,

Grifiths, Jef
JEFF GRIFFITHS LAW
870 Market Street, Suite 763
San Francisco, CA 94102
U.S. Department of Justice
Executive Offce fr Immigration Review
Board of Immigration Appeals
Ofce of the Clerk
5107 leesburg Pike, Suite 2000
Falls Church, Virginia 22041
OHS/ICE Ofice of Chief Counsel - SFR
P .0. Box 26449
San Francisco, CA 94126-6449
Name: NAVARRO JR, SEGUNDO BALAY A 087-213-062
Date of this notice: 6/
6
/
2013
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosure
Panel Members:
Adkins-Blanch, Charles K.
Hofman, Sharon
Manuel, Elise
Sincerely,
Don c t
Donna Carr
Chief Clerk
Lulseges
Userteam: Docket
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Cite as: Segundo Balay Navarro, Jr., A087 213 062 (BIA June 6, 2013)
U.S. Department of Justice
Executive Ofce fr Imigration Review
Decision of the Board of Imigration Appeals
Falls Church, Virginia 22041
File: A087 213 062 San Francisco, CA Date:
I re: SEGUNDO BALAY NAVARRO, J. a.k.a. Segundo Navarro
I RMOVAL PROCEEDINGS
APPEAL
ON BEHALF OF RESPONDENT: Jef Grifths, Esquire
APLICATION: Reopening
JUN 6 2013
The respondent, a native and citizen of Philippines, appeals fom a decision dated April 9,
2012, by the Imigration Judge in which she denied the respondent's motion to reopen removal
proceedings, which had been conducted in absentia on February 28, 2012. The respondent fled
a timely appeal fom that decision. The Department of Homeland Security (OHS) has fed no
reply to the appeal. The appeal will be sustained, proceedings will be reopened and the record
wi 11 be remanded.
Upon de novo review, in light of the totality of circumstances presented in this case,
including the respondent's apparent eligibility fr relief and lack of motive to avoid the hearing,
his fling of an afrmative application with the OHS, his attendance at previous hearings, and his
diligence in fling a motion to reopen, we will sustain the appeal and allow the respondent
another opportunity to appear fr a hearing. See Sembiring v. Gonzales, 499 F.3d 981, 982
(9
th
Cir. 2007) (alien was not required, in her motion to rescind in absentia removal order, to
provide swor afdavit to establish that she did not receive notice of change in her scheduled
hearing date); Mater of M-R-A-, 24 I&N Dec. 665 (BIA 2008).
ORDER: The appeal is sustained, the i absentia order is vacated, proceedings are reopened,
and the record is remaded to the Immigration Judge fr frther proceedings.
FOR THE BOARD
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Cite as: Segundo Balay Navarro, Jr., A087 213 062 (BIA June 6, 2013)
"
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UNITED STATES DEPARTMENT OF JUSTICE
EXECUTIVE OFFICE FOR IMMIGRTION REVIEW
IMMIGRATION COURT
GRIFFITHS, JEFF
120 MONTGOMERY ST., SUITE 800
SA FRACISCO, CA 94104
870 MARKET STREET, SUITE 763
SA FRANCISCO, CA 94102
IN THE MATTER OF FILE A# 087-213-062
NAVARO JR, SEGUDO BALAY
UNABLE TO FORWARD - NO ADRESS PROVIDED
DATE: Apr 9, 2012
TTACHED IS A COPY OF THE DECISION OF THE IMMIGRTION JUGE. THIS DECISION
IS FINAL ULESS A APPEAL IS FILED WITH THE BOAD OF IMMIGRATION APPEpLS
WITHIN 30 CALENDAR DAYS OF THE DATE OF THE MAILING OF THIS WRITTEN DECISION.
SEE THE ENCLOSED FORMS A INSTRUCTIONS FOR PROPERLY PREPARING YOUR APPEAL.
YOUR NOTICE OF APPEAL, ATTACHED DOCUMENTS, A FEE OR FEE WAIVER REQUEST
MUST BE MAILED TO: BOAD OF IMMIGRATION APPEALS
OFFICE OF THE CLERK
P.O. BOX 8530
FALLS CHURCH, VA 22041
ATTACHED IS A COPY OF THE DECISION OF THE IMMIGRATION JUGE AS THE RESULT
OF YOUR FAILURE TO APPEAR AT YOUR SCHEDULED DEPORTATION OR REMOVAL HEARING.
THIS DECISION IS FINAL ULESS A MOTION TO REOPEN IS FILED IN ACCORDACE
WITH SECTION 242B(c) (3) OF THE IMMIGRATION A NATIONAITY ACT, 8 U.S.C.
SECTION 1252B(c) (3) IN DEPORTATION PROCEEDINGS OR SECTION 240(c) (6)'
8 u.s.c. SECTION 1229a(c) (6) IN REMOVAL PROCEEDINGS. IF YOU FILE A MOTION
TO REOPEN, YOUR MOTION MUST BE FILED WITH THIS COURT:
OTHER:
IMMIGRATION COURT
120 MONTGOMERY ST., SUITE 800
SA FRACISCO, CA 94104
COURERK
IMMIGRATION COURT
CC: SAVAGE, PATRICK S.
120 Montgomery Street, Ste 200
San Francisco, CA, 94104
FF
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Mater of
UNITED STATES DEPARTMENT OF JSTICE
EXECUTIVE OFFICE FOR IMMIGRATION REVIEW
IMMIGRATION COURT
SAN FRANCISCO, CALIFORNIA
Date: A.I ', 201:.
Segundo Balay NAVARRO, Jr.,
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File Number: A 087 213 062
Respondent In Removal Proceedings
>
Charge:
Application:
Section 237(a)(l)(B) of the Immigration and Nationality Act, as amended,
as an alien who afer admission as a non-immigrat remained fr a time
longer than permitted.
Respondent's Motion to Reopen fr Adjustment of Status.
On Behalf of Respondents: On Behalf of the DHS:
Jef Grifths
Jef Grifths Law
870 Market Street, Suite 763
San Francisco, CA 94102
Patrick S. Savage
Ofce of the Chief Counsel
120 Montgomery Street, Ste. 200
San Francisco, CA 94104
DECISION OF THE IMMIGRATION JUDGE
I. Background
These proceedings were initiated on December 14, 2009. On that date, the Department of
Homeland Securit (DHS) fled a Notice to Appear ("NT A"), dated December 9, 2009, with this
Court. This NT A had been generated as a result of a denial of his adjustment of status application
by the San Francisco ofce of Citizenship and Immigration Services (USCIS) on September 25,
2009. In the NTA, DHS aJleged that the respondent is a native and citizen of the PhiJippines and
was admitted a a non-immigrant visitor on July 28, 2006 with authorization to remain until
Januar 27, 2007. Baed on these allegations, the INS alleged the respondent was removable
pursuant to section 237(a)(l )(B) of the Immigation and Nationality Act ("INA" or "Act"), as
amended, as an alien who afer admission as a non-immigrant remained fr a time longer than
permitted.
Respondent appeared in court on May 25, 2010 and through present counsel conceded
proper service of the NTA, and admitted the fctual allegations contained therein, and conceded
A 087 213 062
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that he wa removable as charged. He presented the court with the copy of a pending visa petition,
frm I-130 and supporting documents tat was fled with USCIS on April 2, 2010. The matter was
adjoued to allow fr the adjudication of that petition fled by his United States citizen wif.
Counsel informed the court that the pending visa petition was being fled by the same wif whose
frst visa petition was denied by USCIS when they denied RespondenCs adjustment of status.
On November 1 9, 2010, attorey Monica Gajoo's motion fr Substitution of Attorey was
granted, along with Respondenfs motion to continue. Respondent next appeared in court Februar
1 5, 201
I
and his motion to continue was ganted to allow fr adjudication of the visa petition by
USCIS. The case was continued until Augst 30, 20 I I, then twice reset by the court to November
22, 2011 and again to Februar 28, 2012.
On October 18, 20 I 1 the attorey Monica Ganjoo fle a motion to withdraw as
Respondenfs attorey. Ms. Ganjoo therein advised the court ofRespondenfs address on
Shepherd A venue in Hayward, Califria. Ms. Ganjoo stated in her declaration that Respondent
filed to cooperate with counsel, and as evidence thereof, that on September 27, 2009 Respondent
caused his bank to stop payment on a check that he wrote a day earlier in payment fr her services.
A copy of the stop payment order was provided with her motion to withdraw. The court ganted
counsel's motion to withdraw on October 2
I
, 201
I
On October 24, 201 1 the court mailed to Respondent a notifcation that Ms. Ganjoo had
been ganted permission to withdraw and a notifcation of the rescheduled hearing to Februar 28,
2012. See Exhibit 2. That notifcation was mailed to his current address and was not retured to the
court as undelivered. The respondent filed to appear on that date. Accordingly, upon a motion by
DHS, this Court proceeded in absentia pursuant to its authority under INA 240(b)(5)(A) by
sustaining the fctual allegations and the charge contained in the NTA. The respondent was
ordered removed to the Philippines.
On March 28, 20
I
2, with present counsel, the Respondent fled a motion to reopen these
proceedings. In an unswor letter to the court, dated March 19, 2012, the respondent avered that
his filure to appear was due to lack of notice regarding the Februar 201 2 hearing. His letter says
that he never received a hearing notice fom Ms. Ganjoo. He said that his wif called Ms.
Ganjoo's ofce on Februar 2, 2012 but that her call was not retured.
On April 5, 201 2, the DHS fled its response to the Respondent's motion to reopen. In its
opposition to the motion to reopen, the DHS argued that the hearing notice was properly mailed by
the court to the Respondent at the address he has been residing at since befre Ms. Ganjoo was
granted perission to withdraw fom representation.
II. Discussion
In removal proceedings under INA 240, written notice of the hearing shall be given in
person to the alien or, if personal service is impractical, through serice by mail to the alien or the
alien's counsel of record, if any. INA 239(a)( l ). If an alien demonstrates that he did not receive
A 087 213 062 2
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notice, a motion to reopen 'the in absentia removal order may be granted at any time. INA
240(b)(5)(C)(ii); 8 C.F.R. 1 003.23(b)(4)(ii).
Although the respondent has alleged that his prior atorey did not advise him of his
hearing date, he does not allege that he was he was not notifed of his hearing by the court or any
problem with his address or mail delivery. In this case, the court, not prior counsel, mailed a
hearing notice to the Respondent's actual address. Under Arrieta v. INS, 1 17 F.3d 429, (9th Cir.
1997) and its progeny in the Ninth Circuit, an alien may rebut proper serice of a mailing if he can
establish that his "mailing address has remained unchanged, that neither [he] nor a responsible
party working or residing at that address refsed service, and that there was non-deliver or
improper delivery by the Postal Service ... "
In an unswor letter Respondent states only that his prior attorey did not notif him of the
hearing, and that she did not ret his wife's phone call. It is well settled in the Ninth Circuit that
in the context of a motion to reopen this Court must accept as true te fcts stated in an alien's
declaration unless it fnds those fcts to be inherently unbelievable. See Ghahremani v. Gonales,
498 F.3d 993, 999 (9th Cir. 2007) (citing Marouj v. IS, 772 F.2d 597, 600 (9th Cir. 1 985)). Here,
since it wa the court that notifed him of the hearing date, Respondent's letter does not provide
sufcient infration to make a fnding of non-delivery or improper deliver by the Postal Service.
The Court's record of proceeding indicates that notice was properly mailed to Respondent's corect
address, and the hearing notice was not retured to the court. As such, this Court fnds that on the
present record the respondent was properly notifed of his hearing and is not entitled to have his
case reopened.
In light of the fregoing, the fllowing order shall enter:
ORDER
IT IS HEREBY ORDERED that the respondent's motion to reopen be and hereby is
DENIED.
A 087 213 062 3
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