoffman.

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Published by: Immigrant & Refugee Appellate Center on Mar 04, 2014
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03/10/2014

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Vega
Jose
W ••
Esquire 440 Louisiana Street Suite 500 Houston TX 77002-0000 Name: RODRIGUEZ-ROJAS FELIX
U S
Department of Justice
Executive Office for Immigration Review
Board
of
mmigration Appeals Office
of
he Clerk
5107 Leesburg Pike Suite 2000 Falls Church. Virginia
2204
OHS/ICE
Office
of
Chief
Counsel • OAK P.O.
Box
1128 Oakdale
L
71463-1128 A200-673-246 Date
of
this
notice: 7/12/2012
Enclosed is a copy
of
the Board s decision and order in the above-referenced case. Enclosure Panel Members: Adkins-Blanch, Charles K. Guendelsberger, John Hoffman, Sharon Sincerely, Donna Carr
hief
Clerk
Cite as: Felix Rodriguez-Rojas, A200 673 246 (BIA Jul. 12, 2012)
For more unpublished BIA decisions, visit www.irac.net/unpublished
 
 
· U.s.:Department of Justice
Executive Office
for
Immigration Review Falls
Church
Virginia
22041
File: A200 673 246 -Oakdale,
LA
In re: FELIX RODRIGUEZ-ROJAS IN REMOVAL PROCEEDINGS
'
APPEAL
Decision
of
the Board of Immigration Appeals
Date:
JUL
12
Z \2
ON
BEHALF OF RESPONDENT: Jose W. Vega, Esquire ON BEHALF OF DHS: APPLICATION: Reopening Lorraine
L.
Griffin Assistant
hief
Counsel The respondent, a native and citizen
of
Mexico, was ordered removed in absentia on January 6, 2011. The respondent is appealing the decision
of
the Immigration Judge dated May 19, 2011, granting the motion by the Department
of
Homeland Security ( OHS ) to vacate the Immigration Judge's order reopening proceedings. The appeal will be sustained, proceedings will
be
reopened, and the record will be remanded. The Board reviews Immigration Judges' findings
of
fact for clear error, but questions
of
law, discretion, and judgment, and all other issues in appeals, de novo. 8 C.F.R. 1003.l(d)(3)(i), (ii). The respondent filed a motion to reopen to rescind the in absentia order, based on lack
of
notice,
on
February 18, 2011, which the Immigration Judge denied
on
March 16, 2011. The respondent filed a second motion to reopen to rescind the in absentia order, again based on lack
of
notice, on March 28, 2011. The Immigration Judge granted this motion, finding that the respondent's lack
of
actual notice
of
he hearing date did not result from failure to comply with his obligation to keep the immigration court informed
of
his current address. The DHS filed a motion to vacate the reopening
on
the basis that the respondent was removed from the United States on March 24, 2011, and the Immigration Judge therefore lacked jurisdiction to reopen proceedings. The Immigration Judge granted the motion to vacate on May 19, 2011, citing to
Matter
o
Armendarez
24 I&NDec. 646 (BIA 2008) and
Toora
v.
Holder
603 F.3d282 (5th Cir. 2010), forthe premise that the regulation at 8 C.F.R.
§
1003.23(b)(l) divested him
of
urisdiction to reopen proceedings upon motion
of
a respondent who had departed from the United States. The respondent appeals the May 19, 2011 decision. Considering the totality
of
circumstances presented
in
this case, proceedings are reopened under the provisions
of
8 C.F.R.
§
1003.2(a).
See generally Matter
o
Bulnes
25
l&N Dec. 57, 59-60 (BIA 2009) (finding that an alien's departure from the United States while under an outstanding order
of
deportation
or
removal issued in absentia does not deprive the Immigration Judge
of
urisdiction to entertain a motion to reopen to rescind the order
if
the motion is premised
Cite as: Felix Rodriguez-Rojas, A200 673 246 (BIA Jul. 12, 2012)
 
.
A2 Q
673
46
on
lack
o
notice);
see also
Matter
o
Armendarez
24 I N Dec. 646, 654 n.6 (BIA 2008) (reserving decision on this issue). Accordingly, the following order will be entered. ORDER: The appeal is sustained, proceedings are reopened, and the record is remanded to the Immigration Judge for further proceedings.
2
Cite as: Felix Rodriguez-Rojas, A200 673 246 (BIA Jul. 12, 2012)

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