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Wilson Orlando Escobar, A095 082 121 (BIA Aug. 14, 2013)

Wilson Orlando Escobar, A095 082 121 (BIA Aug. 14, 2013)

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In this unpublished decision, the Board of Immigration Appeals (BIA) remanded the case for further consideration of the respondent's motion to reopen an order of removal issued in absentia, in light of evidence submitted on appeal indicating that the respondent's mother intentionally hid the Notice To Appear and hearing notices from the respondent and forged his signature on an EOIR-28 form after retaining an attorney to represent him. The decision was written by Member Roger Pauley.
In this unpublished decision, the Board of Immigration Appeals (BIA) remanded the case for further consideration of the respondent's motion to reopen an order of removal issued in absentia, in light of evidence submitted on appeal indicating that the respondent's mother intentionally hid the Notice To Appear and hearing notices from the respondent and forged his signature on an EOIR-28 form after retaining an attorney to represent him. The decision was written by Member Roger Pauley.

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Published by: Immigrant & Refugee Appellate Center, LLC on Aug 22, 2013
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Estela, Cesar Marin, Esq.

Law Ofces of Cesar Marin Estela
24 Commerce Street, Suite 530
Newark, NJ 07102
U.S. Department of Justice
Executive Ofce fr Immigration Review
Board of Immigration Appeals
Ofce of the Clerk
5107 Leeburg Pike, Suite 2000
Fall Church, Vrginia 22041
OHS/ICE Ofice of Chief Counsel • NYC
26 Federal Plaza, 11th Floor
New York, NY 10278
Name: ESCOBAR, WILSON ORLANDO A 095-082-121
Date of this notice:
8/14/2013
Enclosed is a copy of the Board's decision and order in the above-refrenced case.
Enclosure
Panel Members:
Pauley, Roger
Sincerely,
Do c aA
Donna Carr
Chief Clerk
lucasd
Usertea m: Docket
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Cite as: Wilson Orlando Escobar, A095 082 121 (BIA Aug. 14, 2013)
\
.
,
'U.S. Deparent of Justice
·Executive Ofce fr Imigation Review
Decision of the Boad of Imigation Appeals
Falls Church, Virginia 22041
File: A095 082 121 - New York, NY
Date:
AUG I 4 2013
In re: WILSON ORLADO ESCOBAR a.k.a. Wilson Orlando Escoba Dubon
IN RMOVAL PROCEEDIGS
APPEAL AND MOTION
ON BEHALF OF RESPONDENT: Cesar Martin Estela, Esquire
CHARGE:
Notice: Sec. 212(a)(6)(A)(i), l&
N Act
[8 U.S.C. § 1182(a)(6)(A)(i))
-
Present without being admitted or paoled
APPLICATION: Reopening; remand
In a decision dated Mach 19, 2012, an Immigation Judge denied the respondent's motion to
reopen removal proceedings which had been conducted in absentia on October 26, 2006. The
respondent appealed fom tis decision, and subsequently fled a motion to remand. The
Deparent of Homeland Security ("OHS") has not responded to the motion to remand, ad we
deem it unopposed. 8 C.F.R.
§
1003.2(g)(3). The motion will be ganted and the record
remanded to the Immigation Judge fr frther proceedings.
In his motion to reopen, the respondent maintained that the proceedings should be reopened
because he never received the Notice to Appea (''NT A") that was issued in January 2006, and
was unaware of his scheduled hearing (Motion to Reopen at 1-4). He explained that he provided
his paents' address to United States Citizenship and Immigration Services ("USCIS") when he
applied fr temporary protected status ("TPS") in February 2002, and noted that he was no
longer living with his parents when the NT A was mailed to that address approximately 4 years
later (Motion to Reopen at 3-4).
In his decision, the Imigation Judge explained that the serice of the NT A by mail to the
respondent's last known address created a presumption that the document was received by him,
and noted that there was no evidence that the NT A or hearing notices were reted as
undeliverable (l.J. at 1-3). In addition, he explained that an attorey entered his appearace on
the respondent's behalf shortly afer the in absentia order of remova was entered ad requested
to review the record of proceedings (l.J. at 2-3). The Immigation Judge noted that the
respondent's sigature on the Notice of Enty of Appearance (Form EOIR-28) indicates that he
received the order of removal, ad suggests that he also received the NT A that was mailed to the
same address (l.J. at 3). Based on this evidence, he fund that the respondent's claim that he frst
leaed of the removal order when he was detained in February 2012 lacked credibility (l.J. at 3).
Consequently, the Immigation Judge concluded that the respondent failed to rebut the
presumption that he received the NTA, and denied his motion to reopen (l.J. at 4-5).
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Cite as: Wilson Orlando Escobar, A095 082 121 (BIA Aug. 14, 2013)
:A095 082 121
The respondent appealed fom this decision, and maintained that the Immigration Judge ered
in fnding that he received proper notice of his hearing (Notice of Appeal; Respondent's Brief at
7-8).
During the pendency of the appeal, the respondent fled a motion to remand to submit new
evidence in support of his claim that he never received the NT A or hearing notices
(RespondenCs Brief at 8-9). In paricular, he submitted a afdavit fom his mother indicating
that she intentionally hid the NTA and hearing notices fom him and did not disclose this to h
until afer the Immigation Judge's decision denying his motion to reopen (Respondent's Brief,
Exh. B). In addition, she explained that she retained te serices of a attorey to assist her son
in 2006, and frged his sigate on the For EOIR-28 (Respondent's Brief, Exh. B). We agree
with the respondent that the newly-submitted evidence is material in deterining whether his
motion to reopen should be granted, ad conclude that it is appropriate to remand the case to the
Immigation Judge fr consideration of this additional evidence.
Accordingly, the fllowing orders will be entered.
ORDER: The respondent's motion to remand is granted.
FURTER ORDER: The record is remanded to the Immigation Judge fr fher
proceedings consistent with this opinion and fr the entry of a new decision.
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Cite as: Wilson Orlando Escobar, A095 082 121 (BIA Aug. 14, 2013)
U.S. DEPARTMENT OF JUSTICE
EXCUTIVE OFFICE FOR IMMIGRATION REVIEW
UNITED STATES IMMIGRATION COURT
26 Federal Plaza, Room 1237, New York, New York 10278
In the Matter of
ESCOBAR, Wilson Orlando
Respondent
In behalf of Repondent:
Cesar Martin Estela, Esq.
24 Commerce Street, Suite 530
Newark, NJ 07102
ORDER DENYING MOTION TO REOPEN
File No. A 095-082-121
In behalf of Dept. of Homeland Security:
Offce of Chief Counsel, I.CE. -D •. H.S.
26 Federal Plaza, 11th Floor
New York, N.Y. 10278
ORDER: For the reasons stated in the Decision below, it is hereby
ORDERD that respondent's motion to reopen the removal proceeding, and
rescind the order or removal issued on Januar 18, 2006, is hereby DENIED.
It is further
ORDERED that the request for a stay of removal is hereby DENIED •
Dated: S-/C-11 ./4v �vi<;.£:
Alan Vomacka, Immigration Judge
DECISION ON MOTION TO ROPEN
Hitor of the proceeding.
Respondent is currently detained by D.H.S. and fled a motion to reopen on March 7, 2012.
The removal proceeding commenced with the issuance of a Notice to Appear [Exh. 1]
issued Januar 18, 2006 and sent by regular mail to respondent's last known address at 213
Howard Street, 11' Floor, New Brunswick, N.J. 08901. The NTA was fled with this court
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on Februar 1, 2006. The court then issued a notice of hearing to the same address,
notifing respondent to appear at a hearing on March 3, 2006. Respondent did not
appear. Instead of proceeding in his absence , the judge had notice sent fr a hearing on
June. Respondent did not appear or answer and the judge had a third notice sent fr
October 26, 2006. Respondent failed to appear at the third hearing, and Judge Holmes­
Simmons conducted the hearing in respondent's absence. The court found respondent
removable based on an 1-213 Record of Deportable Alien frm submitted by DHS. On the
same date, the court mailed an order of removal to the same address, advising respondent
that he could submit a motion to reopen.
All of the notices and the order of removal were mailed to the Howard Street address.
None appear to have been returned by the post offce as undeliverable.1
On November 27, 2006, a legal aid organiation in Newark fled a letter with the court
requesting the opportunity to review the court record fle, with a notice of appearance
[form E-28) on behalf of respondent which is marked "File Review Only." That indicates
the attorey was not undertaking to represent respondent in other matters. However, the
E-28 is signed in repondent's name on page to to authorize disclosure of his fle to the
attorney. The record fle indicates the fle was reviewed by Januar 3, 2007. I the letter
requesting fle review, the attorney states that Mr Escobar "received an in absentia
removal order on October 26, 2006."
More than fve years after an attorney acting on his behalf indicated that respondent bad
been ordered removed at a hearing held in bis absence, respondent fled his motion to
reopen. It appears the motion was fled only after respondent was detained by DHS.
Dicusion.
Considering the motion and the record of proceedings as a whole, the court concludes that
the motion should be denied for at least two reasons.
Proper service of charging document First, the court fnds that respondent has not met bis
burden of proof on the issue of serice of the Notice to Appear. Serice of the NTA by mail
to the last known address creates a presumption that the document was received by
respondent, but the presumption is relatively weak. On this issue the court relies on Mater
of M-R-A-, 24 l&N Dec. 665 (BIA 2008). DHS sets out the legal framework concering this
issue in its notice of opposition.
As the Board stated:
1 If any of the documents had been reted to the cour, ofce procedure would be to
fle them in the record of proceedings fle. They are not i that fle.
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In determining whether a respondent has rebutted the weaker presumption
of deliver applicable in these circumstances, an Immigration Judge may
consider a variety of factors including, but not limited to, the fllowing: (1)
the respondent's afdavit; (2) afdavits fom 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 afrmative application fr relief, indicating that the
respondent had an incentive to appear; (5) any prior application fr relief
fled with the Immigration Court or any prima facie evidence in the record
or the respondent's motion of statutor eligibilit fr relief, indicating that
the respondent bad an incentive to appear; (6) the respondent's previous
attendance at Immigration Court bearings, if applicable; and (7) any other
circumstances or evidence indicating possible nonreceipt of notice. We
emphasie that these are just examples of the types of evidence that can
support a motion to reopen. Immigration Judges are neither required to
deny reopening i exactly such evidence is not provided nor obliged to grant a
motion, even if ever type of evidence is submitted. Each case must be
evaluated based on its own particular circumstances and evidence.
24 I&N Dec. at 674.
In this case, the chronolog of key events strongly indicates that respondent was properly
sered and did receive the NT A when it was sered by regular mail. The N A, three
hearing notices and the removal order were all mailed to the Howard Street address.
There is no evidence that any of them were returned to the senders. The relatively short
time lag between issuance of the removal order and the letter requesting record review
strongly indicates that respondent received the removal order, which tends to show that he
had received the NT A. Respondent's failure to refer in his motion to the 2006 request for
review of his record, which shows awareness of the in absentia order, is an unexplained gap
in his argument that be was unaware of the removal proceeding and was not properly
sered with the NT A. Instead respondent claims directly that he teamed of the removal
order when he was detained by DHS in late Februar of this year. Respondent's Afdavit
paragraph 26. This claim is not credible in the face of the attorey's November 2006 letter.
Address isue. Otherise, respondent's motion and supporting statement presents an
account of where be lived at various times after entering the U.S. This list of addresses
shows that the Howard Street address is one where respondent lived shortly befre the
NTA was issued, and that he identifes it as his parents' address. Respondent does not
claim that he lost contact with his parents when he moved from that address to live with a
girlfriend.
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The court concludes that respondent's motion fails to meet the standard established by
M-R-A-, supra. It appear ver likely that DHS used the Howard Street address precisely
because it had been provided by respondent in an application fr immigration benefts.
The 1-213 report refects that DHS denied to such applications in July 2005, and in the
normal course of operations the notices of denial would have been mailed to respondent at
the Howard Street address. Respondent's decision to move fom that address a few months
later should have prompted him to notif DHS of his new address, assuming he was not
still receiving mail at his parents' address.
Venue isue. The court also notes that respondent's motion refers to the fact that the N A
refects a New Jersey address but DHS fled the N A with the immigration court in New
York Cit. The court is unaware of why this was done. It is ver likely that the judge in
New York would have changed venue to the court ofce in Newark if any request to do so
had been received. However, the practical effect of this issue is almost zero. If respondent
is claiming that he never knew of the pending removal case until he was recently detained
by DHS, then the location of the hearing is not actually a reason why he failed to appear at
the bearing in New York. If respondent had known of the upcoming bearings, but failed to
attend them because they were scheduled in the "wrong state," be would need to explain
why it was too onerous to send the court a letter requesting a change of venue, or why it
would have been too onerous fr him to travel to New York City to attend a bearing. From
New Brunswick to Newark respondent could travel easily by train. He could have
continued to New York on the same train fr a minimal extra fare, in one half hour or less.
Immigration courts have jurisdiction over removal proceedings without regard to the
respondent's address or location. Some immigration courts regularly hold hearings for
persons who live to states away fom the court location. Venue is a separate issue; the
original venue of a removal proceeding is the immigration court offce where DHS fles the
NA. The court has discretion to change venue on request fom either party, after
considering all relevant factors, but the immigration judge is not actually authorized to
change venue sua sponte. Some respondents prefer to have their hearings in a court
further from their home address, such as when they have a witness or attorey in the other
location.
Dicretionar Rulng on Motion.
The court fnds that respondent has failed to establish that his motion should be granted as
a matter of discretion.
Motions to reopen are disfavored, and may be denied as a matter of discretion even if not
untimely and even if fled as a joint motion. I.NS. v. Ris-Pineda, 471 U.S. 444 (1985);
Esposito v. INS, 987 F.2d 108, 110 (2d Cir. 1993); Vassi v. INS, 963 F.2d 547, 551 (2d Cir.
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1992). See, eg., Manzano-Garcia v. Gonzales, 413 F.3d 462, 469-471 (5t Cir. 2005) [motion
to reopen for adjustment of status was properly denied where alien failed to fle 1-140
petition fr several months despite ability to do so); Wiliam v. IS, 773 F.2d 8 (1st Cir.
1985) [motion to reopen denied where alien "overstayed by many years," ignored grants of
voluntar departure, etc.). See alo Mater of Barocio, 19 I&N Dec. 255 (BIA 1985); Hibber
v. INS, 554 F.2d 17 (2nd Cir. 1977).
The histor of the proceeding strongly suggests that respondent was aware of the existence
of the removal order within a month after it was issued. He failed to fle any motion to
reopen for more than fve years. His only explanation for failing to do so earlier is his
claim that he was not aware of the removal order. This claim is not credible fr the reasons
stated.
The latter point is signifcant to the court. In M-R-A- the Board ordered reopening in part
because:
The relevant and undisputed evidence in this case, including the
circumstantial evidence submitted by the respondent in support of his motion
to reopen, indicates that be did not receive notice of the change in his hearing
date. In this regard, we consider a signifcant factor to be the respondent's
due diligence in promptly seeking to redress the situation by obtaining
counsel and requesting reopening of the proceedings.
24 l&N Dec. at 676. There is no evidence in the present case of similar diligence.
In the present case, respondent was 20 years old when placed in proceedings and 21 by the
time the hearing in absentia occurred. The fact that respondent was aware of the in
absentia removal order within a month after it was issued is strong circumstantial evidence
that he had received one or more of the previous bearing notices. Reopening of the
proceeding is not justifed fr an adult who ignores a hearing notice, fails to fle a timely
motion to reopen after learning of the removal order, and then fails to take any other
action to legalize his status until he is detained by DHS.
Dated:
'··-IC.1 z .
-5-

v � �__
,
Alan Vomacka, Immigration Judge
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